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2002 DIGILAW 348 (ORI)

BERHAMPUR MUNICIPALITY v. P. BHAGI RAO

2002-06-21

P.K.MOHANTY

body2002
PRADIP MOHANTY, J. ( 1 ) THE Berhampur Municipality through its Executive Officer, being aggrieved by the order dated 11-11-1985 of the First Additional District Judge, Berhampur in Title Appeal No. 17 of 1985 allowing in part the order dated 31-8-1984 passed by the Munsif, Berhampur, in T. M. S. No. 100 of 1983 has preferred this second appeal invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure. ( 2 ) THE case of the plaintiff-Berhampur Municipality, in brief, is that the Berhampur Municipality (a Corporate Body) through its Executive Officer filed the suit for realisation of arrear holding and other taxes from the defendant. It is asserted in the plaint that the plaintiff is a body corporate under the Orissa Municipal Act, 1950 (hereinafter referred to as 'the Act') and has authority to levy and collect holding tax and other taxes under the said Act. The defendant-respondent owns a house in L. I. G. Colony, Gajapati Nagar under the Berhampur Municipality and as such, he is liable to pay holding tax, water tax and other taxes under the provisions of the Act. The total tax assessed against the defendant up to the year 1982-83 was Rs. 268. 16 Paise. As, in spite of notice, the defendant failed to pay the arrear taxes, the plaintiff has filed the suit for realisation of the same. The defendant filed his written statement denying the allegations made in the plaint. It is stated in the written statement that the plaintiff has not provided any of the facilities of scavenging, drainage, water and light supply to the house occupied by the defendant. It is further stated in the written statement that the quarter is a small one having 440 sq. ft. of plinth area and the levy of taxes is very high. It is also stated in the written statement that the quarter has got a septic latrine and there is no municipality road or supply of light by the plaintiff and, therefore, the demand of the plaintiff is unjustified and illegal. He, therefore, prays for dismissal of the suit. ( 3 ) THE trial Court found the demand for water tax, scavenging tax, drain tax and light tax to be not tenable and not justified. In other words, the defendant was not found to be liable to pay water tax, light tax etc. He, therefore, prays for dismissal of the suit. ( 3 ) THE trial Court found the demand for water tax, scavenging tax, drain tax and light tax to be not tenable and not justified. In other words, the defendant was not found to be liable to pay water tax, light tax etc. and was found to be only liable to pay holding tax. In appeal, the lower appellate Court held that the light and water facilities having not been effectively and requiredly supplied to the defendant's quarters, the plaintiff is not liable to realise the water tax and light tax. ( 4 ) AT the time of admission of the appeal, the following substantial question of law was framed :-"whether tax under Section 133 (1) of the Orissa Municipal Act can be refused to be paid in the absence of services rendered?" in view of the above substantial question of law, it is necessary to refer to the relevant provisions under Sections 131 and 133 (1) of the Orissa Municipality Act :-"131. Power to impose taxes - (1) The municipal council may, from time to time, at a meeting convened expressly for the purpose, of which due notice shall have been given subject to the provisions of this Act impose within the limits of the municipality the following taxes and fees or any of them- (a) and (b ). . . . . . . . (c) a water on the annual value of holding; (d) a lighting tax on the annual value of the holdings; (e) a drainage tax on the annual value of holdings; x x x x 133. Registration on the imposition of the water and lighting taxes- (1) The impositions of a water tax or of a lighting tax shall be subject to the following restrictions namely :- (a) to (d ). . . . . . Registration on the imposition of the water and lighting taxes- (1) The impositions of a water tax or of a lighting tax shall be subject to the following restrictions namely :- (a) to (d ). . . . . . (e) that the tax shall not be leviable until supply of water has been provided in the area to be supplied or until the lamps in the area to be lighted have been lighted as the case may be nor, shall the tax be leviable for any quarter or portion of a quarter antecedent to the provision of such lighting;" ( 5 ) THE crux of the contentions raised on behalf of the appellant-Municipality is that, the demands in dispute are essentially the taxes which are not at all of the nature of any fees for which the respondent is liable to pay the same irrespective of the fact that the appellant has not provided any service in lieu thereof. In support of this contention, Mr. Mishra, appearing for the appellant, relied upon the decisions reported in AIR 1995 SC 1506 , AIR 1995 Punj and Har 116 and AIR 1965 Andh Pra 91. ( 6 ) IN AIR 1965 Andh Pra 91, Nizam Sugar Factory Ltd. v. City Municipality, Bodhan, reference has been made to the settled position of law with regard to the taxes and fees as decided by the Apex Court and the High Courts. If is well settled that it is not the name or nomenclature given to a particular levy but the purpose for which it is made which is a real test as to the category in which the levy falls. In order to determine the character of the 'levy' the primary object and the essential purpose must be distinguished from its ultimate or incidental results and consequences. The important observation distinguishing the case of Nizam Sugar Factory (supra) from the nature of disputed levies occurs in Para 21 of the said decision which reads as follows :"21. The provision in Section 101 provides that water tax can be levied when public water taps or stand posts have been fixed or being fixed for use of the public within the Municipal limits. The rule framed under the Act provides for levy of tax only when the public water taps or stand-posts have been fixed. The provision in Section 101 provides that water tax can be levied when public water taps or stand posts have been fixed or being fixed for use of the public within the Municipal limits. The rule framed under the Act provides for levy of tax only when the public water taps or stand-posts have been fixed. Sri V. B. Subrahmanyam contends that in fact no public water taps or stand-posts have been fixed in the area which is occupied by the petitioner, and that therefore the levy is illegal. This contention cannot be accepted because what is required for levy of taxes is that water taps or stand-posts have been fixed within the Municipal limits and that provision has been complied with. The levy cannot be said to be illegal, when there is compliance with the provisions of the statute and the rule. " ( 7 ) HOWEVER, the statutory provisions referred to above under Section 133 of the Orissa Municipal Act are different from those of the Hyderabad Municipal Act. Section 133 (1) provides for imposition of water and lighting taxes only when supply of water has been provided or lamps have been lighted 'in the area'. Therefore, the distinguishing feature is that the aforesaid services must be provided 'in the area' so as to entitle the Municipality to impose taxes. The Courts below have concurrently found that these facilities have not been supplied to the area in which defendant's holding is situated. This is undoubtedly a concurrent finding of the fact. There is no compelling reason to reverse such finding. In view of such finding and in view of the provisions of the Act extracted above, there is no scope for this Court to hold that water tax and lighting tax under Section 131 (1) of the Act can be levied in the absence of services rendered by the appellant Municipality. The impugned judgments of the Courts below are therefore immune from interference. ( 8 ) FOR the reasons stated above, the Second Appeal fails and is hereby dismissed. There shall be no order as to costs. Appeal dismissed.