Monday 18 October 2021

Under which circumstances tenant can file a municipal appeal against fixation of rateable value?


The last question, which requires consideration is whether the occupiers or the tenants have a right of filing a complaint and thereafter, an appeal against the proposed assessments. Under Section 127 of the BPMC Act, various types of taxes are imposed. They are property taxes, and taxes, on vehicles, boats and animals. In addition thereto, the Corporation may also impose octroi, taxes on dogs, theatre tax, toll on animals and vehicles entering the city, etc. Section 406 is a provision, which, inter alia, provides for appeals against any rateable value or tax fixed or charged under this Act. Unlike other statutes, the Section does not specifically state as to who can file an appeal. The locus standi of the appellant will, however, have to be inferred from Sub-section (2) of Section 406. Clause (b) of Section 406(2) states that no appeal shall be entertained in respect of a rateable value unless a complaint has been previously, made to the Commissioner and such complaint has been disposed of. Clause (d) provides that an appeal against an amendment made in the assessment book shall be entertained only if a complaint has been disposed of. The implication of this, clearly, is that a right of appeal is given to such a person, who has a right to file a complaint to the Commissioner against the rateable value. This right to file a complaint is exercised only when, under Rule 16, a complaint is filed. The scheme of the Act and the Rules clearly is that the person primarily liable to pay the property tax is the owner or the lessor. Against the proposed rateable value, it is he, who is the person concerned or the person aggrieved. Rateable value once determiend can be adopted Under Rule 21 for the subsequent years. A tenant may come and go, but it is the owner, who is primarily concerned with the determination of the rateable value. As we have already observed, the Act and the Rules do not contemplate more than one complaint being filed in respect of the same property and for the same year. The Rules cannot be interpreted to lead to a result, where there will be conflicting assessment orders in respect of a single official year for the same property. It is no doubt true that it has been held in a number of cases that a person aggrieved will, certainly, have a right of appeal. But, who is the person aggrieved? In the case of rateable value, it can only be the owner and no one else. Under Section 139(1), the liability to pay the tax is fastened on the owner. The liability of the tenant of built-up premises is there only if tax remains unpaid and a notice under Section 140(1) arises'. Such a tenant, to whom a notice is issued under Section 140(1) may have a right to file an appeal under Section 406(2)(c), or under Section 406(1) itself. But, his right can only be in relation to the correctness of a notice issued under Section 140(1). He cannot challenge the fixation of the rateable value because that can only be challenged by the owner. Like other taxing statutes, direct or indirect, the right to file an appeal is only on the assessee. The fixation of rateable value cannot affect the tenant unless and until a notice under Section 140(1) is received by him. That notice is in the nature of a garnishee order and the payment made by him is not paid on his own account, but is paid on account of the landlord, or owner, and that is why Sub-section (4) of Section 140 provides that for any sum so paid by the occupier, he is entitled to the credit of the amount so paid by him. {Para 80}

81. It was vehemently contended that under Rule 15(2), notice is contemplated to be given to the occupier as well and, therefore, he can also file an appeal. As we have already noticed, the notice under Rule 15(2) to an occupier will necessarily be because of provisions of Rule 12(2). There may also be another category of tenants, who would be entitled to file complaints and receive notice under Rule 15(2). Those tenants would be the ones mentioned in Section 139(2). The said provision provides that if any land has been let for any term exceeding one year to a tenant and such tenant has built upon the land, the property taxes assessed upon the said land and upon the building erected thereon shall be primarily leviable on the said tenant or on any person deriving title through him. Therefore, when in Rule 15(2), reference is made to the owner or the occupier, it contemplates not only an occupier, who becomes liable by virtue of Rule 15(2), but it will also take in its ambit a tenant of land who becomes a person primarily liable to pay tax on the building erected on tenanted land. Because such a tenant is a person primarily liable to pay tax therefore, he will have a right to file an appeal.

82. It was also urged on behalf of the appellants, that the Small Cause Courts have, in some cases, been entertaining appeals against the bills raising the tax demand, even though no complaints had been filed and/or the rateable value had become final. Such appeals were filed by the tenants and, in some cases, by the owners themselves.

83. It is now well-settled that the right to file an appeal is a creation of the statute. Section 406(1) provides of appeals against any rateable value or tax fixed or charged under this Act. Reference to rateable value in Sub-section (1) of Section 406, necessarily, pertains to tax on property. In view of the fact that under Section 127, other taxes such as taxes on vehicles, boats, animals, octroi, etc., are also levied, Sub-section (1) of Section 406 also refers to appeals against "tax fixed or charged" under the Act. Section 406(2)(b) specifically relates to appeal against a rateable value and Sub-clause (d) relates to appeal against any amendment made in the assessment book for property tax. It is not necessary to refer to Sub-clause (d) because that pertains to deposit of tax pending the entertainment of the appeal. Sub-clause (b) and (d), as we have already observed, postulate in relation to property tax appeals being filed only against rateable value. Sub-clause (c) of Section 406(2), no doubt, contemplates filing of an appeal against any tax. But, this sub-clause contemplates an appeal against such a tax in respect of which provisions exist for filing a complaint and the complaint being disposed of. Neither the Act, nor the Rules contemplate any complaint being filed against a bill a property tax and complaints, relating to property tax can only be filed against the rateable value. The Legislative intent, therefore, clearly is that it is only at the first stage, viz., the determination of the rateable value, that the appeals will be entertained and no appeal can be preferred against a bill levying tax as a consequence of the rateable value having been determined. The reason for this is obvious. The sending of a bill levying tax would amount to a mere mathematical calculation on the basis of the rateable value which is determined. If the determination of the rateable value can only be challenged by filing an appeal under Section 406(2)(b) or (d) and the same cannot be challenged once it has become final, then providing for appeal against the tax calculated on the basis of the rateable value would be meaningless.

84. It may happen that the rateable Value I may have been determined in gross violation of the provisions of the Act or the Rules and without following the procedure laid down in the Rules requiring giving the opportunity of filing a complaint by giving a public notice or a special notice. Where an owner has had an occasion or opportunity to file a complaint under the Rules against the proposed rateable value, but he fails to do so, no relief can be granted to him. If, on the other hand, in a rate case, such an opportunity has not at all been afforded, then merely for equitable reasons a Court should not and cannot entertain an appeal against the bill because such a provision does not exist. The appropriate remedy in such a case will be for the owner to take recourse to the constitutional remedies provided by Article 227 or Article 226 of the Constitution of India.

85. In the case of a tenant to whom provisions of Section 139(2) are applicable, an opportunity is required to be given for filing a complaint and in such a case, the question of his filing an appeal only against the bill would not arise. Where, in respect of premises a tenant is required to make payment pursuant to a bill issue under Sub-section (1) of Section 140, the tenant may be a person aggrieved. His grievance, however, cannot be with respect to the rateable value, which is determined after notice is issued to the owner and the tenants grievance can only be limited to the validity of such a bill being issued to him under said Section 140(1). In such a case, as liability is fastened on him, but he had opportunity to challenge the rateable value, an appeal would be maintainable under Sub-section (1) of Section 406 itself. The scope of the appellate jurisdiction in such a case will, however, be very limited. As already observed, there can be no challenge to the fixation of the rateable value and the limited challenge which can be there is with regard to the calculation of the tax on the basis of the rateable value already finalised or when the necessary ingredients of Sub-section (1) of Section 140 exist which could justify the issuance of a bill under that provision.
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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