Suresh Gupta & Ors Vs Municipal Corporation Raipur & Anr

"243X. Power to impose taxes by, and Funds of, the Municipalities.-The Legislature of a State may, by law,-

(a) authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits;

(b) assign to a Municipality such taxes, duties, tolls, and fees levied and collected by the State Government for such purposes and subject to such conditions and limits;

(c) provide for making such grants-in-aid to the Municipalities from the Consolidated Fund of the State; and

(d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of the Municipalities and also for the withdrawal of such moneys therefrom, as may be specified in the law."

"132. Taxes to be imposed under this Act.-(1) For the purpose of this Act, the Corporation shall, subject to any general or special order which the State Government may make in this behalf, impose in the whole or in any part of the Municipal Area, the following taxes, namely :-

(a) a tax payable by the owners of buildings or land situated within the city with reference to the gross annual letting value of the buildings or lands, called the property tax, subject to the provisions of Sections 135, 136 and 138;"

"building" includes a house, outhouse, stable shed, hut and other enclosure or structure whether of masonary, bricks, wood, mud, metal or any other material whatever, whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths, doorsteps, walls including compound walls, and fencing and the like but does not include a tent or a temporary shed erected on ceremonial or festive occasions;"

"Structure designed for habitations, shelter, storage, trade, manufacture, religion, business, education and the like. A structure or edifice enclosing a space within its walls and usually, but not necessarily, covered with a roof."

"An edifice for any use; that which is built, as a dwelling house, barn, etc. (2) The occupation, business or art of constructing. (3) The act or process of erecting or establishing."

"11. It was contended on behalf of the petitioner that Explanation (a) to Section 6 quoted above contemplates a vacancy when a tenant (omitting other words not necessary) ceases to be in occupation upon termination of his tenancy, eviction, or assignment or transfer in any other manner. The argument proceeds further to the effect that in the instant case admittedly there was no termination, eviction, assignment or transfer and that the words "or otherwise" must be construed as ejusdem generis with the words immediately preceding them; and that therefore on the facts as admitted even in the affidavit filed on behalf of the Government there was in law no vacancy. In the first place, as already indicated, we cannot go behind the declaration made by the Government that there was a vacancy. In the second place, the rule of ejusdem generis sought to be pressed in aid of the petitioner can possibly have no application. The Legislature has been cautious and thorough-going enough to bar all a venues of escape by using the words "or otherwise". Those words are not words of limitation but of extension so as to cover all possible ways in which a vacancy may occur. Generally speaking, a tenant''s occupation of his premises ceases when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment or transfer of the tenant''s interest. But the Legislature, when it used the words "or otherwise" apparently intended to cover other cases which may not come within the meaning of the preceding clauses, for example, a case where the tenant''s occupation has ceased as a result of trespass by a third party. The Legislature, in our opinion, intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words ejusdem generis with the preceding clauses of the explanation, the Legislature used those words in an all inclusive sense."

"50. ... The word "otherwise" in the context, it is contended, must be construed by applying the rule of ejusdem generis. The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible inference in the absence of an indication to the contrary. On the basis of this rule, it is contended, that the right or the custom mentioned in the clause is a distinct genus and the words "or otherwise" must be confined to things analogous to right or contract such as lost grant, immemorial user etc. It appears to us that the word "otherwise" in the context only means "whatever may be the origin of the receipt of maintenance". One of the objects of the legislation is to by-pass the decrees of courts and the Privy Council observed that the receipt of maintenance might even be out of bounty. It is most likely that a word of the widest amplitude was used to cover even acts of charity and bounty. If that be so, under the impugned Act even a payment of maintenance out of charity would destroy the character of an admitted sthanam which ex facie is expropriatory and unreasonable."

"99........The word ''otherwise'' literally means in a different way......."

"35........The expression ''otherwise'' is of very wide import and cannot be restricted to material capable of being tested on principles relevant to admissibility of evidence in courts of law........"

"39. Section 11(1)(a) uses the expressions "or otherwise", "unnecessary pain or suffering", etc. Beating, kicking, etc. go with the event so also torture, if the report submitted by AWBI is accepted. Even otherwise, according to AWBI, the expression "or otherwise" takes in Jallikattu, bullock cart race, etc. but, according to the State of Tamil Nadu, that expression has to be understood applying the doctrine of ejusdem generis. In our view, the expression "or otherwise" is not used as words of limitation and the legislature has intended to cover all situations, where the animals are subjected to unnecessary pain or suffering. Jallikattu, bullock cart races and the events like that, fall in that expression under Section 11(1)(a). The meaning of the expression "or otherwise" came up for consideration in Lila Vati Bai v. State of Bombay (AIR 1957 SC 521) and the Court held that the words "or otherwise" when used, apparently intended to cover other cases which may not come within the meaning of the preceding clause. In our view, the said principles also can be safely applied while interpreting Section 11(1)(a)."

33. The Supreme Court in the matter of R & B Falcon (A) Pty. Limited Vs. Commissioner of Income Tax, (2008) 12 SCC 466 explained the meaning of term otherwise as under:-

"22. A statute, as is well known, must be read in its entirety. What would be the subject matter of tax is contained in sub-sections (1) and (2). Sub- section (3), therefore, provides for an exemption. There cannot be any doubt or dispute that the latter part of the contents of sub-section (3) must be given its logical meaning. What is sought to be excluded must be held to be included first. If the submission of learned Solicitor General is accepted, there would not be any provision for exclusion from payment of tax any amenity in the nature of free or subsidized transport.

23. Thus, when the expenditure incurred by the employer so as to enable the employee to undertake a journey from his place of residence to the place of work or either reimbursement of the amount of journey or free tickets therefor are provided by him, the same, in our opinion, would come within the purview of the term "by way of reimbursement or otherwise".

24. The Advanced Law Lexicon defines "otherwise". "By other like means; contrarily; different from that to which it relates; in a different manner; in another way; in any other way; differently in other respects in different respects; in some other like capacity."

25. "Otherwise" is defined by the Standard Dictionary as meaning ''in a different manner, in another way; differently in other respects''; by Webster, "in a different manner; in other respects".

26. As a general rule, "otherwise" when following an enumeration, should receive an ejusdem generis interpretation (per CLEASBY, B. Monck v. Hilton, 46 LJMC 167, The words ''or otherwise'', in law, when used as a general phrase following an enumeration of particulars, are commonly interpreted in a restricted sense, as referring to such other matters as a are kindred to the classes before mentioned, (Cent. Dict.)"

"building" includes a house, outhouse, shed, hut and other enclosure or structure whether of masonry, bricks, wood, mud, metal or any other material whatever.

The Supreme Court after considering the dictionary definition of the word "building" as well as the word "structure" and certain English cases held as under: -

"31. The tanks, though, are resting on earth on their own weight without being fixed with nuts and bolts, they have permanently been erected without being shifted from place to place. Permanency is the test. The chattel whether is moveable to another place of use in the same position or liable to be dismantled and re-erected at the later place? If the answer is Yes to the former it must be a moveable property and thereby it must be held that it is not attached to the earth. If the answer is yes to the latter it is attached to the earth. For instance a shop for sale of merchandise or eatables is a structure. The same could be sold by keeping in a push cart which has its mobility from place to place. Merely it is stationed at a particular place and business was carried on, it cannot be said that push cart is a shop. The fact that no nuts and bolts were used to imbed the tank to the earth by itself is not conclusive. Though the witness stated that the tank is capable of being shifted, as a fact the tanks were never shifted from the places of erection. By scientific process, the tanks stand on their own weight on the earth at the place of erection as a permanent structure."

"19. The word ''structure'' is used as a generic term so that while all buildings may be structures, all structures are not buildings. That structure which is not a building and is a platform, verandah, step, or some other such structure external to a building may be taken over by the Commissioner under Section 299(1) if it is within the regular line of the street. The words "some other such" must be construed as structures similar or like platform, verandah and step. The words must be read ejusdem generis with the preceding words since the word ''such'' means "of the type previously mentioned". {See Concise Oxford English Dictionary (10th Edn.)}. The word "other" has also been held to indicate that it must be construed ejusdem generis (Siddeshwari Cotton Mills (P) Ltd. v. Union of India, 1989 (2) SCC 458). The underlying characteristic or platforms, verandahs and steps is that they are not independent structures and are external to a building, that is they are attached to the outside and form an inessential part of a building. In our opinion, therefore in order to be a building for the purpose of Section 299 the structure would have to be an independent, permanent structure. Thus there is no repugnancy if one were to read the definition of building and Section 299 and in our opinion the word ''building'' has been used in Section 299 in the sense defined in Section 3(s).

20. Of the six items listed by the Commissioner in his report, learned counsel appearing on behalf of the respondents has, as we have noted earlier, already conceded that the part of the main structure described against serial No. 6 would be excluded from the purview of the action proposed in the impugned notice under Section 299. Even without the concession in our view, applying the test of independence and permanence each of the items fall within the definition of ''building'' in Section 3(s) of the Act, and therefore, fall outside the purview of Section 299."

"29. Coming specifically to the expression "building" appearing in Schedule VII List II Entry 49 in view of the settled principles that would be applicable to find out the true and correct meaning of the said expression it will be difficult to confine the meaning of the expression "building" to a residential building as commonly understood or a structure raised for the purpose of habitation. In State of A.P. v. Hindustan Machine Tools Ltd., (1975) 2 SCC 274 : AIR 1975 SC 2037 a tax on a building housing a factory has been understood to be a tax on building and not on the factory or its plant and machinery. A general word like "building" must be construed to reasonably extend to all ancillary and subsidiary matters and the common parlance test adopted by the High Court to hold the meaning of levy of tax on building and machinery does not appear to be right keeping in mind the established and accepted principles of interpretation of a constitutional provision or a legislative entry. A dynamic, rather than a pedantic view has to be preferred if the constitutional document is to meet the challenges of a fast developing world throwing new frontiers of challenge and an ever changing social order.

30. The regulatory power of the corporations, municipalities and panchayats in the matter of installation, location and operation of "mobile towers" even before the specific incorporation of mobile towers in the Gujarat Act by the 2011 Amendment and such control under the Bombay Act at all points of time would also be a valuable input to accord a reasonable extension of such power and control by understanding the power of taxation on "mobile towers" to be vested in the State Legislature under Schedule VII List II Entry 49.

32. Viewed in the light of the above discussion, if the definition of "land" and "building" contained in the Gujarat Act is to be understood, we do not find any reason as to why, though in common parlance and in everyday life, a mobile tower is certainly not a building, it would also cease to be a building for the purposes of List II Entry 49 so as to deny the State Legislature the power to levy a tax thereon. Such a law can trace its source to the provisions of Schedule VII List II Entry 49 List II to the Constitution."

"It is presumed the Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law.

In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act''s passing, in law, in social conditions, technology, the meaning of words and other matters. ... That today''s construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the wording.

An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials."

"The first is that courts must apply a statute to the world as it exists today. The second strand is that the statute must be interpreted in the light of the legal system as it exists today, McCartan Turkington Breen (a firm) v. Times Newspapers Ltd., (2000) 4 All ER 913, p. 926 (HL) (LORD STEYN) Reference to the circumstances existing at the time of the passing of the statute does not, therefore, mean that the language used, at any rate, in a modern statute, should be held to be inapplicable to social, political and economic developments or to scientific inventions not known at the time of the passing of the statute. "Legislative standards are generally couched in the terms which have considerable breadth. Therefore a statute may be interpreted to include circumstances or situations which were unknown or did not exist at the time of enactment of the statute, Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962 SC 159, p. 162 : 1962 (3) SCR 146"

"The question again is as to what was the intentions of the law makers: Did they intend as originalists may argue, that the words of the statute be given the meaning they would have received immediately after the statute''s enactment or did they intend as dynamists may contend that it would be proper for the court to adopt the current meaning of the words? The courts have now generally leaned in favour of dynamic construction, Randal N. Grahm, A Unified Theory of Statutory Interpretation, (2002) 23 Statute Law Review 91, p. 134 But the doctrine has also its limitations. For example it does not mean that the language of an old statute can be construed to embrace something conceptually different, Birmingham City Council v. Oakley, (2001) 1 All ER 385, p. 396 (HL)

The guidance on the question as to when an old statute can apply to new state of affairs not in contemplation when the statute was enacted was furnished by Lord Wilberforce in his dissenting speech in Royal College of Nursing of the U.K. v. Dept. of health and Social Security, (1981) 1 All ER 545, pp. 564, 565 : (1982) AC 800 : (1981) 2 WLR 279 (HL) Which is now treated as authoritative, Fitzpatrick v. Sterling Housing Association Ltd., (1999) 4 All ER 705, pp. 710, 721, 739-740, 744 (HL) Lord Wilberforce said: "In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament''s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend on the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meaning if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any even there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, ''What would Parliament have done in this current case, not being one in contemplation, if the facts had been before it?'' attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself Note 11, supra.".

As stated by Lord Bridge: "When a change in social conditions produces a novel situation, which was not in contemplation at the time when a statute is first enacted, there can be no a priori assumption that the enactment does not apply to the new circumstances. If the language of the enactment is wide enough to extend to those circumstances, there is no reason why it should not apply.Combel Commodities Ltd. v. Siporex Trade, SA (1990) 2 All ER 552, p. 557" Thus, when in the changed circumstances the common law fiction that by marriage the wife must be deemed to have irrevocable consented to sexual intercourse in all circumstance has become anachronistic, the husband can be convicted of rape under the Sexual Offences (Amendment) Act, 1976, if he was sexual intercourse with his wife without her consent, R v. R (rape : marital exemption), (1991) 4 All Er 481 : (1992) 1 AC 599 : (1991) 3 WLR 767 (HL)

On the same principles, general words are construed to include new inventions and technological advances not known at the time when the Act was passed. It has, accordingly, been held that telephone is ''telegraph'' within the meaning of that word in the telegraph Acts, 1863 and 1869 although telephone was not invented in 1869, A.G. v. Edison Telephone Co. of London, (1880) 6 QBD 244 that a photographic copy is ''copy'' under the Engraving Copyright Act, 1734 Gambart v. Ball, (1863) 32 LJCP 166 and that an electric tram car is a stage carriage within the meaning of the Stage Carriage Act, 1832, Chapman v. Kirke, (1948) 2 All ER 556 Similarly, ''broadcasting'' has been held to be covered by the word ''telegraph'' as used in the phrase ''telegraph & other works and undertaking'' in section 92(1)(a) of the British North America Act, 1867, In re, regulation and Control of Radio Communications in Canada, (1932) AC 304 (PC) and radio broadcasting has been held to be included in the expression ''postal, telegraphic, telephonic and other like services'' under section 51(5) of the Australian Constitution, R v. Brislan, Ex parte, Williams, (1935) 54 CLR 262 Following the same principle, it has been held by the Supreme Court that the definition of ''telegraph line'' in the Indian telegraph Act, 1885, which is included by reference in the Indian Electricity Act, 1910, is wide enough to take in electric lines used for the purpose of wireless telegraph, Senior Electric Inspector v. Laxminarayan Chopra (supra) the definition of ''cinematograph'' contained in section 2(e) of the Cinematograph Act, 1952 and in Cinema Regulation Acts enacted by the States in 1952 will cover video cassette recorders/players (developed in 1970s) for representation of motion pictures on a television screen, Laxmi Video Theatres v. State of Haryana, AIR 1993 SC 2328 the word ''handwriting'' in section 45 of the Evidence Act, 1872 will embrace typewriting although it was only in 1874 that the first practical typewriter was marketed, State v. S.J. Choudhary, 1996(2) Scale 37, pp. 40, 41 : AIR 1996 SC 1491, p. 1496 : (1996) 2 SCC 428 (para 16). and evidence taken of a witness in America by video conferencing in India where the accused is being tried will satisfy the requirement of evidence taken in presence of the accused under section 273 of the Criminal Procedure Code enacted in in 1973 when the technique of video conferencing had not developed, State of Maharashtra v. Dr. Praful B. Desai, 2003 AIR SCW 1885 : (2003) 4 SCC 601 : AIR 2003 SC 2053...."

"When the new technological advances becoming known after the passing of the statute fall within the same genus covered by it and when its purpose would be defeated unless extension were made, the court may even be willing to strain the language a bit to cover the new advances. On these considerations section 1(1) of the Human Fertilisation and Embryology Act, 1990 which defines ''embryo'' to mean ''a live human embryo where fertilization is complete'' was construed to cover even an embryo produced not by fertilization but by cell nuclear replacement (CNR), a method developed by scientists after 1990, by reading the definition of embryo to mean ''a live human embryo where if it is produced by fertilisation fertilisation is complete, R (On the application of Quintavalle) v. Secretary of State for Health, (2002) 2 All ER 625, pp. 633, 637 (CA).

Dealing with section 123 of the Indian Evidence Act, 1872, and the phrase ''affairs of the State'', Gajendragadkar, J. observed: "If may be that when the Act was passed, the concept of Governmental functions and their extent was limited; and so was the concept of the words ''affairs of the State'' correspondingly limited; but as is often said, words are not static vehicles of ideas or concepts. As the content of the ideas or concepts conveyed by respective words expand, so does the content of the words keep pace with the said expanding content of the ideas or concepts and naturally tend to widen the field of public interest which the section wants to protect, State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493, p. 502." Similarly while considering the word ''necessaries'' in section 5 of the Admirality Courts Act, 1861, Sinha J. observed: "Global changes and outlook in trade and commerce could be a relevant factor.- What was not considered a necessity a century back may be held to be so now, Liverpool and London SP&I Association v. M.V. Sea Success & Asso. Ltd. (2004) 9 SCC 512 (para 65)."

A distinction is said to exist in this respect between ancient statutes and statutes which are comparatively modern. The principle is thus explained by Subbarao, J.: "It is perhaps difficult to attribute to legislative body functioning in a static society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situation, if the words are capable of comprehending them, Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962 SC 159, p. 163."

"138. Annual letting value of land or building.-(1) Notwithstanding anything contained in this Act or any other law for the time being in force, the annual letting value of any building or land, whether revenue paying or not, shall be determined as per the resolution of the Corporation adopted in this behalf, on the basis of per square meter of the built up area of a building or land, as the case may be taking into consideration the area in which the building or land is situated, its location, situation, purpose for which it is used, its capacity for profitable user, quality of construction of the building and other relevant factors and subject to such rules, as may be made by the State Government in this behalf."