BRAHMIN MITRA MANDAL CO-OPERATIVE HOUSING SOCIETY LIMITED Vs. MUNICIPALITY OF AHMEDABAD

JUDGEMENT

(1.) THIS is an appeal against a decision of the Extra Assistant Judge of Ahmedabad, and it raises a question whether the plaintiffs are liable to be assessed to general water-rate by the Municipality of Ahmedabad. The plaintiffs own an estate on the western border of the Municipality's district, and they are developing that estate for building purposes. None of the houses or lands forming part of the estate is supplied directly with water by the Municipality. Indeed the plaintiffs have spent a considerable sum in providing a water supply of their own. There are three stand pipes of the Municipality at a distance of approximately 240, 500 and 550 yards from the boundary of the plaintiffs' property. There is also a road running close to the boundary of the plaintiffs' property which is kept watered by the Municipality. The Municipality have an extensive system of water works, and the evidence is that they have spent something like Rs. 45 lakhs in providing such water-works, and they use water for various public purposes, such aswatering roads, flushing public urinals, extinguishing fires, watering public gardens and so forth. The contention of the plaintiffs is that they are not liable to be assessed to a water-rate, unless water is connected to their premises or at any rate made available for use in their premises, and they say that in the circumstances which exist they are not liable for payment of water-rate.

(2.) THE question turns on the construction of the relevant Section s of the Bombay Municipal Boroughs Act, 1925, and the Rules made thereunder. Section 58 enables the Municipality to make rules not being inconsistent with the Act prescribing, amongst other things, the taxes to be levied in the municipal borough for municipal purposes and the conditions on which such taxes may be levied. Section 68 defines the duties of the Municipality, and such duties include (j) making reasonable and adequate provision for obtaining a supply or an additional supply of water, proper and sufficient for preventing danger to the health of the inhabitants from the1 insufficiency or unwholesomeness of the existing supply, when such supply or additional supply can be obtained at a reasonable cost. It is curious that there does not seem to be any express power enabling the Municipality to dispose of the supply of water which they have obtained. Under Section 68(j), they may do what is necessary for preventing danger to the health of the inhabitants, and a supply of water to a particular locality or building might be necessary for that purpose, but there seems to be no express power given to the Municipality to- supply water to the inhabitants of the borough for such purposes as they may require it. THEn Section 73 deals with the imposition of taxes, and enables the Municipality to impose for the purposes of the Act any of the taxes mentioned, including (x) a general water-rate or a special water-rate or both for water supplied by the Municipality, which may be imposed in the form of a rate assessed on buildings and lands or in any other form, including that of charges for such supply, fixed in such mode or modes as shall be best adapted to the varying circumstances of any class of cases or of any individual case. THEn it is to be noticed that under proviso (c) the water tax may be amalgamated with certain other taxes,-a rate on buildings or lands, a general sanitary cess and a lighting tax-, though so far as I know that power of consolidation has not been exercised. THEn I may refer to Section 91, which has no direct bearing on the question before us but contains a reference to the purposes for which the water tax may be levied and provides that the Municipality may, instead of imposing a water-rate imposed in respect of the supply of water belonging to the Municipality to or for use in connection with any private lands or buildings, impose certain special rates. THE Section implies that the Municipality can supply water to or for use in connection with any private lands or buildings.

(3.) I should mention that it was rather faintly argued that this case was res judicata, because some years ago the present question came before the then District Judge of Ahmedabad, Mr. Lokur, in a representative suit, the plaintiff suing on behalf of himself and all the other ratepayers, and the learned District Judge came to the same conclusion as we have come to, namely, that the general water-rate was properly leviable. But, in my opinion, it is quite impossible to say that the plaintiff is bound by that judgment, because the plaintiff at the time of the judgment was not a ratepayer and, therefore, was not represented in the suit. Indeed the plaintiff-company had not come into existence at that time.