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1987 Supreme(Bom) 207
IN THE HIGH COURT OF BOMBAY
S.P. Bharucha S.M. Daud, JJ.
Ahmedabad Manufacturing and Calico Printing
Company Limited.... Appellants.
Versus
Municipal Corporation of Greater Bombay others.... Respondents.
Appeal No. 73 of 1982 in Writ Petition No. 1159 of 1977, decided on 17-7-1987.
Advocates appeared :
M.O. Chinoi with Miss Chandurkar i/b. Parne Co., for appellants.
R.L. Dalal with B.G. Nayal i/b. M.V. Shetty, for respondents Nos. 1 to 4.
B.E. Ptil, for respondent No. 5.
Headnote:Section 170(1) (ii)-The vice ascribed to Section 170 (1) (ii) though identical to that attributed to Rule 4. will have to be scrutinize separately-Two alternatives for computing sewerage charge provided in sub-section -Sub-section empowers standing committee to adopt either method-Quantity of water supplied will have some bearing on the watery waste discharge-Ratio between two may differ from premises to premises-Input has some correlation to the discharge-Validity of the first part of sub-section has thus to be confirmed.
The vice ascribed to Section 170(1)(ii) of the Act though identical to that attributed to Rule 4, will have to be scrutinized separately. This sub-section provides two alternatives for computing the sewerage charge: measurement or estimated measurement of the quantity of water supplied or the quantity of wastes discharged. Petitioners do not challenge charging by measurement of the quantity of wastes discharged. In fact they press for the estimation of the charge by exclusive recourse to that alternative. The argument is that prescribing the first option without correlating it to the quantity of waste discharged brings about a distortion leading to impermissible arbitrariness. The sub-section empowers the Standing Committee to adopt either method. It does not say that adoption of one must be to the total exclusion of the other. On this short ground, the critism levelled against the provision will have to be repelled. Petitioner does not and cannot dispute that quantity of water supplied will have some bearing on the watery waste discharged. Sewers are installed for the collection conveyance and disposal of this waste. The ratio between the two may differ from premises to premises. This however cannot preclude application of the common sense principle that the input bas some correlation to the discharge. The validity of the part of the sub-section has thus first to be confirmed.
SEWERAGE AND WASTE REMOVAL RULES, 1974
Rule 4-Discharge of sewerage-Criterion used vide Rule 4 is not totally unconnected to the discharge of sewerage-Water received bas fairly reliable berometer to the waste discharged.
Examined in the light of the above can be it said that the Rule by being impervious to the quantity of waste discharged and going entirely by the water supplied, practices hostile discrimination? The examples given by the petitioner dazzle. But do they really affect the vires of the rule? That the charge would become more equitable by adoption of it being based on quantity of waste discharged does not establish the existing modes invalidity. And why stop at the quantity? Why not take into consideration the quantity of the waste discharged? Some of it can be put to beneficial use as manure, Some can be used to fill up craters caused by the incessant quarrying operations in the metropolis and some re-cycled for diverse uses. Premises discharging this type of waste whether wholly or partly, cannot it may be argued be treated on par with those throwing out waste unusable, in fact injurious, to the sea, land and air.
The criterion used vide Rule 4 is not totally unconnected to the discharge of sewerage. After all the water received has some, and, is on an average, fairly reliable barometer to the waste discharged. The ascertainment of the charge is easy to measure and this is conducive to economy in the administration. Every tax has to be administered and whatever facilitates ease of administration, is welcome. And attempt at too great a refinement in the structuring of taxes does not work. What the Bangalore Board has done may perhaps be good for emulation by the BMC. But that would be an appeal to the legislator and not for striking down the existing method by a Writ Court. Added to all this, is, the successful passage of the impost at the hands of the Single Judge. These are formidable reasons for repelling the challenge to the Rule. Agreeing with the Single Judge, court would sustain the vires of the impugned Rule.
Rule 4, Last Proviso-Proviso to be read down as being limited to empowering the Commissioner to continue the old method of computing the charge In cases where a mid term application would work unusual hardship.
The alternative would be to concede an uncontrolled power to Commissioner to treat equals differently and for no reason. This proviso had to be read down as being limited to empowering the Commissioner to continue the old method of computing the charge in cases where a mid-term application would work unusual hardship.
2. Under the Bombay Municipal Corporation Act, the respondents 1 to 4 hereinafter collectively referred to as the "BMC" has the power to impose taxes as enumerated in section 139 of the Act. Section 140 specifies the sewerage tax and the sewerage benefit tax as some of the taxes leviable under the heading "property taxes." The sewerage tax is for---
"collection removal and disposal of human waste and other wastes."
The sewerage benefit tax is for---
"making and improving facilities for the collection, removal and disposal of human waste and other wastes and for maintaining and operating such works."
Section 170 of the Act empowers the Standing Committee to make such rules as be necessary for performing the task of removal of human waste etc. etc. The impugned sub-section provides for the levy of---
"a sewerage charge in lieu of a sewerage tax, based on a measurement or estimated measurement of the quantity of water supplied for the premises or of the quantity of wastes discharged from the premises."
It is in exercise of the power conferred under section 170 that the Sewerage and Waste Removal Rules have been formulated. These Rules have undergone changes from time to time. The relevant Rule prevailing until 31st March, 1976 was thus :---
"Wherever any premises are connected to Municipal sewers and water is supplied to such premises by meter measurement, the Commissioner may instead of levying Sewerage tax, charge for the services rendered under Chapter IX, at half the rate applicable under Water Charges Rules 1974-75 framed under the Act, based on the quantity of water supplied to the premises by meter measurement or estimated measurement.
Provided that such charges shall not be less than half of the amount of minimum charges as specified under Note (ii) of Rule No. 1 of Water Charges Rules 1974-75 framed under the Act.
Provided further that the premises belonging to Municipal Corporation of Greater Bombay and used solely for the Municipal purposes shall be charged Sewerage Tax only, based on the rateable value of such premises.
Provided further that in respect of any premises situated in Suburbs and Extended Suburbs of Greater Bombay to which this rule is applicable, the Commissioner may, instead of recovering sewerage charge as above, continue to recover Sewerage Tax at the rate of 31/2 per cent of the rateable value of such premises.'
As from 1-4-1976, there was a change in the third Proviso which now read as under :---
"Provided further that in respect of any premises situated in Suburbs and Extended Suburbs of Greater Bombay which are not connected to Municipal Sewers, the Commissioner may, instead of recovering sewerage charges as above, continue to recover Sewerage Tax at the rate of 4 per cent of the rateable value of such premises."
3. The sewerage tax, sewerage charge and sewerage benefit tax had a pecursor in the halal-khore tax. That tax was levied at a certain per cent of the rateable value of property. Adequate as this may have been when Bombay was constricted in size and population, with the growth in Bombay, the said tax became out-dated. If the Corporation was to continue to render the basis obligation to provide an adequate system for collection, conveyance and disposal of garbage, it became necessary to provide for a proper drainage system. Studies undertaken towards this end indicated heavy capital and revenue outlays. The World Bank was approached and subject to various terms laid down by it, the said Bank agreed to make finances available. To comply with the terms and conditions laid down by the said Bank, it became necessary to amend the BMC Act. Towards this end, came to be introduced before t
