BANDRA MUNICIPALITY Vs. VENECHAND PUNAMCHAND

JUDGEMENT

(1.) This appeal arises out of a suit brought by the Bandra Municipality to recover the amount of house-tax, water-tax, and sanitary cess from the defendant either personally or from his property. The Municipality claimed a first charge on the property for the payment of these taxes. The claim was resisted by the defendant both on facts and on law. The trial Court found that the defendant was not liable personally to pay the taxes, but as the defendant had purchased the property and had become the owner of it in November 1927, the plaintiff Municipality was entitled to a charge on the property in respect of the same. The defendant appealed to the District Court. In appeal the defendant did not resist the claim as regards the house-tax, but contended that the arrears for the sanitary cess and water-tax, could not be a charge on the property. The Municipality, curiously enough, did not file cross objections to the decree disallowing the claim personally against the defendant. The learned District Judge upheld the contention of the defendant and allowed the appeal. The result was that the claim of the Municipality to recover the sanitary cess and water-tax personally from the defendant was disallowed by the trial Court, and their claim to a charge in respect of these taxes, allowed by the trial Court, was disallowed by the appellate Court. Hence this appeal.

(2.) The appeal has been exhaustively argued by Mr. Parulekar on behalf of the Municipality, and he stated that if he was not able to satisfy the Court that the view taken by the lower Court with regard to the sanitary cess was wrong, he would not take up the Court's time in arguing the question of water-tax, as he felt that Section 112, Bombay Municipal Boroughs Act, might not in terms apply to it and he has confined his argument to the claim in respect of the special sanitary cess. The only question in appeal, therefore, is whether the Municipality under the Bombay Municipal Boroughs Act, XVIII of 1925, and the rules made by it under Section 58 of the Act, is entitled to a charge on property in respect of the tax known as special sanitary cess. The other question raised by Mr. Parulekar is that even if the Municipality are not entitled to a charge in this case, they are entitled to a personal decree against the defendant in respect of the amount due for this particular tax. The question thus raised turns upon a proper construction or certain sections of the Bombay Municipal Boroughs Act, 1925, read with the rules made by the Bandra Municipality under the Act. Chapter 7 deals with "Municipal Taxation"; the first Section in it is Section 73 under sub-heading (1) "Imposition of Taxes." The section lays down what taxes may be imposed by a Municipality. The word "tax" is defined by Section 3 as meaning various kinds of imports, cesses, charges or taxes. Section 73 shows clearly the distinction between various kinds of levies or cesses or taxes which the Municipality can impose. Thus under Section 73 (i) we have a rate on buildings or lands. Under (ii) there is a tax on certain kinds of vehicles or animals, etc.; under (iii) a toll on other vehicles; under (iv) an octroi on animals, and so on. Then there is a tax on dogs. Then we come to (vii) which provides for a special sanitary cess upon private latrines, etc., cleansed by Municipal agency, after notice given as required under the section. Then there is a drainage tax, and in (x) there is a special water rate, which may be imposed in the form of rate assessed on buildings or in any other form and so on Proviso (6) of the section shows that no special sanitary cess can be levied until the Municipality has issued either severally to the persons to be charged, or generally to the inhabitants of the borough...to be charged with such cess, one month's notice of the intention of the Municipality to perform such cleansing and to levy such cess.

(3.) Apart from anything else it seems to me to be clear from Section 73 itself that there is a distinction between a special sanitary cess and a rate on buildings and lands, further that in the case of of the latter no liability would accrue and no cess would be allowed until a notice is given to the person to be charged thus indicating that the liability should be imposed on the person to whom the notice is given. In the same chapter under heading "(2) Assessment of and liability to rates on buildings or lands," there are several sections running from 78 to 89 which show clearly how rates on buildings or lands are to be assessed, and show clearly that it is the house-tax as such which is mentioned and referred to in these sections as a "rate on buildings or lands." Of these Section 85 makes it clear that the tax imposed in the form of a rate on buildings or lands is primarily leviable on the actual occupier of the property upon which the tax is assessed. Then under heading "(4) Special provisions relating to certain taxes" in the same chapter, provision is made for assessing taxes other than those previously dealt with and for fixing the liability in respect thereof and this matter is dealt with in Secs.91 and 92 with the exception of octroi and tolls, which are dealt with under sub- heading (5). The next chapter, that is Ch. 8, refers to and deals with "Recovery of Municipal Claims," and it is in that chapter that Section 112 finds a place. It. is on this section that Mr. Parulekar relies. It runs thus: All sums due on account of any tax imposed in the form of a rate on lands or buildings or both, shall, subject to prior payment of land revenue, if any...be a first charge upon the building or land, in respect of which such tax is leviable .