1998 Supreme(SC) 1167

1998(9) Supreme 1
Supreme COURT of India
(From Allahabad High Court)
S.B. Majmudar & M. Jagannadha Rao, JJ.
Municipal Board, Saharanpur —Appellant
versus
Imperial Tobacco of India Ltd. & Anr. etc. —Respondents
Civil Appeal No. 1218 of 1976
Decided on 24-11-1998
Counsel for the Parties :
For the Appellant : Dinesh Kumar Garg, Advocate.
For the Respondents : R.F. Nariman, and Baska Gupta, Sr. Advocates, Mrs. Deepa Rathore, Ravinder Narain, T. Sridharan, Advocates.

Important points
1. The term “common compound” as found in Section 129, Explanation (a) of the U.P., Municipalities Act would cover all build­ings situated within the land wherein the occupants of the buildings have a common right of usage by way of passage to and fro or even otherwise a right to commonly use the said land wherein the cluster of these buildings is situated.
2. The term “common compound”, as found in the provision of Sections 128 and 129 of the U.P. Municipalities Act, 1961 would not require the land comprised in such common compound to be appurtenant to each of such buildings situated therein.
3. Under Articles 226 and 227 of the Constitution of India, the High Court could not act as a court of appeal and only patent errors of law as found from the orders of the authorities below could be corrected in exercise of its jurisdiction.

Headnote:(i) Uttar Pradesh Municipalities Act, 1916—Sections 128 and 129 read with Section 2(5)—Common compound — Meaning of—Munici­pality levying water tax on all buildings residential and factory, surrounded by high walls situated with radius of 600 feet from water stand pipe of Municipality—Respon­dent company’s plea that all buildings do not fall within 600 feet from water stand pipe and for only those buildings of company that fall within radius of 600 feet from water stand pipe alone levy could be made — Not sustainable — Term ‘com­mon compound’ as found in Section 129, Explanation (a) would cover all buildings within the land wherein the occupants of the building have a common right of usage by way of passage to and fro or even otherwise a right to com­monly use the said land wherein the cluster of buildings is situated—Term common compound would not require the land comprised in such common compound appurtenant to each of such buildings situated therein.

       Held : A mere look at the provisions of Sections 128 and 129 A mere look at the aforesaid provisions shows that “building” will include any structure attached to earth and “compound” would mean any land, whether enclosed or open which is appurtenant to such building or which is a “common appurtenance” to several buildings, meaning thereby that, if a building has got adjoining land may be as side compound or front compound or backyard which is exclusively attached to the building and which would be in the exclusive use of the occupi­er of the building, such land could be said to be its compound land. Similarly, if a cluster of buildings situated so close to each other and well knit 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 of the Municipality to impose water-tax on any buildings of which no part is within the radius to be fixed by the rule in this behalf for each Municipality from the nearest stand-pipe or other waterworks whereat water is made available by the Board. It is not in dispute between the parties that under the relevant Notification issued by the State of Uttar Pradesh, the permissible radius for imposition of such water tax as measured from the nearest stand pipe was 600 feet. Thus, buildings falling wholly or partially within the said radius would come within the sweep of the water-tax levy. The question is for the purpose of imposition of this area restriction what type of buildings would be covered? For answering the above question, we have to examine Explanation (a) to the said Section which enacts a separate definition of the terms “building” and “land” for the purpose of that section. (Para 14)

       When we turn to the said definition of the term “building” as laid down in Explanation (a) to Section 129, we find that in the first part of this definition, the term “building” would include “com­pound”, if any, thereof. The first part of the said Explanation, therefore, clearly includes the buildings as defined by Section 2, sub-section (5) along with compound thereof, meaning thereby the compound forming part and parcel of that building being annexed thereto. For under­standing the meaning of the said term “compound of the building” defi­nition of “compound” as found in Section 2, sub-section (5) becomes relevant. Such a compound whether enclosed or not should be appurte­nant to such building or should have a common appurtenance to several buildings so situated near each other that they enjoy the common land as adjunct of such buildings. The phrase “compound if any thereof” expands the scope of the term “building” as found in the first part of the Explanation. It clearly indicates that such compound must be a part and parcel of that building. But the said phrase also gets cov­ered by the definition of the term “building” as found in Section 2(2) of the Act which covers even boundary walls of such compound land appurtenant to such a building. Such compound land gets in its turn covered by the definition of the term “compound” as found in Section 2(5) of the Act. Thus the first part of Explanation (a) to Section 129 which defines “building” can have a nexus with the definition of the terms “building” as found in Section 2(2) and “compound” as found in Section 2(5). (Para 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 wider coverage as compared to the term “compound” as defined by Section 2, sub-section (5). To be a compound to the building, the land must form an adjunct or appendage to the building or a cluster of buildings being available to the occupiers of such buildings for their exclusive use. They are individual compounds. While the concept of “common compound” will embrace open land whether bound by boundary or not which can be utilised by the residents of buildings situated in this common compound land who have a right to use this land in common for the beneficial enjoyment of their buildings situated in such a land. It is axiomatic to say that the term “com­pound” is different from the term “common compound”. The former is the individual compound of a building, latter is the common compound for all the buildings situated therein. If both these terms had the same meaning, then the legislature would be guilty of tantalising in mentioning “compound” in the first part of the Explanation (a) to Section 129 and then again referring the same by way of “common compound” in the latter part. What is “common compound” must necessarily be something more than a “compound”. It is, therefore, to be held that if number of buildings are situated in open land wherein the occupants of the buildings have the right to make common use of the said surrounding land then the question whether such surrounding land has a common boundary wall or not would pale into insignificance. All that would be required to bring such a cluster of buildings situated in a “common compound” within the sweep of Section 129(iii) for measuring the distance of the stand pipe from such buildings is to find out whether any part of such common compound is within 600 feet distance of the water stand pipe. Then the entire complex of the buildings situated in such common land would be covered by the taxing net of Section 129 read with Section 128(1)(x) and the restriction would stand lifted qua such entire complex. It is difficult to appreciate how the learned single Judge arrived at the conclusion that “common compound” was appurtenant to such buildings. In fact as seen earlier, the concept of appurtenance of compound land to buildings is not at all germane to second part of Explanation (a) to Section 129. It is relevant for the first part thereof only. The term “common” is defined in “Law Lexicon” by P. Ramanatha Aiyar, 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 wherein they are located to fall within the sweep of the term “building” as contemplat­ed by Section 129 for measuring the distance of the stand pipe from any part of such building including the “common compound”. It is not in dispute and is well established on record that all the buildings of the respondent company, whether residential or factory buildings, were situated in the “common compound” land available for approach to and fro and for common use of the occupiers of all such buildings though such land was not appurtenant to these buildings and if distance from­ the stand pipe put up by the Board on the public road nearby was to be measured up to the starting point of such a common compound it would be within the permissible limits of 600 feet of radius of such a stand pipe. The District Magistrate and even the learned single Judge as well as the Division Bench have not considered this vital aspect of the definition of the term “building” as found in Explanation (a) to Section 129 for the purpose of measuring the permissible distance from the stand pipe towards respondent’s buildings. They erroneously went at a tangent in importing the concept of “appurtenant land” for being treated as a common compound land by relying upon the definition of “compound” in Section 2, sub-section (5) of the Act for construing the term “common compound” when the said definition did not cover the said term. It must be held, especially in the light of the chart submitted by the respondent company itself before the authorities that all the residential buildings belonging to the respondent company were situat­ed in common compound land belonging to the respondent company and in the said common land different residential bungalows were situated but even that apart there were other structures like swimming pool, nurs­ery, canteen, kitchen, children’s park etc. All these structures and buildings including the factory were situated in common land which was available for use of all the occupants of the various buildings and structures situated therein. It is not in dispute that the entire common land formed a building complex which belongs to the respondent company. Therefore, this entire area styled as Bungalow Park Area or for that matter, the factory area could be said to be comprising of buildings situated in a “common compound” so as to fall within the sweep of Section 129 read 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”. (Para 16)

       (ii) Constitution of India—Articles 226 and 227—Writ jurisdiction—Scope of—High Court cannot act as a court of appeal—Only patent errors of law as found from the orders of authori­ties below could be corrected in exercise of its jurisdiction. (Para 17)

       (iii) Uttar Pradesh Municipalities Act, 1916—Sections 128 and 129 —Rule 8—Notification No. 3218-S/IX-B-348-55 dated 12.9.1956—Water tax on buildings—Munici­pality levying tax on resi­dential buildings as well as factory buildings situated within radius of 600 feet of nearest water stand pipe of Municipality—Company’s claim that factory buildings could not be levied with water tax—Not tenable—There is not restriction under the rules to show that radius of 600 feet is confined only to residential buildings. (Para 20)