Sunday 12 September 2021

Can Municipal Corporation seal the premises and disconnect its electric supply if property tax regarding that property is unpaid?

The only provision under the Act which provides the manner in which the corporation could recover the property taxes is found in Section 128 of the Act. For ease of reference the same is reproduced here:“ 128. Manner of recovering municipal taxes.

A municipal tax may be recovered by the following

processes in the manner prescribed by rules: –

(1) by representing a bill,

(2) [***],

(3) by distraint and sale of a defaulter's movable

property,

(4) by the attachment and sale of a defaulter's

immovable property,

(5) in the case of octroi and toll, by the seizure and sale

of goods and vehicles,

(6) in the case of property tax by the attachment of rent

due in respect of the property,

(7) by a suit.”{Para 3}

4. The Taxation Rules as provided in Chapter VIII of Schedule D to the Act(Rules) also does not in terms indicate any power in the Respondent Corporation to seal the defaulting property and disconnect the electric  supply to it for recovery of property taxes.

5. As none of the aforesaid provisions in the Act and the Rules indicate any power in the corporation to seal the defaulting property and/or disconnect the supply of electricity to the defaulting property, we asked Mr. Patil the learned counsel of the Corporation, the source of its power to seal the property and disconnect electricity supply to be defaulting property. Mr. Patil, the learned counsel appearing for the Corporation did concede there is no specific power in the Act and/or the Rules which

entitles the Corporation to seal and disconnect the electric supply to the defaulting property. He submits that it is incidental to the Corporation's power to sell the property under Rule 47 of the Rules after attachment under Section 42 of the Rules. In this case there has been no attachment of the defaulting property, so no question of any sale or exercise of incidental power can arise. In any event, a power to seal and disconnect electric supply is a very drastic power which would make defaulting property unusable only because the property taxes have not been paid.

The action of sealing the defaulting property and cutting of its electric supply is consequently without jurisdiction as it is not supported by any provisions of law. The Act and the Rules thereunder provides the manner in which the property taxes in respect of the property is to be recovered by the Corporation and the Corporation and its officers are bound to strictly follow the provisions of the Act and Rules and not read into the provisions/powers which are not explicitly found in the statute so as to clothe themselves with powers which they do not possess.

6. In the above view, the impugned sealing of the 15 mobile towers as well as disconnecting of electric supply by the respondent no.1Corporation is completely without jurisdiction. In the above view, we direct the corporation to forthwith reconnect the electric supply as well as deseal the subject 15 mobile towers. The same should be done latest by this evening.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.3367 OF 2017

ATC Telecom Infrastructure Private Limited . Vs Nashik Municipal Corporation


CORAM: M. S. SANKLECHA &

A. K. MENON, JJ.

DATE : 21st MARCH, 2017


1. This petition was mentioned yesterday for urgent reliefs. This in

view of the fact that the respondent no.1corporation

had sealed 15

mobile towers on 18th March, 2017 for alleged failure to pay the property

taxes. It was kept on board today for admission after notice to

respondentCorporation.

2. This petition under Article 226 of the Constitution of India

challenges:

(a) the sealing of 15 mobile towers as well as disconnecting the electric

supply to the sealed mobile towers;

(b) the property tax bills annexed to the petition at Exhibit B to B17

and

along with the final notices annexed to the petition at Exhibit D

to D40.

This, inter alia, on the ground that the petitioner has failed to pay the

property taxes as well as penalty under the Maharashtra Municipal

Corporation Act (the Act).

3. The only provision under the Act which provides the manner in

which the corporation could recover the property taxes is found in Section

128 of the Act. For ease of reference the same is reproduced here:“

128. Manner of recovering municipal taxes.

A municipal tax may be recovered by the following

processes in the manner prescribed by rules: –

(1) by representing a bill,

(2) [***],

(3) by distraint and sale of a defaulter's movable

property,

(4) by the attachment and sale of a defaulter's

immovable property,

(5) in the case of octroi and toll, by the seizure and sale

of goods and vehicles,

(6) in the case of property tax by the attachment of rent

due in respect of the property,

(7) by a suit.”

4. The Taxation Rules as provided in Chapter VIII of Schedule D to the

Act(Rules) also does not in terms indicate any power in the Respondent Corporation to seal the defaulting property and disconnect the electric  supply to it for recovery of property taxes.

5. As none of the aforesaid provisions in the Act and the Rules indicate

any power in the corporation to seal the defaulting property and/or

disconnect the supply of electricity to the defaulting property, we asked

Mr. Patil the learned counsel of the Corporation, the source of its power to

seal the property and disconnect electricity supply to be defaulting

property. Mr. Patil, the learned counsel appearing for the Corporation did

concede there is no specific power in the Act and/or the Rules which

entitles the Corporation to seal and disconnect the electric supply to the

defaulting property. He submits that it is incidental to the Corporation's

power to sell the property under Rule 47 of the Rules after attachment

under Section 42 of the Rules. In this case there has been no attachment

of the defaulting property, so no question of any sale or exercise of

incidental power can arise. In any event, a power to seal and disconnect

electric supply is a very drastic power which would make defaulting

property unusable only because the property taxes have not been paid.

The action of sealing the defaulting property and cutting of its electric

supply is consequently without jurisdiction as it is not supported by any

provisions of law. The Act and the Rules thereunder provides the manner

in which the property taxes in respect of the property is to be recovered by

the Corporation and the Corporation and its officers are bound to strictly

follow the provisions of the Act and Rules and not read into the

provisions/powers which are not explicitly found in the statute so as to

clothe themselves with powers which they do not possess.

6. In the above view, the impugned sealing of the 15 mobile towers as well as disconnecting of electric supply by the respondent no.1Corporation is completely without jurisdiction. In the above view, we direct the corporation to forthwith reconnect the electric supply as well as deseal the subject 15 mobile towers. The same should be done latest by

this evening.

7. So far as the petitioners challenge with regard to the impugned

property bills at Exhibit B to B17

and E to E24

and the final notice

annexed at Exhibit D to D40

are concerned, we note that the petitioners

have filed representations on 6th March, 2017 and 14th March, 2017 with

the respondent no.1 corporation. The communication dated 6th March,

2017 is the petitioners representation on why the demand for property

taxes made by the corporation in the impugned property tax bills and final

notices are not warranted. The representation dated 14th March, 2017

merely seeks a breakup of the alleged arrears of property taxes payable by

the petitioners. Mr. Patil on instructions states that the breakup of the

arrears of property taxes in the form of bills issued will be handed over to

the petitioner's representative, if he visits the office of Mr. Rohidas

Dorkulkar, Dy. Commissioner, Tax and Valuation Department at 4.00 p.m.

on 24th March, 2017. So far as the representation dated 6th March, 2017 is

concerned, the respondent corporation will hear the petitioners on the

same and dispose of the petitioners representation in accordance with law.

It is agreed between the parties that Mr. Rohidas Dorkulkar, Deputy

CommissionerTax

and Valuation Department, would hear the petitioners

on the representation dated 6th March, 2017 on 29th March, 2017 at 4.00

p.m.

8. The petitioners have undertaken to pay the undisputed amount of

property taxes of Rs.47 lakhs on or before 28th March, 2017. Needless to

say that till such time the Deputy CollectorAssessor

disposes of the

petitioners representation dated 6th March, 2017, the corporation will not

not act further upon the impugned property bills and final notices.

9. In the above view, nothing now survives in this petition. Therefore,

petition is disposed of in above terms. No order as to costs.

(A. K. MENON, J.) (M. S. SANKLECHA, J.)


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