Shri Ramdeobaba Sarwajanik ... vs The City Of Nagpur Municipal ...
2023 Latest Caselaw 7007 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                              NAGPUR BENCH, NAGPUR

            MISC.CIVIL APPLICATION (REVIEW) NO.72/2023
                                    IN
                   WRIT PETITION NO.5194/2009 (D)
          Shri Ramdeobaba Sarwajanik Samiti, Nagpur and anr
                                  ..vs..
    The City of Nagpur Municipal Corporation, having its office at Civil
                         Lines, Nagpur and anr

...........................................................................................................................................................................
Office Notes, Office Memoranda of Coram,
appearances, Court orders or directions                                           Court's or Judge's Order
and Registrar's orders
...........................................................................................................................................................................
                    Shri M.G.Bhangde, Senior Counsel with Shri S.V.Purohit,
                    Counsel for Applicants/Petitioners.
                    Shri J.B.Kasat, Counsel for Non-applicant No.1.
                    Shri A.A.Madiwale, AGP for Non-applicant No.2.

                    CORAM : A.S.CHANDURKAR & URMILA JOSHI-PHALKE, JJ.

CLOSED ON : 07/07/2023 PRONOUNCED ON : 14/07/2023

1. By this application, the applicants/petitioners

seek review of the judgment and order dated 16.12.2022

passed by this court in Writ Petition No.5194/2009 and

other connected petitions. By all writ petitions, the

petitioners therein including applicants herein had

challenged the Nagpur City Corporation Assessment and

Collection of Water Rate Bye-laws 2009 (the said bye-laws

2009).

2. Writ Petition No.5194/2009 was preferred by the

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applicants/petitioners, who were running an unaided

educational institution. The college established by the

applicants/petitioners was an unaided engineering college.

While amending the said bye-laws 2009, the Nagpur

Municipal Corporation (the Corporation) placed the

Government Aided Colleges in Tariff Code No.9(c) while

unaided colleges were placed in Tariff Code 9(d). The

water rates prescribed for consumption above 80 units

under Tariff Code 9(c) was Rs.20/- per unit while under

Tariff Code 9(d) it was Rs.100/- per unit. It was

contentions of the applicants/petitioners in the said petition

that the said differentiation had no nexus whatsoever

especially in the backdrop of the fact that the colleges,

receiving and not receiving aid, were rendering similar

services and imparting education. Realizing the said bye-

laws 2009, the said bye-laws 2009 were again amended by

virtue of the Water Rate (Amendment) Bye-laws 2010.

Notification was published by the Urban Development

Department on 8.9.2010. The Schools and Colleges

irrespective of receiving grant-in-aid were clubbed together

and were placed in Tariff Code No.9(c-2). As a result, from

8.9.2010 unaided schools and colleges were also placed in

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the similar slab of Rs.20/- per unit. In this backdrop, it was

submitted that amendment to the said bye-laws 2009, as

made by the bye-laws 2010, ought to be given

retrospective effect. It was contended that there was no

justification for charging Rs.100/- per unit for the period

from 1.4.2009 to 7.9.2010.

3. The said writ petition was dismissed by

observing that it was not a case of simple correction of a

mistake, however it was a conscious decision taken to club

educational institutions together irrespective of the fact

whether they were receiving grant-in-aid or not. It is

further held that the amendment to the bye-laws carried

out in the year 2010 cannot be said to be a result of

rectification of an earlier mistake or curative in nature so as

to entitle the petitioners to seek a declaration that for the

period from 01.04.2009 to 08.09.2010 the water rate at

Rs.20/- per unit for an educational institution which was

unaided is liable to be paid. The declaration as sought by

the petitioners cannot be granted.

4. The present review application is filed on the

ground that there is a grave injustice to the applicant No.1

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which is a public trust working diligently in the field of

education from the year 1984 without any aid from the

Government. The ground raised in the review application is

that the applicants had argued two aspects; (i) the said

bye-laws 2009 (unamended) which provide for different

rates for aided and unaided colleges are unconstitutional

being violative of Article 14 of the Constitution of India and

(ii) the amendment introduced by bye-laws of 2010 was

curative and, therefore, the same is retrospective in nature.

It is contended that this court has duly recorded both the

said submissions in the judgment which is under review.

Though the contentions also find place in the brief note of

arguments dated 11.9.2022, the same was not considered

while passing the judgment and, therefore, the present

application is filed as no other alternative efficacious

remedy is available to the applicants/petitioners.

5. Heard learned Senior Counsel Shri M.G.Bhangde

for the applicants/petitioners, learned counsel Shri

J.B.Kasat for non-applicant No.1 - the Corporation, and

learned Assistant Government Pleader Shri A.A.Madiwale

for non-applicant No.2.

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6. Learned Senior Counsel Shri M.G.Bhangde for

the applicants/petitioners submitted that though there was

a pleading as to validity/constitutionality of the said bye-

laws 2009, prayers to that effect to quash and set aside the

water rates bye-laws were made. While arguing the

matter, this aspect was argued and it was recorded by the

court in paragraph No.6 of the judgment. The said

submission also finds place in brief notes of argument

wherein it is mentioned that prior to the said bye-laws

2009, there was no difference in the matter of water

charges leviable for aided and unaided colleges. However,

discrimination made in the said bye-laws 2009 is arbitrary

and violative of Article 14 of the Constitution of India. It

was further argued that aided colleges are included in the

category of institution and unaided colleges are included in

commercial. There is no nexus in putting the colleges in

different categories. While assigning the reasons, this court

has not considered the said submissions which had affected

the rights of the applicants/petitioners and a grave injustice

is caused to the applicants/petitioners. As the submissions

are not considered, no relief was granted to the applicants/

petitioners. The non-consideration of the material aspect,

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which was argued, is an error apparent on the face of

record and, therefore, the review application deserves to be

allowed.

7. In support of his contentions, learned Senior

Counsel Shri M.G.Bhangde for the applicants/petitioners,

placed reliance on the decision of this court in the case of

Morarjee Gokuldas Spinning and Weaving Company Ltd.,

Mumbai and anr vs. State of Maharashtra and anr, reported

in (2010)4 Mh.L.J. 69 wherein it is held that merely

because an industry is located in a conforming zone and

another industry in a non-conforming area would be

irrelevant as the consumption of water and the purpose for

which it was consumed would be the same namely

industrial use. All industries whether in conforming zone or

non-conforming zone use water as an input for production.

In the reasons given being not reasonable the classification

must be held to be not reasonable.

Learned Senior Counsel further placed reliance

on the decision of this court in the case of Dhunjibhoy Ice

Factory Pvt.Ltd., Mumbai and anr vs. Municipal Corporation

of Gr.Mumbai, reported in 2011(6) Mh.L.J. 708 wherein

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also it is held that distinction sought to be made on the

basis of whether the industry was in the conforming zone

and or non conforming zone would be irrelevant as the

consumption of water, and the purpose for which it was

consumed would be the same namely industrial use.

Learned Senior Counsel further placed reliance

on the decision of the Honourable Apex Court in the case of

Calcutta Municipal Corporation and ors vs. Shrey Mercantile

(P) Ltd. and ors, reported in (2005)4 SCC 245 wherein

question of challenge was to the levy as arbitrary and

discriminatory and violative of Article 14 of the Constitution

of India. The Honourable Apex Court held that functions of

the corporation with regard to mutation remains the same,

whether the applicant is a transferee under a conveyance or

a lessee or a beneficiary under a will or an heir in the case

of intestate succession. Once an application for mutation is

made, the same is examined by the department and after

hearing the objections, if any, the record is ordered to be

changed. Ultimately, the exercise is for fiscal purpose.

Similarly, the property valuation may be below Rs.50,000/-

or above Rs.2.00 lacs, the function of the corporation in

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making the mutation entry remains the same. Similarly,

whatever may be the cause of mutation, whether it is case

of transfer or devolution, the activity of mutation remains

constant in all the cases. The expenses incurred in all the

cases also cannot vary, whatever be the value of the

property or the cause of mutation. In the circumstances,

there is no reason given for charging different rates

depending on the value of the property and the cause of

transfer. By doing so, the incidence of the levy falls

differently on persons similarly situated resulting in

violation of Article 14of the Constitution.

On the point of power of review, learned Senior

Counsel placed reliance on the decision of the Honourable

Apex Court in the case of Indian Charge Chrome Ltd. and

anr vs. Union of India and ors, reported in (2005)4 SCC 67

wherein it is held that errors apparent on the record were

non consideration of the contention regarding illegality of

the communication dated 30.6.2001 and absence of

opportunity to explain the order dated 14.1.1999. The

Honourable Apex Court held that these are manifest errors

which have crept up in the judgment under the review

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resulting into grave miscarriage of justice.

8. Per contra, learned counsel Shri J.B.Kasat for

the non-applicant No.1 - the Corporation, has strongly

opposed the review application on the ground that the

review application is not maintainable as the

applicants/petitioners failed to plead and demonstrate any

mistake or error on the face of record and, therefore, the

review application deserves to be rejected. It is further

contended that the applicants/petitioners have prayed for

substituting a view taken by this court which is not

permissible under the review and prayed for rejection of the

review application. He submitted that the law is settled as

to the powers of review. It is settled principle of law that

rehearing of the matter is impermissible. The

applicants/petitioners failed to plead and demonstrate any

mistake or errors on the face of record and, therefore, to

consider the grounds pleaded by the applicants/petitioners,

in view of Order XLVII Rule 1 of the Code of Civil Procedure

"reheard and corrected" is not permissible and, therefore,

the review application deserves to be rejected.

9. In support of his contentions, learned counsel

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Shri J.B.Kasat for non-applicant No.1 - the Corporation

placed reliance on the decision of the Honourable Apex

Court in the case of Arun Dev Upadhyaya vs. Integrated

Sales Service Ltd. and anr., in R.P.© Nos.1273-1274/2021

decided on 5.7.2023 wherein the scope of review is

considered and held that the plain reading of the provision

under Order XLVII of the Code states that the power to

review can be exercised only upon existence of any of three

conditions expressed therein. A mistake or an error

apparent on the face of record is one of conditions.

He further placed reliance on the decision of the

Honourable Apex Court in the case of Perry Kansagra vs.

Smriti Madan Kansagra, reported in (2019)20 SCC 753

wherein also the exercise of powers under Order XLVII Rule

1 and Section 114 of the Code are summarized. He

submitted that in view of the above said principles, the

application for review deserves to be rejected.

10. Having heard both the sides, insofar as legal

position as to entertaining the review application is

concerned, it is true that the review petition should not be

lightly entertained. There is no dispute that after perusal of

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Order XLVII Rule 1 of the Code, review of a judgment or an

order could be sought:

(a) from the discovery of new and

important matters or evidence which after

the exercise of due diligence was not within

the knowledge of the applicant;

(b) such important matter or evidence

could not be produced by the applicant at

the time when the decree was passed or

order made; and

(c) on account of some mistake or error

apparent on the face of the record or any

other sufficient reason.

11. Thus, the powers of review may be exercised on

the discovery of new and important matter or evidence

which, after the exercise of due diligence, was not within

knowledge of person seeking review or could not be

produced by him at the time when the order was made. It

may not be exercised on the ground that the decision was

erroneous on merits as that would be the province of a

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court of appeal. Thus, an application for review would lie

inter alia when the orders suffer from an error apparent on

the face of record and permitting the same to continue

would lead to failure of justice.

12. In the present application, the

applicants/petitioners have come with a case that in

paragraph No.6 of the judgment, though the submission is

recorded, while assigning the reasons, it was not

considered which caused grave injustice to the

applicants/petitioners, which is a public trust. Admittedly,

in Writ Petition No.5194/2009, the pleadings of the

applicants/petitioners were that the applicants/petitioners

were running an unaided educational institution. Through

the said institution, the applicants/petitioners were running

an unaided engineering college. While amending the said

bye-laws 2009, the Government aided colleges were placed

in Tariff Code No.9(c). Whereas, unaided colleges were

placed in Tariff Code No.9(d). The water rate prescribed for

consumption above 18 units under Tariff Code No.9(c) was

Rs.20/- per unit. While, under Tariff Code No.9(d) the

water rate was Rs.100/- per unit. There was no

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explanation to the said differentiation when both aided and

unaided institutions were rendering similar services and

imparting education. There was justification for charging

Rs.100/- per unit for the period from 1.4.2009 to 7.9.2010

for the unaided colleges. The said rates for two types of

institutions are unconstitutional and being violative of

Article 14 of the Constitution of India. The amendment

introduced by bye-laws of 2010 was curative and,

therefore, retrospective in nature.

13. Admittedly, the applicants/petitioners have

pleaded the said contention in the writ petition also. It is

specifically pleaded that such discrimination is clearly

arbitrary and violative of the petitioners' rights guaranteed

to it under Article 14 of the Constitution of India. It was

further pleaded that the amendment of 2010 is curative in

nature. The applicants/petitioners have made prayer to

that effect for quashing and setting aside the said bye-laws

2009 and to declare it as ultra vires. Accordingly, the

submission was made by learned Senior Counsel Shri

M.G.Bhangde for the applicants/petitioners before this

Court. The said submission was recorded in paragraph

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No.6 of the judgment. Thus, it is orally submitted by

learned Senior Counsel that this differentiation has no

nexus whatsoever especially in the backdrop of the fact that

colleges receiving and non-receiving aid were rendering

similar services and imparting the education. This

submission also finds place in the written submissions

under the head points to be argued. Admittedly, while

assigning the reasons, while disposing of the writ petition

along with the connected writ petitions, this submission was

not considered.

14. Regarding the differentiation, this court in the

case of Morarjee Gokuldas Spinning and Weaving Company

Ltd., Mumbai and anr vs. State of Maharashtra and anr

cited supra already held that the power to classify must be

capable of being reasonably explained. In other words

difference in treatment must be capable of being

reasonably explained in the light of the object for which the

particular legislation is undertaken. This must be based on

some reasonable distinction between the cases deferentially

treated. When differential treatment is not reasonably

explained and justified the treatment is discriminatory. To

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be able to succeed on the charge of discrimination, a

person must establish conclusively that persons equally

circumstanced have been treated unequally and vice versa.

The Honourable Apex Court also considered the said issue

in the case of Calcutta Municipal Corporation and ors vs.

Shrey Mercantile (P) Ltd. and ors cited supra and held that

the incidence of the levy falls differently on persons

similarly situated resulting in violation of Article 14 of the

Constitution.

15. There is no dispute as far as the contention of

learned counsel Shri J.B.Kasat for non-applicant No.1 - the

Corporation is concerned, that review should not be lightly

entertained and mere fact that there were two views in

terms of majority and dissenting, we are conscious about

the legal settled principles as far as maintainability of the

review applications are concerned. However, considering

the grounds raised, it is apparent that the submissions

made by learned Senior Counsel that the different rates, in

view of the said bye-laws 2009, are unconstitutional and

violative of Article 14 of the Constitution of India, need to

be addressed by giving reasons. The issue, whether the

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amendment introduced by bye-laws of 2010, was curative

or not and whether it is retrospective in nature, is also

required to be addressed. Thus, it is apparent from record

that the non-consideration of the submissions has resulted

in grave miscarriage of justice and, therefore, it is

necessary to rehear the matter.

16. In this view of the matter, we allow the

application for review and recall the judgment and order

dated 16.12.2022 passed by this court in Writ Petition

No.5194/2009 insofar as the observations, regarding Writ

Petition No.5194/2009, are concerned. We direct that the

Writ Petition No.5194/2009 be listed for hearing. We make

it clear that the judgment and order, in respect of other writ

petitions are concerned, is maintained.

The Misc.Civil Application stands disposed of.

(URMILA JOSHI-PHALKE, J.) (A.S.CHANDURKAR, J.)

!! BrWankhede !!

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