Bombay High Court
Dorab Bomanji Ghadiali vs Jamshed Kanga And Others on 28 January, 1991
Equivalent citations: AIR1992BOM13, 1991(2)BOMCR244, 1991(2)MHLJ878, AIR 1992 BOMBAY 13, (1991) MAH LJ 878, (1991) 2 MAHLR 851, (1991) 2 BOM CR 244
ORDER
1. This petition under Art. 226 of the Constitution impugns the trade refuse charge imposed upon small tradesmen by respondent No. 1 for and on behalf of the 2nd respondent.
2. The 2nd respondent being the Municipal Corporation for Greater Bombay is governed by the Bombay Municipal Corporation Act -- Bombay Act III of 1888. Section 3(YY) of this Act defines "trade refuse" as meaning and including "the refuse of any trade, manufacture or business". Sections 367 and 368 to the extent relevant vis-a-vis trade refuse or a charge read thus :--
"367. The Commissioner shall provide or appoint in proper and convenient situations public receptacles, depots and places for the temporary deposit or final disposal of--.
(a) .....
(b) trade refuse;"
"368. (1) It shall be incumbent on the owners and occupiers of all premises to cause all..... trade refuse to be collected from their respective premises and to be deposited at such time as the Commissioner, by public notice, from time to time prescribes in the public receptacle, depot or place provided or appointed under the last preceding section for the temporary deposit or final disposal thereof.
(2) Provided that the Commissioner may, if he thinks fit, by written notice require the occupier and owner of either of them of any premises, to cause all ..... but not trade refuse to be collected daily, or otherwise periodically, from the said premises and deposited temporarily upon any place forming the part of the said premises which the Commissioner appoints in this behalf, and it shall be incumbent on the said occupier and owner or either of them to cause the said matters to be collected and deposited accordingly.
(3) It shall be incumbent on the owners of all premises to provide receptacles of a size to be prescribed by the Commissioner for the collection therein of all ..... and trade refuse to be collected from such premises. Such receptacles shall at all times be kept in good repair and condition and shall be provided in such number and place and retained in such position as the Commissioner may, from time to time, by written notice direct.
(4) It shall also be incumbent on the owners and occupiers or either of them of all premises required by the Commissioner by written notice so to do, to employ servants for the purpose of carrying out and complying with the requirements of sub-sections (1) and (2) of this section.
(5) Notwithstanding anything contained in this section, if the owner or occupier of any trade premises desires permission to deposit trade refuse, collected daily or periodically from the premises, temporarily upon any place appointed by the Commissioner in this behalf, the Commissioner may, on the application, and on payment of such charges as the Commissioner may, from time to time, fix, allow the applicant to deposit the trade refuse accordingly."
Some years ago the State legislature passed Maharashtra Act 7 of 1984 with a view to provide for the appointment of an Administrator to exercise the powers and duties of the Corporation and all other municipal authorities under the Act or any other law for the time being in force. This was to meet certain contingencies and became part of the Act as Section 7A. During the tenure of the Administrator -- respondent No. 1 -- a proposal (Exh. D) was put up to him which sought to levy a 'trade refuse charge' equal to the registration fee payable per year by every establishment under the Bombay Shops and Establishments Act, 1948 (Shops Act). The reason given out was that small trades were generating a refuse which was being collected and disposed by the Corporation without the conductors of such trades paying any charge. This was in sharp contrast to the charges levied on and paid by eating houses and sugar cane stalls etc. To do away with the free service enjoyed by small businesses a trade refuse charge was proposed. The said proposal was sanctioned and since that time small establishments in the city have to pay this charge.
3. Petitioner a watch-repair business, run in partnership by two brothers challenges the validity of the impost. It is contended that the petitioner already pays a sewerage charge. Imposing on them a trade refuse charge is to make them pay twice for the same service. There is no such thing as trade refuse in Bombay. Whatever scrap or waste is generated by a trade or business in this city is recycled and fetches a handsome price. The Corporation is not required to collect or dispose it. Imposition of a uniform rate as such a charge on all establishments regardless of the quantity and quality of refuse generated is impermissible arbitrariness. The Administrator was not empowered to make policy decisions. In fact when introducing the enactment in the legislature, an assurance had been given that policy decisions would not be taken by him except with the previous assent of the legislature. There was no provision in the Act to levy a trade refuse charge. Exhibit 'D' deserved to be quashed and an injunction was sought to prevent its recovery.
4. The Corporation's return denies the correctness of the averments summarised above. They point to Sections 367 and 368 of the Act as justifying the levy. In the alternative Section 479 is relied upon as being the source of power justifying the levy. Petitioner's accusations of the charge being a double levy, arbitrary or in excess of the powers of the Administrator are all baseless.
4A. First to be considered is the plea that Section 7A did not confer on respondent No. 1 the power to take policy decisions. In fact at the time of introducing the bill to incorporate Section 7A into the BMC Act, a solemn assurance had been given that the Administrator would not effect any policy changes without the consent of the legislature. Section 7A is the enacted provision and there is nothing therein to suggest the existence of fetters on the powers of the Administrator. As to assurances given, the same is not reflected in the final product. That apart, no such statement incorporating the assurance has been placed on record. Mr. Joshi submits that the charge should have been got rectified by the elected body after the election. No such requirement is indicated by the law.
5. Second comes the plea that trade refuse does not require collection and disposal by the Corporation. Every form of refuse generated by trade underwent a recycling. It's collection and disposal was itself a gigantic business. No tradesman dumped the refuse generated by his trade into dumps. That which was totally useless or unretainable constituted sewage and for the removal thereof, the traders were, directly or indirectly, already paying a sewerage tax. That some kind of trade refuse has a saleable value and that it does not go into the municipal dumps is undeniable. But this cannot be said of refuse of all types or even of refuse generated by any single trade. Some part of the generated refuse may be recyclable, the remainder may not he. Further the definition of "trade refuse" in the BMC Act (see Section 3(YY) cannot be said to be restricted to refuse generated by a trade being plied at various places. There is a difference between refuse generated by a trade and that resulting from the running of the trade. The latter would embrace a wider sphere than that covered by the words "refuse generated by the trade, manufacture or business" Mr. Joshi submits that a watch repair business neither generates nor can be said to incur any refuse. Applying the charge to all traders irrespective of whether or not their trade germinates or results in any refuse, is a case of impermissible arbitrariness. A certain latitude has to be given to the State and its instrumentalities in the matter of imposition of fiscal levies. It is well nigh impossible to measure the refuse of every trade, manufacture or business. Quantification in some varieties of trade may lead to floundering because of the haziness surrounding the trade. It is not correct to say that the trade of watch repair does not germinate any refeuse. Wrappers over parts used to replace worn out parts and unusable or worn out parts are refuse generated by that trade. The quantity would differ from watch repairer to watch repairer and it would not be possible to measure the same with exactitude. Next customers coming into watch repair establishments would while coming in or staying there discard odds and bits in the said premises. The quantity of refuse thus left would have to be swept out and dumped somewhere. Even if dumped on the road facing the establishment as is likely to be the case where the quantity is negligible, the Municipal staff would have to remove it to the dump -- temporary or permanent. Therefore, it is not correct to say that a watch repairers' trade is ipso facto a guarantee against the creation of trade refuse. Indiscriminate over-inclusion may be interdiclable by exercise of the writ jurisdiction. But the present is not a case of that sort. Here, small tradesmen who were escaping a levy were brought into the net. The argument that tradesmen required to pay a trade refuse charge are charged twice for the same service as they are already paying a sewerage tax remains to be considered. Sewerage tax is levied for disposal of sewage and that is refuse carried off by sewers. This form of garbage is in liquid or fluid condition. Trade refuse is in a different, i.e. solid form. The distinction aforestated may not be accurate, but is, broadly correct.
6. Third comes the contention that the impost does not have the sanction of law. Exh. D incorporates the resolution imposing trade refuse charges upon small establishments covered by the Shops Act. A reading of Exh. D shows that the Adiministrator in imposing the trade refuse charge was exercising a power believed to he vested in the Corporation or some other municipal authority. Section 7A(2) of the Act conferred on the Administrator all powers and duties of the Corporation and all other municipal authorities under the Act or any other law for the time being in force. Therefore the Administrator could exercise only a power conferred on the Corporation or its committees and officers by the Act or any other law then in force. The Act does not in specific terms empower the imposition of a trade charge. The Corporation justifies the charge as falling under Sections 367 and 368. The first section obliges the Commissioner to provide public receptacles, depots and places for the temporary deposit or final disposal of different types of garbage inclusive of trade refuse. It makes no reference to the imposition of a charge. Section 368 specifies the duty of owners and occupiers of all premises to collect dust and refuse etc. from such premises and deposit the same at appointed public receptacles. Only sub-section (5) of this section empowers the levy of a charge and that is for according of permission to an owner or occupier for making temporary use of any place for dumping their refuse. This sub-section empowers a charge upon those applying and cannot cover the case of small tradesmen spoken of in Exh. D. As an alternative the Corporation relies on Section 479(2) of the Act. Section 479 relevant for our purposes reads thus :--
"479 (1) Whenever it is provided in this Act that a licence or a written permission maybe given for any purpose, such licence or written permission shall specify the period for which, and the restrictions and conditions subject to which, the same is granted, and shall be given under the signature of the Commissioner or of a municipal officer empowered under Section 68 to grant the same.
(2) For every such licence or written permission a fee may be charged at such rate as shall from time to time be fixed by the Commissioner, with the sanction of the Corporation."
The fee impossible by this provision must relate to a licence or written permission for any purpose required in the Act vide subsection (1) of Section 479. We have already seen that Sections 367 and 368 provide for only one charge and that is vide sub-section (5) of Section 368. That is a charge for permission to deposit trade refuse temporarily at a particular place and will not apply to tradesmen not seeking permission to dump, their trade refuse at any place. Mr. Bharuchal seeks succour from Section 390. Though this section is not pleaded in the BMC's return, the contention is one of law and has to be considered. It is as under :--
"390. (1) No person shall newly establish in any permises any factory, work-shop or workplace in which it is intended that steam, water, electrical or other mechanical power shall be employed, without the previous written permission of the Commissioner, nor shall any person work, or allow to be worked, any such factory, workshop or workplace without such permission.
(2) The Commissioner may refuse to give such permission if he shall be of opinion that the establishment of such factory, workshop or workplace in the proposed position is objectionable by reason of the density of the population in the neighbourhood thereof, or will be a nuisance to the inhabitants of the neighbourhood.
(3) If any written permission for the establishment of a factory, workshops or workplace granted under sub-section (1) be revoked by the Commissioner in the exercise of his powers under sub-section (3) of Section 479, no person shall continue or resume the working or use of such factory, workshop or workplace until such written permission is renewed or a fresh written permission is granted by the Commissioner."
Section 390(1) prohibits the commencement of any factory, workshop or workplace, where steam, water, electrical or other mechanical power is to be employed to work such factory, workshop or workplace without the written permission of the Commissioner. Sub-section (2) of this section makes clear the purpose behind the prohibition except with permission. The purpose is to prevent a strain or nuisance being caused to the neighbourhood inhabitants because of the starting of the factory, workshop or workplace. It is difficult to conceive of a watch-repairer's shop or like businesses as being obnoxious in any manner whatsoever to the neighbourhood. Next the factory, workshop or workplace has to be one in which it is intended that steam, water, electrical or other mechanical power is to be used. Mr. Bharucha says use of electrical lights in a watch repair establishment would attract Section 390(1). Use of electricity for illumination of the workplace is incidental and what the sub-section aims at is use of water, steam electrical or mechanical power for the manufacture or processing or servicing of an article. Sub-section (2) would show that the aim is to regulate factories or trades which are likely to be a health or comfort hazard to the residents of the neighbourhood except such trades others would not be within the purview of Section 390. Having scrutinised all the provisions pointed out, I find no section in the Act which can be said to empower the levy of trade refuse charge except to the limited extent of Section 368(5). That does not apply to the tradesmen sought to be covered by Exh. D.
7. The absence of a legal sanction for the levy of a trade refuse charge incorporated in Exh. D leads to the allowing of the petition. Petitioners will be entitled to reliefs claimed in prayers (a) and (b) to the petition with an entitlement to the refund of the charge as from the fiscal year 1985-86. Rule in these terms made absolute with parties being left to bear their own costs.
8. Order accordingly.