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Bai Hiralaxmi and ors. Vs. Municipal Corporation of the City of Ahmedabad and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 261, 328, 877 to 881 and 1093 of 1962 and 117 of 1963
Judge
Reported inAIR1967Guj198
ActsBombay Provincial Municipal Corporations Act, 1949 - Sections 99, 127 and 129; Constitution of India - Articles 14, 19(1), 19(5), 31(1), 226 and 245; Bombay Finance Act, 1932 - Sections 22-A; Code of Civil Procedure (CPC), 1908 - Order 6, Rule 2 - Order 19, Rule 1
AppellantBai Hiralaxmi and ors.
RespondentMunicipal Corporation of the City of Ahmedabad and anr.
Appellant Advocate N.J. Mody,; S.P. Shah,; I.G. Passawala,;
Respondent Advocate J.M. Thakore, Adv. General,; K.L. Talsania, Addl. Govt. Pleader,;
Cases ReferredSrinivas Ram Kumar v. Mahabir Prasad
Excerpt:
constitution - conservancy tax - sections 99, 127 and 129 of bombay provincial municipal corporation act, 1949, articles 14, 19, 31, 226 and 245 of constitution of india, section 22-a of bombay finance act, 1932 and order 6 rule 2 and order 19 rule 1 of code of civil procedure, 1908 - petition against tax levied on lands and buildings by municipal corporation - notice regarding levy of conservancy tax published in two leading local dailies - by such publication of notice all premises become liable to conservancy tax - commissioner cannot inspect each premise before levying conservancy tax to formulate opinion whether such premise fell within purview of proviso or not - court cannot interfere unless affected party bring facts to notice of authority concerned to enable him to form his.....vakil, j.(1) these nine petitions belonging to a large group of 70 petitions each by a textile mill or factory, in which the general tax was levied on lands and buildings and demanded from these several petitioners by the municipal corporation of ahmedabad, has been challenged on various grounds. at the request of parties, as they involved common questions of law, all these petitions were kept together to be heard at the same time, and, if possible, to be disposed of by one judgment. however, at a later stage, after all the parties were heard on the preliminary objection raised by the corporation, we were informed that these nine petitions raised a number of questions for determination over and above the contentions that were raised in the rest of the petitions. it was submitted by mr......
Judgment:

Vakil, J.

(1) These nine petitions belonging to a large group of 70 petitions each by a textile mill or factory, in which the General Tax was levied on lands and buildings and demanded from these several petitioners by the Municipal Corporation of Ahmedabad, has been challenged on various grounds. At the request of parties, as they involved common questions of law, all these petitions were kept together to be heard at the same time, and, if possible, to be disposed of by one judgment. However, at a later stage, after all the parties were heard on the preliminary objection raised by the Corporation, we were informed that these nine petitions raised a number of questions for determination over and above the contentions that were raised in the rest of the petitions. It was submitted by Mr. Mody and Mr. Desai, the learned advocates appearing for these petitioners and the learned Advocate General appearing both for the Corporation and the State concurred that it will be expedient to deal with and decide these nine petitions by a separate judgment. Similarly a group of nine other petitions being Special Civil Applications Nos. 1087/1963, 49/1964, 243/1964, 561/1964, 1006/1964, 1011/1964, 1012/1964, 1013/1964 and 422/1965 had also to be separated for the same reasons and have been disposed of by a separate judgment. All the same it was agreed that on all the points which were common to all these 70 petitions including the two smaller groups, all the parties may be heard and accordingly Mr. K.M. Desai and Mr. N.J. Mody, the learned advocates representing the respective petitioners in the two smaller groups, were allowed to make their submissions in support of those common contentions when the petitions in the bigger group were heard with the result that those common contentions which we shall indicate at the appropriate stage, have been dealt with and decided by us in the judgment that we have delivered in the larger group of petitions and our findings on the said common petitions, shall be the same. It may also be mentioned that one other contention which we shall indicate hereafter raised in the present petitions was also raised in the aforesaid smaller group of nine petitions wherein Mr. K.M. Desai only represented the petitioners. But, Mr. Mody representing seven of the present petitioners also made his full submissions on the said point and it is dealt with and disposed of by our separate judgment given in respect of the said group of nine petitions. The main group of petitions was taken up for further hearing first and immediately thereafter these two smaller group of petitions were heard.

(2) In the present group of nine petitions, Mr. Desai, represented petitioners in Special Civil Applications Nos. 261 of 1962 and 117 of 1968. In the rest of the petitions Mr. Mody appeared for the petitioners. In all the petitions, the Ahmedabad Municipal Corporation is joined as respondent No. 1 and the State of Gujarat as respondent No. 2.

(3) Before we set out the contentions raised by petitioners, it will be convenient to briefly refer to relevant facts. Mr. Mody informed us that the Special Civil Application No. 1093 of 1962 is the most representative petition in his group of petitions and the facts having a bearing on the contentions raised are similar except Special Civil Application No. 328 of 1962 wherein one specific contention which we shall indicate hereafter is peculiar to that petition, arises. Mr. Desai agreed that except for one contention which we shall point out later, the said Special Civil Application covers up the rest of the points raised in his two petitions.

(4) Petitioners are owners of immovable properties within the limits of the Ahmedabad Municipal Corporation (hereinafter referred to as the Corporation). Till 31st March, 1961, two kinds of property taxes were being levied on lands and buildings within the municipal limits of the city of Ahmedabad. One was the General Tax levied and collected by the Corporation under the Bombay provincial Municipal Corporations Act, 1949 (hereinafter referred to as 'the Act') and the other was the Urban Immovable Property Tax (hereinafter referred to as 'U.I.P. Tax') levied under the provisions of the Bombay Finance Act, 1932 (hereinafter referred to as 'the Finance Act'). Though this U.I.P. tax was levied under the Finance Act by the State Government under the provisions of the Finance Act, it was collected by the Corporation as its agent. In 1960, the Corporation was in need of more funds to carry out the purposes of the Corporations Act, and having learnt that the Maharashtra Government, at the request of the Bombay City Corporation, decided to forgo the entire proceeds of U.I.P. Tax in order to help the Bombay Municipal Corporation to have an additional income, requested by letter dated 15h September, 1960, the Government of Gujarat to make a similar gesture in favour of the Ahmedabad Municipal Corporation. The State Government by its letter dated 5th January, 1961, replied that the Government after carefully considering the request of the Corporation had decided to discontinue the U.I.P. Tax with effect from the date on which the Corporation levy the increased rates of General Property Tax equivalent to the U.I.P. Tax, provided that the Corporation was prepared to accept the following conditions:-

(i) The Urban Immovable Property Tax may be given up from the 1st April 1961, or by any annual suitable stage according as the Corporation levy additional property tax in one instalment or more annual instalments, and

(ii) The Corporation should not make any reduction in other taxation, now in force.

The Corporation was directed to intimate to the Government the course of action proposed to be taken by it. This correspondence is disclosed by the State Government in the affidavit filed on its behalf. The said letters are Exhibits A and B respectively. The Corporation then in its General meeting amongst other resolutions passed the resolution to comply with the offer made by the State Government as regards U.I.P. Tax. The relevant part of the said resolution as follows:-

'Item No. 5.Municipal Corporation ResolutionNo. 1192/1960-61 1192/1960-61 Resolved that __________ 'Having considered the terms contained in the letter No. U.IP. 1060/C/459/I/K dated 5-1-61 of the Government in respect of the U.I.P. Tax and in accordance with the resolution No. 1473 dated 10-1-61 of the Standing Committee, sanction is accorded for the requisite enhancement in the rates of General Tax by withdrawing completely the U.I.P. Tax from 1-4-61; and accordingly sanction is accorded for making changes in the rates of General Tax from the date 1-4-1961, as proposed in the Budget Resolution No. 1489 dated 13-1-61 of the Standing Committee. It is therefore, accordingly resolved that in pursuance of section 99 of the Act, this Corporation hereby decides that Municipal Taxes prescribed in sub section (1) of section 127 and the taxes prescribed in sub-section (2) of the said section shall be levied as under from 1961-62 at the rate and upto the extent they are realisable.

A. XXX XXX

B. XXX XXX

C. XXX XXX

D. XXX XXX

E. In the case of buildings and lands liable (to tax) under section 132 of the Act, General Tax shall be levied as under:-

I. For properties Rateable value Rate ofexcept those mentioned Group General Taxin 2(a),2(b) and 2(c) belowRs. 200 and below. 14%Above Rs. 200/- but upto Rs.500/- 15-1/2%Above Rs. 500/- but upto Rs.1000/- 16%Above Rs. 1000/- but upto Rs.3000/- 21%Above Rs. 3000/- 22%xx xx xx xx xx This Corporation thus resolved to sanction the Budget `A' prepared by the Standing Committee on the basis of the estimate and proposal made by the Municipal Commissioner. xx xx xx xx xx

Petitioners dispute the fact that this resolution was passed on the 20th of February 1961 as is claimed by the respondents. According to them, it was passed on the 21st February 1961. On this dispute a contention is based which we shall refer to hereinafter.

(5) Pursuant to the aforesaid decision taken by the Government and the resolution passed by the Corporation, the Government discontinued the U.I.P. Tax from 1st of April 1961, and the Corporation raised the rate of the General Tax as per the above mentioned resolution. Thereafter the petitioners were served with bills which included the General Tax at the higher rate and demanded payment thereof. Petitioners have challenged the right of the Corporation to raise the rate of the General Tax under the aforementioned facts and the right to recover the same by issuing the Bills and the demand notices (in some cases demand notices have also been issued). Generally speaking their grounds are that:

(6) The Bills, and demand notices served on them are illegal, unauthorised and unenforceable as the Corporation has no authority to increase the rates of the General Tax in lieu of the U.I.P. Tax which was being levied and collected under altogether a different statute and in effect to amalgamate the said two taxes. The Government had no power or authority to discontinue U.IP. Tax and impose conditions on the Corporation and to direct them to raise the rates of General Tax. That the Bills were illegal, ultra vires and unenforceable as the various rules prescribed for `assessment' were not followed and the Assessment List was not authenticated as required by law. The keeping of the Assessment List as required by rule 10 was necessary and the authentication of the Assessment list was a condition precedent to the creation of the liability of the tax payer. It may be mentioned here that petitioners have wrongly used the expression assessment list, as the Corporation Act refers to Assessment Book and not an assessment list. Petitioners have also alleged that the discontinuation of the U.IP. Tax and the raising of the rates of the General Tax has resulted in causing prejudice and injustice to petitioners, as property owners, who are primarily liable to pay the taxes. They have also challenged sections 99, 123 and 129(c) of the Corporation Act as unconstitutional, arbitrary and suffering from the vice of excessive delegation, inasmuch as no ceiling was prescribed in fixing the rate of the taxes imposed by the Corporation. They have alleged that the levy of the General Tax is violative of article 14 of the Constitution inasmuch as the Corporation has treated properties of the same nature with an unequal hand applying the graduated scale of rates on the annual letting value in imposing the General Tax. The said Tax is further challenged on the ground of it being confiscatory in nature and offending against article 19(1)(f) read with article 31 of the Constitution. They allege that the tax is levied and tried to be recovered otherwise than by authority of law. Petitioners have inter alia prayed that the Bills issued be quashed and a direction to the Corporation not to recover the amount of the Tax be given.

(7) The stand of the respondents broadly stated, is as follows:-

(8) The procedure followed by the State Government in discontinuing the U.IP. Tax and the Corporation in enhancing the General Tax did not amount to amalgamation of the two taxes, as alleged. The Corporation was entitled under section 99 of the Act to fix the rate of General Tax, in the beginning of every official year and by the impugned resolution the Corporation had merely exercised that right. It is denied that the determination of the higher rates of tax as done by the Corporation in effect nullified the provisions of the Finance Act. It is denied that the necessary rules for assessment were not followed or that proper assessment book was not kept. It is denied that authentication of the assessment book is a condition precedent to the arising of the liability to pay the Tax. It is denied that the Bills were unauthorised, illegal and unenforceable because the assessment book had not been authenticated at the time the Bills were served. According to the respondents authentication is not a condition precedent to the validity of the General Tax or the service of the Bill. They denied that any prejudice or injustice was caused to the petitioners as alleged. They further denied that any of the provisions of the Corporations Act or the action of the Corporation in levying the General Tax were ultra vires any of the articles of the Constitution.

(9) In Special Civil Application No. 328 of 1962, the further ground urged by petitioner thereof is that his lands and buildings were not liable to conservancy tax because they were not receiving any service from the Corporation. The Corporation has not engaged any municipal agency nor has it spent anything towards conservancy service as contemplated by section 129(b) and section 131 of the Act and as such it is not entitled to claim any conservancy tax from this petitioner. Respondents have stated in reply that the facts stated would not entitle petitioner to claim exemption from the conservancy tax and he was liable under law to pay the said tax.

(10) On behalf of petitioners inter alia the following contentions were raised for our consideration:-

(1) The assessment books kept by the Corporation for the relevant years were illegal as the mandatory procedure of taxation rules had not been followed and therefore no liability to pay the tax arose. The tax demand was, therefore, contrary to article 265 of the Constitution.

It may be mentioned that the subsidiary contentions of the non-compliance of rule No. 10 in not maintaining the Ward assessment book and the questions regarding the tax being illegal as the authentication was not made as required by rule 19 of the Act are covered up under this main contention.

(2) Section 129(c) read with section 99 and section 127 of the Act suffers from the vice of excessive delegation as neither the maximum limit of the rate that can be fixed is prescribed nor any guiding policy or principles are provided.

(11) Contentions to these effects and even of wider amplitude were also raised by petitioners in the larger group of petitions and we have dealt with them in our judgment delivered by us disposing of those petitions. We have held that none of these contentions raised by petitioners could be sustained. Very shortly stated, we have held that it is not compulsory under rule 10 of the Act to keep Ward assessment books and it was open to the Corporation to keep the assessment book under rule 9. We have also come to the conclusion that authentication under rule 19 of the Act of the Ward assessment book is not necessary or compulsory to raise the tax liability of the tax-payers. In our judgment, under the scheme of this Act, the liability to pay the tax arises when the entry is made in the assessment book under clause (a) of rule 9 and the Corporation is then entitled to recover the tax by issuing the Bill under rule 39 of the said Act. The general tax levied and demanded on completion of the said procedure is in accordance with law. We have further held that section 129(c) read by itself or with sections 99 and 127, does not suffer from the vice of excessive delegation as reasonable and definite guiding principles and policy can be found from the various provisions of the Act. As we have fully discussed the provisions of law, the decisions cited and the submissions made on behalf of all the petitioners and have given our full reasons for coming to the said conclusion, we do not deem it necessary to discuss them here all over again and for reasons stated in our judgment, we do not accept the said contentions raised in the present petitions also and they are rejected.

(12) Petitioners, however, raised the following further contentions for determination which were not raised in the larger group of petitions:-

(1) No authentication was admittedly done when the Bills and the demand notices were issued. Therefore, they were issued illegally.

(2) Section 129(c) is confiscatory in nature inasmuch as it authorises the Corporation to fix any rate it likes and as such offends against articles 19(1)(f) read with article 31 of the Constitution.

(3) The Corporation has without the authority of law enhanced the rates of General Tax in lieu of the Urban Immovable Property Tax.

(4) The Resolution passed by the Corporation to raise the rates of general tax was passed on the 21st of February 1961 which was beyond the prescribed date under section 99 of the Act and therefore the tax levied was not in accordance with law.

(5) The Corporation has enhanced the rates of general tax of properties falling within the group of premises having the rateable value between Re. 1 to Rs.200, which is unauthorised and contrary to the condition made by Government under its letter dated 5th January 1961, inasmuch as this group of properties were not liable to the U.I.P. Tax.

(6) The Commissioner had not obtained the written consent of the petitioners under rule 11 of the Act for treating each separate tenement as separate unit for the purpose of computing the general Tax.

(7) Classification of properties similarly situated for the purposes of assessment, on the basis of income derived from such properties is ultra vires as it infringes Article 14 of the Constitution.

(8) In raising the percentage of the General Tax the Corporation has taken into account extraneous considerations not permitted by the provisions of the Act, therefore any tax levied as a result of the resolution dated 20/21-2-1961 is illegal and ultra vires as offending against article 265 of the Constitution.

(9) The Corporation had not acted suo motu inasmuch as it had not applied its mind in raising the rate of general tax by the resolution of date 20/21-2-1961 and therefore the tax was illegally levied.

(10) The Corporation was not entitled to levy conservancy tax on the lands and buildings belonging to the petitioner of Special Civil Application No. 328 of 1962 as no such service was rendered to the said premises by the Corporation.

(13) Out of these contentions, contention No. 1 was heard by consent of parties in the other group of nine petitions and Mr. Desai and Mr. Mody made their submissions in support thereof. For reasons stated by us in our judgment in respect of the said petitions as well as in the judgment of the main group of petitions, it has been rejected and for the same reasons we reject it here also.

(14) This brings us to the consideration of the challenge to section 129(c) of the Act as violative of Article 19(1)(f) read with Article 31 on the ground that it is confiscatory in its nature. On behalf of the petitioners it was submitted that this section did not provide any maximum rate or ceiling upto which the Corporation could go in fixing the rate which therefore left the Corporation with uncontrolled and arbitrary authority and it would be possible for the Corporation to go upto even 90 per cent. It may be that in such a case tax-payers may not be able to pay the tax and the Corporation would be entitled to distrain against the property of such tax-payers and deprive them of it. The effect of all this is that this provision is confiscatory in its nature. It was urged that the Constitution guarantees under Art. 19(1)(F) that all citizens have the right to hold property and by article 31, it guarantees that no person shall be deprived of his property save by authority of law. The effect of the impugned provision is to deprive the tax-payer of his right to hold property, without the authority of law.

(15) Before we discuss the submissions made on behalf of petitioners, it will be expedient to see how the contention is raised in the petition. It may be remembered that we were requested to treat Special Civil Application No. 1093 of 1962 as the representative petition for this group of petitions and all references made in the judgment in respect of pleas, exhibits or pages will be in reference thereto unless otherwise specially indicated. The only plea on this ground is to be found in Para 13 wherein it is stated that 'section 129 of the B.P.M.C. Act, in so far as it empowers the 1st opponent to fix any rate of General Tax is unconstitutional as being violative of Article 19(1)(f) read with Article 31(1) of the Constitution of India, as by exercise of powers under the said section the 1st opponent can fix any rate without any qualification or reservation, whatsoever, which in the instant case it has done and as a necessary consequence thereof petitioners' property would be diminished in market value and adversely affected by reasons of illegal increasing of the burden of such arbitrary, unreasonable and excessive tax.' The learned Advocate General who appears in these petitions for both the respondents contended that the plea or allegation in the petition is vague and it does not constitute the contention as raised at the hearing and therefore the respondents were not in a position to meet squarely this contention raised at the hearing. There is justification in the complaint made on behalf of the respondents, but at the same time it can also not be said that foundation for such a contention is not at all laid in the plea and we have therefore permitted it to be agitated. But all the same, while allowing the petitioners to agitate this point, it will be but fair to continue its amplitude to the foundation or basis as it exists in the plea, which is that section 129(c) is violative of article 19(1)(f) read with article 31 because it confers uncontrolled, unqualified power to fix any rate that the Corporation may choose to fix. It may be mentioned that in the bigger group of petitions the following contentions were allowed to be raised consistent with the plea of the petitioners in those petitions:-

(16) Section 129(c) of the Act is ultra vires the Constitution as the maximum limit of the rate to be fixed was not prescribed, and arbitrary power to fix any limit at its sweet will and it also suffers from vice of excessive delegation. After giving our best consideration we have for reasons given therein rejected this contention. In the present petition, the plea having gone a little beyond the plea in the larger group of petition inasmuch as it has been alleged that the consequence of such a provision is to adversely affect their right to property by diminishing its value, that the present contention requires to be separately considered from a slightly different angle. With this background we now turn to the problem on hand.

(17) The complaint is that section 129(c) violates Art. 19(1)(f) read with Article 31(1). Article 19(1)(f) says every citizen shall have the right to acquire hold and dispose of property. Article 31(1) provides that no one shall be deprived of his property save by authority of law. The allegation is that the uncontrolled power vested in the Corporation by section 129(c) to fix the rate of the general tax at any percentage, has the effect of depriving the tax-payers of their property without the authority of law. But it is to be noticed that the Constitution makers have not given to the citizen an absolute power to hold property. Clause (5) of Article 19, amongst other things, provides that nothing in sub-clause(f) shall affect the operation of any existing law (and the Corporation Act is pre-Constitution law) in so far as it imposes reasonable restrictions on the exercise of any of the interest of the general public. The Corporation purports to fix the rate and impose the general tax under the provisions of the Act viz., section 129(c) read with section 99 and section 127. Therefore even if the effect thereof is to diminish the value of the properties of the tax-payers, the Corporation claims to do so under the authority of law. It is then for petitioners to show how it infringes their fundamental right under clause (f) of article 19(1). Unless petitioners can establish that the impugned provision transgresses the limit of reasonable restriction on the exercise of their right or that the restriction is not in the interest of the general public, it cannot be said that the tax was levied without the authority of law. The learned advocates for petitioners could only fall back on the basis of their plea that it is not a reasonable restriction in the interest of the general public because the power vested is uncontrolled and uncanalised and given without providing any policy or guiding principles. As observed herein above, on a careful consideration, we have held in the larger group of petitions that section 129(c) read with section 127 or section 99 does not suffer from the vice of excessive delegation, that it is not uncontrolled or arbitrary power vested in the Corporation, that the guiding principles and the policy are to be found from the provisions of the Act. We have no reason to come to any different conclusion while dealing with these petitions. Looked at from the angle basis whereof is laid in the petitions, we are unable to accept the submissions made and the contention raised on behalf of the petitioners. The learned Advocate General argued that unless petitioners were to make out a specific plea in the petitions that the provision in effect is confiscatory in nature inasmuch as it could deprive the tax payer of his property, it was not possible to meet the contention by placing all materials before the Court or by a specific reply. Even so he urged that so long as it can be shown that the rate could be fixed in relation to and concomitant with the requirement of the Corporation for the purposes of the Act, which without any doubt were in the interest of the general public, and so long as the authority to fix the rate is not uncontrolled or unguided authority, it can never be held to be not a 'reasonable restriction', nor can the said provisions of law be held to be invalid. This submission carries weight and falls in line with the conclusion we have reached.

(18) The learned Advocate General drew our attention to the case of Jyoti Pershad v. Administrator for the Union Territory of Delhi, AIR 1961 SC 1602. In the said case section 19 of the Slum Areas (Improvement and Clearance) Act, (96 of 1956) was challenged mainly on three grounds:

(1) Section 19, Clause (3) of the said Act vests unguided, unfettered and uncontrolled power in an executive officer to withhold permission to execute a decree which a landlord has obtained after satisfying the reasonable requirement of the law as enacted in the Rent Control Act. Neither section 19 of the Act nor any other provision of the Act indicates the ground on which the competent authority might grant or withhold permission to execute decree and the power conferred is, therefore, arbitrary and offends article 14 of the Constitution.

(2) The same point was urged in a slightly different form by saying that the power conferred on the competent authority by section 19(3) of the Act was an excessive delegation of legislative power and was, therefore, unconstitutional.

(3) The vesting of power in an executive authority to override - at his sweet will and pleasure - rights to property without any guidance from the Legislature constituted an unreasonable restraint on the petitioner's right to hold property, a right which in the case of the property of the type in question in the said case would include a right to obtain possession from the tenant in order either to improve it by reconstruction or for the purpose of his own use. So, apart from the objection regarding the vesting of unguided power in an executive authority which was a common ground of objection urged in regard to points 1 and 2, it was contended that the right vested in an executive authority to prevent for an indefinite and undeterminate period of time the right to enjoy his property was for this further reason excessive and an unreasonable restraint which could not be justified under Article 19(5) of the Constitution.

'(19) Section 19 of the said Act was at follows:-

'19(1) Notwithstanding anything contained in any other law for the time being in force no person who has obtained any decree or order for the eviction of a tenant from any building in a slum area shall be entitled to execute such decree or order except with the previous permission in writing of the competent authority..

(2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed.

(3) On receipt of such application, the competent authority after giving an opportunity to the tenant of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing either grant such permission or refuse to grant such permission.

(4) Where the competent authority refuses to grant the permission it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant.'

As regards the first ground, the learned Judges, after examining the scheme of the Act and other relevant matters came to the conclusion that there was enough guidance to the competent authority in the use of his discretion under section 19(1) of that Act, and therefore, rejected the contention that section 19 was obnoxious to the equal protection of law guaranteed by article 14. It may be here recalled that in the petitions with which we are concerned, we have also come to the conclusion that there is enough guidance to the taxing authority to be found under the provisions of the Corporation Act while exercising the power under section 129(c) read with sections 99 and 127 in the use of its discretion and, therefore, it was not an uncontrolled or unguided vesting of power either in the Commissioner or the Corporation.

(20) Proceeding with the consideration of the second ground that there was excessive delegation of legislative power, the learned Judges of the Supreme Court rejected it with the following observations:-

'The next point argued by learned counsel for the petitioner was that the power conferred on the competent authority by section 19(3) of the Act was an excessive delegation of legislative power. As we have pointed out earlier, this submission is really another form, or rather another aspect of the objection based on the grant of an unfettered discretion or power which we have just now dealt with. It is needless to repeat, that so long as the legislature indicates its purpose and lays down the policy it is not necessary that every detail of the application of the law to particular cases should be laid down in the enactment itself. The reasons assigned for repelling the attack based on art. 14 would suffice to reject this ground of objection as well.'

In the petitions on hand, as observed above we have also held in respect of the said impugned sections that they could not be held to suffer from the vice of excessive delegation of legislative powers for reasons similar to those adopted by the Supreme Court.

(21) Dealing with the third and important ground in the said case, the learned Judge who spoke for the Supreme Court has made the following observations:-

'The last major objection urged by learned counsel was that the power vested in the competent authority 'at its sweet will and pleasure to refuse permission to execute a decree for eviction violated the right to hold property under Article 19(1)(f) of the Constitution and that the same was not saved by Article 19(5) of the Constitution for the reasons that the restriction imposed on the exercise of the right was not reasonable. If counsel were right in his submission that the petitioner's right to obtain possession of his building rested on the `sweet will and pleasure of the competent authority' there could be come substance in the argument. But as we had already had occasion to point out it is not at the `sweet will and pleasure' of the competent authority that permission to evict could be granted or refused, but on principles gatherable from the enactment, as explained earlier.

Learned counsel further urged that the right to hold property under Article 19(1)(f) included the right in the owner of a building to evict a tenant and enter into actual or physical occupation of the property. Counsel is, no doubt, right in this submission but the `freedom to hold property' is not absolute but that, as he himself admitted, is subject, under Art. 19(5) to `reasonable restrictions' being placed upon it `in the interests of the general public'. It was not suggested that slum dwellers would not constitute `the general public' and that if a legislation was designed to grant them protection, it could not be justified as one in the interests of the `general public', because obviously the interests of such a vast number of the population in the country, their health, well-being and morals would, apart even from themselves, necessarily impinge upon and influence for good or evil, the health, safety, well-being and morality of the rest of the community as well. The only question that is capable of argument is whether the restriction is reasonable. A considerable part of the learned counsel' s argument on the reasonableness of the restriction was devoted to showing that the vesting of an unfettered or unguided power in the competent authority to permit or not to permit eviction rendered the restriction unreasonable. This, as would be seen, is really a different form of presenting the case of the objection under Article 14, and what we have said in dealing with the first point of the learned counsel would answer this portion of the objection.' In the instant case also, as stated aforesaid the only basis on which the contention was raised was that there was vesting of uncontrolled and unguided power without prescribing the maximum limit of the rate to be fixed or providing any guiding principles and so our answer to those contentions should also govern the contention under consideration regarding S.129(c) being violative of Art. 19(1)(f) read with Art. 31(1). This Supreme Court case, therefore, fully supports the submissions of the learned Advocate General and the view that we have taken. This contention, raised by the petitioner, therefore, stands rejected.

(22) That brings us to the consideration of the third contention of petitioners which is that the Corporation had without the authority of law enhanced the rates of general tax in lieu of the Urban Immovable Property Tax. We find no substance in this contention of the petitioners. The plea in the petition in effect was that the U.I.P. Tax was levied under Section 22 of the Bombay Finance Act by the State Government and the Corporation was only collecting it as its agent under Section 24 of the said Act. The Corporation requested the State Government to transfer the said tax as the Maharashtra State Government had done so. The Government then ceased levying the U.I.P. Tax and asked the Corporation to raise equivalent amount by raising the rate of the General Tax and also laid down the condition that the Corporation shall not reduce or let go any other tax which they may be levying. It was alleged that the Government had no right whatever in law to so forgo or cease levying the U.I.P. Tax and when it purported to do so, it acted against the provisions of the Bombay Finance Act and the Corporation had no legal right to increase the rate of General Tax in lieu of the Government ceasing to levy the U.I.P. Tax. At the hearing, Mr. Mody frankly conceded that the plea made in the petitions that the Government had no authority to forgo the U.I.P. Tax and when it did so, it contravened the positive provisions of the Finance Act could not be supported in view of the amendment of the Bombay Finance Act by the addition of Section 22-A as was pointed out in the affidavit in reply filed on behalf of the respondents which did authorise the Government to denotify any area where such tax was being levied by the State and thus cease levying the U.I.P. Tax in that area. Government had published a notification, whereby they denotified the area within the municipal limits of the Corporation of Ahmedabad and, therefore, the Government had authority to cease levying the U.I.P. Tax. One leg of the contention raised thus disappears. But Mr. Mody argued that even then the Corporation had no authority to increase the rate of tax in lieu of Government having ceased levying the U.IP. Tax. This submission, however, overlooks the fundamental fact that the Corporation raised the rate under its own power vested by section 99 read with Section 127 and 129. The Corporation had not to depend for this on any extraneous provisions. It is true that the Corporation did request Government to transfer the tax. But that was use of mere loose phraseology. The Government in reply, however, made it clear that it had decided to discontinue the U.I.P. Tax from the date on which the Corporation levied the increased rates of General Property Tax equivalent to the U.IP. Tax. So, ultimately what the Corporation did was to exercise its powers under the provisions of the Corporation Act and raise the rate of General Tax, which it had the authority to do and this was not done in lieu of the U.I.P. Tax but was done as the Corporation wanted more funds for the discharge of its duties and for the purposes of the Act. The Corporation had only appealed to the Government to forgo the U.I.P. Tax because it wanted more funds for development of areas recently included within its limits. Every taxing authority has to keep in mind and assess the capacity of the taxpayer before increasing the tax load on any particular source. The Corporation may have felt that it would not be expedient to increase the rate of general tax and raise more funds through that source so long as the Government continued to tap the same source by the levy of the U.I.P. Tax and unless Government were to give it up, it may not be possible to raise more funds through that source so long as the Government continued to tap the same source by the levy of the U.I.P. Tax and unless Government were to give it up, it may not be possible to raise more money out of this source of the General Tax on lands and buildings. There was nothing therefore, that was done either by the Government or the Corporation which was not within the four corners of their powers vested in them by the authority of law. The third submission, therefore, is rejected.

(23) The next point is based on the allegation that the resolution of the Corporation whereby the rate of the General Tax was increased was not passed within the time limit prescribed by the Corporation Act, i.e. before the 20th of February 1961 as required by Section 99 of the Act, and therefore, the Bills and demand notices issued for the General Tax were ultra vires and inoperative. Section 99, amongst other things lays down that the Corporation shall, on or before the 20th day of February, after considering the Standing Committee's proposals in this behalf, determine, subject to the limitations and conditions prescribed in Chapter XI, the rates at which municipal taxes referred to in Sub-section (1) of Section 127 shall be levied in the next ensuing official year.

(24) The allegation is that the resolution was passed on the 21st of February in that year and not on the 20th. For this contention, reliance appears to have been placed on the copy of the resolution supplied to the petitioners which is Exhibit 'D' at page 73 of the paper book. But a cursory glance at that document even shows that the General Meeting of the Corporation which was adjourned from the 17th of February 1961 was held on Monday the 20th February 1961 at 4-30 p.m. which had again to be adjourned to Tuesday on 21st February 1961 at 5-30 P.M. The impugned resolution is the 5th resolution being resolution No. 1192/1960-61. As against the allegation made in the petition, in the affidavit filed in reply on behalf of the Corporation in Para 6 thereof it has been most specifically stated that the Corporation at its meeting held on 20th of February 1961 had passed the impugned resolution sanctioning the increased rates of the General Tax to be imposed during the official year commencing on the 1st of April 1961, and have even specified the details as regards how the tax was increased and on what rateable value groups; and furthermore they have specifically denied the allegation that the said resolution had been passed on the 21st of February 1961. On the 21st of February, other business on the agenda was transacted. In the rejoinder affidavit filed by the petitioner, he has at the end of the said affidavit merely denied that the impugned resolution was passed on the 20th day of February. Now, this is more or less question of disputed facts. Ordinarily we would not have entered into it, but as it involves a small point, order that petitioners may not have to be driven to take any other remedy, if it could prima facie be determined from the records of the respondent which is a local authority, we permitted the Corporation to produce the printed book of the minutes of the Corporation which was printed long before the controversy arose. A mere look at these printed minutes of the Corporation carries conviction that what has been stated in the affidavit on behalf of the Corporation that the impugned resolution was passed in the meeting of the 20th February is true. Therefore, on our record as it exists there is nothing prima facie to show that what the petitioner states has any element of truth in it. We are, therefore, satisfied that there is no merit whatever in this contention also and we have no hesitation in rejecting it.

(25) That takes us to the 5th contention of the petitioners which is based on the plea that when the U.IP. Tax was levied by the Government under the Finance Act, the properties of which the rateable value was between Re. 1/- and Rs. 200/- were exempted from the U.I.P. Tax, but by the resolution of the Corporation when it increased the rate of the General Tax, it levied the increased General Tax on this group of properties also to the extent of 2 per cent. The argument is that the Corporation and the Government could not as if enter into a contract or arrangement with each other which would result into causing prejudice to the third party, that is the tax payers, by subjecting them to higher taxation without giving them an opportunity to be heard. This submission, in our view, is based entirely on a misconception. In this case, it cannot be said that there was either any contract or arrangement between the Corporation and the Government whereby the property owners, the rateable value whereof ranged from Re.1/- to Rs.200 were agreed to be taxed. As already indicated herein above, the Corporation was in need of more funds and wanted to get a larger income from property tax, but did not think it expedient to do so unless the burden thereof on the property owners by the U.I.P. Tax was agreed to be forgone by the Government. The Government could see the view point and justification of the request of the Corporation. So it agreed to discontinue the levy of the U.I.P. Tax. But in order to ensure that it was not made to forgo the income for something which was not intended, made it a condition that the Corporation will raise the rate of General Tax and get equivalent amount from the properties to increase its income and will not let go any tax already levied on any other source. The Corporation while raising the rate also raised by 2 per cent, the General Tax on the group of properties that were not subject to U.I.P. Tax, but the Corporation always had the authority to raise the rate of tax on this group also. There was no impediment whatever created by anything that had passed between the Corporation and the Government. As a matter of that, no such impediment could have been created. It appears reliance is placed on one of the statements made by the Government in its letter dated the 5th of January 1961 to the effect that the U.I.P. Tax shall be discontinued with effect from the date on which the Ahmedabad Municipal Corporation levy the increased rates of General Property Tax equivalent to the U.I.P. Tax. In our view, this could not be read to mean that the Corporation was directed by the Government to raise the rates for the General Tax of only those lands and buildings on which the U.I.P. Tax was imposed. It could only have reference to the total amount of tax to be collected. As stated herein above, even if it meant otherwise, the Corporation was under its own powers given to it by Section 99 of the said Act, fully authorised to levy the higher rate on this group of properties also. As regards the complaint that the said higher rate of taxation was put into force without the tax payers being informed about it also there is no substance, because it is clear from our record that the public notice as required by the provisions of the Act in respect of the rateable value and the rates in respect of the General Tax had been duly given. It may be mentioned here that by inadvertence in these petitions a copy of the public notice was attached to the affidavit in reply filed on behalf of the Corporation which had reference to the official year 1962-63. With the consent of the petitioners, this inadvertent omission was corrected by placing a copy of the correct public notice with an affidavit, which had reference to the official year 1961-62. There is no dispute raised that no such notice had been published as required by law. So, this contention also cannot be sustained and is rejected.

(26) then comes for consideration the objection that the Commissioner had acted in breach of Rule 11 of the Corporations Act inasmuch as written consent of the petitioner as owner of the building or land was not obtained to treat each of the several buildings therein as separate property for the purposes of assessing such building or land to the increased property tax. Now it was pointed out on behalf of the respondent that this plea also had not been raised in the petition at all and that it had been raised for the first time in the affidavit in rejoinder. Again this is a mixed question of law and fact and unless the petition had been amended, the respondents were not called upon to file any affidavit in reply to the point raised in the rejoinder. In our view, the objection requires to be sustained. It does involve questions of fact and as the plea was not raised at the initial stage in the petition, the respondents have had no opportunity to meet the contention. On behalf of the respondents it was further pointed out that, as a matter of fact, if all the tenements which were separately assessed were to be assessed as one unit, from the resolution produced it can prima facie be seen that the petitioner would stand to lose as his assessment would fall in the higher rate of taxation. Mr. Mody was not in a position to challenge this statement. Be that what is may, looking to the facts as stated above, we do not find this to be a matter where we would interfere under our high prerogative jurisdiction, especially when we find that this contention was not raised in the petition.

(27) The 7th point raised for our consideration is that the classification of properties similarly situated for the purposes of assessment on the basis of income derived from such properties is ultra vires as it infringes Article 14 of the Constitution. Petitioner has raised this plea in his petition on the following basis:- that Section 129(c) of the Act vested discretion in the Corporation to levy the rates of General Tax on a graduated scale and under the purported exercise of the said discretion, the Corporation has classified the properties of the same class similarly situated and enjoying the same amenities into different groups merely on the basis of rateable value and has levied different rates ranging from 14 per cent to 22 per cent of their rateable value. It is urged that the property tax as defined in the Act was a tax on land and buildings and not on rateable value or annual letting value thereof which fact the Corporation has totally overlooked and has, therefore, exercised the discretion in a grossly discriminatory manner by treating the properties of the same nature with an unequal hand and, therefore, the resolution is violative of Article 14. We find that this contention itself is based on two erroneous conceptions on the part of petitioners. Firstly, that this property tax cannot be construed as a tax on the rateable value or annual letting value and secondly that properties of the same amenities have been unequally treated. A complete answer as regards the first misconception is to be found in the decision of Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad. AIR 1963 SC 1742, where the Supreme Court has decided as follows:-

'It will thus be seen that these Acts which were passed between 1912 and 1925, which repeal the earlier Acts also provide for taxation on lands and buildings, and though the word 'rate' is not used in any of these Acts, the tax is still on the annual value of lands and buildings. This shows that there was a uniform legislative history and practice in India also, though sometimes the impost was called a tax on lands and buildings and at others a rate. But it was always a tax on the annual value of lands and buildings. In any case wherever it was called a rate it was always on the annual value of land and buildings. In any case, wherever it was called a rate it was always on the annual value. It would therefore be not improper to infer that whenever the word 'rate' is used with respect to local taxation it means a tax on the annual value of lands and buildings.'

No doubt the Supreme Court was concerned in that case with the construction of section 73 of the Municipal Boroughs Act (Act 18 of 1925), but it clearly lays down that even when the Act provides for taxation of lands and buildings and though the word 'rate' may not be used, the tax is still on the annual value of the lands and buildings. Referring to the provisions of the act with which we are concerned, Sec.129(c) provides that the General Tax shall be on the rateable value of lands and buildings and the rate is to be fixed by the Corporation. The expression 'rateable value' is not actually defined but by rule 7(1) which, by virtue of Section 453 is a part of the Act itself, the Legislature has provided as to how the rateable value is to be determined. It is laid down that in order to fix the rateable value of any building or land assessable to a property tax, there shall be deducted from the amount of the annual rent for which land or building might reasonably be expected to let from year to year a sum equal to ten per cent, of the said annual rent, and the said deduction shall be in lieu of all allowances for repairs or on any other account whatever. This leaves no manner of doubt that for the measure of the property tax, the annual letting value is the basis and in fact, the tax is on the annual letting value minus 10 per cent, thereof at a rate to be fixed by the Corporation under Section 99 read with Section 129.

(28) As regards the second aspect also it is difficult to accept that there is any discrimination made by the Corporation between properties similarly situated because the tax is fixed with reference to the annual letting value. As we have seen, law itself wants the Corporation to levy the tax with reference to the annual letting value. Therefore, whenever the groups are constituted for levying the different rates of tax for the purposes of the General Tax on the basis of annual letting value, there is nexus between such groupings and the purpose of the Act and it can never be said that this treatment given to the different groups of lands and buildings is discriminatory. It is futile then to argue that the lands and buildings so placed in different groups are similarly situated. Under the circumstances, this contention also fails.

(29) In the case of K.T. Moopil Nair v. State of Kerala, AIR 1961, SC 552, the scope of Article 265 and 14 was closely examined and the following observations are useful in support of the view that we have taken. The majority of the learned Judges decided that Article 265 imposed a limitation on the taxing power of the State in so far as it provides that the State shall not levy or collect a tax, except by authority of law, that is to say, a tax could not be levied or collected by a mere executive fiat. It has to be done by authority of law, which must mean valid law. In order that the law may be valid, the tax proposed to be levied must be within the legislative competence of the Legislature imposing a tax and authorising the collection thereof and, secondly, the tax must be subject to the conditions laid down in Article 13 of the Constitution. Now, in the present case, no question of legislative competence of the legislature imposing the tax arises and only the latter aspect requires to be considered. If the legislature had classified persons or properties into different categories which are subjected to different rates of taxation with reference to income or properties, such a classification would not be open to attack of inequality on the ground that the total burden resulting from such a classification is unequal. Similarly, different kinds of property may be subject to different rates of taxation. So long as there is a rational basis for classification, Article 14 will not be in the way of such classification resulting in unequal burdens on different classes of properties. If the same class of properties similarly subjected to an incidence of taxation, which results in inequality, the law may be struck down as creating inequality amongst the holders of the same kind of property.

(30) As pointed out herein before, the different kinds of properties have been subjected to different rates of taxation on the ground of the rateable value or the annual letting value which is ,looking to the scheme of the Act, the rational basis for such classification.

(31) That brings us to two more contentions Nos. 8 and 9 as made out by the learned advocates for petitioners, at the hearing. The first of them is that in raising the percentage of General Tax, the Corporation had taken into account extraneous considerations not permitted by the provisions of the Act and, therefore, the impugned resolution is illegal and offending against Article 265 of the Constitution, and the second is that the Corporation had not acted suo motu inasmuch as it had not applied its mind in raising the rate of General Tax by the impugned resolution and, therefore, the tax was illegally levied.

(32) Properly viewed, these two are merely two facets of the same question and it will be convenient to deal with them together. The learned Advocate General was forced again to raise an objection against these two contentions on the ground that the contentions as framed at the hearing did not arise out of any of the pleas taken in the petition and the petitioner should, therefore, not be permitted to agitate these points at the hearing as it would prejudice the respondents. If the plea had been specifically taken, the respondents would have, in reply, by their affidavit, put on record sufficient material to meet it. In our judgment, there is justification in this objection also raised by the learned Advocate General. Petitioners want us to exercise our high prerogative jurisdiction. By and large petitioners have to be confined to pleas raised in the petitions. These proceedings are to be decided on the contents of the petitions and the affidavits filed in reply. Contentions not found among the grounds on which relief is sought in the petition, if are raised for the first time in rejoinder affidavit it would not be proper even to accept such contentions except in exceptional cases. In matters of the nature of high prerogative writs it is not only desirable but necessary that petitioner should be precise in putting forward his case which the opposite party is called upon to meet. It is also but proper that petitioner should state the grounds with sufficient particularity. Petitioners under these proceedings must ordinarily come to Court with a definite case and disclose in the petition all the material and grounds on which they move the Court for relief asked and also enable the opponent to put all the materials to meet such allegations. It would otherwise, in our view, lead to most undesirable and unsatisfactory results if petitioners are allowed to raise new pleas or grounds by way of supplementary pleas or trot out a plea not at all made out in the petition. No doubt it is true that in fit cases this rule would be relaxed by the Court in its wide discretion., but, in our view, for reasons which will be apparent from what follows, we are not inclined to use that discretion as it is likely to prejudice the respondents. Having been confronted by this objection, Mr. Mody, tried to convince us that the petition as it stands contains substantially the contention that he has tried to raise at the hearing and he drew our attention firstly to the opening words of Para 9 of the petition which are as follows:-

'The petitioners contended that the said bills served upon them are illegal, unauthorised and unenforceable at law and illegally sought to be executed against them.'

He then wanted us to read therewith ground (1) in paragraph 17 of the petition which is as follows:-

'That the resolution No. 1192 dated 20/21-2-1962 is without authority and beyond the competence of the 1st opponent.'

Giving the most sympathetic treatment to these parts of the petition, we are unable to persuade ourselves to accept them as disclosing the plea that was tried to be made out by Mr. Mody at the hearing. These allegations are couched in a language too general and vague to give the opponent any the least idea of the specific nature of the contention that is now tried to be put forward at the stage of hearing. Mr. Mody then said that it would be open to him to even rely upon the affidavit in reply to urge the contentions at the hearing if therefrom materials could be culled out for such a contention. He then led us to the affidavit in reply on behalf of the Corporation at page 36 of the paper book and drew our attention to the following passage:-

'I deny the submission that the 1st opponent has no powers under the Act to increase the rates of general tax in lieu of the U.I.P. Tax.'

We fail to see how in these lines one could read a basis for the contentions that have been tried to be made out by Mr. Mody. Mr. Mody tried to rely upon the following passage in 1951 SCR 277: (AIR 1951 SC 177), Srinivas Ram Kumar v. Mahabir Prasad:-

'As regards the other point, however, we are of the opinion that the decision of the trial Court was right and that the High Court took an undoubtedly rigid and technical view in reversing this part of the decree of the Subordinate Judge. It is true that it was no part of the plaintiff's case as made in the plaint that the sum of Rs.30,000 was advanced by way of loan to the defendants second party. But it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent set of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes.'

In the first place, as pointed out, nothing has been shown to us from the affidavit in reply of the respondents which could be made use of by the petitioners for the purpose, but apart from that the ratio of this decision can hardly have any application to the facts of the present case. The case that went up to the Supreme Court was a civil matter arising out of a civil suit and the principle decided therein can hardly have any application to writ proceedings. A look at the petition is enough to convince one that the whole complaint of the petitioner as put forward in the petition is based on the plea that the Corporation had no authority in law to raise the rate of General Property Tax in lieu of U.I.P. Tax and, so to say, in effect amalgamate by raising the rate, the General Tax under the Corporation Act and the U.I.P. Tax under the Finance Act. Nowhere can we read the specific contention raised that the Corporation had taken into account any extraneous matters in passing the resolution of the 20th of February 1961 whereby the rate of General Tax was raised, nor do we find the allegation that the Corporation had not suo motu raised the tax and had not applied its mind before raising the rate and had only gone with the suggestion made by the Government in their letter dated 5th of January, 1962. It is only for the first time that there is some indirect suggestion to this effect made in the affidavit in rejoinder to which our attention was drawn by Mr. Mody where it had been stated in paragraph 6 to the effect that the plain reading of the resolution would clearly show that the Corporation had, after taking into consideration the letter dated the 5th of January 1961 of the Government raised the rates of General Tax then in force and not acted suo motu in pursuance of powers given to it by virtue of section 129(c) read with section 127 of the Corporations Act. But it is important to read the concluding part thereof which may be reproduced here:-

'It will be thus clear that in effect the 1st respondent by arriving at the understanding with the second respondent has under the purported exercise of powers under Section 129(c) read with Section 127 of the B.P.M.C. Act amalgamated the two different taxes and levied the same under the colour of enhanced rates of General Tax.'

Once again it can be seen that the stress is on the alleged amalgamation of the two taxes. But even if it were to be held that this itself gives some inkling of the possible contentions of the nature as raised at the hearing, as pointed out, the respondent was not in duty bound to answer them or to meet these allegations. Had it been the intention of petitioners to make these contentions the ground for the Court to grant the reliefs claimed in the petition, they should have sought permission to amend their petitions which would have put the respondents in a position to put in affidavits in reply thereto and also such material as they may want to meet the allegations. In our judgment, to permit petitioner to raise such a contention is likely as is urged on behalf of the respondents, to prejudice their interest. Just to clarify the position it may be stated that it would have been possible if the contention had been raised in the petition either originally or by way of amendment that extraneous matter had been taken into account while fixing the rates and without applying the mind on behalf of the Commissioner or the Corporation, the respondents may have been in a position to place on record facts to show that the raising of this tax was as a matter of fact necessary to augment the income of the Corporation in order to enable them to discharge their duties for the purposes of the Act. It would not be unjustifiable to infer that the Corporation could always bring to light facts of required to establish that the extra amount raised by the raising of the rates of the General tax was, as a matter of fact, necessary for meeting the financial liability in discharge of the duties cast on the Corporations Act. In our judgment, merely because there had been correspondence between the Corporation and the Government whereby the Corporation requested the Government to forgo the U.I.P. tax and the Government agreeing to do so on certain conditions could not prima facie go to show that the Corporation had not applied its mind while raising the tax, as to whether it was necessary or not to do so for discharging the duties cast on them under the Act and for the purposes of the Act. The previous correspondence may only indicate on the contrary, that the Corporation was in need of larger funds in carrying out the purposes of the Act in discharge of its duties and that, as already indicated aforesaid, they only requested the Government to unburden the source on which they would like to levy higher taxation, by foregoing the U.I.P. Tax. Looked at from any point of view, we are unable to agree with the submissions made by Mr. Mody to permit him fully to agitate the contentions as formulated and mentioned herein above.

(33) Mr. K.M. Desai tried to put the contention in a slightly different form urging that the averments in the Special Civil Application No. 261 of 1962 would permit the raising of such a contention. He placed it thus: - The Municipal Corporation can levy or increase the General Tax only for the municipal purpose and cannot increase the General Tax on any other ground. For this purpose, he drew our attention to Para 10(e) and (f) of the said petition.. Para 10 (e) is as follows:-

'That the first respondent had no legal authority to amalgamate the said taxes or increase the general tax by an amount equivalent to the U.I.P. Tax and pass such a resolution.'

It does not require much stressing to show that this ground by no stretch of argument can be said to provide a basis for the contention as is raised and that it only has a reference again to the question of amalgamation of the tax or the Corporation's right to raise the rate of taxation in lieu of the U.IP. Tax. Both the contentions are covered by the contention No. 3 which we have fully dealt with and negatived. Ground (f) to which our attention was drawn, is as follows:-

'(f) That no tax can be levied or collected except by authority of law. The first respondent has no authority to levy the amalgamated tax or levy the tax at the increased rate in the manner it was done. The impost based on the said resolution offends against Article 265 of the Constitution and therefore it is illegal, ultra vires and ab initio void.'

Mr. Desai frankly conceded that out of this ground, he could only rely upon the words 'in the manner it was done' to support the present contention. Indeed, we find it difficult to fall in line with the submission of Mr. Desai that this does provide a basis for raising such a contention at the hearing. It is too general and vague to me made such a basis. Therefore, we do not find any merit in the submission made by Mr. Desai and the contention as formulated by him cannot arise for our consideration.

(34) The last point that now remains for our consideration is in respect of the Special Civil Application No. 328 of 1962 which is that the Corporation was not entitled to levy conservancy tax on the lands and buildings belonging to the petitioners as no such service was rendered to the said premises by the Corporation. It will be convenient to first refer to the petition. In Para 13 of the said petition it has been averred that without prejudice to the contentions raised by him of law against the levy of the General Tax, his further contention was that the bills and demand notices issued against him so far as they referred to the conservancy tax was illegal and unenforceable at law. It is urged that no such conservancy tax could be legally levied in respect of the premises in question as there were no privies, urinals and/or cesspools and hence there was no collection, removal and disposal of any excrementitious and/or polluted matter from the tenements in question. Further, the first opponent rendered no service in respect of the premises in question since the date of its inclusion within the limits of the Corporation nor had the first opponent to spend anything for collection, removal etc., by municipal drains constructed or used for reception or conveyance of such matter. In fact, there were no drains at all. In Para 15 of the affidavit in reply filed on behalf of the Corporation, this contention is tried to be met as follows:-

(35) That it was denied that conservancy tax levied was illegal and/or unauthorised. It was obligatory upon the Corporation to impose property taxes under section 127(1)(a) of the said Act. Under section 131 it was required that the conservancy tax shall be levied inter alia in respect of premises situated in any portion of the city in which public notice had been given by the Commissioner that the collection, removal and disposal of excrementitious and polluted matter from privies, urinals and cesspools would be undertaken by the municipal agency. Mr. Kantavala, the then Municipal Commissioner, by a public notice dated the 6th October 1958 required to be given under sub-section (1) (a) of section 131, notified that the work of collection, removal and disposal of all excrementitious and polluted matter from privies, urinals and cesspools of the premises, buildings and lands situated within the limits of the Municipal Corporation as extended by the Local Self Government and Public Health Department dated 15th August, 1958, was undertaken by the municipal agency from 8th of October 1958 onwards.

(36) A copy of the said notification has also been attached to the affidavit. It is also stated that the said notice was published in two of the leading local dailies. It is further stated that the then Municipal Commissioner had not formed any opinion that in or upon the tenements in question no such matter as stated under section 131(1)(a) of the said Act accumulates or is deposited. It is contended that the fact that there were no privies, urinals and/or cesspools in or upon the tenements in question was irrelevant for the purposes of determining the validity of the levy of the conservancy tax. Furthermore, there is a denial of the fact that there was no collection, removal and/or disposal of any excrementitious and/or polluted matter from the tenements in question. It is further denied that there was no accumulation or deposit of any such matter in the premises in question. Furthermore, it is denied that the respondent had not rendered any service in respect of the premises in question since the date of their inclusion within the limits of the first respondent and that the respondent had not to spend anything for collection, removal etc., of the matter. This shows that the point involves both questions of facts as well as law and the questions of fact involved are disputed questions of facts and on that ground itself on the record as it stands before us, it would not be possible for us to come to any definite conclusion. But apart from that, there is another aspect which requires to be taken into account. Here is a case where this particular petitioner claims that he is exempt from being taxed for the conservancy tax for special reasons stated by him. Mr. Mody was not able to point out to us that these facts were brought to the notice if the Commissioner and that he had refused to act according to law. The provisions of section 131 would show that all building and lands would be subject to the levy of the conservancy tax no sooner the premises are shown to be situated in any portion of the city in which public notice had been given by the Commissioner that the collection, removal and disposal of all excrementitious and polluted matter from privies, urinals and cesspools will be undertaken by the municipal agents, or in which, wherever situate, there is a privy, water-closet, cesspool, urinal, bathing place or cooking place connected by a drain with a municipal drain. Prima facie therefore having regard to the notification published and which fact is not in dispute, the premises of the petitioner would also become liable to conservancy tax. The factum of there being no privy or cesspool or urinal on his premises are irrelevant factors under such circumstances to be taken into consideration. But this petitioner seemed to rely on the proviso to that sub-section (1) of Section 131 which is to the effect that the said tax was not to be levied in respect of any premises situated in any portion of the city specified in Cl., (a) in or upon which, in the opinion of the Commissioner, no such matter as aforesaid accumulates or is deposited. The very nature of the provision of law indicates, without entering into any detailed discussion, thereof, that by virtue of the notification published all premises would become liable to conservancy tax also unless it is brought to the notice of the Commissioner and on being satisfied he is of the opinion that no such matter as aforesaid accumulated or was deposited on the said premises. It would certainly be not expected of the Commissioner to have inspected each and every premises before levying the conservancy tax to formulate the opinion in order to see whether the premises would fall within the purview of the proviso or not. It is but proper, therefore, to hold that unless the party affected brings the fact to the notice of the authority concerned to enable him to form his opinion, one way or the other and unless such a decision is taken against him, there would be hardly any case made out for interference under a writ petition.

(37) This brings us to the end of all the contentions raised and submissions made on behalf of petitioners in this group of nine petitions. Being unable to accept either of the submissions made, the only conclusion that we can reach is that the petitions require to be dismissed. Petitions dismissed. Rule in each of the nine petitions discharged with costs. One set for the corporation and another for the State.

(38) Petition dismissed.


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