KANDIVALI CO-OP. INDUSTRIAL ESTATE Vs MUNICIPAL CORP. OF GREATER MUMBAI .
Bench: M.Y. EQBAL,SHIVA KIRTI SINGH
Case number: C.A. No.-001431-001431 / 2015
Diary number: 30034 / 2013
Advocates: JATIN ZAVERI Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1431 OF 2015 (Arising out of SLP (C) No. 30485 of 2013)
Kandivali Cooperative Industrial Estate and another …Appellant (s) versus
Municipal Corporation of Greater Mumbai and others …Respondent(s)
WITH
CIVIL APPEAL NO.1433 OF 2015 (Arising out of SLP(C)No. 33545 of 2013)
Bulwark Warehousing Company and others …Appellant (s) versus Municipal Corporation of Greater Mumbai and others …Respondent(s)
CIVIL APPEAL NO.1436 OF 2015 (Arising out of SLP(C)No. 35558 of 2013)
Wadi Bunder Cotton Press Co. …Appellant (s) versus Brihan Mumbai Mahanagar Palika and others …Respondent(s)
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CIVIL APPEAL NO.1434 OF 2015 (Arising out of SLP(C)No. 35589 of 2013)
Tulsidas Khimji Warehousing Pvt. Ltd. and others …Appellant (s)
versus
Brihan Mumbai Mahanagar Palika and others …Respondent(s)
CIVIL APPEAL NO.1435 OF 2015 (Arising out of SLP(C) No. 35593 of 2013)
Narendra & Co. and another …Appellant (s) versus
Brihan Mumbai Mahanagar Palika and others …Respondent(s)
J U D G M E N T
M.Y. Eqbal, J.:
Leave granted.
2. These appeals are directed against the common
judgment and order dated 30.7.2013 passed by the High
Court of Bombay in the writ petitions preferred by the
appellants.
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3. By the impugned judgment and order, the High Court
dismissed the writ petitions preferred by the appellants
challenging the Circular dated 12th December, 2011 and the
respective entries made in the schedule appended thereto
issued by the Respondent-Municipal Corporation of Grater
Mumbai as also the respective entries in the schedule
appended thereto, thereby questioning the levy of ‘trade
refuse charges’ and the rates thereof.
4. The appellants are traders, carrying on activities of
warehouse keepers, godown keepers, bank mukadam,
carriers of stores, material and goods required to be stored
and kept safe from insects, ants, rodents, moisture, rain,
heat, fire etc. For this purpose, the appellants from time to
time have been obtaining trade licences issued under
Section 394 of the Mumbai Municipal Corporation Act, 1888
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(in short, ‘MMC Act’). According to the appellants, the
respondents recover 'trade refuse charges' (hereinafter
referred to as ‘TRC’), by making the payment thereof a
condition for renewing the trade licences under the MMC Act
on a yearly basis.
5. Respondent Corporation, vide circular dated 5.6.1999
fixed the pattern of Trade Refuse Charges (TRC) to be
collected from the owners/occupiers of trade premises. On
receiving various representations from the traders, Municipal
Commissioner took the decision of modifying the earlier
charges levied on the trade refuse. Therefore, the TRC were
revised by the Respondent Commissioner vide a circular
dated 14.1.2008 w.e.f.1.1.2008 by almost 300% of the trade
licence fees. It was further stated that the same was
required to be collected once in a year along with the
Licence fees at the time of renewal of licences issued under
section 394 of the Mumbai Municipal Corporation Act, 1888.
The appellants and several other parties made
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representations and preferred writ petitions urging
reconsideration of the rates, which were disposed of by the
Bombay High Court by an order dated 12.4.2010 upon the
statement being made on behalf of the respondents that
they would reconsider the rates of TRC.
6. Respondent Corporation gave a hearing to the
representations and instructed the department concerned to
submit the detailed report. A Core Committee was
constituted which submitted its report in 2010. On
consideration of Core Committee report, TRC were modified
by the impugned Circular dated 12.12.2011. The circular
stipulated that the TRC would be collected with retrospective
effect from 1.1.2008 onwards.
7. Although there was very significant reduction in rates of
trade refuse charges to be collected, the appellants, being
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dissatisfied, again moved the Bombay High Court by way of
writ petitions, contending that they merely receive goods
from the customers for purposes of safe custody and upon
receipt of the prescribed charges, return such goods to the
customers in the same conditions. For this purpose, they
provide adequate space, security and safeguards against
fire, rain, water, etc. In the process, neither any solid waste,
nor any trade refuse is generated. In the circumstances, it is
their case that levy of TRC upon them and that too with
retrospective effect i.e. from 2008 is illegal, arbitrary and
unconstitutional.
The appellants further contended that they do not generate
any trade refuse and, therefore, question of payment of TRC
does not arise.
8. The High Court by the impugned common order
dismissed the writ petitions of the appellants holding that
there is nothing illegal, arbitrary, unreasonable or
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unconstitutional in the levy of TRC by the respondents. It
was observed that the question as to whether the appellants
generate 'trade refuse' or not is a disputed question of fact,
which cannot be adjudicated in proceedings under Article
226 of the Constitution of India. The High Court did not find
any merit in the contention that the levy of TRC is invalid,
because according to the Appellants there is no element of
'quid pro quo'. The Appellants are certainly benefited, in as
much as they have been called upon to pay TRC at reduced
rates with effect from the year 2008. No retrospectivity is
involved in the implementation of the Circular dated 12th
December, 2011. If the contention is upheld, it is the
appellants who would suffer a higher TRC. The High Court
has further held that provisions of Sections 368(5) and
394(5) read with Section 479 of the MMC Act entitle the
respondents to impose restrictions and conditions at the
time of grant of licence. The same principle will be applicable
even at the stage of renewal of licences. At this juncture, we
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consider it appropriate to reproduce the reasoning of the
High Court in this regard:
“The linkage which is challenged by the appellants in the present petition is more concerned with the manner of recovery of TRC and not competence of the respondents to recover TRC. In deciding the manner, we are once again of the opinion that this is a policy matter and sufficient free hand is required to be conceded to the respondents in formulation of such policy. The respondents are right in submitting that it is not possible to monitor each and every establishment for purposes of determining the precise quantity and quality of 'trade refuse' generated. So also the respondents are right in contending that there is nothing illegal, arbitrary or unconstitutional in respondents recovering TRC at the stage of renewal of licences. From the averments made by the appellants themselves, it appears that this has always been the manner in which the respondents have been collecting TRC. In matters of policy, merely because some other system of collection may be better, is no ground to exercise power of judicial review. As long as it is not demonstrated that the manner of collection is ex-facie, absurd, unreasonable or disproportionately oppressive, we are unable to uphold the seventh challenge as to the linking. We find nothing absurd, unreasonable or disproportionately oppressive in the policy adopted by the respondents or the manner of collection of TRC.”
9. Being aggrieved, the appellants call in question the
correctness of the common judgment and order passed by
the High Court in a batch of Writ Petitions dated 30.7.2013.
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10. Mr. Shyam Divan, learned senior counsel appearing for
the appellant in SLP No.30485 of 2013, assailed the
impugned Circular dated 11.10.2011 as being illegal, ultra
vires and unconstitutional. Learned counsel submits that the
respondents cannot demand, levy or recover any tax, cess or
compulsory exaction without authority of law as mandate
under Section 265 of the Constitution. According to the
learned counsel, Section 368(5) empowers the
Commissioner to fix the charges only when the owner or
occupier of trade premises seeks permission to deposit trade
refuse temporarily upon any place appointed by the
Commissioner in this behalf and upon such permission
granted by the Commissioner. It was urged that none of the
members of appellant had ever sought such permission from
the Commissioner and, therefore, the question of levy of
trade refuse charges under Section 368(5) of the Act does
not arise. According to the learned counsel any compulsory
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exaction whether it be a fee or tax or any other levy must be
backed by law. The Circular dated 12.12.2011 imposing
trade refuse charges is irrational and arbitrary.
11. Mr. Divan, learned senior counsel, submitted that the
levy of TRC is contrary to the judgment of Bombay High
Court in Doran Bomanji Ghadiali vs. Jamshed Kanga
and others, AIR 1992 Bombay page 13 whereby the
High Court has held that the only charge that can be
levied on traders is to the limited extent provided under
Section 368(5) of the Act. The Court further held that the
fee imposable by Section 479 of the said Act must relate to
licence or written permission for any purpose required under
the Act and, therefore, the charge could only be for
permission to deposit the trade refuse temporarily at a
particular place and would not apply to traders not seeking
such permission to dump their refuse at any place. Learned
counsel drew our attention to various sections of the Act and
submitted that the manner in which the imposition or levy of
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charges contemplated under Section 368(5) of the Act, is
ultra vires. Learned counsel relied upon the decision in the
case of Ahmedabad Urban Development Authority vs.
Sharadkumar Jayantikumar Pasawalla, (1992) 3 SCC
285, which was subsequently followed in the case of Gupta
Modern Breweries vs. State of J& K, (2007) 6 SCC 317
and Leelabai Gajanan Pansare vs. Oriental Insurance
Co. Ltd., (2008) 9 SCC 720.
12. Mr. Chander Uday Singh, learned senior counsel,
appearing on behalf of appellants in SLP (C) Nos. 35558,
35589 and 35593 of 2013, after referring relevant
provisions of Municipal Corporation Act, made the following
submissions:-
(i). The appellants are engaged in the warehousing
business and they do not generate any trade refuse,
thus entitling the Respondents to levy the TRC. Neither
they are conducting any manufacturing activity due to
which solid waste can be generated and, hence, the
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term TRC has been misinterpreted and equated to
garbage. It was asserted that the Appellants merely
receive goods from the customers for the purpose of
safe custody and upon receipt of the prescribed
charges, return such goods to the customers in the
same condition. Therefore, the Respondents are wrong
in treating every kind of refuse as 'trade refuse’ and on
the said incorrect premise imposing TRC upon the
appellants. 'Trade refuse' should mean and imply some
solid waste generated by an industry involved in
manufacturing process and in this regard reliance is
placed upon sub-clauses (a) and (b) of Section 367 and
sub-sections (1) and (5) of Section 368 of the MMC Act
and as the terms "refuse" and "trade refuse" have been
dealt with separately this is indicative that every kind of
refuse cannot be qualified as "trade refuse".
(ii). It was pointed out that Respondents' own
inspection reports of warehouses show that those
warehousers only generated dust, tree leaves, etc. and
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in a quantity of only one and a half to two baskets. This
cannot, by any stretch of imagination, be treated as
trade refuse since the dust and tree leaves are blown
into the warehouses by the wind and not on account of
any activity being carried out by the
warehousers/appellants. Further, under Section 370 of
the MMC Act it will be incumbent on the occupier of any
premises situate in any portion of the city for which the
Commissioner has not given a public notice under
Section 142 (a) and in which there is no water closet or
privy connected to municipal drains, to cause all
excrementitious and polluted to be collected and to be
conveyed to the nearest receptacle /depot provided for
this purpose under Section 367 (b) and not (a).
Pertinently, 367 (a) deals with dust, ashes, refuse and
rubbish and 367 (b) deals with trade refuse. Thus "trade
refuse" is obnoxious refuse and cannot and ought not
be equated with refuse generated in any trade
/business establishment. It is submitted that this vital
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difference has been ignored and TRC is being unlawfully
sought to be levied upon the appellants who generate
no "trade refuse at all".
(iii). It was the contention of the learned counsel that
the appellants, who are engaged in the warehousing
business, do not generate any trade refuse and in the
event TRC constitutes a 'tax' there is no taxable event
for imposition of tax in the form of TRC. Alternatively, if
TRC is to be regarded a 'fee', then, on account of the
circumstance that the appellants generate no trade
refuse at all, there is no element of 'quid pro quo' and
hence levy of fee in the form of TRC is illegal and
invalid.
(iv). It was submitted that the linking of payment of TRC
with renewal of trade licences under section 394 of the
MMC Act, is illegal, invalid and, therefore, renewal of
trade licences under section 394 of the MMC Act ought
to be granted, irrespective of whether the appellants
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pay TRC or not. The TRC being levied in addition to the
normal licence fees for issue of trade licences under
Section 394 of the MMC Act, there is double charging,
which is wholly arbitrary and unreasonable and without
authority of law, particularly, qua the Appellants, who do
not generate any 'trade refuse'. It was, therefore sought
to be submitted, that the levy and collection of TRC
cannot be linked to the renewal of an annual trade
licence granted to the Appellants for conducting
warehousing activity when there is no statutory
provision enabling such linkage; and in the facts and
circumstances and absence of any specific authority to
levy a retrospective charge or fee, Respondent No.1
could not levy TRC with effect from 1.1.2008 when a
solemn assurance was made by Respondent No.1 to the
Bombay High Court that there would be no linkage
between TRC and licence fees collected at the stage of
renewal. Under Section 471 of the MMC Act, Respondent
No.1 is entitled to impose penalty for contravention of
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Section 368 (1) to (4) and under Section 472 of the Act,
the Respondent No.1 is entitled to impose penalty for
continuing offence in contravention of any provision of
Section 368 (1) to (5). When penalty provisions are
provided under the Act, payment of TRC has been
without any basis or justification whatsoever sought to
be linked with renewal of the Trade Licence, which is
impermissible and bad in law. Furthermore, only valid
trade licence holders are being charged TRC. It becomes
pertinent to note that after 1976, Respondent No.1 has
stopped issuing warehousing licences in the Greater
Mumbai Area. Therefore, the burden on TRC is only
being applied to valid licence holders and not to others
who are carrying on the trade without any licence.
(v). It was again pointed out that the Respondents have
completely ignored their own Circular No. ChE/280/SWM
dated 06.04.2010 which categorically states that for the
year 2010, TRC will be levied on the basis of licence fees
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of the licence issued by the Shops & Establishment
Department of the MMC and that the Respondents will
delink TRC from licence fees in future and new TRC levy
pattern will be introduced. The TRC is now wrongfully
charged on the basis of sq. mtr. footage of area of
premises and is in fact more than the licence fees which
is wholly illogical, irrational, arbitrary and without any
authority of law. The policy adopted by the Respondents
and the manner of collection of TRC (whether charged
based on number of employees or square meter area) is
absurd, unreasonable and disproportionately
oppressive, without Application of mind and
incompetent and without the authority of law.
(vi). Lastly, it was contended that any compulsory
execration of money by the Government for a tax or a
cess has to be strictly in accordance with law and there
should be a specific provision for the same and there is
no room for intendment and nothing is to be read or
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nothing is to be implied and one should look fairly to the
language used. Our attention was drawn to the decision
of this Court in Consumer Online Foundation vs.
Union of India (2011) 5 SCC 360. In this behalf it was
sought to be pointed out, that Imposition of levy/charges
by Respondent No.1 is in the nature of a tax and not a
fee and hence such imposition without backing of
statutes is unreasonable and unfair. Learned counsel
also drew our attention to the decisions of this Court in
the cases of Gupta Modern Breweries vs. State of
J&K & Ors. - (2007) 6 SCC 317 and B.C. Banerjee &
Ors. vs. State of M.P. & Ors. (1970) 2 SCC 467.
13. Mr. L. Nageswar Rao, learned Additional Solicitor
General appearing for the respondents, firstly contended
that the constitutional validity of Section 368(5) of the Act
was never challenged by any of the appellants as being ultra
vires to the Constitution. The appellants have only prayed in
the writ petitions for issuance of appropriate writ directing
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the respondents to cancel and/or withdraw the Circulars
dated 14.1.2008 and 11.10.2011 and also to withdraw the
notice dated 9th June, 2014. Learned counsel submitted that
the appellants challenged the circular by arguing that the
manner of collection of trade refuse charges was contrary to
law. The competence of the authority to demand and levy
TRC has not been challenged at any point of time.
Distinguishing the imposition of fee/TRC and tax, learned
counsel put heavy reliance on the ratio decided by this Court
in the case of The Commissioner, Hindu Religious
Endowment, Madras vs. Sri Lakshmindra Tirtha
Swamiar of Shirur Mutt, (1954) 1 SCR 1005. Mr. Rao
referred to the Core Committee Report and submitted that
the validity of guidelines provided therein cannot be tested
on any ground. Learned counsel put reliance on a decision
in the case of Corporation of Calcutta & Anr. vs. Liberty
Cinema, Assam, (1965) 2 SCR 477. Learned counsel also
made submission on the object and purpose of collection
and submitted that absolute equality is impossible for the
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purpose of levy of fee or charges. Learned counsel referred
the decision of this Court in the case of Gulabchand
Bapalal Modi vs. Municipal Corpn. of Ahmedabad City,
(1971) 1 SCC 82, Union of India vs. Nitdip Textile
Processors (P) Ltd., (2012) 1 SCC 226.
14. Before appreciating the rival contentions made by
the parties, we would like to refer the relevant provisions of
Bombay Municipal Corporation Act, 1988. Section 3 (yy)
defines the word ‘trade refuse’ as under:-
“3(yy) “Trade refuse” means and includes the refuse of any trade, manufacture or business.”
15. Section 367 empowers the Commissioner to make
provision for providing receptacles, depots and places for
temporary deposit or final disposal of waste articles
including trade refuse. Section 367 is quoted hereinbelow:-
“367. Provision and appointment of receptacles, depots and places for refuse, etc.,
The Commissioner shall provide or appoint in proper and convenient
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situations public receptacles, depots and places for the temporary deposit or disposal of— (a) dust, ashes, refuse and rubbish; (b) trade refuse;”
16. Section 368 lays down the provisions with regard to
the duty of owners and occupiers for the purpose of
collecting and depositing dust etc. Sections 368, 394 and
479, which are under consideration in these appeals, read as
under:-
“368. Duty of owners and occupiers to collect and deposit dust, etc. , (1) It shall be incumbent on the owners and occupiers of all premises to cause all dust, ashes, refuse, rubbish and trade refuse to be collected from their respective premises and to be deposited at such times 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 or the temporary deposit or final disposal thereof (2) …… (3)……… (4)-………
(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
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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.”
“394. Certain articles (or animals) not to be kept, and certain trades, processes and operations not to be carried on without a licence; and things liable to be seized destroyed, etc., to prevent danger or nuisance.-
(1) Except under and in accordance with the terms and conditions of the licence granted by the Commissioner, no person shall—
(a) keep, or suffer or allow to be kept, in or upon any premises,
(I) any article specified in Part I of Schedule M; or,
(II) any article specified in Part II of Schedule M, in excess of the quantity therein specified as the maximum quantity (or where such article is kept along with any other article or articles specified in that Schedule, such other maximum quantity as may be notified by the Commissioner) of such article which may at any one time be kept in or upon the same premises without a licence;
(b) keep, or suffer or allow to be kept, in or upon any premises, for sale or for other than domestic use, any article specified in Part III of Schedule M;
(c) ……………..
(d)……………..
(e) carry on or allow or suffer to be carried on, in or upon any premises.—
(I) any of the trades specified in Part IV of Schedule M, or any process or operation connected with any such trade;
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(II) any trade, process or operation, which in the opinion of, the Commissioner, is dangerous to life, health or property, or likely to create a nuisance either from its nature or by reason of the manner in which, or the conditions under which, the, same is, or is proposed to be carried on;
(f) carry on within [Brihan Mumbai] or use or allow to be used any premises for, the trade or operation of a carrier.
(2)…………………
(3)………………..
(4)……………….
(5) It shall be in the discretion of the Commissioner.—
(a) to grant any licence referred to in sub- section (1), subject to such restrictions or conditions (if any,) as he shall think fit to specify, or (b) for the purposes of ensuring public safety, to withhold any such licence:
Provided that, the Commissioner when withholding any such licence shall record his reasons in writing for such withholding and furnish the person concerned a copy of his order containing the reasons for such withholding:
Provided further that, any person aggrieved by an order of the Commissioner under this sub- section may, within sixty days of the date of such order, appeal to the Chief Judge of the Small Cause Court, whose decision shall be final.”
“479. Licences and written permission to specify condition etc, on which they are granted:-
(1) Whether it is provided in this Act that a licence or a written permission Licences and may be given for any purpose, such licence or
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written permission shall specify the wntten. 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 munici pal officer empowered under section 68 to grant the same.
(2)………………
(3)………………..
(4)……………….”
17. From a conjoint reading of the provisions quoted
hereinbefore, it is manifestly clear that the Commissioner
may from time to time inter alia specify conditions and
restrictions while granting trade licence. The Commissioner
may notify the charges including trade refuse charges i.e. to
be collected from the trade licencees.
18. In exercise of power conferred upon the Commissioner
under the MMC Act, a Circular was issued on 14.1.2008
raising the TRC by almost 300 percent of the trade licence
fees with the stipulation that the TRC would be collected at
the time of renewal of the licence under Section 394 of the
Act which were due to expire in December, 2009. As noticed
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above the said Circular dated 14.1.2008 was challenged
before the Bombay High Court by way of writ petitions.
When the writ petitions were taken up for hearing, learned
counsel appearing for the respondent-Corporation informed
the Court that the rate of trade refuse charges is under
reconsideration by the Authority. On the basis of
submissions made by the counsel for the Corporation, the
writ petitions were disposed of as the grievances of the
traders were satisfied.
19. In December, 2011, the respondents after re-
consideration of the tariff fixed in the earlier circular came
with another Circular dated 11.10.2011 whereby the TRC
rate was revised effective from 1st January, 2008. Perusal of
the revised rates appended thereto would show that the
rates have been significantly reduced in respect of different
types of business. Instead of quoting the revised rates we
would like to quote hereinbelow the modified circular dated
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11.10.2011. The English translation of the Circular reads as
under:-
“MUNCIPAL CORPORATION OF GREATER MUMBAI (Solid Waste Management Department)
No. Pra.A/11384/SWM Dated 11.10.2011
CIRCULAR Subject:-: Revision/Modification in the trade refuse charge.
For the purpose of recovering Trade refuse charge by Solid Waste Management Department in Municipal Corporation of Greater Mumbai, the Mayor’s Council gave approval vide Resolution No.14 dated 15.4.99 to recover the said charge in certain multiplication of licence/registration charge without making any category of the business. According to that procedure, the orders were issued vide Circular Pra. A/17785/SWM dated 14.1.2008, regarding entrusting the responsibility on (1) Licencing Department (2) Shops & Establishment Department (3) health department and (4) Market Department, by co-relating the expenses incurred then for disposal of the waste and the multiplication of licencing/registration charges and also to recover ‘Trade refuse charges’ at the time of renewal of licence and deposit the same under the head ‘Miscellaneous Charges’ of Income under Financial Budget Head of Solid Waste Management Department.
However, considering the complaints/ representations as well as certain other aspects regarding Trade refuse charge, meetings were held with the officials of 1) Licencing Department, Shops & Establishment Department (3) health department and (4) Market Department and after detailed deliberations it was proposed to carry out suitable modifications in Trade refuse charges for which the business people were examined regarding the Trade refuse charge. The examination reports received
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from all the department levels were carefully studied and the aspects such as the Trade refuse charge being levied on the business, the expenditure incurred for disposal of the waste generated by them were examined, and accordingly Hon’ble Municipal Commissioner has given approval vide No. MGC/F/5874 dated 2.9.2011 to charge Trade refuse charge accordingly and following decision was taken.
1) As the Trade refuse charge being levied by the Shops & Establishment Department in proportion with the waste generation, hence it will be continued as per the circular No. Pra.A/6123 dated 05.06.1999.
2) The businesses for which the complaints about the Trade refuse charge being more and in respect of whom changes in the Trade refuse charge have been made in accordance with their waste generation from the year 2008, have been indicated in ‘schedule B-1”.
3) Trade refuse charge for the halls used for marriages and parties is being introduced now. The solid waste generated in halls of schools, colleges and the functions in layout R.G. Plots of the housing societies, is not included in commercial tax.
4) In respect of the business who do not agree with the revised Trade refuse charge, applications may be accepted from them in enclosed format and after examining the same, a report be sent to the concerned Asst. Engineer (S.W.M.) for submitting to Chief Engineer (S.W.M.).
5) In respect of the business where there are more than one licences, the Trade refuse charge will be levied on the licence of which the fees are more than other licences.
6) Trade refuse charge will be increased by 10 percent every year from the year 2009.
7) In respect of the businesses who have paid the Trade refuse charge at less/more rate than the rate
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mentioned in the circular, it should be adjusted at the time of recovering, Trade refuse tax from the next year with effect from 2008. In respect of the business whose rates of Trade refuse charge have not been increased/decreased or those business who have so far not paid the Trade refuse charge, the same should be recovered from them immediately at the rate indicated in the Circular of 2008.
All the concerned department heads will take note of this circular and take further action.
Sd/-
Chief Engineer (S.W.M.)
11.10.11.
Licencing Superintendent.”
20. The Bombay High Court, while passing the impugned
order dismissing the writ petitions came to the conclusion
that the MMC Act confers power upon the authorities of the
respondents to impose conditions at the time of grant of
trade licence and also to recover trade refuse charges. The
High Court observed:-
“21. The provisions of sections 368(5) and 394(5) read with Section 479 of the MMC Act, in our view, entitle the respondents to impose restrictions and conditions at the time of grant of licence. The same principle will be applicable even at the stage of renewal of licences. The
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linkage which is challenged by the appellants in the present petition is more concerned with the manner of recovery of TRC and not competence of the respondents to recover TRC. In deciding the manner, we are once again of the opinion that this is a policy matter and sufficient free hand is required to be conceded to the respondents in formulation of such policy. The respondents are right in submitting that it is not possible to monitor each and every establishment for purposes of determining the precise quantity and quality of 'trade refuse' generated. So also the respondents are right in contending that there is nothing illegal, arbitrary or unconstitutional in respondents recovering TRC at the stage of renewal of licences. From the averments made by the appellants themselves, it appears that this has always been the manner in which the respondents have been collecting TRC. In matters of policy, merely because some other system of collection may be better, is no ground to exercise power of judicial review. As long as it is not demonstrated that the manner of collection is ex-facie, absurd, unreasonable or disproportionately oppressive, we are unable to uphold the seventh challenge as to the linking. We find nothing absurd, unreasonable or disproportionately oppressive in the policy adopted by the respondents or the manner of collection of TRC.
22. We have already held that there is nothing illegal, arbitrary, unreasonable or unconstitutional in the levy of TRC by the respondents. In these circumstances, we are not inclined to exercise the jurisdiction under Article 226 of the Constitution of India in order to assist the appellants, who desire to either postpone or avoid payment of TRC and at the same time enjoy the benefits of a renewed licence. Upon grant of renewal, the MMC shall have to initiate fresh proceedings in order to recover TRC, thereby giving the appellants
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opportunity to resist or delay in the payment of the same. The extra-ordinary jurisdiction under Article 226 of the Constitution of India cannot be exercised for such purposes.”
21. As stated above, the constitutional validity of Section
368(5) of the Act has not been challenged in the writ
petitions. The power of the Commissioner in fixing and
demanding trade refuse charges by the impugned Circular
have been questioned in all those writ petitions which are
the subject matter of these appeals. The only challenge is
the Circular dated 11.10.2011 and the respective entries in
the schedule appended thereto issued by the respondents
on the ground that the rate fixed in the schedule appended
to the Circular is wholly irrational and full of arbitrariness.
The main contention made by the appellants are that they
do not generate any trade refuse and, therefore, the rate
fixed for levy of TRC is arbitrary, unreasonable and violative
of Articles 14 and 19(1)(g) of the Constitution of India.
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22. Since the constitutional validity of different provisions
including Section 368 of the Act was not challenged, we do
not think it necessary to go into the vires of the said
provisions. The only issue that needs to be considered is as
to whether the fees or charge imposed by the impugned
Circular dated 11.10.2011 is just and proper or suffers from
arbitrariness.
23. There is no dispute with regard to the settled legal
proposition that in almost all the statute dealing with legal
administration, Municipal Authorities have inevitably to be
delegated the power of taxation. The aim and object of the
scheme have to be taken into consideration while deciding
the question as to the excessive exercise of power in the
matter of collection of fees and charges.
24. However, it would be appropriate to refer the principles
laid down by this Court in the case of The Commissioner,
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Hindu Religious Endowment, Madras vs. Sri
Lakshmindra Tirtha Swamiar of Shirur Mutt, (1954) 1
SCR 1005: AIR 1954 SC 282, which according to us will be
the complete answer to the points raised by Mr. Divan and
Mr. Singh, learned senior counsel appearing for the
appellants. In para 44, this Court observed:
“44. Coming now to fees, a 'fee' is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay (Vide Lutz on "Public Finance" p. 215.). These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases.”
25. A fee undoubtedly, is a payment primarily in public
interest, but for some special services, rendered or some
special work done for the benefit of those from whom
payments are demanded. In other words, fees must be
levied in consideration of certain services which the
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individual accept willingly or unwillingly. It is also necessary
that fees or charges so demanded must be appropriated for
that purpose and must not be used for other general public
purposes. Further, indisputably, the legislature can delegate
its power to statutory authority, to levy taxes or fees and fix
the rate in regard thereto.
26. Elaborating the distinction between the tax and a fee,
this Court in number of decisions held that the element of
compulsion or coercion is present in all impositions, though
in different degrees and that it is not totally absent in fees.
The compulsion lies in the fact that payment is enforceable
by law against a man in spite of his unwillingness or want of
consent and this element is present in taxes as well as in
fees.
27. Since the provisions of Section 368(5) of the Act is not
under challenge the decisions relied upon by Mr. Divan and
Mr. Singh, learned senior counsel appearing for the
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appellants, will have no application in the facts and
circumstances of the present case. Be that as it may, it is
well settled that an Act delegating power to the local body
without providing a maximum rate does not by itself render
the delegation excessive or invalid.
28. Coming back to the impugned Circular, it reveals that
after considering the complaints and representations and
certain other aspects regarding trade refuse charges,
decisions have been taken by the authority. Clause (4) and
(6) of the said circular are re-quoted hereinbelow:-
(4) In respect of the business who do not agree with the revised Trade refuse charge, applications may be accepted from them in enclosed format and after examining the same, a report be sent to the concerned Asst. Engineer (S.W.M.) for submitting to Chief Engineer (S.W.M.).
(6)Trade refuse charge will be increased by 10 percent every year from the year 2009.”
29. So far clause (4) is concerned, provision has been made
for making application by persons in respect of particular
business who do not agree with the revised trade refuse
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charge may approach the authority by making necessary
application and on such application or representation,
appropriate response shall be given to those persons, who
have any grievance to that effect. We, therefore, direct the
respondent-authority to follow the procedure mentioned in
clause (4) of the circular.
30. As regard clause (6) of the Circular, prima facie we are
of the definite opinion that increasing trade refuse charge by
10% every year from 2009 is highly arbitrary and without
any guidelines. In our considered opinion, the automatic
increase of trade refuse charges by 10% every year
irrespective of the nature of business carried on by the
Licencee violates principles of natural justice. We, therefore,
hold that respondent shall not recover any increased trade
refuse charges with effect from 2009 without giving
reasonable opportunity of hearing to the licencee or persons
liable to pay such increased charges.
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31. After giving our anxious consideration in the matter, we
do not find any reason to differ with the view taken by the
High Court in passing impugned order. However, we modify
the impugned order only by holding that clause (6) of the
Circular increasing trade refuse charge by 10 per cent every
year from 2009 is highly arbitrary and without any guideline.
We, therefore, hold that the increase of trade refuse charge
by 10 per cent every year irrespective of the actual
escalation or reduction in costs involved or the nature of
business carried on by the Licencee etc. violates principles
of reasonableness as well as natural justice. Accordingly, we
direct that the respondent-authority shall not recover
increased trade refuse charge at the rate of 10 per cent with
effect from 2009. The actual increase can be ascertained
and realized in future but not without giving reasonable
opportunity of hearing to the licencee or the persons liable
to pay the said increased charges.
32. With the aforesaid modification and directions, these
appeals stand disposed of with no order as to costs.
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…………………………….J. (M.Y. Eqbal)
…………………………….J. (Shiva Kirti Singh)
New Delhi February 04, 2015
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