Spl. Civil Application No. 3860 of 1976

30th October, 1991.

Petitioner Counsel: G. J. Sawant with Rajendra

JUDGMENT

K. SUKUMARAN, J.:-Many think-tanks have been filled with crude raw-materials, and many with refined final products, in the legal process of evolving an endurable end-product in relation to a controversy regarding 'tanks' in the context of local taxation. The latest we could see is that of the I.O.C. with such a large storage of ideas, the work in connection with legal contentions of the Indian Organic Chemicals Ltd. in Khapoli in relation to the tanks they have put up, would not, ordinarily, have been a difficult task. With a clear pronouncement of the final Court in India that such tanks are amenable to assessment for property tax by a local authority, the culmination of the case would have appeared to be very near. Appearance has been deceptive in this case as well. Ingenuity of Counsel, can discover legal arguments in any facet of life. Novelty of an argument, is no reason to condemn it, observed Megary V. C. In a sense, it is such novelty that annexes to the field of law attractive areas of pleasing principles. Arguments in the present case, thus, went on. Exhaustive and exhausting. We shall deal with the principal contentions, the answers attempted and our ultimate conclusion.

2. Indian Organic Chemicals Ltd. is a Company which came into being in 1960. Khopoli, earlier a rural area, came in the fold of urban centre when in 1970 it was constituted a Municipality under the Maharashtra Municipalities Act, 1965, (hereinafter referred to as "the Act") : The revenue exactions of the Gram Panchayat were almost nominal. It was only in the region of Rs. 4,000/-.

3. The Municipality set to settle its finances satisfactorily and effectively. A hectic industrial concern, is unlikely to escape the gave of any local authority. Then came the rub. The Standing Committee passed a resolution for the imposition of the property tax. It took follow up steps as well. It published a notice on 22-6-1973. The notice was published in the weekly 'Pradnya'. Objections were called for in respect of the house tax based on rateable value as approved by the Municipal Council. The last date for filing objections was fixed as 23-7-1973. The petitioners did not file any objections. Those who had filed objections were heard by the Standing Committee. The rateable value with the total tax amount as indicated in notice, was finally approved for the year 1973-74. A resolution was passed to that effect in the meeting held on 31-7-1973. It ended with the sentence : "under Section 120 of the Maharashtra Municipalities Act, the assessment is finally approved and hence the assessment list is kept open for inspection to all the citizens and a notice to that effect is published in 'Pradnya' weekly." Further notice, it is agreed, was duly published in Kulaba Samachar' dated 8-8-1973.

4. An individual notice had been issued on 25-6-1973 to the petitioners, intimating that the storage tanks of the petitioners had been assessed in the sum of Rs. 10,056.80. Particulars about the manner in which that sum was computed, were mentioned therein. The assessment of educational process of Rs. 2,901/- was also referred to therein. Objections were called, stipulating a time of one month for filing of such objections.

5. The petitioners paid some portion of the tax demanded. It contested the liability for taxation. The letter dated 15-2-1975 indicated the grounds of objections to the taxation of the tanks. The substantial objection was that the tanks came under the head of 'Plant and Machinery' and that "the said

storage of Plant being Plant and Machinery ............ are exempted from taxation ........". Consistent with that objection, Section 114(2) of the Act which exempts the value of machinery, was heavily relied on.

6. The Municipality was unwilling to show any indulgence. It insisted on payment. The petitioners did not yield. When things became hot, the petitioners came to the Court. Rule was issued on 16-7-1976. An interim injunction granted, was made absolute. Some other matter was pending in the Supreme Court. That was a good enough ground for deferring a final disposal of the writ petition. Things drifted, not only for a few years, but for a decade and a few years.

7. This Court had taken the view that the tanks could not be subjected to tax under the Act, under the corresponding provisions of cognate enactment. It was this view that had been challenged by the various Municipalities before the Supreme Court.

8. The correctness of that view was considered by the Supreme Court and pronounced upon in Municipal Corporation of Greater Bombay v. Indian Oil Corporation, AIR 1991 SC 686 aforesaid. The tanks come within the purview of 'structures' as understood in the law relating to local taxation. It, therefore, came within the definition of 'building' as contained in the Act. Consequently, imposition of tax by the local authorities on tanks was justified. That was the gist of the decision.

9. Notwithstanding the above final pronouncement on the question of liability, Counsel projected many pronged attacks against the levy and collection of property tax against the petitioners, in respect of the tanks it owned. Reading and re-reading paragraph 30 of the Judgment of the Supreme Court many times, it was submitted that the tanks in question were within the plant and consequently could not be treated as separate structures. Only on the hypothesis of such separate existence and distant location, could the tax be properly imposed on the tanks, - contended Counsel.

10. Whether it be for receipt of crude raw-materials or for the outlet of distribution of the final refined products, the essential attributes of I.O.C.'s case storage tanks are substantially present. The difference in the contents of the tanks, does not alter the basic character of the structures. Depending upon the requirements of the particular manufacturing unit, the size of the tanks, either for crude or for the final products, could vary. Again, depending upon the products manufactured, the contents of the tanks could differ. A factory like the Tata Oil Mills manufacturing soaps and oil products, would have large enough storage tanks for collecting and keeping the huge quantities of vegetable oils, needed for the purpose. It may also have storage tanks to contain furnace oil, diesel oil and the like needed for working the different machines and plants. An oil refinery could have tanks for the storage of crude oil received by it. It will have likewise large enough tanks for storage of the petroleum, diesel oil, kerosene and other products. It is not necessary to draw on any personal knowledge, about such tanks for this Court now to rest its conclusion. (One of us, Sukumaran J. had a close acquaintance with tanks of differing varieties, storing vegetable oils, crude oils and petroleum products in a city which had various industrial units for over 70 years). Intimacy with greater details in the professional capacity, also need not be tacked on to the general acquaintance. Such impressions have been eschewed in coming to the conclusion in the case. The conclusions are based only on the materials available on record and the principles which have been laid down by the Supreme Court in I.O.C. case. We have, therefore, to reject the initial contention that the tanks of the petitioners do not come within the purview of land and building as defined in the Act.

11. We indicated the reaction of the Court that in relation to such a subsidiary contention involving evaluation of factual data and materials, a direct approach to the Constitutional Court by-passing the attention and concentration of the assessing authority and of the appellate authority as well, would not ordinarily be permissible. Even after the very elaborate arguments about the

permissibility of entertaining such a contention in a writ petition, we have been only convinced that our initial view should be confirmed. We shall detail our reasons for rejection of the petitioners' contentions at the appropriate context.

12. It was alternatively urged that the tanks were part of 'plant and machinery'. The long history of the legislative practice by which plant and machinery used to be excluded from local taxation was referred to. The decision of the Supreme Court in New Manek Chowk Spinning and Weaving Mills (AIR 1967 SC page 1801) was referred to in this context as well. Materials were furnished to us to demonstrate that the tanks came within the integral part of a chemical process machinery. The Condensed Chemical Dictionary, 10th Edition, page 971 was referred to in that connection. 'Chemical Process Machinery' by Emil Raymand Riegel and in particular headings 1 and 5, the former dealing with introduction and choice of plant site and the latter with Tanks, were referred to. The passage reading :"For liquid raw materials, the storage tank is the starting point ...." was emphasised. The storage tanks take the place of the stock-pile for materials which are liquid. the product of the plant, if it is liquid, is collected in tanks. Such were the passages relied on. (There are other indications in that passage itself as to how tanks are used for many other purposes beside storage; if they serve in one of the steps in the manufacturing process, they are designated collectively as process tanks. Process tanks are of different nature, viz. dissolving tanks, blending tanks and treating tanks.).

13. We are not impressed with the contention. It is very difficult to distinguish the tanks in question from the type of tanks which had been considered by the Supreme Court in I.O.C. case. When the highest Court has dealt with the identical question, and in the context of similar statutory provisions, it is difficult to assume that such a basic aspect has been missed by that Court. On the materials in the present case, there are clear indications to show that they are not inside the Plant and do not, therefore, form part of the Plant and Machinery. The features gatherable from the pleadings and even from the photographs, and other documents, indicate that they are not the processing tanks which would form an integral part of the Plant and Machinery.

14. The alternate case that the tanks answer in the description of the Plant and Machinery and consequently exempt from taxation, is also to be rejected in that view of the matter. We are, therefore, refraining from a detailed discussion of the decision of the Gujarat High Court - a land mark decision indeed - rendered by P. D. Desai J. as he then was, on behalf of the Gujarat High Court in 1981 Gujarat Law Reporter Page 67, which had been approved by the Supreme Court in appeal. We are not concerned here with the definition of the term 'Plant and Machinery', as it occurs in the Income-tax Act. It is well settled that the colour and content of a term would vary widely dependent upon the statutory scheme and other attendant aspects.

15. One further fundamental contention which we have necessarily to address ourselves, is about the enactment itself being ultra vires of the Constitution of India.

16. Lack of legislative competence was one contention seriously urged. The relevant legislative entry in the Constitution is Entry 49. 'Land and Building', should be understood in its ordinary, natural meaning. The tanks would not come, obviously, within the purview of the land. lt does not come within the natural concept of a building. That is demonstrated by the sentence occurring in paragraph 11 of the judgment of the Supreme Court which reads :

"11. In Webster Comprehensive Dictionary, International Edition, 'building' has been defined thus :

"An edifice for any use; that which is built, as a dwelling house, barn, etc. (2) The occupation, business or art of constructing. (3) The act or process of erecting or establishing."

If the term is so understood, the Legislature cannot overstep its limit by artificially expanding the meaning of the term 'building', so

ran the argument.

17. We have already indicated that when the Supreme Court has upheld the taxation in relation to the tanks in similar statutory setting, it would be extremely difficult, if not impossible, to infer an over-looking of such a basic and fundamental objection on the part of the apex Court. Much more than an inevitable inference and implication, is our own conclusion that the contention is unsustainable. Any structure, should ordinarily come within the term of land and building. The term occurring in the legislative entry, has to receive the widest interpretation. A narrow view is negated by Constitutional practice and the continuous stream of decisions. Looked at from a wide view of the Constitutional entry, we are clearly of the opinion that the 'tanks', and such structures, would be well within the term of 'land and building' sited in Entry 49. This conclusion, makes it unnecessary for us to discuss the large number of cases, where the Constitutional approach necessary in the context and in dealing with a particular subject, have been considered.

18. There were other subsidiary contentions urged on behalf of the petitioners. Noncompliance with the mandatory procedural requirements detailed in Ss. 114 to 121 of the Act was genre of that contention. The subsidiary facets were elaborated thereafter.

19. A major argument was based on S. 113(2) of the Act. Under the first Sub-Section, the Government may appoint valuers of the Town Planning Department for the purpose of property taxation. It is a fact that in Khopoli Municipality, no valuer has been appointed so far. It is equally established as a fact that in relation to some Municipalities, valuers have been appointed. The word 'may' in the Section, does not make an appointment optional or discretionary, it is a mandatory in its contents, notwithstanding the harmless word 'may '- asserted Counsel for the petitioner. Principles gatherable right from Julius v. Bishop of Oxford up to State (Delhi Admn.) v. I. K. Nangia, AIR 1979 Supreme Court 1977, were relied on in that context. It is unnecessary to go over all the principles and all the decisions. They should be present in any active judicial mind. One of us (Sukumaran J.) had occasion to deal with the principles at some length, in a case where the petitioners were more numerous, and monetory involvement was more momentous and the alcohol more popular. The factors on which attention have to be rivetted for coming to a correct conclusion in relation to statutory interpretation were recapitulated there. (See 1991 (1) KLT 191) Applying the principles gathered from judicial decisions, we are clearly of the view that the term 'may' is employed in the Section in its directory sense. The object of the enactment is to ensure the prompt and speedy realisation of the revenue due for the working of the local authority. Rational and planned development, and the infra structure and facilities in a developing municipality, naturally require large sums of money. Most of it has to come from its own internal revenue. A reliable tax base is, therefore an indispensible requirement for the local authority. The taxes range from levies on lands and buildings to those on professions. In one sense, the Standing Committee could have better personal touch with the taxable objects. Looking at the various methods of valuations for arriving at a rateable value, intimate knowledge about the immediate neighbourhood and existing rent rates, may be more helpful in one view. Every Municipality need not have complicated structures which baffle valuation process. Even if there are such structures, such exceptional factors need not deflect the dominant requirement of having a proper valuation, through persons with ordinary skill. The elected representative would naturally and ordinarily, be eager to get everything legitimately due to the local authority. A bureaucrat can be indolent and indifferent and can even be amenable to extraneous influences. All these aspects are taken into consideration when the statutory provision is cast. It is not inelastic or brittle. It has necessarily to be malleable. The Government, a highest functionary in the State, can be rightly entrusted with the responsible duty to take a decision in the exercise of that discretion. The object of the Act and the

broad pattern of the statutory scheme, would not tolerate a contention about a dictatorial mandatory character of the provisions.

20. Sub-Section (2), which enables the Standing Committee to go on its work of taxation, unhampered by any hiatus, gives a clue for the interpretation of Sub-Section (1). The legislature clearly envisages continuance of the Standing Committee as a satisfactory mechanism for getting into the taxation net all that is due under its scheme. As and when the Government is satisfied that time is ripe for appointment of valuers, it would be free to do so. Then, and then only would the valuers supersede the Standing Committee; till such an eventuality happens, the taxation work will proceed smoothly with the Standing Committee itself doing its duty promptly. It is impossible to attribute an adhocism to Sub-Section (2), and then to transmute Sub-Section (1) to a mandatory requirement. The Section, read and understood plainly, means (a) taxation work would be the responsibility of the Standing Committee; (b) that pattern can be changed by the Government; (c) the change has to be effected only by an order passed by the Government under Sub-Section (1); and (d) till such an order is passed, the administration of the taxing arrangement would vest with and continue to be exercises done by the Standing Committee. The exercises done by the Standing Committee in the present case cannot, therefore, be characterised as unjustifiable on an unavailable hypothesis of the mandatory character of Sub-Section (1) of Section 113.

21. The next submission was based on the Section 118. Steps in relation to imposition of tax are mandatory, it was stressed. There cannot be a quarrel with the proposition. The decision in AIR 1967 Supreme Court 1321 and many others of that tribe make the point clear. It was conceded that the steps had been taken for preparation of the assessment list, The Chief Officer had given public notice of the list of assessment. The notice is dated 23-6-1973. Those interested were to file their objections before 23-7-1973. The Municipality also caused its publication. According to Municipality, though not mandatorily required, the notice was published in 'Pradnya' weekly also. True, the public notice came in the issue which appeared only on 26-6-1973, three days later. Assuming the worst, there is only a possible prejudice of the petitioners not getting the full one month for filing the objections. That cannot be put forward seriously, when an entitlement of 30 days from the date of publication in a newspaper is not established. The Section only mentions publication. The publication had been effected in the notice board, states the Municipality. Much more than that cannot be insisted on, on the wording of the statute. A liberal gesture on the part of the Municipality, in causing the publication additionally in a newspaper cannot form the basis of a contention, particularly of a technical nature. The case is not one where the petitioner, believing that he had time till 27th July, had filed objection before the Municipality on the very last date and that it was rejected wrongly. No objection at all had been filed. If one had been actually filed but rejected, and a complaint about it contemporaneously made, it may elicit a different approach from the Court and result in a different decision. In the present case, no such objection has been ever preferred. The petitioners themselves stated in paragraph 29 that the public notice was issued on 22-6-1973. The petitioners cannot then make a complaint at a belated stage with moral grace or legal force.

22. A similar complaint but different as regards the details of dates, was put forward in regard to the individual notice also. Here again, that dry technicality of the petitioners' contention can be easily met with a just legal posture on the part of the Municipality. The latter limb of the Section relating to individual notice, according to the Municipality does not stipulate a period of one month for filing objections. Consequently, a rigorous time effect could not be read into such an individual notice. A reasonable notice would be sufficient. The public notice is dated 25-6-1973. It was received by the petitioner only on 4-7-1973. The petitioner contends that it had time to file objections till 4-8-1973. Here again, in relation to such an individual notice, no objection had been filed. No

contemporaneous complaint was made about the mandatory duty on the part of the Municipality in entertaining the objections actually tendered, within the time limit as understood by the petitioners. The Court cannot enthusiastically entertain such a plea belated made. Such contentions lack a solid Constitutional remedy. That is not intended to bolster dry and dogmatic technical contentions but without the backing of substantial justice.

23. On a plain interpretation of the rule, only a trivial infringement, if at all, is noticeable in relation to the public notice. The Supreme Court has said that such minor deviation would not matter, when there is substantial compliance otherwise. (See AIR 1965 SC 895 Raza Buland Sugar Co. Ltd. v. Municipal Board).

24. Counsel again relied on the decision reported in Municipal Council, Kharai v. Kamal Kumar, AIR 1965 SC 1321 in support of his contention. The decision is clearly distinguishable. There a notice of assessment was initially published on 3-10-1962 calling for objections. Objections had been filed. However, the notice was withdrawn on 28-10-1963. There was no fresh notice of assessment with opportunity indicated for filing objections. The Municipality finalised the assessment on the basis of the objections earlier filed to the Notification dated 3-10-1963. There was, therefore, no compliance at all with the basic requirement of a due notice, with clear indication of the availability to file objections to the proposals in that notice. That is not the present case. The complication of a withdrawal of an earlier notice and the creation of a virtual vacuum as regards notice, did not intervene in the present case.

25. Then the next contention was that the resolution of the Municipality had not been published before 31-7-1973. This is easily answered by the fact that the Resolution itself contains a directive for immediate publication and making available assessment list for inspection for the public. Much more is not mandated by the requirement of law. No particular mode of publication is indicated in the Section. The averment in the return about publication of the resolution on 31-7-1973 itself, would then be sufficient compliance with the requirements of the statute. The publication 'Kulaba Samachar' of 8-8-1973, not being a mandatory one, would not fatally affect the validity of the steps duly taken for impositon of the tax. The decision of the Supreme Court in M/s. Sonik Industries Rajkot v. Rajkot Municipality, AIR 1986 SC 1518, clearly indicates the directory nature of the publication and the sufficiency of substantial compliance with that provision. Of particular significance is the passage therein reading :

"The mode of publishing the rules is a matter for directory or substantial compliance. It is sufficient if it is reasonably possible for persons affected by the rules to obtain, with fair diligence, knowledge of those rules through the mode specified in the notice."

(See M/s. Sonik Industries, Rajkot v. Rajkot Municipality, AIR 1986 SC 1518).

26. Another contention was based on the method of computing the tax. Even if there be a complaint regarding the quantum of tax, that is a matter for adjudication before the higher authorities from whom statutory remedy is available. The rateable value mentioned in the Section, is sufficient base for completing the assessment. It is well-known that in the history and theory of local taxation and valuation for the purpose of taxation, there are very many methods of valuation available for fixing the rateable value. Some of those methods have been elaborately referred to by the Supreme Court. (See also decision in Century S. and M. Co. v. Ulhasnagar Municipality, AIR 1968 SC page 859). It is possible to reach the rateable value with reference to capital valuation method. The percentage to be applied to the capital value for reaching the valuation, is subject to control by the Government, which has to fix the minimum and maximum percentage. There is no complaint that the percentage fixed is in excess of the permissible parameters. Consequently, there is no foundation

for a legitimate complaint regarding excessive valuation. As regards the details of the capital value and other factual aspects, the evaluation is for the statutory authorities and not for this Court, at any rate, at this stage.

27. The imposition of tax was attacked on the ground that a flat rate was adopted. This argument is projected apparently to rely on cases where flat rates were actually adopted in fixing the tax liability. Such, for example, is a case when uniform rate of tax is imposed for a cattle shed and cinema theatre alike. Such a situation arose in the context of the imposition of buildings tax under the Kerala Building Tax Act, 1965 which was struck down by the Supreme Court. Even in the context of municipal taxation that basis was condemned as arbitrary and struck down. Fixation of tax on a fixed percentage of capital value will not make the tax a flat rate one. The capital value will vary from building to building and with that the tax base also would vary. The system does not suffer from a vicious virus.

28. It was contended that Section 113 was bad for excessive delegation. We do not find any base for such a contention having regard to the wording of that Section. The legislature itself has nominated the authorities for appointment of the values. We have already come to the conclusion that there is no mandatory requirement or time bound necessity for the Government to effect that appointment. Such a statutory provision does not really illustrate an instance of delegated legislation.The question of excessive delegation consequently does not arise at, all.

29. It was then submitted that the Section, if construed as conferring on the Government an arbitrary power of choosing a date for appointment of valuers, would be discriminatory and violative of Art. 14. All important decisions dealing with Art. 14 in relation to impact on taxation were referred to. Those decisions have no application to the situation existing in the present one where the Government, the highest functionary in the State, is given a discretionary power, which has necessarily to be exercised on an evaluation of very many factors some of which have been indicated in the earlier part of the discussions contained therein. We reject the contention about the discrimination and alleged unconstitutionality of Section on that ground.

30. We have already indicated that in relation to the examination of factual details, the petitioners will have necessarily to persue remedies available under the statute itself. They cannot be treated as nugatory. I.O.C. decision itself demonstrates how responsible judicial functionaries look into such grievance. If they are finally aggrieved by the decision rendered against them, an ultimate approach is available to this Court under Article 226 of the Constitution. On the materials before us, we do not find any reason whatever to confer on the petitioners any immunity from taxation. Naturally, when a fresh occasion arises, it could agitate with better particulars and materials, its contention on that aspect. It would be futile to reopen matters and give a fresh opportunity to the petitioners, to canvas a factual decision rejected more than 16 years back. the conduct of the petitioner does not deserve any extra sympathy or indulgence from a Constitutional Court. It will be extremely unfair to a local authority which had been suffering all the while, by the non-availability of funds, which should have been much more valuable at the time when the assessment was made, but the demand was stayed. Efflux of time was a blessing circumstance to the petitioners and had caused grave prejudice to the Municipality. In those circumstances, we disincline to keep open the issue for further disputation. The safe-guard in relation to future assessment, should effectively protect the legitimate interest of the petitioners.

31. We dismiss the Writ Petitions with costs, including Advocate's fees of Rupees 3,000/-.

32. When the judgment was pronounced, Counsel appearing for the petitioners sought Certificate under Art. 136-A of the Constitution. We are not satisfied that any question of law of importance such as to be decided by the Supreme Court, arises in this case. Application rejected.

33. Counsel for the petitioners submitted that the injunction granted by this Court may be continued for some further time. We are not satisfied that any case is made out for such continuance of injunction. The prayer is rejected.

34. Counsel prayed for urgent issue of certified copy. The same be issued within reasonable time.

Petitions Dismissed