{"id":55738,"date":"1962-12-07T00:00:00","date_gmt":"1962-12-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/corporation-of-the-city-of-nagpur-vs-the-nagpur-handloom-cloth-on-7-december-1962"},"modified":"2015-02-27T09:43:48","modified_gmt":"2015-02-27T04:13:48","slug":"corporation-of-the-city-of-nagpur-vs-the-nagpur-handloom-cloth-on-7-december-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/corporation-of-the-city-of-nagpur-vs-the-nagpur-handloom-cloth-on-7-december-1962","title":{"rendered":"Corporation Of The City Of Nagpur vs The Nagpur Handloom Cloth … on 7 December, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Corporation Of The City Of Nagpur vs The Nagpur Handloom Cloth … on 7 December, 1962<\/div>\n
Equivalent citations: 1963 AIR 1192, \t\t 1963 SCR Supl. (2) 796<\/div>\n
Author: S C.<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Gupta, K.C. Das, Shah, J.C.<\/div>\n
           PETITIONER:\nCORPORATION OF THE CITY OF NAGPUR\n\n\tVs.\n\nRESPONDENT:\nTHE NAGPUR HANDLOOM CLOTH MARKETCO. LTD.\n\nDATE OF JUDGMENT:\n07\/12\/1962\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nSINHA, BHUVNESHWAR P.(CJ)\nGAJENDRAGADKAR, P.B.\nWANCHOO, K.N.\nGUPTA, K.C. DAS\n\nCITATION:\n 1963 AIR 1192\t\t  1963 SCR  Supl. (2) 796\n\n\nACT:\nMunicipal Corporation-Levy of taxes-Water rates- Conservancy\nand\t property      taxes-Individual\t      shop-keepers--\nLiability-Building,   if  includes  part  of   a   building-\nResidential  and  non-residential-Liability-Connotation\t  of\n'family'-If    postulates   relationship-City\tof    Nagpur\nCorporation  Act, 1948 (C.P. and Berar 2 of 1950), s. 5\t (7)\nCity of Nagpur Corporation Rules, r.  10 (a) (b) (c).\n\n\n\nHEADNOTE:\nThe Nagpur Handloom Cloth Market Company Ltd. constructed in\nthe  City  of  Nagpur  on plots owned  by  it  a  number  of\nbuildings  with two floors, the ground floor intended to  be\nused as shops and the first floor to be used for residential\npurposes.   For\t the use of the shops  lavatories  connected\nwith  the  sewers of the corporation  drainage\tsystem\twere\nconstructed and water supply for the shops was obtained from\na  corporation water standards The corporation levied  among\nother taxes, under s. 114 of the City of Nagpur\t Corporation\nAct, 1948, conservancy tax and water rates on the is of\t the\nletting value of\n 797\nthe  buildings.\t  Most of the shops were occupied  by  shop-\nkeepers and in the year 1953 the corporation served  notices\nof assessment on individual' shop-keepers of the  respective\nshops.\t Some of the shop-keepers filed\t objections  against\nthe  notices  served  on  them and  on\trejection  of  these\nobjections  filed appeals under. ss. 387 and 130 of the\t Act\nbut   without  success.\t  Nearly  two  years   after   these\nproceedings  the company and one of the shopkeepers filed  a\nwrit petition in the High Court of Bombay to quash the order\nof  demand  dated  February 2, 1958,  and  to  prohibit\t the\nCorporation from applying r. 10 (a) of the Assessment Rules.\nThe High Court allowed the writ petition holding that r.  10\n(a)  applied  only to residential houses and not  to  houses\noccupied   for\tnon-residential\t purpose-;   and   therefore\nseparate  assessment of the shops in the occupation  of\t the\nshop.\tkeepers\t  was  invalid.\t  The  contention   of\t the\nCorporation  that in view of the great delay in\t filing\t the\npetition, the petition should fail was rejected by the\tHigh\nCourt.\tThe present appeal came before this Court by way  of\nspecial leave.\nHeld, that the expression \"building\" in s. 5 (7) of the\t Act\nwould  include a part of a building.  By reason of s. 5\t (7)\nand  the  implication  of  r.  10 (a)  and  r.\t10  (c)\t the\nCorporation is competent to treat each tenement occupied  by\na  different person as a separate building for levy of\ttax.\nThe expression 'family' in r. 10 (a) does not in the setting\nof the rules postulates the existence of relationship either\nby blood or by marriage between the persons residing in\t the\ntenement.   Even  a single person may be  regarded  for\t the\npurpose\t of  the rule as a family and a master\tand  servant\nwould also be so regarded.  The expression \"occupying\" in r.\n10  (a)\t applies  equally  to  uses  residential  and\tnon-\nresidential.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE,  JURISDICTION : Civil Appeal\tNo.  288  of
\n1960.\n<\/p>\n
Appeal\tby  special  leave  from  the  judgment\t and   order
\ndated,August  8, 1958, of the Bombay High Court\t in  Special
\nCivil Application No. 174 of 1958.\n<\/p>\n
G.  S.\tPathak-\t S.  M. Hajarnavis,  O.\t C.  Mathur,  J.  B.
\nDadachanji and Bavinder Narain, for the appellant.
\nM. C. Setalvad, Attomey-General of India, Al.  Y. Phadke and
\nNaunit Lal, for the respondents.\n<\/p>\n
798<\/span><\/p>\n
1962.\tDecember 7. The judgment of the Court was  delivered
\nby
\nSHAH,  J.-The  Nagpur Handloom Cloth  Market  Company  Ltd.-
\nhereinafter called ‘the Company’constructed on certain plots
\nowned  by it, two houses-each house consisting of  a  ground
\nfloor,\tintended  to  be used as shops and  an\tupper  floor
\nintended  to be used for residential purposes.\tFor the\t use
\nof  the\t occupants of the shops, 20  flush  lavatories\twith
\nunderground sewers connected with the drainage system of the
\nNagpur\tCorporation  were constructed by the  Company.\t The
\nCorporation  of Nagpur had also erected a  municipal  public
\nwater  Standard within 200 yards of the houses.\t  Among\t the
\ntaxes  levied by the Municipal Corporation under s.  114  of
\nthe City of Nagpur Corporation Act, 1948-hereinafter  called
\n“the Act’ were the conservancy tax and the water-rate  which
\nunder the rules applicable thereto were leviable as rates on
\nthe annual letting value of buildings’ and lands within\t the
\nCorporation area.  It is common ground that the shops  which
\nin  the aggregate number 201, are occupied  by\tshop-keepers
\nunder a scheme under which on payment of stipulated amounts,
\nthe  occupants will be full owners of the shops, and on\t the
\nliability of all the occupants being discharged the  Company
\nwill  be  dissolved.  However the scheme  under\t which\tthis
\narrangement was made has not been placed before us and it is
\nnot possible on the material before us to ascertain what the
\ntrue relation between the shop-keepers and the Company is.
\nFor  the year 1953-54 the Corporation of Nagpur proposed  to
\nassess the shop-keepers numbering one hundred and fifty five
\nwho  occupied  the  shop built by  the\tCompany\t to  private
\nconservancy tax water rate and property tax on each shop  as
\na,  separate unit of assessment, and assessment\t notices  in
\nthat behalf were issued to the Managing Director of
\n799<\/span>
\nthe  Company on September 26, 1953.  The  Company  requested
\nthe Corporation by letter dated September 30, 1953 that\t the
\nassessment notices be served on the ‘individual\t shopkeepers
\nof the respective shops regarding the assessment made by the
\nCorporation’.\t The   Corporation  thereupon\tserved\t the
\nindividual shop-keepers with notices of assessment. 120\t out
\nof  155\t shop-keepers served with the notice  of  assessment
\npreferred  objections submitting inter alia that  the  taxes
\ncould  be  assessed only on the Company.   These  objections
\nwere  heard  before the Objection Officer appointed  by\t the
\nCorporation.   The  Managing Director of the Company  and  a
\nrepresentative\t of   the   shop-keepers   submitted   their
\nrespective  cases  on behalf of the Company  and  the  shop-
\nkeepers.   By his order dated April 19, 1954  the  objection
\nOfficer\t held  that the Company be treated as owner  of\t the
\nhouses and the shop-keepers as occupants and that the demand
\nfor  tax  be  ‘primarily  made\tfrom  the  occupants’.\t  No
\nproceeding  challenging\t this order were  initiated  by\t the
\nshop-keepers  or  the Company and the  assessment  list\t was
\nauthenticated  as  required  by\t the  relevant\trules.\t The
\nCorporation thereafter served demand notices upon the  shop-
\nkeepers\t calling  upon\tthem to pay the taxes  due  by\tthem
\npursuant to the assessment list.\n<\/p>\n
On  December 16, 1954 some of the occupants appealed to\t the
\nChief Executive Officer under s. 387 of the Act\t challenging
\nthe validity of the assessment.\t The Deputy Chief  Executive
\nOfficer rejected the appeals against the order passed by the
\nObjection   Officer  to\t the  Chief  Executive\tOfficer\t  as
\nincompetent and observed that in any event the anneals which
\nwere   not  presented  within  the  period   of\t  limitation
\nprescribed  by s. 379 of’ the Act, were barred.\t  The  shop-
\nkeepers\t and the Company preferred separate appeals  to\t the
\nDistrict  Judge, Nagpur, against the order of the  Objection
\nOfficer.  The District judge by his order dated October\t 28,
\n1955 held that the
\n800<\/span>
\nappeals\t were  barred  by  the law  of\tlimitation  and\t the
\nappellants before him had made out no ground for condonation
\nof delay.  The shop-keepers again moved the Chief  Executive
\nOfficer to reconsider the order of assessment of tax.\tThat
\nOfficer\t by  his order dated April 18, 1956 held  that\teven
\nthough\tthe  order  passed by  the  Deputy  Chief  Executive
\nOfficer\t dismissing  the previously filed appeals’  as\t,not
\nmaintainable,  and observing that the proper remedy  of\t the
\nshop-keepers and the, Company aggrieved was an appeal  under
\ns.  130\t of the Act was erroneous, the\tappeals\t before\t him
\nbeing  barred  by the law of limitation., he was  unable  to
\ngrant  any redress to the appellants.  The  Chief  Executive
\nOfficer also opined that the houses having been divided into
\nseparate  shops and allotted to the  Company’s\tshareholders
\nwho  carried on their business independently and  each\tsuch
\nallotted  having  a  separate source of\t income\t within\t the
\nmeaning\t of  rule  10  (a)  of\tthe  assessment\t rules,\t the
\nObjection  Officer  was right in holding that each  shop  be
\ntreated\t as an independent unit, and be separately  assessed
\nfor the conservancy cess and water rate.\n<\/p>\n
Nearly two years thereafter the Company and one\t Sitaram-One
\nof  the shop-keepers-preferred a writ petition in  the\tHigh
\nCourt  of Bombay at Nagpur for writs of certiorari  quashing
\nthe  order of demand dated February 19, 1958 and also  bills
\nfor the assessment years 1956-57 and 1957-58 and for a\twrit
\nof  mandamus prohibiting the Corporation from  applying\t the
\nprovisions  of rule 10 (a) for the purposes  of\t conservancy
\ntax  and  water rate, and directing the Corporation  not  to
\ntreat  the individual shops on the ground floor of  the\t two
\nhouses\tas  separate  units of\tassessment  for\t purpose  of
\nconservancy  tax and water rate.  The High Court  held\tthat
\nrule  10  (a)  of  the\tassessment  rules  applied  only  to
\nresidential  houses  and  not to houses\t occupied  for\tnon-
\nresidential  purposes and therefore separate  assessment  of
\nthe shops
\n 801<\/span>
\nin  the\t occupation  of\t the  shop-keepers  was,  under\t the
\nprovisions  of\tthe  Act,  read\t with  the  relevant  rules,
\ninvalid.   The High Court accordingly allowed  the  petition
\nand  quashed  the notice of demand dated February  19,\t1958
\nmade  by the Corporation for levy of tax.   The\t Corporation
\nhas, with special leave, appealed to this Court.
\nThree  principal contentions are raised by counsel  for\t the
\nCorporation in support of the appeal :-\n<\/p>\n
\t      (1)   That  under\t the  Act  there  are  three
\n\t      distinct stages dealing with- the liability of
\n\t      taxpayers to pay tax-imposition of tax  autho-
\n\t      rised by a statute according to the  procedure
\n\t      prescribed in that behalf, assessment or
\n\t      levy of tax according to the provisions of the
\n\t      statute  and the rules framed thereunder;\t and
\n\t      collection  of  tax.  Each stage\tbeing  self-
\n\t      contained,   if  no  objection  is   made\t  to
\n\t      assessment  as prescribed by the\tstatute\t and
\n\t      the  rules made thereunder and in\t the  manner
\n\t      provided\tin that behalf, in a proceeding\t for
\n\t      recovery\t of   tax,  the\t validity   of\t the
\n\t      assessment cannot be challenged.
\n\t      (2)   The objection raised by the Company\t was
\n\t      only  against the demand and not\tagainst\t the
\n\t      assessment,  and that in any event  there\t was
\n\t      gross delay in the commencement of proceedings
\n\t      in  the High Court for obtaining relief by  an
\n\t      application  for a writ, and on  that  account
\n\t      the company had disentitled itself to relief.\n<\/p><\/blockquote>\n
\t      (3)   That    even   on\tthe    merits\t the
\n\t      interpretation  placed by the High Court\tupon
\n\t      rule:10(a)   of  the  assessment\t rules\t was
\n\t      erroneous\t and therefore each occupant of\t the
\n\t      shops whose
\n\t      802<\/span>
\n\t      name  was\t entered in the assessment  list  as
\n\t      framed  was liable to pay the conservancy\t tax
\n\t      and the water rate in respect of the     shop
\n\t      in his occupation.\n<\/p><\/blockquote>\n
Part  IV  of the Act deals with- taxation  i.e,\t imposition,
\nassessment and recovery of taxes.  Sections 114 and 115\t set
\nout the taxes which the Corporation is obliged to impose  or
\nmay impose and the procedure in that behalf.  Sections 1  16
\nto 140 deal with the assessment of property tax and ss.\t 154
\nto  169 deal with recovery of taxes.  Section  130  provides
\nfor  a\tright  of appeal to the\t District  Court  against  a
\ndispute\t as  to\t the liability of any land  or\tbuilding  to
\nassessment  of property tax or as to the basis or  principle
\nof assessment of property tax.\tSection 164 provides for  an
\nappeal\tagainst\t a notice of demand for tax due\t under\tsub-
\nsection\t (1) of s. 155 This appeal lies to a  Magistrate  by
\nwhom  under  the direction of the District  Magistrate\tsuch
\nclass of cases is to be tried.\tA general right of appeal is
\ngranted by s. 387.  Any person aggrieved by an order  passed
\nunder  the Act or under any rule or bye-law made  thereunder
\nfailing\t to  obtain redress may appeal\tto  any\t Corporation
\nOfficer\t appointed  by the Chief Executive Officer  to\thear
\nsuch  appeals,\tor failing such appointment,  to  the  Chief
\nExecutive Officer.\n<\/p>\n
The  procedure for assessment of conservancy tax  and  water
\nrate is prescribed not by the provisions of the Act, but  by
\nthe rules framed under the C. P. & Berar Municipalities\t Act
\nof  1922  which by virtue of s. 3(2) of the Act\t are  to  be
\ndeemed\tto  have  been\tmade under  the\t provisions  of\t the
\nCorporation  Act  of 1948.  The procedure  for\trecovery  is
\nhowever governed by the provisions of ss. 154 to 167 of\t the
\nAct.   The subject of taxation in the matter of\t conservancy
\ntax and water rate is therefore found distributed in the Act
\nand the Rules under three heads of
\n803<\/span>
\n2 imposition, assessment and recovery of taxes.
\nFor  the purpose of the pro-sent case it is  unnecessary  to
\nexpress any opinion on the plea raised by Mr. Pathak for the
\nCorporation   that  the\t tax-payer  cannot   challenge\t the
\ncorrectness  of an order of assessment, in a proceeding\t for
\nrecovery  of  tax,  though  it may  appear  that  under\t the
\nanalogous  provisions  contained  in  the  Bombay   District
\nMunicipal Act III of 1901 and the Bombay Municipal  Boroughs
\nAct, XVIII of 1925, in an appeal against a notice of  demand
\nto  a  Magistrate  the\tcorrectness  or\t propriety  of\t the
\nassessment may, be challenged. See The Municipal Borough  of
\nAhmedabad v. The Aryodaya Ginning and Manufacturing  Company
\nLtd.  (1)  and The Municipality of Ankleshwar  v.  Chhotalal
\nGhelabhai Gandhi (2).\n<\/p>\n
There  has undoubtedly been great delay in moving  the\tHigh
\nCourt by a petition under Art. 226 of the Constitution.\t The
\norder  of the Objection Officer was made on April  19,\t1954
\nand the appeal against that order was dismissed on April 22,
\n1955.  Even the second order by the Chief Executive  Officer
\nwas  made  on  April  18, 1956\tand  for  nearly  two  years
\nthereafter  no\tproceeding was commenced in the\t High  Court
\nchallenging the validity of that order.\t The High Court was,
\nhowever,  of  the  view that  because  the  Chief  Executive
\nOfficer\t in  the first instance held that the  appeal  filed
\nbefore him was not competent and the remedy of the tax payer
\nwas  to move the District Court under s. 130 of the Act\t and
\nthat  in the appeal preferred in the year 1956 he held\tthat
\nthe  appeal was maintainable and dismissed it on the  merits
\nwhile observing that it was barred by limitation, there\t was
\nsome  ground  for  not regarding the  shop-keepers  and\t the
\nCompany\t as guilty of laches.  The High Court also  observed
\nthat  after the order passed by the Chief Executive  Officer
\nin 1956 the Corporation was moved by an application
\n(1) 1. L. R. (1941) Bom. 658,
\n(2) (1954) 57 Bom.  L. R. S 547,
\n804<\/span>
\nunder  s.  143\tof the Act, and since the  decision  of\t the
\nCorporation  on\t the  application, the\tpetition  was  filed
\nwithout delay.\tThis ground may appear to us inadequate\t but
\nthe High Court has exercised its discretion in holding\tthat
\nthe petition notwithstanding the delay should be entertained
\nand  we are unable in a matter essentially of discretion  to
\nset  aside  the judgment of the High Court  on\tthis  ground
\nalone,\tespecially when the petitioners have claimed  relief
\nnot  only in respect of the assessment for the year  1953-54
\nbut also in respect of assessment of tax for the years 1956-
\n57 and 1957-58.\n<\/p>\n
The  question that falls then to be determined is about\t the
\ntrue  interpretation of rule 10 (a) of the assessment  rules
\nrelating to the conservancy tax and water rate.\t Section 114
\nof the Act requires the Corporation to levy, amongst others,
\na property tax, a latrine or conservancy tax payable by\t the
\noccupier  or  owner  upon  private  latrines,,\tprivies\t  or
\ncesspools   or\tupon  premises\tor  compounds  cleansed\t  by
\nCorporation agency and a water rate where water is  supplied
\nby  the\t Corporation.  For assessment of the  property\ttax,
\nmachinery  is  prescribed  in the Act itself,  but  no\tsuch
\nmachinery  is  prescribed  in  the Act\tin  respect  of\t the
\nconservancy  tax  and water rate.  Under the  C.P.  &  Berar
\nMunicipalities Act, II of 1922, by s. 66 various taxes could
\nbe  imposed by the Municipalities governed thereby (and\t the
\nMunicipality of Nagpur was governed by that Act) and latrine
\nor  conservancy tax and water rate were two out of the\tmany
\ntaxes  leviable.   By  s. 71 of the Act of  1922  power\t was
\nconferred upon the State Government to make rules under\t the
\nAct,  inter  alia,  regulating the  assessment\tof  tax’  In
\nexercise  of  the powers the Government\t of  Madhya  Pradesh
\nframed\tdiverse sets of rules dealing with assessment,\tlevy
\nand collection of taxes.  Rules were made on August 19, 1941
\ndeclaring  liability of buildings and lands for\t conservancy
\ntax  in respect of private latrines, and Rule 2 thereof,  in
\nso far as it is
\n 805<\/span>
\nmaterial, provided that-\n<\/p>\n
“2. There shall be imposed-\n<\/p>\n
(i)\t  x x x\t\tx\n<\/p>\n
\t      (ii)  On\tevery  building or land to  which  a
\n\t      private latrine., privy or cesspool is attach-
\n\t      ed,  or  any resident whereof uses  a  private
\n\t      latrine,\tprivy or cesspool, which  is  either
\n\t      cleansed\tby municipal agency or is  connected
\n\t      with  the municipal underground sewer’ or\t the
\n\t      premises or compounds of which are cleansed by
\n\t      municipal\t agency, a tax payable by the  owner
\n\t      under  section  66 (1) (h)  according  to\t the
\n\t      following\t scale on its gross  annual  letting
\n\t      value.”\n<\/p>\n
A  similar set of rules in respect of water rate came to  be
\npromulgated  on September 28, 1949, It was provided by\tRule
\n1, in so far as it is material, that-\n<\/p>\n
“1. There shall be imposed-\n<\/p>\n
(1) (a)\t\tx\t x x\t    x\n<\/p>\n
\t      (b)   On\tevery building or land which has  no
\n\t      private supply from municipal service pipes or
\n\t      the  resident thereof does not use water\tfrom
\n\t      such  supply and which is situated within\t 200
\n\t      yards from public water standard or a  service
\n\t      pipe,  a\ttax  leviable  from  the  owners  or
\n\t      occupiers under section 66(l) (k) according to
\n\t      the  following  scales  on  its  gross  annual
\n\t      letting value : ”\n<\/p>\n
In  1941 rules were made for assessment of conservancy\ttax.
\nThe tax was to be levied on the
\n806<\/span>
\ngross  annual letting value of the building.  By rule  5  it
\nwas  provided  that  on the completion\tof  the\t assessment,
\nnotices\t shall\tbe  given to the  persons  affected  by\t the
\npreparation of the assessment list.  Any person affected  by
\nthe  entries  in  the list was by rule 6  entitled  to\tfile
\nobjections against assessment or valuation or both as  shown
\nin  the\t register  at any time within  thirty  days  of\t the
\npublication  or\t service.   This  rule\talso  provided\t for
\naffording a hearing to the objectors.  Rule 8 provided\tthat
\nafter  the objections under rule 6 had been disposed of\t and
\nall  consequential  amendments were made in  the  assessment
\nlist  it  shall be authenticated and the register  shall  be
\nvalid from the date of the authentication and shall continue
\nto  be\tvalid  until the beginning  of\tthe  half-year\tnext
\nfollow.\t ing  the authentication of a  new  register.\tRule
\n10(a) provided :\n<\/p>\n
\t      “Where  more than one family  having  separate
\n\t      sources of income, occupy separate portions of
\n\t      the same building or range of buildings,\teach
\n\t      of  such\tportion shall be deemed\t a  building
\n\t      under  these rules and assessed  according  to
\n\t      its  gross annual letting value as  determined
\n\t      in accordance with rule 1.”\n<\/p><\/blockquote>\n
Clause (b) provided :\n<\/p>\n
\t      “The Committee may, at a special meeting if it
\n\t      thinks fit, assess the tax on such building on
\n\t      the  aggregate gross annual letting  value  of
\n\t      all  the\tportions instead of  assessing\teach
\n\t      portion separately.”\n<\/p><\/blockquote>\n
Clause (c) provided
\n\t      “Detached building, even when occupied by\t the
\n\t      same  person or family, shall, where any\troad
\n\t      or pathway over which the public have a  right
\n\t      of way, or any land belonging to any
\n 807<\/span>
\n\t      other person separate them from one  another,’
\n\t      be separately assessed as independent units.
\n     Similar rules were made in respect of the assessment
\nlist for water rate. The water rate wasalso  to be  imposed
\nas a rate on the gross annual letting\t  value\t    and
\nprovisions of rule 10 (a), (b)and  (c)\twere  in  terms
\nidentical with the assessment rules framed in respect of the
\nconservancy  tax assessment and for the sake of\t brevity  we
\nwill only refer to assessment rules relating to\t conservancy
\ntax.   These rules remained in force even after the C. P.  &
\nBerar Municipalities Act, 1922 was repealed by virtue of  s.
\n3  (2)\tof the Act of 1948, and -applied  to  assessment  of
\nliability to conservancy tax and water rates as if the rules
\nwere framed under the latter Act.\n<\/p>\n
‘Building’ is defined in the Act by s. 5 (7) as including “a
\nhouse,\touthouse,  stable,  hut, shed  or  other  enclosure,
\nwhether\t used  as a human dwelling or  otherwise  and  shall
\ninclude\t verandahs, fixed platforms, plinths,  door-steps  ,
\nwalls  and  the\t like.”\t The  definition  is  an   inclusive
\ndefinition, and contains inherent indication that a part  of
\na  building  would  be\ta  building  for  the  purposes\t  of
\nimposition of liability to pay rates, and assessment of such
\nliability.  It is manifest that under the scheme of the\t Act
\nread  with the rules, conservancy tax and water rate are  to
\nbe  levied as rates on the gross annual letting value and  a
\nrate  can  only be levied from a person in  respect  of\t the
\ntenement  or premises occupied as an independent unit.\t The
\nassessment  rules  provide  for levy of rate  on  the  gross
\nannual letting value of the building. and in as much as\t the
\nexpression  “building’ according to the definition given  in
\ns. 5 (7) of the Act would include a part of a building,\t the
\nCorporation  is\t competent  to frame a list  in\t respect  of
\nseveral\t tenements  occupied by different  persons  treating
\neach tenement as a separate building for levy of tax.\tThat
\nis  implicit in rule 10 (b) and also in rule 10 (c)  of\t the
\nassessment rules,
\n808<\/span>
\nBy  the\t rules, liability to pay conservancy tax  and  water
\nrate  is imposed in respect of a building  provided  certain
\nconditions  specified  in the rule are fulfilled,  and\tthis
\nliability   arises   whether  the  building  is\t  used\t for
\nresidential  purposes or non-residential purposes.  Rule  10\n<\/p>\n
(a)  also clearly authorises the Corppration to\t levy  water
\nrate  and  the\tconservancy  tax  in  respect  of   separate
\ntenements  occupied  by different persons as  if  each\tsuch
\ntenement  is a building.  In the view of the High Court\t use
\nof the expression ‘family’ in rule 10 (a)-indicated that the
\nrule did not apply to buildings occupied for  non-residentia
\npurposes.  But by the rules imposing the conservancy tax and
\nthe water rate, all buildings to which are attached latrines
\ncleansed  by  municipal agency and all buildings  which\t are
\nconnected  with the water distribution system, or which\t are
\nsituate\t within the prescribed distance of  water  standard,
\nare  liable  to pay the conservancy tax and the\t water\trate
\nirrespectivc of the nature of the use to which the  building
\nis put.\t It is implicit in the view of the High Court that a
\nbuilding  occupied for non-residential use can be  taxed  as
\none  unit,  even if the building is occupied by\t tenants  or
\nlicencees,  carrying on their separate or individual  trades
\nor  businesses.\t  But  this  view  does\t not  appear  to  be
\nsupported by the scheme of the Act and rules.  If a building
\nis  partly  occupied  for residential and  partly  for\tnon-
\nresidential  purposes the portions occupied for\t residential
\npurposes  would, in the view of the High Court, be  regarded
\nas  separate\t       buildings and each occupant having  a
\nseperate source of income would be liable to pay conservancy
\ntax  and  water\t rate but the  portions\t occupied  for\tnon-
\nresidential  purposes  would  not be  regarded\tas  separate
\nbuildings.  The High Court reached its conclusion that\trule
\n10 (a) did not apply to portions of buildings when they were
\noccupied for non-residential purposes merely because of\t the
\nuse  of\t the  expression  “family’ in  the  rule.   But\t the
\nexpression ‘family’ has according
\n 809<\/span>
\nto  the context in which it occurs a  variable\tconnotation.
\nIt  does  not  in the setting of  the  rules  postulate\t the
\nexistence  of  relationship either of blood or\tby  marriage
\nbetween the persons residing in the tenement. Even     a
\nsingle person may be regarded as a family,and  a   master
\nand servant would also be so regarded. The  word   ‘occupy’
\nused in rule 10 (a) is not restricted either expressly or by
\nanything  contained  in the context of the  rule  suggesting
\nthat the occupation is to be only for residential  purposes,
\nand in\t  the absence of any such implication the rule\tmust
\nbe   deemed to be of general application i.e., it applies to
\nuses non-residential as well as residential.  The expression
\n‘family’  must\ttherefore take colour  from  the  expression
\n“occupy’ used in the same rule.\t In our view the  expression
\n`family’  in the context in which it occurs, means  no\tmore
\nthan a person or a group of persons.\n<\/p>\n
Mr. Pathak appearing on behalf of the Corporation  submitted
\nthat  there  was a drafting error in rule 10 (a), and  as  a
\nmatter\tof  interpretation the Court would be  justified  in
\nreading\t the  expression ‘family’ in that  rule\t as  meaning
\n‘family or person’ -which is the expression used in rule  10\n<\/p>\n
(c).   He submits that rule 10(a) and rule 10 (c) deal\twith
\nthe  same subject-matter and, therefore, the Court would  be
\njustified  in holding that the expression ‘one family’\tused
\nin rule 10 (a) and the expression “person or family’ in rule
\n10  (c) must have the same meaning.  Prima facie,  there  is
\nsubstance  in  this  contention,  but we  do  not  think  it
\nnecessary to base our decision on that ground.\tIn our\tview
\nthe  expression\t ‘family’ has not a  restricted\t meaning  as
\nsuggested  by the High Court, and under the  rules  imposing
\nliability to pay conservancy tax and water rate liability is
\nimposed\t upon  every building, which expression\t includes  a
\npart   of  a  building\toccupied  as  an  independent\tunit
\nirrespective of the nature of the user, The learned Attorney
\nGeneral appearing on
\n810<\/span>
\nbehalf\tof the Company submitted that under the\t Corporation
\nAct  the  owner\t and  not the occupier\tis  liable  for\t the
\nconservancy  tax  and  water  rate  and\t therefore  separate
\nassessments of different units occupied by the\tshop-keepers
\ncould  not  be made.  This plea was not raised in  the\tHigh
\nCourt.\t Even  apart  from  this  infirmity,  there  is\t  no
\nsubstance in the plea.\tUnder s. 114 of the Act a latrine or
\nconservancy tax payable by the occupier or the owner may  be
\nimposed.  Similarly water rate may be imposed, when water is
\nsupplied  by the Corporation.  By the rules framed under  s.
\n71  of\tthe  C.\t P. Berar  Municipality\t Act  of  1922,\t and
\ncontinued  under  the  Act of  1948  liability\timposed\t for
\npayment\t of the conservancy tax and the assessment rules  is
\nnot restricted to owners only.\tBy rule 4 of the  assessment
\nrules  the Corporation is required to prepare an  assessment
\nlist  containing the names of the persons liable to pay\t the
\ntax.   The assessment rules therefore clearly indicate\tthat
\nthe  occupier of the premises may be rendered liable to\t pay
\nthe conservancy tax and the water rate.\t Section ‘165 of the
\nAct  makes all sums due from any person in respect of  taxes
\non  any land or building, a first charge upon the said\tland
\nor  building and upon any movable property found  within  or
\nupon such land or building and belonging to the said person,
\nprovided   that\t no  arrears  of  any  such  tax  shall\t  be
\nrecoverable from any occupier who is not the owner, if\tsuch
\narrears\t are for a period during which the occupier was\t not
\nin occupation.\tIt is implict in s. 165 that an occupier  of
\nthe premises may be liable to pay the tax even though he  is
\nnot  the owner.\t It is also necessary to point out that\t the
\nscheme\tunder  which  the  shop-keepers\t are  occupying\t the
\npremises  has  not been produced before this Court.   It  is
\nadmitted,  however, that the shop-keepers will be owners  of
\nthe  premises occupied by them as soon as the amounts  which
\nthey  have agreed to pay are fully paid and their  liability
\ndischarged.  ‘The
\n\t\t\t    811<\/span>
\nCompany\t treated  the shop-keepers as  owners  (vide  their-
\nletter\tdated September 30, 1953).  Manifestly they  have  a
\nsubstantial  interest in the tenements in  their  occupation
\nand  it\t would\tbe difficult not to  call  them\t owners\t for
\npurposes of municipal taxation.\t According to the definition
\nin  s.\t5  (37)\t of the Act  an\t ‘owner’  “”when  used\twith
\nreference  to any land or -building includes the person\t for
\nthe time being receiving the rent of the land or building or
\nof  any\t part  of the land or building whether\ton  his\t own
\naccount or an agent or trustee for any person or society  or
\nfor  any religious or charitable purpose, or as\t a  receiver
\nwho  would receive such rent if the land, building  or\tpart
\nthereof\t were  let to a tenant”.  There is  nothing  on\t the
\nrecord\tto show that the shop-keepers would not be  entitled
\nto let out the premises in their occupation and if they can.
\nthey  would be regarded as owners within the meaning of\t cl.
\n(37) of s. 5.\n<\/p>\n
In  our\t view,\ttherefore, the High Court was  in  error  in
\nholding\t that rule 10 (a) applied only to building  occupied
\nfor residential purposes.  The rule in our judgment  applies
\nto   buildings\toccupied  for  nonresidential  as  well\t  as
\nresidential  purposes,\tand  to every  part  of\t a  building
\noccupied by a person or a group of persons having a separate
\nsource of income, whether the occupation is for\t residential
\nor  non-residential  purposes and such person  or  group  of
\npersons\t would be liable to pay the conservancy tax and\t the
\nwater rate.\n<\/p>\n
The  appeal therefore is allowed and the petition  filed  by
\nthe Company and the tax payer Sitaram Upasrao dismissed with
\ncosts in this Court and the High Court.\n<\/p>\n
\t\t      Appeal allowed,
\n\t\t\t    812<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Corporation Of The City Of Nagpur vs The Nagpur Handloom Cloth … on 7 December, 1962 Equivalent citations: 1963 AIR 1192, 1963 SCR Supl. (2) 796 Author: S C. Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Gupta, K.C. Das, Shah, J.C. PETITIONER: CORPORATION OF THE CITY OF NAGPUR Vs. RESPONDENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-55738","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCorporation Of The City Of Nagpur vs The Nagpur Handloom Cloth ... on 7 December, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/corporation-of-the-city-of-nagpur-vs-the-nagpur-handloom-cloth-on-7-december-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Corporation Of The City Of Nagpur vs The Nagpur Handloom Cloth ... on 7 December, 1962 - 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