Bombay High Court
The Ahmedabad Manufacturing And Calico ... vs Municipal Corporation Of Greater ... on 17 July, 1987
Equivalent citations: AIR1988BOM384, 1987(3)BOMCR694, 1988(1)MHLJ356, AIR 1988 BOMBAY 384, (1987) 3 BOM CR 694 (1988) MAHLR 356, (1988) MAHLR 356
JUDGMENT Daud, J.
1. This appeal assails the dismissal of a petition questioning the constitutional validity of Section 170(1)(ii) of the Bombay Municipal Corporation Act. Rule4 of the Sewerage and Waste Removal Rules, 1974-75 and onwards plus the notices and bills claiming sewerage charges on the aforementioned basis.
2. Under the Bombay Municipal Corporation Act, the respondents 1 to 4 --hereinafter collectively referred to as the "BMC" -- have 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 Mar., 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 Chap. 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. I 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 charges as above, continue to recover Sewerage Tax at the rate of 3 1/2 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 Sewerge 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 precursor 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 basic 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 the legislature L.A. Bill No. XLV of 1973. In relation to Ss. 140 and 170 of the Act, the changes proposed were explained in the Statement of Objects and Reasons in these words : --
"The Corporation proposed to undertake a massive programme of Water Supply and Sewege Disposal, with a Capital outlay of more than four hundred crore rupees during the coming eight years, with the aid from the World Bank. The World Bank specifically desired that the account of the water and Sewerage funds should be maintained on the commercial-accounting system on the lines and practices prevailing in modern public utilities. Provision is made for a separate budget 'G' for the purposes of Chapters IX and X for water and sewerage funds. A separate accounting system as suggested by the World Bank is provided for.
So far as the water and sewerage services have been subsidised from the General Tax and were never self-supporting. It was, therefore, necessary to change the present tariff structure, which will be flexible enough to take into consideration the actual cost of the services as well as the cost of providing and improving the facilities of water supply and sewerage services. It was also necessary to see that the capital outlay, which was to be on a massive scale, will be met partly from surplus revenue and partly from public loans. The tariff structure therefore should be devised to meet the cost of the capital outlay also to a certain extent. The Halalkhore-tax, with a ceiling of 5 per cent of the rateable value of the property, was found to be inadequate to meet the cost incurred on sewerage and Halalkhore services. The tariff structure has therefore, been revised so as to include all the above aspects."
4. The appellant is a Company with its registered office at Ahmedabad in the State of Gujarat. It has a Chemicals, Plastic and Fibres Division at Chembur, which in the words of the statute is a "suburb or extended suburb of Greater Bombay". It is engaged in the manufacture of heavy chemicals such as Caustic Soda, Calcium Carbide, PVC Resins, PVA Emulsion, TCE Emulsion and other plastic products. In November 1970, the appellant and the Union Carbide (India) . entered into an agreement with the BMC for the laying down of a sewer along the Corridor Road. Under this agreement the appellant and the Union Carbide each contributed 25% of the cost for the sewer, the balance being the contribution of the BMC. The ownership and full control over the sewer was to vest in the BMC. The appellant and the Union Carbide were given a right to discharge and through the said sewer, the sewerage from their respective properties. As long as sewerage collection and removal was being charged under the head of Halalkhore tax, the appellant was paying 7 1/2% of the rateable value. The amendments effected in 1973, and in particular, the promulgation of the Sewerage and Waste Removal Rules, 1974-75 brought about a change. The BMC started billing and insisting upon recovering sewerage charges at the rate of 50% of the water charges. Appellant protested vide its letter of 12th February, 1975. There was no reply to the letter, and therefore, a reminder was sent in due course, a reply came in which the BMC justified its claim under the amendments to the statute. As suggested, the appellant paid 80% of the amounts for which it was billed and waited for a settlement of the dispute raised by it before the appropriate authority. The decision went against the appellant, and in January, 1976, it was served with two notices demanding approximately Rs. 90,000/- as sewerage charges. The claim was repeated for the next year also, and this time, the demand was for Rs. 1,54,283.78 ps. In September, 1977, four notices of demand were received calling upon the appellant to make the payments claimed therein within three days of the service of the notices, failing which, there was a threat to cut off the water supply. At this stage, the appellant decided to come to Court.
5. Appellant contends that it does not drain out all the water received from the BMC, inasmuch as a substantial portion thereof is consumed by it in evaporation and the manufacture of various products. It estimates that more than two-thirds of the water supplies to it is consumed in this fashion. Out of the balance, as substantial quantity is utilised by its customers. Some water is used for diverse purposes like cooling, whereby almost the entire water released in the cooling system, evaporates. There are different types of users of water in Bombay -- whether in the old city limits or the suburbs and extended suburbs. In fact in textile processing houses, nearly 95% of the water supplied is drained back into the sewer line. Yet, such houses pay on the same basis as the appellant towards sewerage charges. That part of Section 170 and Rule 4 of the Rules, which permit levy of sewerage charges on the basis of the price of the water supplied, are illegal ultra vires and inoperative. Section 170 does not give any guidance to the Standing Committee in the matter of framing rules for levying a charge in respect of sewerage. The rate is left completely to the sweet will of the Standing Committee. Encouraged by the caprice permitted by Section 170, the Standing Committee has made sewerage disposal chargeable at the arbitrary rate of 50% of the water consumed or discharged by the person to whom it is supplied No guidance has been given in Section 170 as to when sewerage charge is to be levied "in lieu of sewerage tax". Section 170 therefore permits of an excessive delegation which renders it unconstitutional for that reason. Permitting a flat rate of 50% of the water charge towards sewerage charge is per se arbitrary. Persons dissimilarly placed are permitted to be treated as similar, and thereby, inequality is perpetrated, but under the facade of equality. Properly speaking Section 170 of the Act provides for the levy of a fee in respect of service rendered Therefore, the levy must be in proportion to the service rendered In other words, there must be a correlation between the amount of levy and the quantum of service rendered Making a flat rate of 50% of the water charges payable by every industry violates the basic canon in respect of levy of fees. Appellant is consuming nearly two-thirds of the quantity of water supplied to it, and should therefore, be subjected to a sewerage charge for only one-third of the quantity of water discharged At any rate, the third proviso to Rule 4 obligates the Commissioner to impose upon and recover a sewerage tax at the rate specified in the said proviso and not insist upon levying sewerage charge at 50% of the charge levied upon the appellant for the water supplied. That Proviso confers upon the Commissioner a power copuled with an obligation. There is no reason why the Commissioner should have insisted upon recovering sewerage charge when the appellant was entitled to claim the benefit of the lesser levy by way of sewerage tax. The representations made by the appellant not having had any effect, it is compelled to seek writs to quash the notices and bills aforementioned and a direction that sewerage charges be recovered for the entire period in accordance with the third Proviso of Rule 4.
6. In the return filed on behalf of the BMC, Section 160 and Rule 4 were said to be beyond reproach. All industries had been categorised to be one class for the imposition of a sewerage charge. The sewerage charge payable by the different industries depended upon the quantity of water supplied unto them. Therefore, it was not as if unequals were being treated as equals. The quantum of sewerage charge payable depended upon the water supplied and this was a valid measure for assessing the sewerage charge. All the relevant factors had been taken into consideration to evolve a proper and equitable rate for levy of sewerage charge. Classifying industries and factories as one class distinct and different from the other classes of consumers of water and dischargers of sewer was not arbitrary. It was not practicable to measure the quantity of waste water discharged This was because this waste came from different sources into the municipal sewers via different routes. The sewerage charge had been worked out after taking into consideration the cost incurred by the BMC in the collection, conveyance and final disposal of the waste water. Working out the sewerage charge on the basis of the quantity of water supplied provided for simplification in estimating and preparing the bills. There was a clear connection between the quantity of water suplied and that discharged through sewers. It was not possible to fix a separate sewerage charge for different industries. In the circumstances, the rate at which sewerage charge was fixed was fair and equitable.
7. The learned single Judge who heard the petition repelled the challenge to the validity of Section and the Rule. Dealing with the contention that the appellant should have been assessed in accordance with the last Proviso to Rule 4, the learned Judge held that the same had applications in cases where the premises were situated in the suburbs and which were not connected to a municipal sewer. Therefore, appellant could not claim the benefit of that Proviso for any period whatsoever. Consistent with these findings," he dismissed the petition with costs.
8. The three propositions canvassed by Mr. Chinoi appearing for the appellant, are :
1. Section 170(1)(ii) in so far it authorises the Standing Committee to determine by Rules a sewerage charge based on the quantity of water supplied without reference to the manner in which the same is used and ignoring the quantity discharged, is arbitrary and irrational. Therefore, there is a violation of Article 14.
2. Rule 4 of the Rules in so far as it permits the imposition of a charge on the basis of the quantity of water supplied without reference to the quantity discharged is arbitrary and irrational. This results in a contravention of Art, 14.
3. The last Proviso to Rule 4 had not been properly read. For the period preceding 1-4-1976, the said Proviso made it incumbent on the Commissioner to levy a sewerage tax at 3 1/2% of the rateable value upon such premises as were in the "suburbs and extended suburbs of Greater Bombay". Appellant's premises were entitled to the benefit of this concession incorporated in the last Proviso. Therefore, for the aforementioned period at least, the Commissioner could not have levied sewerage charges at 50% of the charge levied upon the appellant for the water supplied to it.
9. 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 water 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 subsection 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 criticism 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 water 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 has some correlation to the discharge. The validity of the first part of the sub-section has thus to be confirmed.
10. To turn now to the challenge to Rule 4 the attack is in words disarmingly simple and therefore formidably persuasive.
The Water Rules prescribes different rates for the same quantity of water supplied to different users. This is understandable for water is a scarce commodity and those who use it continually or commercially should pay a higher price than their counterparts whose consumption is moderate and is for non-commercial purposes. Even so, the rate is correlated to the quantity of water supplied Petitioner's premises are in the classification which reads thus:
"Used as offices, bank together with or without staff quarters, laundries, tanneries, oil mills, plastic industries, dyeing and/or hand printing works, factories, aerated water factories, metal manufacturing, concerns, chemical and pharmaceutical works, ice factories, cotton and textile mills, including dyeing, bleaching...... and mills."
These users throw out different quantities of the liquid taken in and the variation is substantial." Having regard to the service rendered and the levy being a charge for a service, there should be a connection between the two. The Standing Committee has ignored this need for a linkage and gone by the totally irrelevant factor of water supplied Petitioner discharges one-third of the water supplied and consumes the major portion in the process of or actual manufacture of, - their products. Manufacturers of ice and aerated waters consume nearly 90 to 95% of the water taken in. Mills doing bleaching work drain-out almost the entire water taken in. Rule 4 with an amazing blandness treats all of them to the same yardstick in estimating the sewerage charge i.e. half the sum payable towards the water bill The return made by the BMC to the petition takes up various defences but without placing the relevant data before us. The missing data is as to the total income and expense incurred in operating the sewerage system. What the return says may be summarised thus :
1. That an impost based on water supply is the most reasonable and practicable method.
2. That the collection of sewerage charge in this manner evens, out to cover the expenditure on this count.
3. That the method ensures ease and simplicity in the matter of filing thereby facilitating economy in administration.
11. At this stage we may as well finish with the argument based on the alleged difficulty of properly measuring the liquid wastes discharged into the municipal sewers. Petitioner relies on a passage from a treatise by Mark J. Hammer, Professor of Civil Engineering, Nebraska University, titled "Water and Waste-water Technology". This passage reads thus:
"Waste water contains suspended and floating solids that prohibit the use of enclosed meters., furthermore, waste water is commonly conveyed by open channel flow rather than in pressure conduits. Therefore, the Parshall flume is the most common device used to measure waste-water flows. A typical flume consists of a converging and dropping open channel section. Flow moving freely through the unit can be calculated by measuring the upstream water level. A stilling well is normally provided to hold a float, bubble tube, or other depth measuring device, which is connected to a transmitter and flow recorder similar to that shown in Figure 4-17. Flumes are commercially available to set in cut-open sections of sewer lines to measure flow from portions of a collection system, or individual industrial waste discharges. The advantages of an open channels flume are low head loss and self-cleansing capacity.
Weirs can also, be used for measuring flow of water in open channels. Water flowing over the sharp, edge crest must discharge to the atmosphere, that is air must be allowed to pass freely under the jet. If these conditions are met, the rate of flow can be directly related to the height of water measured behind the weir. Many weirs have been developed and calibrated with the majority having V-notch or rectangular openings.
The most common weir used for measuring waste-water flows is the 90 V-notch weir, illustrated in Figure 4-19. It is particularly well adapted to recording wide variations in flow, and may bemused in treatment plants too small to warrant continuous flow recording and the more expensive Pharshall flume. V-notch weirs are commonly installed on a temporary basis to make flow measurements associated with industrial waste surveys. Discharge over a 90 V-notch weir can be calculated using the following equation Q=2.48H 2.48"
Again, reference is made to the Bangalore Water Supply and Sewerage Board, which since 1978, is levying a charge for sewerage by measuring the quantity discharged. These suffice to negative the BMC contention that an alternative as effective as the one they have chosen is "not practicable or reasonable". In fact Section 170(1)(ii) itself predicates the measurability of quantity of waste discharged. But what is physically possible or desirable, does not become mandatory. There are aspects financial and administrative to be considered. The portion from the Statement of Objects and Reasons reproduced above shows that the BMC intended to take up a massive programme for water supply and sewerage disposal. The requisite finance ran into crores of rupees and this could come from the World Bank. That Bank required the system to be financially viable and not continue to be a burden on the general revenues. The statement explains that the tarriff structure until then prevalent was never such as to cover the expense incurred in providing the service. The new works proposed to be undertaken could not be wholly financed from the loans solicited. Part of the cost had to come from the surplus yielded by Revenue. Now, we agree that a Statement to the legislature is not part of an enactment under interpretation, and that if the words of the latter are clear, it is impermissible to go to other sources to garner its meaning. We further agree that the Statement may not support the BMC's plea that the sewerage charge was also to be used to meet the capital cost of the projected expansion and improvement. Sub-section (4) to Section 142 of the BMC Act directs the levy of a 'sewerage benefit tax' and that may be taken as an indication of the legislature maintaining a dividing line between the requirement for capital cost and recurring expenses in the collection, conveyance and disposal of sewerage. But this does not mean that the statement cannot be looked into at all. What the statement shows is that (1) the halalkhore tax based on the rateable value was antiquated (2) the yield from that tax was never adequate to cover the expenditure (3) the existing operations could be carried out only by dipping into the Municipal General Fund (4) the system was physically inadequate and had to undergo great changes requiring massive investments (5) the World Bank would lend part of the money to be invested but upon stringent terms (6) the legislature knew of the disinclination of local bodies to impose charges and taxes to make services self-paying. These factors compelled the legislature to effect changes in the BMC Act. Can it be said that the legislature in directing a 'change' in place of a 'tax', wanted an exact or even a substantial correlation between the impost and the service? If had that been the object the first alternative i.e. the impugned option, would not have been there. Another conclusion therefrom is the awareness of the legislature that installation of equipment whereby quantity of wastes discharged could be measured, would take time and that the water rate would have to be continued as a sole determinant of the sewerage charge for quite sometime.
12. It may be argued that when a charge is levied in lieu of a tax, the legislature intends to bring about a correspondence between the price charged and the service rendered. This is the 'cost' or 'benefit' principle of taxation which requires an equivalence between what an individual pays and the benefit he derives from the activity for which the tax is levied. Like other theories advanced to explain or reform taxation, this also has gone into oblivion. Following the lead of the Supreme Court, Courts in India have accepted the definition of 'tax' given by Latham, C.J. in Mathews v. Chicory Marketing Board, 60 CLR 263 (quoted with approval in Commissioner, Hindu Religious v. Lakshmindra, ). The learned Chief Justice defines tax, "as a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment "for services rendered". It is argued that while a service charge or tax may not be 'fee', it nevertheless cannot be so arbitrary as to treat unequals as equals. That taxation statutes are not exempt from the constitutional requirement to be free from arbitrariness is well settled 84 CJS (Corpus Juris Secundum) Taxation, Section 36 is an enumeration of the principles governing the subject based on American decisions. Generally speaking, so go the authorities cited therein, the constitutional guarantee of equal protection of the laws, applies to the State's power of taxation, precluding discrimination between persons or property in like situations. But within that limitation, the power to classify persons or property for taxation, is wide ranging and flexible. The constitutional prohibition against hostile discrimination may be violated in tax statutes by bringing into the tax net those not truly in it or excluding from the net persons rightly includible therein. The power to classify for tax purposes, is primarily in the legislature and not in the Courts. The laws are not to be declared invalid unless a transgression of the constitution be clear. A classification made for tax purposes has to be based on grounds relevant and reasonable. But it is not necessary that the basis for classification be great or conspicuous. The position in India is not different. In Khandige Sham Bhat v. Agrl. Income-tax Officer, AIR 1963 SC 591 the Court held :
"Though a law ex facie appears to treat all that fall within a class alike, if in effect it operates unevenly on persons or property similarly situated it may be said that the law offends the equality clause. It will then be the duty of the Court to scrutinize the effect of the law carefully to ascertain its real impact on the persons or property similarly situated Conversely, a law may treat persons who appear to be similarly situated differently; but on investigation they may be found not to be similarly situated. To state it differently, it is not the phraseology of a statute that governs the situation but the effect of the law that is decisive. If there is equality and uniformity within each group, the law will not be condemned as discriminative, though due to some fortuitous circumstances arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment. Taxation law is not an exception to this doctrine....... But in the application of the principles, the courts', in view of the inherent complexity of fiscal adjustment of diverse elements, permit a larger discretion to the Legislature in the matter of classification, so long it adheres to the fundamental principles underlying the said doctrine. The power of the Legislature to classify is of "wide range and flexibility" so that it can adjust its system of taxation in all proper and reasonable ways."
13. Petitioner relies on Supreme Court decisions reported in the cases of Raja Reddy, , New Manek Mills Co. Ltd., , Moopil Nair, AIR 1961 SC 522, Lokmanya Mills, , Haji K. Haji, . The attack in all these cases was upon a flat rate tax on the size of the land or building concerned, regardless of the productivity, location or expense incurred on making the same lucrative. Now this was a situation that had to be considered in a different context altogether. Since times immemorial the productive potential of land has been recognised as the only equitable measure for imposing a tax thereon. It being so, legislative or administrative directions to fit land or structures into an areawise strait-jacket could not be sustained Can the same be said of the sewerage charge based only on the quantity of water supplies? It has to be conceded that even a service tax, let alone a charge, is not free from the constitutional restraint against arbitrariness, see Southern Pharmaceutical v. State of Kerala, . But the charge, even if looked upon as a fee cannot be expected to have an exact relationship to the service rendered. In Municipal Corporation of Delhi v. Mohd. Yasin, , Chinnappa Reddy, J. observed :
"Though a fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct, a mere casual relation may be enough. Further, neither the incidence of the fee nor the service rendered need be uniform. That others besides those paying the fees are also benefited does not detract from the character of the fee. In fact the special benefit or advantage to the payers of the fees may even be secondary as compared with the primary motive of regulation in the public interest. Nor is the court to assume the role of a cost accountant. It is neither necessary nor expedient to weigh too meticulously the cost' of the services rendered etc. against the amount of fees collected so as to evenly balance the two. A broad correlationship is all that is necessary. Quid pro quo in the strict sense is not the one and only true index of a fee; nor is it necessarily absent in a tax."
In the same judgment his Lordship cautioned against trying to fit concepts from different disciplines into the rather roughshod moulds of law. Said he -
"A word on interpretation. Vicissitudes of time and necessitudes of history contribute to changes of philosophical attitudes, concepts, ideas and ideals and, with them, the meanings of words and phrases and the language itself. The philosophy and the language of the law are no exceptions. Words and phrases take colour and character from the context and the times and speak differently in different contexts and times. And, it is worthwhile remembering that words and phrases have not only a meaning but also a content, a living content which breathes, and so, expands and contracts. This is particularly so where the words and phrases properly belong to other disciplines. 'Tax' and 'fee' are such words. They properly belong to the world of Public Finance but since the Constitution and the laws are also concerned with Public Finance, these words have often been adjudicated upon in an effort to discover their content."
14. Examined in the light of the above can it be said that the Rule by being impervious to the quantity of waste discharged and going entirety 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 mode's invalidity. And why stop at the quantity? Why not take into consideration the quality 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 recycled 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 or air. Here it is necessary to recall the wise words of Mr. Justice McKenna in Metropolis Theatre Company v. City of Chicago, (1912) 228 US 61 : (57 Law Ed. 730)-
"To be able to find fault with a law is not to demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercise which can be declared void under the 14th Amendment."
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, a 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. Any 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 learned single Judge. These are formidable reasons for repelling the challenge to the Rule. Agreeing with the single Judge, we would sustain the vires of the impugned Rule.
15. The 3rd point rests on a rather strained interpretation placed on the last proviso to Rule 4, and as in force, upto 31st March, 1976. It is pleaded that the proviso casts a duty coupled with an obligation upon the Commissioner. Once it was established that petitioner's premises were in the "suburbs or extended suburbs of Greater Bombay", the Commissioner had to accede to the concession claimed viz. to levy a sewerage tax at 3 1/2 % of the rateable value and not a charge at the rate laid down in the main rule. In support of this contention reliance is placed upon Sardar Govindrao v. State of Madhya Pradesh, . Counsel for the BMC counters this submission by pointing to certain words in the proviso narrowing its application to premises affected by mid-term changes. The words are "continue to recover". This argument has to be accepted. The alternative would be to concede an uncontrolled power to the Commissioner to treat equals differently and for no reason. This proviso has 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.
16. To conclude, the appeal is hereby dismissed with parties being left to bear their own costs.