# Civil Aviation Training College, Bamrauli, Allahabad v. The State of U.P. And others

- **Citation:** (2013) 1 ILRA 284
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-06
- **Bench:** Prakash Krishna, Ram Surat Ram (Maurya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/civil-aviation-training-college-bamrauli-allahabad-v-the-state-of-u-p-and-others-42483
- **Pages:** 13

## Headnote

U.P. Municipal Corporation Act 1959Section
175(1)readwith
U.P.
Water
Supply and Sewage Act 1975- demand of
water
tax-petitioner
being
airport
authority-imparting
training
in
field
airport management, air traffic control
and
navigation
surveillance
services
including
dwelling,
houses,
offices,
hotels, hospitals etc. spread over about
16 hundred ares.-Gate of institutions
situated at distance of 5.80 meter from
the point of walking distance-demand of
water tax as building existed withing
hundred meters radius of water supply
point-petitioner having own source of
water
and

power
supply-hence-no
question of payment of water tax at
12.5%
of
annual
letting
value
of
property-the
petitioner's
request
to
identify the building with the described
radius-remain
untouched-held-without
joint inspection demand of water tax at
highest rate-not proper-demand notice
quashed-necessary direction given.

Held: Para-31

One acre consists of 4,840 sq. yards and
is equivalent to 4046.856 sq. meters. The
area of the plot is 116 acres which is
equivalent
to
561440
sq.
yards
=
4,69,435.296 sq. meters. In pursuance of
the direction given in the earlier writ
petition by this Court, a joint spot
inspection
was
carried
on
28th
December, 2010 by the officials of the
respondents and in the presence of the
officials
of
the
petitioner.
It
finds
mention in para 5 of the impugned order
that the entrance gate of the petitioner's
campus is at 5.80 meters from the water
stand point and the water tax has been
levied on this premises alone. This itself
is suggestive of the fact that only a very
small portion/insignificant area of the
petitioner's campus falls within the
1 All] Civil Aviation Training College, Bamrauli, Allahabad Vs. The State of U.P. And others 285
prescribed radius. It was urged before us
that the petitioners have no grievance
for payment of water tax for the land
and building or part of the building
falling within the prescribed radius. It
was argued that the request to identify
the buildings and land falling within the
prescribed radius was made during joint
inspection but no heed was paid. It is,
therefore, desirable that again a joint
inspection may be carried on in the light
of the observations made above and the
payment of water tax be modified
suitably.

Case Law discussed:
AIR 1962 Alld. 83; AIR 1965 SC 895; .AIR
1982 Alld.406; (2000) 3 AWC 2139; .AIR 1999
SC 264; AIR 1999 SC 277; AIR 1999 SC 277;
(1996) 2 SCC 572.

## Text

_Characters 0–39,965 of 42,348. This is a partial read: ask again with offset=39965 for what follows._

284 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
there is no bar against criminal case being
prosecuted by complainant. It would be
appropriate that the revisionists shall
move an application before the Magistrate
concerned making an appropriate prayer
in terms of Section 210(2) Cr.P.C.

10. As far as the question of
discharge is concerned, there is sufficient
material in the statement as recorded
under Sections 200 and 202 Cr.P.C. to
warrant trial of the revisionists for the
offences for which they have been
summoned.

11. No case for discharge is made
out. The application for discharge has
been rightly rejected. I find no good
ground to interfere in the matter.

12. The revision is dismissed with
liberty to the revisionists to move an
application under Section 210(2) Cr.P.C.
before the Magistrate concerned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2013.

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.
THE HON'BLE RAM SURAT RAM
(MAURYA), J.

Civil Misc. Writ Petition (TAX) No. 362 OF
2011.

Civil Aviation Training College, Bamrauli,
Allahabad
 ...Petitioner

Versus

The State of U.P. And others ...Respondents

Counsel for the Petitioner:
Sri S. Shekhar, Sri V.K. Singh
Counsel for the Respondents:
C.S.C.
Sri Rakesh Bahadur
Sri S.K. Gupta

U.P. Municipal Corporation Act 1959Section
175(1)readwith
U.P.
Water
Supply and Sewage Act 1975- demand of
water
tax-petitioner
being
airport
authority-imparting
training
in
field
airport management, air traffic control
and
navigation
surveillance
services
including
dwelling,
houses,
offices,
hotels, hospitals etc. spread over about
16 hundred ares.-Gate of institutions
situated at distance of 5.80 meter from
the point of walking distance-demand of
water tax as building existed withing
hundred meters radius of water supply
point-petitioner having own source of
water
and

power
supply-hence-no
question of payment of water tax at
12.5%
of
annual
letting
value
of
property-the
petitioner's
request
to
identify the building with the described
radius-remain
untouched-held-without
joint inspection demand of water tax at
highest rate-not proper-demand notice
quashed-necessary direction given.

Held: Para-31

One acre consists of 4,840 sq. yards and
is equivalent to 4046.856 sq. meters. The
area of the plot is 116 acres which is
equivalent
to
561440
sq.
yards
=
4,69,435.296 sq. meters. In pursuance of
the direction given in the earlier writ
petition by this Court, a joint spot
inspection
was
carried
on
28th
December, 2010 by the officials of the
respondents and in the presence of the
officials
of
the
petitioner.
It
finds
mention in para 5 of the impugned order
that the entrance gate of the petitioner's
campus is at 5.80 meters from the water
stand point and the water tax has been
levied on this premises alone. This itself
is suggestive of the fact that only a very
small portion/insignificant area of the
petitioner's campus falls within the
1 All] Civil Aviation Training College, Bamrauli, Allahabad Vs. The State of U.P. And others 285
prescribed radius. It was urged before us
that the petitioners have no grievance
for payment of water tax for the land
and building or part of the building
falling within the prescribed radius. It
was argued that the request to identify
the buildings and land falling within the
prescribed radius was made during joint
inspection but no heed was paid. It is,
therefore, desirable that again a joint
inspection may be carried on in the light
of the observations made above and the
payment of water tax be modified
suitably.

Case Law discussed:
AIR 1962 Alld. 83; AIR 1965 SC 895; .AIR
1982 Alld.406; (2000) 3 AWC 2139; .AIR 1999
SC 264; AIR 1999 SC 277; AIR 1999 SC 277;
(1996) 2 SCC 572.

(Delivered by Hon'ble Prakash Krishna, J)

1. The petitioner, a Civil Aviation
Training College, claims that it was
initially established by the Ministry of
Civil Aviation, Government of India as an
institution owned by Central Government.
The
Parliament
enacted
Airports
Authority Act, 1994 and now the
petitioner is an institution under the
Airports Authority of India. It claims that,
in fact, the petitioner is an organization of
Central Government and is totally owned
and financially controlled by the Central
Government. It is imparting training to
the persons in the fields of Airports
Management, Air Traffic Control and
Navigation Surveillance Services and is
an unique Institution in whole of the
country. It has a huge compound spread
over in 116 acres of land. In the said
compound there are number of separate
and
independent
buildings
including
dwelling
houses,
offices,
hostels,
hospitals, residential buildings and the
building required for training to the
students. It claims that each and every
building of the petitioner in the said
compound is independent and separate
building. Further, the petitioner has not
taken
any
water
connection.
The
petitioner has its own source of water. It
has been further pleaded that the
petitioner has itself provided all the civic
amenities on its own to the entire campus
by laying down the roads, water supply,
sewerage etc.

2. The petitioner is aggrieved by the
action of respondents namely Municipal
Authority and that of General Manager,
Jal Kal Vibhag, Nagar Nigam, Allahabad
(Water Works), Allahabad, asking the
petitioner to pay water tax for the period
1st of April, 2009 and onwards. Notice
dated 21st of September, 2010 issued by
the respondent no.2 asking the petitioner
to deposit the water tax, is under
challenge. By means of the present
petition, quashing of the said notice dated
21st September, 2010 and the order dated
9.2.2011 rejecting the representation of
the petitioner against the said notice, has
been sought for. Also a Writ of
Mandamus declaring the notification
dated 9th April, 2003 filed, as Annexure-8
to the writ petition, as ultra-vires has been
claimed besides the other incidental and
ancillary reliefs.

3. Disputing the claim of the
petitioner, the Nagar Nigam has filed a
counter affidavit wherein it is pleaded that
the water tax has been levied as per the
provisions
of
the
U.P.
Municipal
Corporation Act, 1959 (hereinafter to
referred as Act 1959) and the U.P. Water
Supply and Sewage Act, 1975 (hereinafter
to referred as the Act, 1975). The action
has been sought to be justified on the
ground that the campus of the petitioner
constitutes one unit and in any case, part
286 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
of the campus is within 100 meters radius
of the water supply point. It has further
been averred that whether the petitioner
has taken water connection or not, is
wholly irrelevant. The water tax has been
charged at the rate 12.5% of the annual
letting value of the building as determined
by the Nagar Nigam. Further, the
Explanation-1 to Section 175 of U.P.
Municipal Corporation Act, 1959 justifies
their action. It has been further stated that
the earlier writ petition filed by the
petitioner questioning the annual rental
value of the building having been
dismissed, the present writ petition is
liable to be dismissed.

4. The State of U.P. has filed a
separate
counter
affidavit
which
is
confined to the question of legality of the
impugned notification. It has been stated
that the fixation of the rate of water tax at
the optimum permissible rate is justified
as the cost of operation and maintenance
of water supply is much more. The
income from all sources of Jal Kal
Vibhag, Nagar Nigam, Allahabad is
estimated at 49.82 crores as against the
estimated expenses of Rs.53.52 crores. It
has been stated that the notified rate of
water tax at Rs.12.5 per cent shall be even
lower than the estimated expenses of the
respondent (Jal Kal Vibhag) for the year
2012-2013 and thus, it cannot be said that
the rate of tax at 12.5 per cent of the
annual letting value is in any manner
arbitrary.

5. The petitioner in the rejoinder
affidavit has reasserted and reaffirmed its
stand as taken in the writ petition.

6. Heard Sri V.K. Singh, learned
senior counsel along with Sri S. Shekhar
for the petitioner, Sri Rakesh Bahadur for
the contesting respondent nos.1, 2 and 3
and Sri S.P. Kesarwani, Additional Chief
Standing
Counsel
for
the
other
respondents.

7. At the very outset, we may deal
with one preliminary objection with
regard to the maintainability of the writ
petition raised by Sri Rakesh Bahadur,
Advocate for the respondent nos.1, 2 and
3. He submits that the petitioner had
earlier filed a writ petition being writ
petition no.440 of 2011 challenging the
valuation of property done by the
respondents. The said writ petition was
dismissed. The submission is that the
petitioners have filed statutory appeal
against the valuation of the property and
as such, the present writ petition is not
maintainable.
In
reply,
the
learned
counsel for the petitioners invited our
attention towards the following order
passed by the Apex Court:-

"Learned
Attorney
General
appearing
for
the
petitioner
seeks
permission to withdraw this petition with
a liberty to the petitioner to approach the
High Court with an application for
review. Permission is granted. The
petition is dismissed as withdrawn with
the liberty as prayed for. We request the
High Court to dispose of the entire matter
as expeditiously as possible."

8. The said order was passed on a
Special Leave Petition filed by the
petitioners against the order dated 14th of
March, 2012 by which the interim relief
to the petitioners was denied by this
Court. Taking into consideration that the
pleadings are complete and the Apex
Court has desired to dispose of the entire
matter and the fact that only two legal
issues have been sought to be raised
through the present petition, we propose
1 All] Civil Aviation Training College, Bamrauli, Allahabad Vs. The State of U.P. And others 287
to decide the writ petition on merits after
overruling the objection raised by the
contesting respondent nos.1, 2 and 3.

9. Suffice it to say that this is a
second round of litigation with regard to
the water tax liability of the petitioner
before this Court. Earlier, the petitioner
had filed a writ petition no.1496 of 2010
challenging the legality and validity of the
imposition of water tax and its recovery
which was decided by the judgment dated
29th October, 2010 directing the General
Manager, Jal Sansthan, Allahabad to
decide the representation of the petitioner
in this regard. Consequent to the said
judgment, the General Manager, Jal
Sansthan, has decided the representation
of the petitioners by rejecting it by the
order impugned in the present writ
petition. In this factual matrix, we do not
find any merit in the preliminary
objections of the contesting respondent
nos.1, 2 and 3.

10. Coming to the merits of the case,
the learned senior counsel for the
petitioners, has raised the following two
points for consideration:-

1. There is no liability to pay the water tax
in respect of the buildings and the land
which fall beyond the radius of 100
meters from the water stand point of the
respondent. The water tax has been levied
on the premises that the entrance gate of
the petitioners' institution is at a distance
of 5.80 meters from the water stand point
of the respondent and the several separate
and independent buildings are being
treated as one building. The submission in
brief is that the petitioners' campus is
spread over in 116 acres of land. Only a
small/insignificant part of the land and
some building which fall within the radius
of 100 meters from the said fixed point,
may be liable to water tax and not the
other buildings and land which are
independent and beyond the fixed radius
of 100 meters, will be subjected to water
tax.

2. The notification dated 9th of April,
2003 filed as Annexure-8 to the writ
petition providing the rate of water tax at
the fixed rate of 12.5 per cent which is
maximum, is arbitrary. The submission is
that the Act provides levy of tax in the
range of 6 per cent to 12.5 per cent. No
reason has been assigned for not levying
the water tax at a lesser rate.

11. The learned counsel for the
respondent nos.1, 2 and 3 supports the
levy of water tax on the ground that on
the own showing of the petitioners, the
entire
buildings
residential,
non
residential, hostels, school, hospital etc.
are situate in one compound. The
submission is that even a part of the said
compound falls within the radius of 100
meters from the water stand point, on a
true and proper interpretation of section
175 of the U.P. Municipal Corporation
Act, 1959 together with the Explanation
attached thereto, the impugned levy is
justified. Sri S.P. Kesarwani justifies the
imposition of tax at the maximum rate
with the help of estimated income and
expenditure account as finds mention in
the counter affidavit.

12. Considered the respective
submissions of the learned counsel for the
parties and perused the record. The levy
of water tax by local authority has been
subject matter of litigation before this
Court many times. Earlier, the vires of
such action was challenged on the ground
of incompetency of the state legislature to
288 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
levy such tax. The matter was examined
by a Division Bench of this Court in Raza
Buland Sugar Co. Ltd Vs. Municlpal
Board, Rampur: AIR 1962 Alld. 83
with reference to the provisions of the
U.P. Municipalities Act, 1916 wherein the
levy of water tax has been held valid by
holding that the water tax is a tax on land
or building and the State Government has
power under the Entry No.49 in List II of
Seventh Schedule of the Constitution of
India to make laws in respect thereof. The
matter was carried further in appeal
unsuccessfully before the Apex Court in
Raza Buland Sugar Co. Ltd. vs.
Municipal Board, Rampur, AIR 1965
SC 895.

13. In Kendriya Nagarik Samiti
Kanpur Vs. Jal Sansthan, Kanpur, AIR
1982 Alld. 406, a case under the Act of
1975, a Division Bench has held that
subject matter of water tax is not water
charges. It is, in reality, tax on land and
buildings though called water tax. Levy of
such water tax is covered by the Entry
No.49 of List-II of Seventh Schedule. The
validity of Section 52 of the Act, 1975
challenged on the ground of excessive
delegation was repelled.

14. Similar view was taken in the
case of Lucknow Grih Swami Parishad
Vs. State of U.P. and others, (2000) 3
AWC 2139.

15. It will not be out of place to
mention here that although in the writ
petition it has been raised that on the
petitioner no water tax can be levied in
view
of
the
Article
285
of
the
Constitution of India, but no such plea
was convassed before us nor was pressed
presumably in view of the authoritative
pronouncement
of
the
Apex
Court
holding otherwise.

16. Before entering into the
controversy raised in the present writ
petition, it is desirable to note certain
statutory
provisions
for
proper
appreciation of the controversy on hand.
The State of U.P. enacted the U.P. Water
Supply and sewerage Act, 1975 (U.P. Act
No.43 of 1975) to provide for the
establishment of Corporation, Authorities
and Organizations for development and
regulation of water supply and sewerage
services and all the matters connected
therewith. Prior to enactment of the Act,
1975, under which Jal Sansthan has been
constituted, property taxes (which include
a general tax, water tax, drainage tax etc.)
were levied under section 173 of the U.P.
Nagar Mahapalika Adhiniyam, 1959.
Under the Act, 1975 among the functions
entrusted to Jal Sansthan are to plan,
promote and execute schemes of and
operate an efficient system of water
supply vide section 24 (I) of the Act.
Power to levy taxes, fees and charges are
dealt with under Chapter VI. Section 52
which is relevant for our purposes is
reproduced below:-

"52. Taxes liveable,--(1) For
the purposes of this Act, a Jal Sansthan
shall levy, on premises situated within its
area:

(a) where the area is covered by
the water supply services of Jal Sansthan,
a water tax; and

(b) where the area is covered by
the sewerage services of Jal Sansthan, a
sewerage tax.

(2) The taxes mentioned in subsection (1) shall 1[ in a local area other
than a city] be levied at such rate which in
1 All] Civil Aviation Training College, Bamrauli, Allahabad Vs. The State of U.P. And others 289
the case of water tax shall be not less than
6 per cent and not more than 14 per cent
and in the case of sewerage tax shall be
not less than 2 per cent and not more than
4 per cent of the assessed annual value of
the premises as the Government may,
from time to time after considering the
recommendation
of
the
Nigam,
by
notification in the Gazette, declare.

2[(3) The taxes mentioned in subsection (1), shall, in a city, be levied at
such rate which in the case of water tax
shall not be less than 7.5 per cent and not
more than 12.5 per cent and in the case of
sewerage tax shall not be less than 2.5 per
cent and not more than 5 per cent of the
annual value of the premises determined
under the Uttar Pradesh Municipal
Corporations Act, 1959, as the State
Government may, from time to time, after
considering the recommendation of the
Nigam, by notification in the Gazette,
declare.]

17. Relevant portion of section 55
providing restriction on levy of taxes
mentioned in section 52 is reproduced
below:-

"Section 55. Restriction on Levy of
Taxes― The levy of taxes mentioned in
section 52 shall be subject to the
following restrictions, namely―

a..........................................

b. the water tax shall not be levied on
any premises -

(i) of which no part is situate within
the radius prescribed from the nearest
stand post or other water works at which
the water is made available to the public
by the Jal Sansthan or

(ii).................................................

c...............................................

18. The crux of the petitioners'
argument is that section 52 levies water
tax 'on premises' situate within its area.
Reading it together with restriction as
provided under section 55, the water tax
shall not be levied on any premises of
which no part is situate within the radius
prescribed. The radius prescribed under
Rule-2 of the Jal Sansthan (Radius
Regarding the Levy of Water Tax) Rules,
1993 is 100 meters. The word ''premises'
has been defined under section 2(18) of
the Act, 1975 as ''premises' means any
land or building. The petitioner submits
that on a conjoint reading of sections 52
and 55 of the Act, 1975 only separate
building or part of the buildings and/or
land falling within the radius of 100
meters would be subjected to water tax
liability. The word ''building' has not been
defined in the Act, 1975. The submission
is that the building as is understood in
common parlance should be taken into
consideration.

19. The word ''building' has been
defined in the U.P. Municipal Corporation
Act, 1959 vide section 2(6) which reads
as follows:-

(6) "Building" includes a house, outhouse, stable, shed, hut and other
enclosure
or
structure
whether
of
masonry, bricks, wood, mud, metal or any
other material whatever, whether used as
a human dwelling or otherwise, and also
includes
verandahs,
fixed
platforms,
plinths,
door-steps,
walls
including
compound walls and fencing and the like
but does not include a tent or other such
portable temporary structures.

20. It also defines ''land' vide section
2(33) which reads as follows:-
290 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

(33) "land" includes land which is
being built upon or is built upon or is
covered with water, benefits to arise out
of and things attached to the earth or
permanently fastened to anything attached
to the earth and rights created by
legislative enactment over any street.

21. At this juncture, we may notice
the argument of the respondent nos.1, 2
and 3. He submits that the provision
relating to water tax would be governed
by section 175 of the U.P. Municipal
Corporation Act, 1959. For the sake of
convenience
the
said
section
is
reproduced below:-

3[175. [Restrictions on imposition of
water tax] - The imposition of a tax under
clause (b) of sub-section (1) of Section
173 shall be subject to the restriction that
the tax shall not be imposed -

(i) on any land exclusively for
agricultural purposes, unless the water is
supplied by the Corporation for such
purposes; or

(ii) on a plot of land or building the
annual value whereof does not exceed
rupees three hundred and sixty and to
which no water is supplied by the
Corporation; or

(iii) on any plot or building, no part
of which is within the radius prescribed
for the City, from the nearest stand-pipe
or other waterworks whereat water is
made available to the public by the
Corporation.

Explanation. - For the purposes of
this section -

(a) ''building' shall include the
compound, if any, thereof, and, where
there are several buildings in a common
compound, all such buildings, and the
common compound;

(b) ''a plot of land' means any piece
of land held by a single occupier, or held
in common by several co-occupiers,
whereof no one portion is entirely
separated from any other portion by the
land of another occupier or of other
occupiers or by public property.]

22. Elaborating the argument, the
learned counsel for the respondents
submits that in view of the peculiar
definition given to ''building' in the
Explanation reproduced above, the entire
campus
of
the
petitioners
being
surrounded by a boundary wall though for
security
purposes
is
a
''common
compound'. Even if a small part of the
said compound falls within the prescribed
radius of 100 meters, the liability to pay
water tax shall be on the annual letting
value of the whole compound or in other
words on the compound itself. To put it
differently, the division of building or
buildings or parts whereof within and
beyond the radius of 100 meters from the
water stand point is immaterial.

23. Now, the arguments of the
learned counsel for the parties give rise to
the two aspects of the case. Firstly,
whether the levy of water tax will be
governed by the provisions of the U.P.
Act, 1975 or the Act, 1959. As according
to counsel for the respondents, both the
Acts operate in the same field. However,
the counsel for the petitioner submitted
that the U.P. Act, 1975 being a special
Act and has been enacted subsequently,
will have an overriding effect. Pointedly,
a query was put to the learned counsel for
the contesting respondent nos.1, 2 and 3
as to why the provisions of the U.P. Act,
1975 should not prevail being Special Act
over the Act, 1959. But he could not give
any reply. He continued to harp and rely
1 All] Civil Aviation Training College, Bamrauli, Allahabad Vs. The State of U.P. And others 291
on section 175 of the Act, 1959. Besides
the fact that the U.P. Water Supply and
Sewerage Act, 1975 (Act of 1975) is a
Special Act, there is definite indication
therein which shows that the Act of 1975
will have precedence.

24. Chapter -VI of Act, 1975 deals
with tax, fees and charges and contains
sections 52 to 64. Section 58 of Act, 1975
has made applicable certain provisions of
Act, 1959. The provisions of section 178,
214 etc. of the U.P. Nagar Mahapalika
Adhiniyam, 1959 shall mutatis mutandis
apply in relation to tax mentioned in
section 52, as they apply to the property
described in section 173 of Act, 1959. It,
by necessary implication excludes section
175 which contains besides the other
things a special meaning to word
''building' for the purposes of imposition
of water tax. This brings us to the point
that section 175 which has been heavily
relied upon by the learned counsel for
respondents has not been made applicable
to the Act, 1975. In other words, the word
''premises' which means land or building
occurring in section 52 of Act, 1975
would
apply.
Interestingly
while
preparing the judgement, we could lay our
hands on two Supreme Court judgments
which should have been placed by the
counsel for the parties but they failed.
They are --

1. Municipal Board Saharanpur
Vs. Imperial Tobacco of India Limited
and another, AIR 1999 SC 264; and

2. Municipal Board Saharanpur
Vs. Shahdara (Delhi), Saharanpur
Light Railway Co. Limited, AIR 1999
SC 277.

25. These cases were decided with
reference to the provisions of the U.P.
Municipalities Act, 1916 which is similar
to section 175 of Act, 1959. Section 129
of the U.P. Municipalities Act, 1916
dealing with restriction in the imposition
of water tax, definition of building and
compound as defined in section 2 sub
sections (2) and (5) of the U.P.
Municipalities Act, for the sake of
convenience, are also reproduced herein
below:-

Restriction in the imposition of
water-tax is found in Section 129 of the
Act, 1916. The said provision, as it stood
at the relevant time, reads as under :

"129[Restriction in the imposition of
water-tax] The imposition of a tax under
clause (x) of sub-section (i) of Section
128 shall be subject to the following
restrictions on the imposition of namely,
water-tax.

a)that the tax shall not be imposed on
land exclusively used for agricultural
purposes, or where the unit of assessment
is a plot of land or a building as
hereinafter defined, on any such plot or
building of which no part is within a
radius, to be fixed by rule in this behalf
for each Municipality, from the nearest
stand-pipe or other water-work whereas at
water is made available to the public by
the board; and

b) that the tax is imposed solely with
the object of defraying the expenses
connected
with
construction,
maintenance, extension of improvement
of municipal water-works and that all
moneys derived therefrom shall be
expended solely on the aforesaid object.

Explanation - In this Section-
292 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

"(a) "building" shall include the
compound (if any) thereof and, where
there are several buildings in a common
compound, all such buildings and the
common compound;

 (b) "a plot of land" means any piece
of land held by a Single occupier, or held
in common by several co-occupiers,
whereof no one portion is entirely
separated from any other portion by the
land of another occupier or of other cooccupiers or by public property."

The
terms
"building"
and
"
compound" are defined by Section 2, subsections (2) and (5) respectively as under :
" Section 2. "Building" means a house,
outhouse, stable, shed, hut or other
enclosure or structure whether of masonry
bricks, wood, mud, metal or any other
material whatsoever, whether used as a
human
dwelling
or
otherwise,
and
includes any verandah, platform, plinth,
staircase,
doorstep,
wall
including
compound wall other than a boundary
wall of the garden or agricultural land not
appurtenant to a house but does not
include a tent or other such portable
temporary shelter.

5. "Compound" means land, whether
enclosed or not which is the appurtenance
of a building or the common appurtenance
of several buildings".

26. The Apex Court in the case of
Municipal Board, Saharanpur (supra)
the Court proceeded to find the meaning
of words ''common compound' not
defined anywhere in the said Act. After
considering the Explanation which enacts
a separate definition of the terms
''building and land' for the purposes of
section 129, the Court held that in view of
the peculiar definition of ''building and
land' for the purposes of levy of water tax
in the said Act, the words ''common
compound'--Where
there
are
several
buildings situate in a common compound
will include all such buildings in the
common compound together and will be
treated forming one building for the
purposes of finding out of the permissible
radius from the nearest water stand point.

27. A close reading of the said
decision would show that it is based on
the special and separate definition of
terms ''building and land' for the purposes
of section 175 of Act, 1959. The
Explanation attached to the section states
in so many words that ''building' shall
include such compound (if any) thereof
and, where there are several buildings in a
common compound, all such buildings
and the common compound.

28. In view of the discussion in the
earlier part of this judgment we have held
that the controversy in hand will be
governed by the provisions of sections 52
and 55 of the Act, 1975 and to the
exclusion of section 175 of Act, 1959, the
principal of law laid down in the aforesaid
decision may not be applicable here. We
are called upon to decide the controversy
on the touch stone of ''premises' as
contained in section 52 bereft of any such
Explanation as contained either in section
129 of the Municipalities Act or the
Explanation as attached to section 175 of
the U.P. Municipal Corporation Act, 1959
(Act of 1959). The word ''premises' in
view of section 2(18) of the Act, 1975
means any land or building. The word
''building' as defined in Act of 1959
reproduced above gives an extended and
artificial definition for the purposes of
section 175, will not be applicable.
1 All] Civil Aviation Training College, Bamrauli, Allahabad Vs. The State of U.P. And others 293

29. Our above view finds support
from the judgement of Apex Court in
M.B. Saharanpur vs. Shahdara (Delhi),
Saharanpur Light Rail Co. Ltd., AIR
1999
SC
277,
wherein
the
Court
interpreted the 'words' 'Buildings' and
'compound'
with
reference
to
their
definition as defined in the Act, 1916, in
the definition clause, though for the
purposes of annual letting value of
building, is germane for the present
purposes, as it is based on the exclusion
of specified definition of 'building' as
contained in section 128 of Act, 1916.
The relevant portion from para 7 is
extracted below:-

"On a conjoint reading of these
provisions therefore, it becomes clear that
before the appellant Board can impose
house tax under Section 140(a) on any
property situated within its municipal
limits if it is a "building" the unit of tax
would
be
the
building
concerned
including its compound wall and the
compound wall would also cover within it
the land situated in the said compound
provided it is appurtenant to the building
or a "compound" appurtenant to the
several buildings. It is, therefore, obvious
that if the "common compound" in which
the housing complex belonging to the
common owner is situated is not an
appurtenance to several buildings within
that complex, then the said land cannot be
said to be a part and parcel of the building
for the purpose of house tax. For
imposing house tax on buildings under
Section 140(1)(a) it has to be shown that
the
buildings
with
their
common
appurtenant land or the land in common
appurtenance to several buildings situated
nearby are available for imposing such a
tax thereon. It is only such appurtenant
land which can form part of the buildings
for attracting house tax assessment
proceedings.
But
if
the
"common
compound" in which such buildings with
appurtenant lands
are
situated
also
includes land which cannot be said to be a
common
appurtenance
to
several
buildings situated therein or separately
appurtenant to any given building, such
land would be outside the sweep of the
term "building". Such land, however, on
its own could be legitimately made the
subject matter of separate levy of house
tax as an independent unit being open
land. As seen from Section 140(1)(b)
itself as the Board can impose the tax on
annual value of lands which may not be
covered by the sweep of the definition of
the term "building". Once that conclusion
is reached, it becomes obvious that all the
buildings
situated
along
with
their
appurtenant lands in one "common
compound" belonging to the same owner
cannot be treated as one unit for the
purpose of imposing house tax under
Section 128 (1)(i). The reasoning of the
High Court in this connection cannot be
found fault with on the scheme of the Act.
It is pertinent to note that "common
compound" which is relevant for the
water-tax as per Section 129 of the Act to
which we have made a detailed reference
while deciding the companion appeal No.
1218 of 1976 is conspicuously absent in
connection with imposition of house tax
on the annual value of buildings or lands
or both as found in Section 128 (1)(i).
We, therefore, endorse the reasoning of
the Division Bench of the High Court
which rejected this contention of the
appellant Board. Point No.2 is therefore
answered in the negative against the
appellant
and
in
favour
of
the
respondent."
294 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

30. It is not in dispute that the
permissible radius for imposition of such
water tax is 100 meters from the water
stand point. Section 55 (b) (i) provides
that water tax shall not be levied on any
premises of which no part is situate within
the prescribed radius. The premises being
land and building, only such land and
building or part thereof which falls within
the prescribed radius i.e. 100 meters will
be subject matter of water tax. Where
several buildings as the case herein are
spread over a vast piece of land
measuring 116 acres, it is difficult to hold
that the buildings which are independent
and being not within the prescribed radius
and they situate on land falling beyond
the prescribed radius would be treated as
part of those buildings which fall within
the prescribed radius, for levy of water
tax.

31. One acre consists of 4,840 sq.
yards and is equivalent to 4046.856 sq.
meters. The area of the plot is 116 acres
which is equivalent to 561440 sq. yards =
4,69,435.296 sq. meters. In pursuance of
the direction given in the earlier writ
petition by this Court, a joint spot
inspection was carried on 28th December,
2010 by the officials of the respondents
and in the presence of the officials of the
petitioner. It finds mention in para 5 of
the impugned order that the entrance gate
of the petitioner's campus is at 5.80
meters from the water stand point and the
water tax has been levied on this premises
alone. This itself is suggestive of the fact
that
only
a
very
small
portion/insignificant
area
of
the
petitioner's campus falls within the
prescribed radius. It was urged before us
that the petitioners have no grievance for
payment of water tax for the land and
building or part of the building falling
within the prescribed radius. It was
argued that the request to identify the
buildings and land falling within the
prescribed radius was made during joint
inspection but no heed was paid. It is,
therefore, desirable that again a joint
inspection may be carried on in the light
of the observations made above and the
payment of water tax be modified
suitably.

32. To clarify, it may be added that
only such land which is lying in front or
side of the building or the back courtyard
necessary for the enjoyment of the
building and utilized by the residents of
the building as of right shall be included
as part of the building.

33. Viewed as above, we find
sufficient force in the submission of the
petitioner and the point no.1 is decided
accordingly in its favour as indicated
above.

34. Now, we take up the second
point with regard to the validity of
notification. The learned counsel for the
petitioner could urge only this much that
when a slab of rate of tax has been
prescribed by the statute, unless it is
shown otherwise it is not open to levy the
water
tax
at
the
maximum
rate.
Submission is that the State Government
has issued the impugned notification
dated 9th of April, 2003 authorizing the
Jal Sansthan, Allahabad to levy water tax
at the rate of 12.5 per cent on the annual
letting value of the property without any
application of mind. Elaborating the
argument, it was submitted that the
notification
is
wholly
unreasonable,
illegal and arbitrary as it does not provide
for the distinction between the user and
non user of water at all. The Act provides
1 All] Civil Aviation Training College, Bamrauli, Allahabad Vs. The State of U.P. And others 295
water tax at the varying rate from 7.5 per
cent to 12.5 per cent, the water tax should
have been fixed depending upon the
supply or use of water. In reply, the
learned
Additional
Chief
Standing
Counsel
invited
our
attention
to
paragraphs-7 (iii), (vi), (vii) and (viii) of
the counter affidavit. For the sake of
convenience
these
paragraphs
are
reproduced below:-

(iii) "Section 52 of the Act was
amended by Section 2 of U.P. Act No.16
of 1999. Prior to the aforesaid amendment
a
Notification
No.222/ukS-2-86-3(18)
WSR-85 dated 01.04.1986 was issued
under Section 52 of the Act declaring rate
of water tax at 14% after considering the
recommendation
of
the
Jal
Nigam
established under Section 3 of the Act.
Section 14 also provides for function of
the Jal Nigam which includes advising on
the tariff, taxes and charges of water
supply in the areas of Jal Sansthan and
local bodies. Thus the rate of 14% under
Section 52 of the Act was declared by the
aforesaid Notification dated 1.4.1986 on
the recommendation of Jal Nigam. A true
copy of the Notification No.222/ukS-286-3(18)WSR-85 dated 01.04.1986, is
annexed herewith and is marked as
Annexure
No.CA-2
to
the
counter
affidavit.

(iv) .................................................

(v)...................................................

(vi) Section 44 provides that a Jal
Sansthan shall from time to time so fix
and adjust its rate of taxes and charges
under this Act as to enable it to meet, as
soon as feasible, the cost of its operation,
maintenance and debt service and where
practicable to achieve an economical
return on its fixed assets. As per budget of
2012-13 the income from all sources of
Jalkal Vibhag, Nagar Nigam, Allahabad is
estimated at 49.82 crores as against the
estimated expenses of 53.52 crores. Thus
at the notified rate of water tax of 12.5%
the estimated income shall be even lower
than the estimated expenses of Jalkal
Vibhag for the year 2012-13. Thus the
rate of tax of 12.5% is not arbitrary and it
is well within the limits prescribed under
the Act.

(vii) It is also relevant to mention
that in the year 1986 Allahabad was
included in the financial assistance
scheme
of
the
World
Bank
for
improvement in water facility. The
financial assistance has been made
admissible with the condition that Jal
Sansthan shall augment its financial
resources to meet its expenses. Thus from
this point of view also the rate of tax
under the impugned notification dated
9.4.2003 is wholly reasonable and not
arbitrary.

(viii) It is well settled law that there
is always presumption in favour of
constitutional validity of a provision. The
petitioners have completely failed to rebut
this strong presumption."

35. The above quoted paragraphs
fully justify the levy of water tax at the
maximum permissible limit.

36. In Kendriya Nagarik Samiti
(supra) it has been held that the opening
words of section "for the purposes of this
Act' give a clear direction about the object
of the tax. Jal Sansthan is empowered to
raise resources by way of tax for carrying
out the purposes of this Act. It cannot be
done for any purpose unconnected with
the Act. The limit to which the tax may be
levied has also been specified by
providing that the water tax and sewerage
296 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
tax may be levied on the assessed annual
value of the premises. The source of
revenue is, thus, clearly indicated. A
further safeguard has been provided by
laying down that the recommendations of
the Jal Sansthan has to be considered by
the government before notifying the levy
of taxes. The reasonableness of tax has
also been ensured by fixing the maximum
limits. Earlier, we are informed, the
maximum rate was 14 per cent which has
been reduced to 12.5 per cent of the
annual letting value of the building.

37.