9911796707
TMI Blog1998 (11) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, Sub-section (l)(x) of the Act. The case of the appellant was that the respondent company had erected a factory with a large number of ancillary buildings and residential houses occupied by its officers and staff within the municipal limits of the appellant Board and that the entire complex of buildings owned by the respondent company was surrounded by a high wall for security reasons. The appellant Board raised the bills of water-tax on 13th Aug., 1959 calling upon the respondent to note that as a result of a public water stand pipe, the company's property bearing all factory buildings situated on Cigarette Factory Khalasi Line, being within a radius of 600 feet from the said pipe had come within the taxable area with effect from the month of May, 1959 for the purpose of imposition of water- tax. The respondent-company, by its communication dated 19th December, 1959 objected to the said imposition of water-tax and submitted that the company was not liable to pay water-tax bills for the period from 1.10.1959 to 31.3.1960, as according to the respondent company, the bills were incorrectly made out in that they included all residential and factory buildings. It was further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned single Judge of the High Court, who heard the writ petition, after hearing the contesting parties, came to the conclusion that all the buildings belonging to the respondent-company were standing in a common compound (even though that the company might be subdivided into different sections), because the entire complex was surrounded by a common wall. Relying on the map which was supplied by the respondent-company, it was held that the said map clinched the arguments of the appellant which showed that inside the residential area there was one road which was undeniably appurtenant to the factory, since it led from the main municipal road to the gate of the factory proper, and there was another road which provided access to the various residential houses and was, therefore, a common appurtenance of all those houses. The first of these roads consequently had to be treated as the compound of the factory, as defined in Section 2(5) of the Act; and similarly the second road was the compound of the residences. Both these roads started from a point quite close to the municipal stand pipe; and a substantial portion of both the roads was lying well within the radius of 600 feet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia against the appellate order of the District Magistrate passed Under Section 160 of the Act. On merits, it was submitted that the Division Bench had patently erred in law in applying the provisions of Section 2 Sub-section (5) defining compound while interpreting Explanation (a) to Section 129 of the Act. He submitted that the term building for the purpose of the said section will have to be understood in the light of Explanation (a) to Section 129 and hence could include not only the structure or structures along with their compounds which may be appurtenant to them but the said term would also include in its meaning several buildings which are situated in a common compound, as in the present case, and consequently, all such buildings in the common compound together will be treated as buildings for the purpose of finding out 600 feet distance from the nearest stand pipe to such buildings as required Under Section 129(iii) of the Act. Shri Garg further submitted that neither the District Magistrate nor the learned single Judge and also not even the Division Bench of the High Court had kept this aspect of the matter in view. With the result mat a question of appurtenance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that on a correct interpretation of Section 128(l)(x) and Section 129 Explanation (a), the term common compound has to be construed as a place where the common compound land was having appurtenance to the buildings situated therein and in the land in that compound, the residents of the buildings should have a right of common use or enjoyment and that would make the said surrounding land a common compound . Therefore, according to the learned senior counsel for the respondent, the concept of appurtenance of the compound land to the buildings in question was a relevant question and could not be said to be contradicted , as in his view Section 2 Sub-section (5) which defines compound would squarely get attracted even in such a case. In support of his contention, he invited our attention to the word common as found in P. Ramanatha Aiyar's The Law Lexicon , Reprint Edition 1987 at page 216-r. He also submitted that under Articles 226 and 227 of the Constitution of India, the learned single Judge of the High Court had a limited jurisdiction and he could only revise any patent error of law that might have been committed by the authorities below and could not act as a court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lestar Electronic (P) Ltd. v. Addl. Commissioner, Sales Tax, Delhi, [1978]3SCR98. 9. It was also submitted by Shri Nariman that as the learned single Judge had exercised powers under Article 226 of the Constitution of India, the Special Appeal was maintainable and that as this objection was not raised by the appellant before the Division Bench, it should not be permitted to be raised at this late stage. In any case, he is entitled to challenge the decision of the learned single Judge in the present proceedings. 10. In rejoinder, Shri Garg, learned counsel for the appellant, submitted that the District Magistrate had patently erred in law in relying upon the definition of the term Compound as found in Section 2, Sub-section (5) of the Act, while interpreting Explanation (a) to Section 129 and in fact the appellate authority completely by-passed the said provision and wrongly relied upon the aforesaid definition of the word compound which had nothing to do with the second part of the said Explanation and as these provisions were completely ignored by the appellate court, it could be said that the decision rendered by the appellate court suffered from a patent error of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y residential buildings; and 6. What final Order? We will deal with these points seriatim. Points Nos.(1) and (2): 12. These two points raise common questions of law and fact and therefore, they are being dealt with together. The water-tax which is in dispute between the parties could be imposed by the appellant as per the provisions Under Section 128(1)(x) of the Act which reads as under : 128. Taxes which may be imposed - (1) Subject to any general rules or special orders of the State Government in this behalf, the taxes which a municipality may impose in the whole or any part of a municipality are - x x x (x) a water-tax on the annual value of buildings or lands or of both; 13. Restriction in the imposition of water-tax is found in Section 129 of the Act. The said provision, as it stood at the relevant time, reads as under : 129. [Restriction in the imposition of water-tax] -The imposition of G a tax under Clause (x) of Sub-section (i) of Section 128 shall be subject to the following restrictions on the imposition of namely, water-tax. (a) that the tax shall not be imposed on land exclusively used for agricultural purposes, or, where the unit of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had common land attached only to such composite cluster of buildings for use and occupation of owners of such a cluster of buildings, then these buildings could be said to have a compound of their own attached as appurtenance to all of them. It is obvious that such compound land would be available for exclusive use of the occupiers of these buildings so closely situated to one another that their occupants could use this adjoining compound land being an appendage to their building. However, so far as the term common compound is concerned, it is not defined by the Act. When we turn to Section 128, we find that the Municipalities have been authorised subject to general rules or special rules of the State Government to impose water-tax on the annual value of buildings or lands or of both. Consequently, any building situated anywhere within the municipal limits along with its appurtenant compound as defined by Section 2, Sub-section (5) could be subjected to water-tax on the annual value of such buildings or lands or of both. However, Section 129 lays down restriction on the imposition of such water-tax to the extent provided therein. Sub-clause (a) of Section 129 restricts the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finition of the terms building as found in Section 2(2) and compound as found in Section 2(5). 15. But when we turn to the second part of this Explanation, we find that it deals entirely with a different situation wherein none of the buildings are said to be situated in a common compound . Thus entirely a different legislative scheme is envisaged by the said second part which provides that where there are several buildings situated in a common compound all such buildings in the common compound together will be treated to be forming one building for the purpose of finding out the permissible 600 feet radius from the nearest water stand pipe, as mentioned in Section 129 main part. It becomes at once clear that the Explanation (a) to Section 129 contemplates two types of compounds; (I) compound of the building which naturally remains compound land attached to the building or appurtenant to the building as defined by Section 2, Sub-section (5) and (II) even apart from such compound appurtenant to the buildings, common compound land on which such buildings are situated together with their own adjoining compounds. It is, therefore, obvious that the term common compound has a wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yar, Reprint Edition 1987, at page 216-r as an adjective to mean amongst others shared among several . The aforesaid meaning of the term common read in the light of the term compound as an adjective makes it very clear that if the compound land is shared in common by occupants of number of buildings situated therein it would be a common compound for them. It has nothing to do with the question of being appurtenant to any one of those buildings. The phrase appurtenant to the building gets ruled out while considering the question of a common compound as contemplated by second part of explanation (a) of Section 129, as the phrase 'thereof as found in the first part is conspicuously absent in the second part. It is pertinent to note that the term common compound is not defined by the Act. It has to be given its dictionary meaning or meaning understood in common parlance. Any land used in common by the occupants of buildings situated in such common land can be said to form a common compound covering all such buildings and once that conclusion is reached, Explanation (a) to Section 129 starts clicking and makes all those buildings along with the common compound land wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with Explanation (a). Once we reach the aforesaid factual conclusion on the scheme of the relevant provisions of the Act, the question whether the common compound land was appurtenant to any of the structures becomes irrelevant. Hence, we do not think it fit to burden this judgment by consideration of various decisions of this Court noted earlier for deciding the correct connotation of the term appurtenant . The learned senior counsel for the respondent company, Shri Nariman rightly invited our attention to the various decisions taking the view that for taxing purpose, if two view are possible on the construction of the provision, the view, which supports the case of the tax payer should be preferred as compared to the view which supports the taxing authority. However, on the express language of Section 129 Explanation (a) it must be held that no two views are possible, but only one view is possible, namely, that the connotation of the term common compound is entirely different and wider in nature as compared to the connotation of compound as defined in Section 2, Sub-section (5) as seen earlier. It is unfortunate that this express provision in all its aspect was not noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to of which building or building it is an appurtenance. I, therefore, do not recognise the whole plot of land containing a number of factory buildings and residential buildings as one Unit for purpose of water-tax... A mere look at the reasoning of the appellate authority shows that it suffered from a patent error of law; while considering Explanation (a) to Section 129 which defines building the second part of the Explanation was completely ignored by the appellate authority. As seen earlier, the second part goes beyond the question of compound and embraces a wider field, namely, common compound . As that part of the Explanation was completely ignored and as the appellate authority wrongly concentrated on the definition of the term compound as found Under Section 2, Sub-section (5), the entire reasoning adopted by the learned appellate authority became patently erroneous in law. The said glaring error of law, therefore, was rightly required to be set aside in writ jurisdiction by the learned single Judge. Once this conclusion is reached, the preliminary objection of Shri Nariman to the certificate issued by the High Court does not survive. The question also about the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, not answered. Point No. 5: 18. So far as this point is concerned, the learned counsel for the appellant was right when he submitted that such a contention raising mixed question of law and fact was never taken by the respondent company at any stage in the hierarchy of proceedings. No such contention was canvassed before the appellate authority as well as before the learned single Judge nor before the Division Bench. However, in our view, this point goes to the root of the jurisdiction arid authority of the appellant to tax non-residential premises by way of water-tax. It, therefore, becomes necessary for us to consider this point. When we turn to the judgment under appeal, we find, as noted earlier, that the Division Bench has clearly mentioned that the Notification of the Govt. of U.P. dated 18th September, 1958 authorised the Board to assess water-tax on residential buildings within a radius Of 600 feet from the nearest stand pipe Under Section 129(a) of the Act. These recitals prima facie, showed that the appellant Board was not authorised to impose water-tax on non- residential building like factory premises. 19. In order to ascertain whether there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed on land exclusively used for agricultural purposes, or, where the unit of assessment is a plot of land or a building as hereinafter defined on any such plot or building of which no part is within a radius, to be fixed by rule in this behalf for each municipality, from the nearest stand-pipe or other water-work whereat water is made available to the public by the board; and (b) that the tax is imposed solely with the object of defraying the expenses connected with the construction, maintenance, extension of improvement of municipal water-works and that all moneys derived therefrom shall be expended solely on aforesaid object Explanation - In this section- (a) building shall include the compound (if any) thereof, and, where there are several buildings in common compound, all such buildings and the common compound; (b) a plot of land means any piece of land held by a single occupier, or held in common by several co-occupiers; whereof no one portion is entirely separated from any other portion by the land of another occupier or of other co-occupiers or by public property. A mere look at the said provision shows that in 1957 the Act authorised the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. As the disputed assessment is for a period after 12.0.1958, the objection raised by Shri Nariman about any inconsistency regarding date of the rules pales into insignificance. Shri Nariman, learned senior counsel for the respondent then submitted that the Gazette Notification is still not produced and only a booklet is produced. But when we turn to the printed booklet, we do find that what is printed at page 9 of the booklet does refer to the relevant Notification as in terms the number of the relevant notification has been mentioned. There is nothing to indicate that the said notification would not have been gazetted in the same form in which it is printed in the booklet. Presumption Under Section 114 of the Indian Evidence Act regarding the performance of Officials Act therefore, would clearly get attracted in the facts of the present case. Nothing was pointed out to us by learned senior counsel for the respondent to indicate that there was any contrary gazette notification or that the gazette notification was laying down any different scheme as compared to the one which is printed in the booklet of 1973 which has stood the test of time for all these years. Consequently, point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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