INDIA TOBACCO COMPANY LTD. Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) In this special appeal Imperial Tobacco Company Limited of Saharanpur (hereinafter called The Company) is the appellant and the Municipal Board, Saharanpur (hereinafter called The Board) is the respondent. It arises out of a writ petition filed under Art. 226 of the Constitution of India by the Board as a petitioner, questioning the validity of an appellate order passed by the District Magistrate of Saharanpur under Sec. 160 of the U. P. Municipalities Act (hereinafter called The Act) by which the levy of the water-tax on all the buildings belonging to the Company as one unit was set aside except for three bungalows which were found to fall within the radius of 600 feet of the nearest water-stand-pipe fixed by the Board.

(2.) It appears that by a notification of the Municipal Department of Government of Uttar Pradesh dated 12th Sept., 1958 the Board was authorised to assess water-tax on those residential buildings which fell within a radius of six hundred feet of the nearest water-stand-pipe under Sec. 129(a) of the Act. On 13-8-1959, the Executive Officer of the Board intimated the Company that as a result of installation of a public stand post all factory buildings of the Company situated in Khalasi Line, bearing within a radius of six hundred feet from the said post came within taxable area with effect from the month of May, 1959 for the purpose of imposition of water-tax. The Company by its letter dated 20th Aug., 1959 enquired from the Executive Officer of the Board as to which of the residential buildings came within the taxable area. The Board persisted that as the Company was the owner of the complex, consisting of the factory buildings, stores, godowns, dispensary and residential houses etc. enclosed in one closed compound as a unit fell within the taxable area and served upon Company the Water-tax bill. By its letter dated 19th Dec., 1959 the Company protested and intimated that the bill was incorrectly made out, pointing out, that the buildings were not in a common compound and the residential bungalows be treated as separate unit in the same way as they were being treated for house-tax assessment. It demanded an amended bill separately for those buildings that fell within six hundred feet from the water-stand-pipe. The Executive Officer of the Board by his letter dated 29th Dec., 1959 informed the Company that in view of explanations (a) and (b) of Sec. 129 of the Act, all buildings and the common compounds were assessable to water-tax and, therefore, the bill had been correctly worked out, and asked the Company to deposit the tax. It appears that the Company deposited the tax in dispute under protest and filed an appeal to the District Magistrate. Saharanpur, under Sec. 160 of the Act. The District Magistrate under the appellate order dated 7th April, 1960 held that the whole plot of land containing a number of factory buildings, and residential buildings could not legally be treated as one unit for the purpose of water-tax. He found that only a part of three bungalows fell within six hundred feet of the water-stand pipe and water-tax could only be assessed on those bungalows under Sec. 129 (a) of the Act. Being aggrieved, the Board filed a writ petition in the High Court and challenged the order of the District Magistrate, mainly on the substantial ground that the District Magistrate has failed to appreciate the correct import and scope of Sec. 129 of the Act which specifically provided that "buildings" included the compound, and where there were several buildings in a common compound, all such buildings and the common compound. In a counter-affidavit the Company, inter alia, said that the factory buildings of the Company were distinct arid separate, being enclosed by high walls from the residential area which were situate outside the factory and that residential areas were comprised of separate and distinct compounds containing the residential premises used as residences by the officers of the Company. It was denied that the factory area and the residential area consisted of a single combined area surrounded by a common compound wall. Brother Broome who heard and decided the writ petition wide his judgment under appeal, held that as all the buildings belonging to the Company stood in a common compound, the entire complex being surrounded by a common wall for the purpose of levying water-tax under Sec. 129 of the Act all the buildings in one compound are to be treated as one unit and, if it is within the radius of six hundred feet from the water-stand-pipe, the Board rightly assessed all the buildings of the Company to water-tax. Accordingly, the writ was allowed and the appellate order of the District Magistrate was quashed. The Company being aggrieved has filed a special appeal.

(3.) Admittedly, in Khalasi Lines within the municipal area of Saharanpur the Company, which manufactures cigarettes, has erected a factory, a large number of factory buildings and residential buildings occupied by officers and staff. The entire structure of the factory as such is surrounded by a high wall. This high wall which surrounds the actual factory separates it from other buildings which are used as residences by the officers and the staff. The residential buildings are in the shape of bungalows with different names like Harrogate, Wingate, etc. Each one of them is separately enclosed either by a boundary of masonry or barbed wires. Admittedly, the bungalows were assessed separately for the levy of house-tax. Out of the many such bungalows and other sundry buildings situate in the complex only three bungalows have been found to fall within a radius of six hundred feet from the nearest water-stand-pipe. We doubt, if the whole of the complex-consisting of the factory buildings and the residential buildings is treated as one unit of building, the one or the other point of its boundary will be within six hundred feet of the nearest water-stand-pipe installed by the Board. It was denied by the Company as said above, that the factory area and the residential area consisted of a single compact area surrounded by a common compound wall. Further, it was asserted by the Company in paragraph 9 of its counter affidavit that between some of the compounds of the residential area are parcels of land which do not belong to the Company. One such parcel of land situate near the factory area contains a mosque and grave yard which belong to other persons while another parcel of land near the entrance to the residential area was a private grave yard; yet a third parcel of land situate along the road passing through the residential area contained a tomb belonging to a mosque. In the rejoinder affidavit of the Board these facts were not denied but what was stated as a submission in reply to paragraph 9 of the counter-affidavit was that no water line or water-connection lay in the parcels of land mentioned in that paragraph. It is obvious from the facts above that the actual factory area is enclosed by a high wall. Outside this high wall lay scattered residential buildings interspersed by mosque, tomb and graveyard belonging to other persons, though, of course, there is an outer boundary consisting of partly masonry walls and partly barbed wire fencing, for protection from the trespassers and animals. As the sketch plan of the complex shows, from the Municipal road one road leads to the factory and another support road feeds the residential portion. The learned Single Judge, on In appreciation of the language of Sec. 129 read with explanations (a) and (b), accepted the argument of the learned counsel for the Board that all the houses and the factory having belonged to one and the same owner and the entire complex of buildings having been enclosed in a common compound wall along with the various houses having common access roads constructed inside the compound would be a building within the meaning of Sec. 129 (a) of the Act as falling within a radius of six hundred feet front the nearest water-stand-pipe are liable to water-tax. The learned Single Judge concluded as follows:-