Monday 18 October 2021

Does the principle of waiver apply if the property owner files a complaint against an assessment of property tax even though he has not received a special notice?

  It was further submitted that when the property is newly constructed or the rateable value is to be increased, then issuance of a notice under Rule 15(2) is mandatory. Such a notice in writing is to be issued in addition to the public notice given under Rule 13(1). It was also submitted that the use of the word 'shall' in Rule 15(2) makes the issuance of such a notice mandatory and if the same is not given, any assessment made would be null and void.{Para 63}

64. The requirement of giving a notice under Rule 15(2) is clearly in consonance with the principles of natural justice. The Rules contemplate that once entries have been entered in the assessment book, then they can be adopted in subsequent years and that a new assessment book must be made once every four years. The advertisement, contemplated by Rule 13, is only to the effect that the assessment book is ready and that it can be inspected at a place to be notified therein. In case of a property newly constructed or where the rateable value is to be enhanced, such public, notice under Rule 13 would give no indication regarding the entries made. The requirement of Rule 15(2) of giving a special notice if only to make the person concerned aware of the fact that the premises are going to be entered in the assessment book for the first time or the rateable value is liable to be changed.

65. What will be the effect, if a special notice, as contemplated by Rule 15(2), is not issued?

66. Reading of Rule 15(2) shows that giving of special notice is mandatory. The use of the word 'shall' in Rule 15(2) clearly indicates that there is an obligation which is cast on the authorities concerned to issue a notice in writing notwithstanding the fact that a general notice may have been published under Rule 13. A notice under Rule 13, published in the newspaper, would not indicate the properties, which are newly added in the assessment book or the changes with regard to the rateable value, which have been made. The public notice under Rule 13 would merely state that the entries in the assessment book have been completed and the same is open for inspection. In the case of new properties, where rateable value has been increased, special notice must be given under Rule 15(2). As we have already observed, the requirement of giving a special notice under Rule 15(2) incorporates one of the cardinal principles of natural justice. The owner is required to be put to notice as to what action is contemplated by the Corporation with regard to the fixation of rateable value. If no such notice is given, then the result, which must normally, follow is that the said assessment will have to be quashed. The Small Cause Court, once it is satisfied that a special notice, as required under Rule 15(2), has not been given, would, normally, set aside the assessment. We are saying 'normally' because, one situation may arise, in which case, even if notice under Rule 15(2) has not been given, the Small Cause Court ought not to set aside the assessment. Such a situation will arise where notice under Rule 15(2) is waived. The principle of waiver, in such cases, is that if certain requirements or conditions are provided by a statute, in the interest of a particular person, then the requirements, or conditions, even if mandatory, may be waived by that person, if no public interest is involved, and in such a case, the act done will be valid even if the requirement or condition has not been performed.

67. Where, therefore, an assessee chooses to file a complaint against the proposal to fix or increase the reteable value, even without the issuancc of a valid special notice under Rule 15(2), the principle of waiver would apply. The requirement of issuing a notice under Rule 15(2) is to give an opportunity, of filing a complaint, to the assessee. If a complaint is filed then the purpose for which the notice was to be issued, is fulfilled. In such a case, even if no notice is issued or the notice, which is issued, suffers from any defect, the principle of waiver would apply and an assessee, in appeal before the Small Cause Court, or even thereafter, cannot be allowed to contend that non-compliance with the provi-sions of Rule 15(2) must result in the assessment being regarded as a nullity. In those appeals, therefore, where complaints were filed under Rule 16 and the same were disposed of under Rule 18, a contention that no notice under Rule 15(2) was not served cannot be raised.

Gujarat High Court
Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994
Equivalent citations: AIR 1994 Guj 167, (1994) 2 GLR 1498
Author: B Kirpal

Bench: B Kirpal, R Abichandani
Read full Judgment here: Click here
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