Monday 18 October 2021

Whether Municipal Corporation should give a special notice to both owner and occupier of property for assessment of property tax?

It was then submitted that special notice under Rule 15(2) must be issued to the owner, as well as to the occupier. In support of this submission, it was urged that Sub-rule (2) of Rule 15 stated that the Commissioner shall give a special written notice "to the owner or occupier of the said premises".{Para 57}

58. It is, no doubt, true that Sub-rule (2) of Rule 15 does contemplate a situation, where special notice may be given to the owner or occupier. In other words, Sub-rule (2) of Rule 15 does not contemplate special written notice to be given only to the owner. If that is so, then under what circumstances is a special written notice required to be given to an occupier?

59. The Scheme of the Act and the Rules clearly is that liability for payment of property tax is on the person primarily liable. This is clearly provided by Section 139, read with Rule 8. In order to find out who is the person primarily liable, information may be sought from the owner or occupier. The person primarily liable under S. 139(1)(b) is the lessor or the superior lessor. This liability, however, shifts to the occupier at the stage of assessment, and before the raising of the bill only when the provisions of Rule 12(2) are attracted. If true information with regard to the name of the person, who is primarily liable, is not given by the person in occupation of the premises, then Sub-rule (2) of Rule 12 makes the occupier himself to be liable for all property taxes leviable. Rule 15(2), which follows Rule 12, when it refers to special notice being given to the occupier, can have reference to a case, where Rule 12(2) is applicable and the name of the person primarily liable is not known. Special notice under Section 15(2) will also have to be given to a tenant where he, under Section 139(2) of the BPMC Act, and not the owner, is liable to pay the tax by virtue of his being the tenant of the land on which premises are constructed by him. There is no third situation where a special notice has to be given to tenant.

60. The Rules cannot travel beyond the scope of the Act. The liability to pay property tax, according to Section 139(1) in case of tenanted premises, is on the lessor. It is the name of the person, who is primarily liable, which is to be entered in the assessment book, as provided by Rule 9(c). The Act, in contradistinction to the Rules, contemplates realisation of property tax from the tenant under Section 140(1) in a case only after bill has been submitted to the lessor and the same remains unpaid. The stage of Rule 15(2) is prior in point of time to the raising of the bill. Under the Act, the liability to pay property tax is fastened on the occupier or the tenant only under the provisions of Section 140. The demand for property tax can be made only after the assessment book has been finalised and a bill raised. The assessment book is finalised only when provisions of the Rules, including Rule 15, have been complied with and complaints received and determined under Rule 18. Therefore, interpreting Rule 15(2), in the light of the provisions of the Act, the inference can only be that the Rule's require only one assessment to be made on the person, who is primarily liable and not on any one else. Notice under Rule 15(2) to an occupier, and not to an owner, is, therefore, contemplated only when the occupier does not inform about the name of the owner, thereby attracting the provisions of Rule 12(2), which, by a fiction, makes him the person liable till the requisite information is obtained or where provisions of Section 139(2) are applicable.

61. It was also submitted that special notice under Rule 15(2) must be given both to the owner and occupier. It was contended that even if the liability to pay the tax is of the owner, by virtue of Section 139 of the Act, nevertheless, in the event of the rent having been fixed as being inclusive of taxes, then, if special notice is served on the occupier-

tenant, the landlord, for no fault of his, would be punished and penalised if the tenant does not inform the owner about the service of such a notice or he himself does not take any action in pursuance of such notice. Therefore, it is just and expedient to read the conjunction 'or' of Rule 15(2) as 'and'. We see no substance in this submission. The Act provides that the person primarily liable is the lessor, vide Section 139. Provisions of Rule 15(2) come into play during the course of assessment. The assessment is to be made in respect of the premises and, obviously, the person concerned would be, the owner. In this back ground, when duty is cast to serve a notice under Rule 15(2), on owner or occupier, the implication clearly is that, normally, special notice will be issued to the owner. It is only where the provisions of Rule 12(2) come into play and the occupier becomes liable that a notice under Rule 15(2) would be required to be issued to him.

62. The Act and the Rules do not contemplate two notices in respect of the same premises for a single official year being issued to two different persons. If the contention of Mr. Modi is correct, the effect would be that for a single official year, one notice will have to be issued to the occupier and another notice to the tenant. This may, then, result in conflicting situations arising. Supposing the owner does not file any objections and accepts the proposed assessment, can the tenant file a complaint and oppose the same. The reverse situation would be where the tenant accepts the proposed rateable value, but the owner objects. In each of such cases, a very anomalous situation will result when no objections are filed pursuant to one notice, which is issued under Rule 15(2) and the assessment would become final, but in respect of the same premises, if the other person, viz., either the owner or the tenant, files complaints, then the proposed assessment would not be final. The conjunction 'or' in Rule 15(2) can, under no circumstances, in our opinion, be regarded as 'and'.

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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