The Agricultural Produce Market Committee vs Gondal Municipality, Gondal and Another

D.G. Karia, J.—By this petition under Article 227 of the Constitution of India, the Agricultural Produce Market Committee of Gondal, which is a corporate sole u/s 10 of the Gujarat Agricultural Produce Markets Act, 1963 (for short, "the said Act"), has challenged the levy of property tax under the provisions of the Gujarat Municipalities Act, 1963 and cess under the Gujarat Education, Cess Act, .1962 by the respondent No. 1-Gondal Municipality. The petitioner-Market Committee has prayed for appropriate writ or direction quashing and setting aside the bill -dated July 7, 1982 and notices at Annexures "C" and "D" and for restraining the respondents from recovering any property tax and education cess from the petitioner-Market Committee.

It is not in dispute that the petitioner-Market Committee has put up construction of the market, known as Sardar Patel Market, consisting of various stalls. The said market yard exists as per the notification issued by the Competent Authority u/s 7 of the said Act. The stalls in the market yard are occupied by the licence-holders who have been carrying on their business. The administration-office of the petitioner-market Committee is also situated in the said market yard. It is the case of the petitioner-Market Committee that the entire building is for the public purpose, i.e. regulating, buying and selling of vegetable produce and the establishment of market for agricultural produce as provided by the various provisions of the said Act.

The first respondent-Gondal Municipality has been levying property tax in the city of Gondal and demanding the property tax from the petitioner-Market Committee. The first respondent-Municipality has issued bill as per Annexures "C" and "D" for recovery of such property tax from the petitioner-Market Committee. The petitioner-Market Committee has impunged the said two bills. It has also challenged the recovery of the education cess from the petitioner.

Mr. G. R. Udwani, learned Advocate appearing for the petitioner, contended that the petitioner-Market Committee is local authority and as such by virtue of the provisions of Section 13 of the Gujarat Education Cess Act, 1962, the petitioner-Market Committee, being local authority, has been exempted from payment of education cess. Section 12 of the Gujarat Education Cess Act, 1962 provides that subject to the provisions of the Act, there shall be levied and collected a tax on lands and buildings situated in an urban area at the rates set out in the said provisions of Section 12 of the Act. Section 13 of the Act provides for exemption of certain lands and buildings from payment of tax. Sub-section (2) of Section 13 of the Gujarat Education Cess Act, 1962 contemplates that buildings and lands vesting in the State Government, or belonging to a local authority, local board, taluka panchayat, district panchayat or a Cantonment Board and used solely for public purposes and not used or intended to be used for purposes of profit will be exmpted from payment of tax u/s 12 of the Act.

Therefore, the pertinent point that would arise would be whether the petitioner-Market Committee is a local authority as contemplated u/s 13(2) of the Gujarat Education Cess Act, 1962. In the case of Ochhavlal Jethalal Desai and Others Vs. The State of Gujarat and Another, , the question arose whether the Market Committee constituted u/s 5 of the Market Act is "local authority" within the meaning of Clause (31) of Section 3 of the General Clauses Act. The Division Bench of this Court, consisting of N.M. Miabhoy, C.J. and J.B. Mehta, J. (as they were then) held in para 3 of the said judgment as follows:--

"Now, the expresssion "local authority" has not been defined in the Act. The same has, however, been defined in the General Clauses Act X of 1897 (hereafter called the Clauses Act). The definition is in Clause (31) of Section 3. The expression is also defined in Clause (26) of Section 3 of the Bombay General Clauses Act. The definitions contained in the two above enactments - - the General Clauses Act and the Bombay General Clauses Act -- are not exactly identical. Respondents have also placed reliance upon the definition contained in the Bombay General Clauses Act. However, the Act being a central enactment, the Bombay General Clauses Act is not applicable for construing the Act. Therefore, the learned Acting Advocate General rightly did not place any reliance upon the definition of the expression "local authority" contained in the Bomaby General Clauses Act. But, fortunately, that part of the definition contained in the General Clauses Act, on which alone reliance can be placed by respondeuts, is in the same terms as the relevant pan of the definition in the Bombay General Clauses Act, on which respondents could have placed reliance. That being so, Mr. Vakil, learned counsel for petitioners, did not object to, and in fact cited available authorities, which have construed Clause (26) of Section 3 of the Bombay General Clauses Act and an allied definition which, though different in some respects, is also identical on the relevant part of the definition of the same expression in the Madhya Pradesh General Clauses Act. Respondents have also relied upon Sub-section (2) of Section 10 of the Gujarat Agricultural Produce Markets Act, 1963. That sub-section enacts -- "A Market Committee shall be deemed to be a local authority within the meaning of Clause (26) of Section 3 of the Bombay General Clauses Act, 1904"......."

Definition of the expression "local'' authority"as provided''in Section 3(31) of the General Clauses Act;. 1897, is as follows:--

"local authority" shall mean a Municipal Committee, district board, body of port commissioners or .other authority legally entitled to, or entrusted- by the Government with, the control or management of a municipal or local fund."

"The Supreme Court has upheld in the case of Patel Premji Jiva vs . State of Gujarat, (1971) 3 SCC 815 , that by virtue of Section 10(2) of the Gujarat Agricultural Produce Markets Act, 1963, the Market Committee is a local authority within the meaning of the Bombay General Clauses Act. Para 4 of the said judgment reads as under:--

"4. The expression "local authority" is not defined in the Land Acquisition Act. But by the General Clauses Act 10 of 1897 the expression "local authority" is defined as meaning "a municipal committee, district board,,body of port commissioners or other authority legally entitled to or entrusted by the Government with, the control or management of a municipal or local fund". By virtue of Section 10(2) of the Gujarat Agricultural Produce Markets Act, 1963, the market committee is a local authority within the meaning of the Bombay General Clauses Act. A local authority being by virtue of Section 3(26) of the Bombay General Clauses Act, 1904, a body which is entrusted by Government with control or management, inter alia, of a local fund, there is no scope for the argument that the market committee constituted under Gujarat Agricultural Markets Act, 1963, is not a local authority within the meaning of Section 6 of the Land Acquisition Act."

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In view of the aforesaid decision of the Supreme Court, it is now concluded that the Market Committee duly constituted u/s 10(2) of the said Act is a local authority. The petitioner Market Committee is, therefore, a local authority. As aforesaid by virtue of Section 13 of the Gujarat Education Cess Act, 1962, the tax u/s 12 shall not be leviable in respect of buildings and lands vesting in the State Government or belonging to a local authority. It has, therefore, to be held that the respondents are not empowered to levy or recover the education cess from the petitioner-Market Committee.

Next, it takes me to the question of levy and recovery of the property tax from the various stalls in the administrative Office of the Market, known as Sardar Patel Market of the petitioner-Market Committee. Respondent-Municipality is empowered and authorised to impose the taxes as listed in Section 99 of the Gujarat Municipalities Act. Clause (i) of Sub-section (1) of Section 99 of the Act provides about the tax on buildings or lands situated within the municipal borough to be based on the annual letting value or the capital value or a percentage of capital value of the buildings or lands or both. Thus, the Municipality duly constituted under the provisions of the Gujarat Municipalities Act, 1963, is authorised and empowered to impose and recover property tax, among other taxes, as per Section 99 of the Gujarat Municipalities Act, 1963.

Mr. Udwani, learned Advocate appearing for the petitioner, has, however, relied upon the proviso (a) to Section 99 of the Gujarat Municipalities Act, providing exemption. It reads as under :--

"(a) no tax imposed as aforesaid, other than a special sanitary cess, a drainage tax or a water rate, shall, without the express consent of the Government be leviable in respect of any building or part of any building or of any vehicle, animal or other property, belonging to Government and used solely for public purposes and not used or intended to be used for purposes of profit; and no toll shall be leviable in respect of any, animal or vehicle used for the passage of troops or the conveyance of Government stores or of any other Government property or for the passage of military or police officers on duty or the passage or conveyance of any persons or property in their custody."

The aforesaid proviso to Section 99 contemplates that no tax imposed as provided in Sub-section (1) of Section 99, other than a special sanitary cess, a drainage tax or a water-rate, shall without the express consent of the Government be leviable in respect of any building or part of any building or of any vehicle, animal or other property belonging to Government and used solely for public purposes and not used or intended to be used for purposes of profit. In submission of Mr. Udwani, petitioner-Market Committee should be equated with the Government as it has been functioning by issuing licences and thereby regulating the buying and selling of agricultural produces and managing and conducting the establishments of markets for agricultural produce. u/s 36 of the said Act, the Market Committee has power and authority to impose penalty, for con travention of Section 6 or 8 of the. Act. It has also power to impose penalty for making or recovering unauthorised trade allowance, as provided in Section 37 of the Act. It can impose the fine and penalty of failure to furnish information, etc. Mr. Udwani, therefore submits that the petitioner Market Committee has been discharging duties and functions for public purposes. The respon dent-Municipality cannot, therefore, be authorised to levy or collect, Mr. Ldwani submits, any property tax from the buildings belonging to the petitioner-Market Com mittee.

The General Clauses Act, 1897 defined in Clause (23) of Section'' 23 "Gpvern-ment" to include both the Central Government or any State Government. Thus, according to Section 3(23) of ,the General pauses Act, Government shall ;include both the Central Government or any State Government. This is undoubtedly an inclusive definition. However, by no stretch of reasoning, definition can be extended to any local authority such as the petitioner-Market Com-''nlittee that may include in the aforesaid definition of "Government". I, therefore, do not find any merit in the submission of Mr. ; Udwani that the petitioner-Market Commit-; tee should be treated as Government so as to exempt it from payment of property tax to the respondents-Municipality.

Section 100 of the Gujarat Municipalities Act, 1963 provides about the payment to be made to the municipality in lieu of tax on buildings by the Government or district panchayat or''the taluka panchayat concerned. Section 100 says that the Government or the district Panchayat or the taluka Panchayat concerned shall pay to the municipality annually, in lieu of tax on buildings from which theibuildings vesting in Government or in district panchayat or taluka panchayats are exempted by Clause (a) or (b) of the proviso to Sub-section 99, a sum ascertained ip the manner provided in subsections (2) and (3). It is significant to note that Section 100 does not contemplate any local authority which is required to make payment to Municipality in lieu of the tax on buildings owned by such local authority. It is, therefore, clear that the local authority is not sought to be exempted from the payment of property tax leviable by municipality as per the scheme of Sections 99 and 100 of the Gujarat Municipalities Act, 1963.

The question arose way back in 1940 in case of M.L.N. Mahalingam Chettiar by Rao Sahib R. Krishna Aiyar, iterim Guardian Vs. Raja Srimanthu Muthu Vijia Raghunatha Doraisingam alias Gowri Vallabha Thevar Avergal, Zamindar of Sivaganga, through his Diwan and authorized agent, R.M. Sundaram, Esq., I.C.S., , whether the local authority could be included in the term "Government". Leach, C. J. negatived the contention and observed as follows:-

Mr. Narasimhachariar has asked the Court to hold that the word "Government" should be interpreted as including the District Board. To do so would, in my opinion be to distort true meaning of the word. Moreover, Section 3(21), General Clauses Act, 1897, says that "Government" or "the Government" shall include the local Government" as well as the Government of India. No reference is made to local authorities. There is a further answer to Mr. Narasimhachariar''s argument. If one turns to the sentence which precedes the provision in the deed with regard to the levy of tax by the Government one sees that the parties used the word "Government" in its proper sense..."

In case of Basappa Rudrappa Betgeri and Others Vs. The Hubli Dharwar Municipal Corporation, , the question that was posed for consideration of the Supreme Court was that could the Municipality validly impose house tax on its own buildings and realise it from lessees or occupiers of those buildings. The Supreme Court held that the scheme of the Bombay Municipal Boroughs Act, 1925 does not contain any indication that buildings belonging to the Municipality itself cannot be subjected to the house tax which can be imposed u/s 73 of the Act. The Supreme Court further held that in fact the language of Section 85 specifically envisages imposition of such a tax on buildings belonging to the municipality. It clearly lays down that such a tax shall be leviable primarily from the actual occupier of the property on which the tax is assessed, even if he holds it on a lease from the Municipality. The fixation of such responsibility primarily on the occupier holding a building on lease from the municipality could only be laid down on the basis that the buildings owned by the municipality can be subjected to the tax. Once the tax is imposed on such a building, it would be payable by the occupier if he holds it as a lessee of the municipality. The same principle applies to the case of buildings held on a lease from the Government. It may be noted that all Government buildings are not exempted from the tax. Only those buildings are exempted which are used solely for public purposes and are not used or intended to be used for purposes of profit. In the instant case, the various stalls in the market are occupied by the licence-holders carrying on their respective businesses. In view of the principles laid, down in the aforesaid case of Basappa Rudrappa Betgeri (supra), the contention on behalf of the petitioner-Market: Committee that the various stalls and the property belonging to the Market Committee should be exempted from the property tax, cannot be accepted.

In view of the aforesaid discussion, the submission of Mr. Udwani about the exemption from property tax to the properties belonging to the petitioner-Market Committee cannot be accepted. In view of the above, the prayer with respect to exemption from the property tax has to be rejected.

In the result, the petition is partly allowed. The respondent-authorities under law are not empowered or authorised to recover education cess from the petitioner-Market Committee. The prayer with respect to exemption from the property tax on the buildings belonging to the petitioner-Market Committee is turned down, and the prayer with regard to quashing the bills at Annexures ''C'' and ''D'' to the petition is rejected. Rule is made absolute to the aforesaid extent, with no order as to costs.