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Judgment
P.S. Kailasam, J.—Petitioners in W.P. Nos. 2281 of 1966 and W.P. Nos. 357 and 1592 of 1968 are residents 6f West Mambalam; the
petitioner in W.P. No. 2597 of 1967 is a resident of Shastri Nagar and the petitioner in W.P. No. 2761 of 1967 is a resident of Kodambakkam.
The contention of the petitioners in all the writ petitions is that the Corporation has not provided the localities with water supply and drainage or
lighting and therefore they are bound to refer the matter to the State Government for exemption of the local areas from payment of water supply
and drainage tax and the lighting tax on the ground that such areas are not deriving any benefit from water supply and drainage or lighting system as
envisaged u/s 102 proviso (a) of the City Municipal Corporation Act.
The Shastri Nagar area in Adyar is planned and constructed by the State Housing Board. The houses were allotted by the State Housing Board
to various persons. In the costs of the building, the cost for providing of water supply;; electricity, sanitary fittings is added and collected from the
various allottees. So far as this area is concerned it is common ground that the Corporation is not providing any water supply or drainage facility or
lighting of the streets. The statement in the counter-affidavit of the Commissioner of the Corporation is admitted to be incorrect. It may therefore be
taken on facts that so far as Shastri Nagar area is concerned the Corporation is not providing Water supply and drainage and lighting facilities.
The areas in West Mambalam and Kodambakkarn are similar. It is the case of the petitioners that the Corporation has not provided any water
supply and drainage facilities. The Corporation has provided lighting facilities and therefore regarding these two areas the right of the Corporation
to collect a tax for lighting cannot be disputed. Regarding the tax for water supply and drainage the plea of the petitioners is that no amenity has
been provided to them. The Assistant Revenue Officer of the Corporation has filed an affidavit in W.P. No. 2281 of 1966 in which it is stated that
ad hoc arrangements like provision of water taps, public fountains and clearance of sullage water by lorries have been made and these amenities
are continued to be made in this area and in respect of these ad hoc arrangements the Corporation is incurring considerable expenditure. It is
further stated that there are schemes in progress for providing these amenities on a permanent basis which in the nature of things will involve delay
and time. The ad hoc arrangements are stated to be provision of water tanks in several places and three places are particularly mentioned. Storm-
water drains are constructed in Jubliee Road and Thambia Reddy Street and sullage water is taken in bullock carts and street lorries. This
statement is denied. It is averred in the reply affidavit that no water tanks are kept in the street wherein water is stored by sending the lorries. It is
also stated that no lorries are sent by the respondent to remove the sullage water in their area and all the streets are flooded with dirty water. Even
assuming that three water tanks have been provided for, in an area of 120 streets where the population is over 1,35,000 the few water tanks that
had been provided for cannot be said to be providing for water supply of the area. The Officer of the Corporation has not given any details as to
the lorries employed or the Work carried out regarding the clearing of the sullage water. It is stated on behalf of the petitioners that the
Corporation is;not attending to the clearing of sullage water. I am not satisfied that the Corporation is in any way attending to the drainage in the
two localities. On a consideration of the averments in the affidavit I am satisfied that so far as West Mambalam and Kodambakkam are
concerned, the Corporation has not provided for water supply and drainage scheme.
Part III of the City Municipal Corporation Act, IV of 1919, provides for taxation. u/s 98 the Council may levy a property tax and other taxes,
Section 99 deals with the property taxes. If the Council by a resolution determines that property tax shall be levied, such tax shall be levied on all
buildings and lands within the city save those exempted by or under this Act or any other law. Property tax comprises (a) a tax for general
purposes; (b) a water and drainage tax for the purpose of defraying the expenses connected with the water and drainage system of the city; (c) a
lighting tax for the purpose of defraying the expenses connected with the lighting of the city. The proviso requires that where the water and drainage
tax is levied the Council shall declare what proportion of the tax is levied in respect of water-works and the remainder shall be deemed to be levied
in respect of drainage works. It will be seen that under this section the Corporation is under an obligation to levy a property tax which may
comprise of tax for general purposes, a water, and drainage tax and a lighting tax. Section 101 enumerates the general exemptions from the
property tax for properties like places of public worship, choultries, ancient monuments, charitable hospitals etc., Section 102 provides for special
exemptions and alternative basis for property tax. Section 102 proviso (a) provides that the Council may with the sanction of the State
Government exempt any local area for the whole or a part of the water tax or drainage tax or lighting tax on the ground that the area is not deriving
any or full benefit from the water supply and drainage facility or from the lighting scheme.
The submission on behalf of the petitioners is that the right to levy property tax conferred on the Corporation u/s 99 is subject to general
exemptions provided for u/s 101 and special exemptions u/s 102, It is submitted that the levy of the property tax is subject to exemption provided
u/s 102 proviso (a); that is when any local area is not provided with the whole or part of water supply and drainage system or lighting facility the
Council should obtain the sanction of the State Government and exempt the local area from the whole or portion of the water and drainage tax and
the lighting tax. On behalf of the Corporation it is submitted that the word used is '' may '' and it is at the discretion of the Corporation to apply to
the State Government for exemption or not to do so. Before discussing the nature of the duty of the Corporation to act u/s 102 a few other
sections in the Act may be referred to.
Section 163 provides that all public reservoirs, tanks, cisterns, etc., Vest in the Corporation and are subject to its control. The Corporation is
empowered to construct water works and is under a statutory duty to provide wholesome drinking water within the city. Section 174 requires the
Commissioner to take measures for lighting in a suitable manner the public streets and public markets and all places of public resort vested in the
Corporation by electricity, gas, oil or such other illuminant as the Council may determine. Section 175 vests the drainage works with the
Corporation. Section 176 requires the Corporation to provide and maintain sufficient system of public drains throughout the city. It will be seen
that the Corporation is under a legal obligation to provide for water supply and drainage and to provide for lighting of the streets. Though the
Corporation is empowered to levy a property tax u/s 99 it is subjected to the exemptions provided for under Sections 101 and 102. So far as the
tax for water and drainage it is specifically stated that it is for the purpose of defraying the expenses connected with the water and drainage system.
So also lighting tax for the purpose of defraying the expenses connected with the lighting of the city. It is also provided that the Council should
declare a proportion of the tax in respect of water works and the Remainder is deemed to be levied in respect of drainage works. Separate
account is maintained by the Corporation relating to the income from the tax on water and drainage works and the lighting tax and expenses
incurred for the purpose.
In this writ petition Mr. Dolia, learned Counsel for the petitioner, submits that it is not necessary for him to question the power of the
Corporation to levy a water and drainage tax or lighting tax without providing for those amenities. He restricted his contention to the limited
question that u/s 102 proviso (a) the Corporation is under an obligation to obtain the sanction of the State Government to exempt local areas from
water and dranaige tax or lighting tax where water supply, drainage and lighting system have not been provided for. On behalf of the Corporation it
was submitted that it was not obligatory on the Corporation to apply for sanction and that it was at the discretion of the Corporation to make a
reference or not. Reading Sections 99 and 102 it is clear that Section 102 is intended as an exemption to Section 99 where water supply and
drainage and lighting system are not provided. The right to tax u/s 99 being subjected to the exemptions the Council would be under an obligation
to refer the matter to the State Government. The use of the word '' may '' cannot conclude the matter.
Maxwell, nth Edition, at page 233 has stated:
An Act which empowered a vestry to make a paving rate and provided that, when it appeared to the vestry that the rate was not incurred for the
equal benefit of the whole parish, it '' might'' exempt the party not benefitted was held to impose a duty, and not merely to confer a power, on the
vestry to apportion the burden when the case arose.
The Supreme Court in a decision in State of Uttar Pradesh Vs. Jogendra Singh, , has ruled that the word '' may '' generally does not mean '' must''
or ''shall,'' though it is well settled as capable of meaning '' must'' or ''shall'' in the light of the context. Where a discretion is conferred upon a public
authority coupled with an obligation, the Word ''may'' which denotes discretion should be construed to mean a command. Sometimes the
Legislature uses the Word ''may'' out of deference to the high status of the authority on whom the power and the obligation are intended to be
conferred and imposed.
In Municipal Commissioners, Madras v. Branson ILR (1881) Mad. 201, it was held that the Legislature intended the water rate to be a
payment for a benefit conferred and the tax could not be levied till the water can be supplied. In a suit by the taxpayer for providing water supply
the Court held that it is not necessary to the suit that the Commissioners have not at their command the funds necessary to enable them to
discharge their duty; nor would the Court assent to the argument that it was the intention of the Legislature that water rate should be collected
before the works are completed. The Court held in its judgment that the Legislature intended that the rate should be a payment for the benefit
conferred. The Supreme Court held in S.G. Jaisinghani Vs. Union of India (UOI) and Others, , that the discretion would mean sound discretion
guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful. Taking into account the provisions of
Section 99 which while enabling the Corporation to levy a tax on property provides for exemption which includes exemption when a local area is
not provided with water supply or drainage and lighting system and the clear intention of the Legislature being that the water and drainage tax and
lighting tax should be used for defraying the expenses for providing water and drainage, facility and lighting respectively, the Corporation cannot
escape its duty to apply to the State Government and get exemption from the levy of water and drainage tax and lighting tax where such facilities
are not provided for. The Corporation cannot avoid this responsibility by stating that this procedure would result in loss of revenue.
Mr. Chengalvaroyan, the learned Counsel for the Corporation, submitted that where persons claim exemption from payment of water and
drainage tax and lighting tax it is for them to apply for exemption u/s 137-A. Section 137-A provides that with the sanction of the State
Government the Council may exempt any person or class of persons wholly or in part from the payment of any tax. Section 137-A is in the nature
of a general provision while Section 102 proviso (a) is a specific provision relating to the levy of property tax leviable u/s 99 subject to exemptions
which include Section 102 proviso (a) also. Section 102 proviso (a) being a special provision regarding the levy of property tax which includes
water and drainage tax and lighting tax will be a proper provision and not the general provision Section 137-A. The learned Counsel submitted that
an aggrieved person can have adequate remedy by requesting the Corporation to act u/s 137-A, and it would be totally unnecessary to invoke the
provisions of Section 102 proviso (a). It was submitted by the Corporation that taking proceedings u/s 102 proviso (a) would mean the exemption
of the entire local area which would result in serious financial consequence to the Corporation, and therefore the remedy of the petitioners should
be limited to applying for exemptions personally and not for the entire local area. I am not impressed by this contention. For in my view the proper
provision relating to-exemption of property tax is Section 102 proviso (a). Apart from it the Corporation cannot be heard to say that the discharge
of its statutory functions would result in financial loss to the Corporation. On a consideration of the entire facts I am satisfied that the Corporation is
in law bound to apply to the State Government for sanction of the exemption of the Shastri Nagar area from the payment of the whole of the water
and drainage tax and the lighting tax and for exemption to pay the whole of water tax and drainage tax regarding the West Mambalam and
Kodambakkam area. A writ will issue to the Corporation to act accordingly.
In W.P. No. 2701 of 1967 it is said that while for three periods, from the second half-year of 1964-1965 to the second half-year of 1965-66
the demand had been made at the rate of Rs. 27-28 and tax collected at that rate, subsequently demand notices were issued for the same period at
the enhanced rate of Rs. 237-78 to the petitioner by the Corporation proposing to enhance the tax and the petitioner was not given any
opportunity to resist the imposition of the enhanced tax. It is also stated that the enhancement in the tax was not due to the result or general
quinquennial revision, of tax. These allegations are not controverted in the counter-affidavit. As the enhancement was without notice it cannot be
sustained and the increased levy will have to be disallowed The Corporation is at liberty to enhance the tax after observing the procedure laid
down under the Act. The Corporation will be prohibited, from collecting the excess property tax from the petitioner for the half-years commencing
from the second half-year of 1964-65 to the second half-year of 1965-66. The petitioner is in the Kodambakkam area and it has been held that
the Corporation is not entitled to levy water tax and drainage tax for the area. The Corporation will not be entitled to collect the water and
drainage tax for the premises.
In the result, the writ petitions are allowed, and the Corporation is directed to apply for the sanction of the State Government as provided for
u/s 102 proviso (a) for exemption of the whole of water and drainage tax and the lighting tax regarding Shastri Nagar and for exemption of the
whole of the water and drainage tax for West Mambalam and Kodambakkam area. Regarding W.P. No. 2701 of 1967 the Corporation will
refrain from collecting the enhanced tax and the water supply and drainage tax. The Corporation will pay the costs of each of the petitioners, Rs.
100.