Shri Naik, learned counsel appearing on behalf of the Municipal Corporation, submitted that both the authorities below were in error in holding that the failure to give public notice under Rule 13 vitiated the entire proceedings of levy of rateable value. The learned counsel submitted that the conclusion of the two authorities below that public notice under Rule 13 is mandatory is incorrect. We find considerable merit in the submission of the learned counsel. As mentioned hereinabove, the determination of rateable value in respect of the properties of the company was undertaken for the first time after the area of village Kumathe was included within the limits of Municipal Corporation. As rateable value was determined for the first time, it was incumbent upon the Corporatioin to follow taxation rules set out in Chapter VIII of the Schedule to the Act. It is not in dispute that the Commissioner had published a notice under sub-rule (1) of Rule 15 to enable the owners of the property including company to lodge a complaint against the amount of rateable value entered into assessment book. It is also not in dispute that the special notice contemplated under sub-rule (2) of Rule 15 was served on the company and the premises of the company were assessed for property tax on the first occasion and the rate of tax was more than a tax which the company was paying to the village panchayat. The sole grievance of the company is that the entire procedure of levy of rateable value and recovery of tax was vitiated for failure to strictly comply with the requirement of sub-rule (1) of Rule 13.
In our judgment, the two authorities below were clearly in error in proceeding to strike down the exercise carried out by the Corporation to levy property tax on assumption that the requirements of sub-rule (1) of Rule 13 are mandatory. The plain reading of the sub-rule makes it clear that after the entries required to be made by clauses (a), (b), (c) and (d) of Rule 9 have been completed, the Commissioner shall give public notice thereof and of the place where the ward assessment-book may be inspected. The public notice contemplated under this sub-rule is to give notice to the owners of various properties that an assessment book prepared under Rule 9 is available for inspection at a particular place. The public notice is required to be given by advertisement in the local newspapers and also by posting placards in conspicuous places. The two authorities below proceeded to hold that the requirement of giving public notice is mandatory because of the use of expression 'shall'. The conclusion reached by the authorities below is clearly erroneous. It is now well settled by catena of decisions of the Supreme Court and this Court that whether.
the provision is mandatory or directory is not dependent upon the use of expression 'shall' or 'may'. What is required to be ascertained is the purpose or the object of the rule and whether any breach in following the rule affects substantial right of the person concerned. Applying this well settled test, it is obvious that the requirement of giving public notice under Rule 13 cannot be held to be mandatory. The object of giving public notice is informing the owners of buildings or land about the preparation of assessment-book under Rule 9 and to enable the property owners to inspect the same if so desired. There is no obligation cast upon the property owners to inspect the same because the failure to do so does not result into any consequences adversely affecting the owners. The rule is merely an enabling one and the Commissioner is required to give public notice only to inform the owners about the preparation of assessment-book. In our judgment, the rule cannot be held to be a mandatory one and it is obviously directory one and consequently, the breach thereof cannot vitiate the entire process of assessment of rateable value. In this connection, it would be appropriate to distinguish between the provisions of Rule 13 and Rule 15. Rule 15 also demands that the Commissioner shall give a public notice and this notice is to be given to the property owners to enable them to lodge complaints against the amount of rateable value. Sub-rule (2) of Rule 15 demands the Commissioner to serve special notice in case the rateable value is increased. The failure to give public notice under Rule 15(1) or special notice under sub-rule (2) of Rule 15 clearly affects the right of a property owner to lodge complaint and in that case the requirement of public notice has to be treated as mandatory. In our judgment, the two authorities below overlooked the object and the purpose of Rule 13 and erroneously proceeded to conclude that requirements of Rule 13 are mandatory because of the use of the expression 'shall'. The decision of the two authorities below holding that the entire process of determination of rateable value is null and void for failure to give notice contemplated under Rule 13, therefore cannot be sustained. It would not be out of place to state that the failure to give public notice under Rule 13 has in no manner adversely affected the interest of the company. The learned counel for the company very fairly stated that notice under sub-rule (2) of Rule 15 was served and consequently the company, did lodge complain! against the amount of rateable value. In these circumstances, the exercise undertaken by the Corporation in determining rateable value in respect of properties which were originally situated within village Kumathe and which were subsequently included within the city limits of Corporation cannot be faulted with.
Bombay High Court
The Solapur Municipal ... vs Shivaji Works Ltd. on 21 April, 1992
Equivalent citations: AIR 1993 Bom 213, 1993 (1) MhLj 80
Bench: M Pendse, B Wahane
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