Important Judgments on imposition of property tax by Municipal Corporation

1)  Whether civil suit is maintainable to challenge assessment and levy of property tax on immovable property?

 10. A Division Bench of the Delhi High Court in Sobha Singh & sons (P) Ltd. vs. New Delhi Municipal Committee [34 (1988) Delhi Law Times 91] had an occasion to consider the question of maintainability of a civil suit challenging the assessment and levy of property tax by the NDMC. Sections 84 and 86 of the Act came in for consideration. It was held that the provision of appeal contained in Section 84(1) of the Act provided a complete remedy to a party aggrieved against the assessment and levy of tax. Section 86 provides that the remedy of appeal is the only remedy to a party to challenge assessment for purposes of property tax. No other remedy was available to a party in such circumstances. It follows that the remedy of civil suit is barred.

11. In view of the aforesaid position in law, we are of the considered view that the civil suit filed by respondent challenging the assessment and demand of property tax by the appellant was clearly barred. 

SUPREME COURT OF INDIA

Brijesh Kumar J.Arun Kumar J.

N.D.M.C. Vs. Satish Chand(deceased by LR Ram Chand

Appeal (Civil) 2700 of 1997

11th September 2003

Citation:  2003 ALL SCR 313,2003(4) Maharashtra Law Reporter 331.

https://www.lawweb.in/2021/11/whether-civil-suit-is-maintainable-to.html

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Questions and answers on law (Part 45)

 Q 1:- In sessions triable case, one of the accused is juvenile. What order is to be passed to send him before Juvenile Justice Board?

Ans:- The court should follow procedure laid down by Supreme court in the case of Rishipal Singh Solanki v. State of Uttar Pradesh.

"The following questions arise for consideration:

(i) What is the procedure to be followed when a person claims juvenility in a regular court where he got arrayed as an accused?

(ii) What is the mode of proof in the matter of juvenility and the burden is upon whom?

(iii) Once it is found that the claim of juvenility in the affirmative, what should be the procedure to be followed?

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Whether the court can permit appellant to adduce evidence in Municipal appeal?

As far as the first submission is concerned, the appellant

can always adduce the evidence before the appellate authority as

regards the nature of towers in support of the contention that no

property taxes could be levied on the towers erected by the

petitioners. It is ultimately a factual controversy which can be

decided by the appellate authority which in this case is the Court of Civil Judge, Senior Division.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.1650 OF 2014

Viom Infra Networks Maharashtra Ltd. & Anr Vs Navi Mumbai Municipal Corporation and Ors.

CORAM : A.S. OKA & A.K. MENON, JJ.

DATED : 20TH JANUARY, 2015

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Whether civil suit is maintainable if municipal officials commits error in ascertaining tax amount?

Undoubtedly, the Respondent municipal corporation would be required to determine the assessable value/price on which the octroi can be levied in accordance with the Octroi Rules. The power to determine this value undoubtedly rests with the Respondent and its officers. It cannot be said that any decision taken by the Respondents/its officers competent to decide the value for the purpose of levy of octroi is without power or in excess of their jurisdiction. The error, if any, in determination of the assessable value for the purpose of levy of octroi would be an error within the powers or within the jurisdiction of the Respondent and its officers. Such an error can be corrected in an appeal under Section 406 of the BPMC Act. A civil suit would not be an appropriate remedy and the civil court would not have jurisdiction to decide the issue. The jurisdiction of the civil court is excluded by necessary implication by reason of a provision of an appeal against determination of an octroi (which is a tax) contained in Section 406 of the BPMC Act.

 IN THE HIGH COURT OF BOMBAY

Appeal From Order NO. 1379 of 2010

Decided On: 12.07.2011

Titan Industries Limited  Vs. Thane Municipal Corporation and Ors.

Hon'ble Judges/Coram:

D.G. Karnik, J.

Citation: MANU/MH/0889/2011

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Whether the civil court has jurisdiction to entertain a challenge to property tax imposed on charitable trust?

This contention of the respondent/Public Trust can be certainly raised in an appeal under Section 406 of the said Act. The exemption claimed by it, is under Section 132(1)(b) of the said Act, which is a ground that can be agitated in the appeal. It is not as if the respondent/Public Trust is prohibited from raising such a ground in the appeal or that the "Judge" does not have the authority to deal with such a ground of challenge while exercising appellate power under Section 406 of the said Act. The said contention of the respondent/Public Trust is covered under the expression "appeals against rateable value or the capital value as the case may be or tax fixed or charged under this Act" used in Section 406 of the said Act. {Para 15}

16. A perusal of the other relevant provisions of the said Act show that under Section 410 thereof, if on hearing of an appeal a question of law or construction of a document arises, the Judge may draw a statement of the facts of the case and refer such questions with his own opinion on the point for a decision of the District Court. Under Section 411 of the said Act, an appeal shall lie to the District Court from any decision of the Judge in an appeal under Section 406 thereof, by which a rateable value or capital value as the case may be is fixed or upon a question of law or usage or the construction of a document. The question whether tax is to be fixed at the rate at which the Municipal Corporation claims or it has to be nil as claimed by the respondent based on Section 132(1)(b) of the Act, can also be a subject matter of such appeal under Section 411 of the Act. Further Section 413 of the said Act provides that the decision of the District Court in an appeal under Section 411 of the Act shall be final.

17. Thus, the provisions of the aforesaid Act provide a scheme wherein the grievance of the respondent/Public Trust can be fully taken care of and, therefore, the jurisdiction of the Civil Court is impliedly ousted. Applying the propositions culled out by the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Dhulabhai (supra), it becomes evident that the aforesaid Act, with which we are concerned in the present case, is covered under proposition Nos. 2 and 6. In the present case, there is no question of a challenge to the vires of any provision of the aforesaid Act and the claim of the respondent/Public Trust that the notice and bills issued by the appellant/Municipal Corporation are illegal because the respondent is entitled for exemption from payment of property tax, is a question that can very well be decided in the mechanism provided as per the aforesaid provisions of the said Act.

18. In this context, the contents of the plaint of the respondent/Public Trust need to be appreciated. The entire grievance of the respondent is that it is undertaking educational activities in the building in question and that, therefore, under Section 132(1)(b) of the said Act, it is exempt from levy of tax. It is also claimed that tax is being claimed retrospectively by the appellant/Municipal Corporation, which cannot be done. In my opinion, all these are facets of "tax fixed or charged" or the rateable value applied by the appellant/Municipal Corporation, while raising bills against the respondent/Public Trust. If the contents of the plaint are appreciated in the proper perspective, it becomes evident that there is force in the contention raised on behalf of the appellant/Municipal Corporation that the respondent/Public Trust has filed the civil suit, instead of appeal under Section 406 of the said Act, only to avoid the mandatory deposit of disputed tax claimed by the appellant/Municipal Corporation, under Section 406(2)(e) of the Act, before the appeal can be heard or decided by the Judge. Although, this aspect may not be relevant to decide as to whether the jurisdiction of the Civil Court is ousted, it does demonstrate that in such cases, by clever drafting assessees may claim that civil suit is maintainable by contending that the very levy of the tax by the Municipal Corporation is "illegal" and that there is no remedy other than filing of suit before the Civil Court. It is for the assessees like the respondent/Public Trust to demonstrate as to why the grievance sought to be raised by them cannot be addressed under the scheme manifested by the above quoted provisions of the said Act.

19. In the present case, the learned Counsel for the respondent/Public Trust has heavily relied upon the judgment of this Court in the case of Balkrishna Vora v. Poona Municipal Corporation (cited supra). In the aforesaid case, the Court was concerned with the question that the tax levied or sought to be recovered was ultra vires the powers of the Corporation. In such a situation, it was held by this Court that the machinery provided under the aforesaid Act would not be sufficient for the assessee to air his grievance and thereupon, the Court held that the jurisdiction of the Civil Court could not be said to have been ousted and that the suit was maintainable. But, in the instant case, the nature of the grievance of the respondent/Public Trust is not such that it cannot be redressed under the machinery of the aforesaid Act. Therefore, the reliance placed on the said judgment of this Court is misplaced.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Appeal Against Order (AO) No. 34 of 2017

Decided On: 14.02.2018

Akola Municipal Corporation Vs. Shri Akola Gujrati Samaj

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation:  MANU/MH/0239/2018

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Whether a party can raise the questions of fact and law in Municipal Appeal?

  We may also clarify that the proceedings before the Chief Judge are proceedings not of the original nature but are of appellate jurisdiction. The original proceedings are passed by the Assessing Officer. Against those original proceedings, an appeal in terms of Section 217 of the Act has been provided to the Chief Judge. This being an appellate proceedings, parties are at liberty to raise the questions of fact and law both before the Chief Judge. The Supreme Court in the case of Municipal Corporation of Brihanmumbai and another Vs. State Bank of India, (1999)1 SCC 123 : [1999(1) ALL MR 246 (S.C.)], has specifically stated that nature of proceedings under Section 217(1) are appellate proceedings.{Para 29}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

SWATANTER KUMAR AND D.Y. CHANDRACHUD, JJ.

Peninsula Land Ltd.Vs.Brihan Mumbai Mahanagarpalika & Ors.

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What is presumption regarding acts done by the authorities working under the statute?

It is also a settled cannon of law that presumption of constitutionality and correctness is in favour of the legislation and not against the law enacted. It is equally true that all the acts done by the authorities working under the statute are presumed to have been done in accordance with the law unless contrary is shown. Keeping these two principles in mind and the amended provision of Section 217(5) of the Act, it is difficult for us to draw a presumption of discriminatory and arbitrary exercise of powers by the officers of the Corporation in face of clear legislative mandate. {Para 18}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

SWATANTER KUMAR AND D.Y. CHANDRACHUD, JJ.

Peninsula Land Ltd.Vs.Brihan Mumbai Mahanagarpalika & Ors.

Writ Petition No. 395 of 2007,

24th October, 2008

Citation: 2008(6) ALL MR 519

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Should the court summarily dismiss Municipal Appeal if the appellant fails to deposit property tax during the pendency of Municipal Appeal?

 As far as section 217 is concerned, it provides for an appeal against the valuation and taxes and the appeal lies to the Chief Judge of Small Causes Court and there is a precondition inasmuch as the appeal cannot be entertained unless the disputed tax which is mentioned in the appeal is deposited with the Commissioner. Sub-section 5 provides for a continuing liability inasmuch as it cannot be that the appellant assessee stops paying taxes which are due and payable in respect of the property, after the appeal under section 217(1). Therefore, after the appeal is filed and, during its pendency, the disputed amount has to be deposited or else the appeal can be summarily dismissed. This is a condition attached to the statutory right of appeal. It is well settled that appeal is a right created by Statute. The Statute can regulate and control exercise of that right. It is also well settled that imposition of condition of deposit of disputed tax for entertaining and hearing of the appeal cannot be held to be onerous, excessive or arbitrary (See Sham Charan Vs. Delhi Municipal Corporation - reported in A.I.R. 1992 S.C. 2279).{Para 17}

18. An amendment in section 217 was made inasmuch as sub-section 5 as was reading prior to the amendment came to be substituted by Maharashtra Act 10 of 1998, which is already reproduced above.

19. Therefore, payment of the amount of tax till the date of institution and filing of the appeal and the taxes which are due and payable during the pendency of the appeal have to be secured or else, the Corporation stands to lose by way of property tax, merely because legal proceedings are pending challenging the valuation and the assessment of the same. That would not be in public interest and that is how sub-section 5 of section 217 came to be inserted.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.C. DHARMADHIKARI, J.

Dena Bank & Anr. Vs. Municipal Corporation Of Gr. Mumbai & Anr.

Writ Petition No.6816 of 2010

21st July, 2011

Citation: 2011(6) ALL MR 508

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Whether Magistrate can entertain Municipal Appeal if appellant has failed to deposit necessary property tax?

  Rules made by this High Court under Article 227 relating to appeals under section 169 are pointed out by Petitioner. As per rule 4 the petition of appeal is required to be accompanied by original receipt showing that amount claimed by Municipal Council is deposited in Municipal Office. Rule 5 obliges Magistrate to call upon appellant to fulfill the requirement of rule 3 or rule 4 within such time not exceeding one-month and in default, Magistrate may dismiss the appeal for failure to prosecute. Rule 6 contemplates issuance of notice to Municipal Council only thereafter. Thus, as per scheme of these rules, Magistrate cannot call upon Municipal Council to appear unless and until the amount of demand is shown to have been deposited with Municipal Council by producing original receipt before him. Form-B appended to these Rules in which the appeal is to be preferred again shows that it contains a declaration that the amount claimed by Municipal Council has been or has not been deposited by appellant in the office of Municipal Council. It further shows that original receipt issued by Municipal Council is one of the accompaniments of such appeal. There is no challenge to these provisions or Rules in present matter. However in the facts of present case, Petitioner municipal council has appeared before Magistrate and filed its objection on 19/4/2003 itself. It is therefore clear that in any case on said date the Appeal has reached the stage of hearing or consideration. Hence, thereafter Magistrate could not have proceeded further to deal with the Appeal as the amount of demand was not deposited and hence requirement of Section 170(c)(ii) was not satisfied. After 19/4/2003 Magistrate did not possess jurisdiction to entertain the appeal itself in view of this non-compliance. It is therefore clear that the Magistrate could not have granted any interim relief in said appeal on 4/6/2003. No interim orders could have been passed in an appeal which was not entertained.

2007(1) ALL MR 170
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

B.P. DHARMADHIKARI, J.

Municipal Council, Achalpur Vs. M/S. Shriram Saw Mill

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Should tenants of premises deposit total tax levied on the whole building at the time of filing of Municipal Appeal even though they occupy only a portion of it?

Bombay Provincial Municipal Corporations Act (1949), S.217 - Appeal - Maintainability - Increase in rateable value of property tax - Complaint filed by co-operative housing society - Order passed by Corporation fixing rateable value - Petitioners owners and occupiers of 5 premises in society filed appeal against order - Petitioners are required to deposit disputed increased tax for entire premises - Contention that petitioners can deposit increased tax for their premises only is liable to be rejected - Writ petition is liable to be dismissed.  (Para 17)

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.J. KATHAWALA, J.

Satyavati Ramprasad Ruia & Anr.Vs.The Municipal Corporation Of Brihan Mumbai & Anr.

Writ Petition No.938 of 2010

14th July, 2010

Citation: 2010(6) ALL MR 191

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Whether Municipal appeal is maintainable against issuance of property tax bill?

  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.{Para 83}

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.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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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

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Will the reduction of property tax by the Appellate court affect property tax of subsequent year if the commissioner has adopted property tax of that year?

  It was further submitted that any judgment delivered by the Judge in respect of a particular official year, even though such judgment may be delivered after two years, becomes effective and operative retrospectively and would relate back to the commencement of the official years, for which the appeal is decided by the Judge. An example which was given was that if the appeal for 1981-82 was decided on 31st October, 1984, and the rateable value fixed by the Commissioner at Rs.5,000/- was reduced to Rs. 1,500/- then the judgment would have to be given effect to for the year commencing from 1-4-1981 and for all subsequent years notwithstanding that entries are made by the Commissioner, in the meantime, for the assessment years 1982-83, and 1983-84. It was contended that, by virtue of Section 413(2), the original entry of Rs. 5,000/- shall be deemed to have been made at Rs. 1,500/- on account of the effect of the judgment delivered by the Judge for the year 1981-82 and operation of law for the assessment years 1982-83 and 1983-84 the assessment must be regarded as having been reduced to Rs. 1,500/- and then, in respect of those years or future years if the rateable value is to be increased to the figure of Rs. 5,000/- a special written notice, as contemplated by R. 15(2), has to be given. {Para 76}

77. There can be no doubt that according to Rule 21, the entries of the earlier year can be adopted for the subsequent years. Furthermore every rateable value which is fixed, against which appeal is not filed or every appellate order, which becomes final, has to be given effect to. We, are however, unable to agree with the contention of the learned counsel that, in the example given above, by him, for the assessment years 1982-83 and 1983-'84 and onwards, a notice under Rule 15(2) has to be issued, because for the year 1981-'82, the appellate court had reduced the rateable value to Rs. 1,500/- after entries for 1982-'83 and 1983-'84 have been adopted. In the very example, which is given, it is contemplated that the entry for 1981-'82 was finalised after the issuance of a valid notice under Rule 15(2). As long as that entry of Rs. 5,000/- for the year 1981-'82 remains, the same could be adopted by the Commissioner in the subsequent years 1982-'83 and 1983-'84. If after such adoption for the years 1982-'83 and 1983-'84, the appellate court in respect of the assessment year 1981-'82 allows the appeal and reduces the rateable value, the decision in the said appeal can only be regarded as being given for the assessment year 1981-'82. In taxation, each year is to be regarded as distinct and separate. The Act does not postulate that the appellate decision for one year will, ipso facto, be regarded as a decision for the other years as well. As long as appeals have been filed before the Small Cause Court, or to the High Court, the assessment cannot be regarded as having become final.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Should Municipal Corporation give general particulars like the assessment method in the special notice issued for assessing property tax?

 It was vehemently contended that the special notice, which is issued must mention material particulars, like method of assessment, carpet area, letting rate, as also the reasons for fixing the gross rateable value at a particular figure so that the concerned asses-see can effectively and specifically file his objections and meet with the case of the Tax Department and produce relevant and matching evidence in support of his contentions. {Para 74}

 What are the requirements of a notice which are stipulated in Rule 15(2)? Notice under Section 15(2) is issued after entry in the assesment book has been made. Sub-rule (2) of Rule 15 requires that the special written notice to the owner or the occupier shall specify the nature of such entry. In other words, the special notice must inform the owner about the entries mentioned in Rule 9, Clauses (a), (b), (c) and (d), because the said Rule 15 has to be read with Rules 9 and 13. When a statute specifies as to what should be the contents of a notice, and that is so specified in Rule 15(2), the general principles enunciated by the aforesaid decisions and of other High Courts would not be applicable.

For the purposes of giving an opportunity to an owner or an occupier to file a complaint, all that he has to be informed is what the Commissioner has entered in the assessment book. One of the items, which is entered, is the ratable value. The Commissioner is under no obligation to inform as to how the rateable value, which is entered in the assessment book, has been arrived at. It is for the owner to complain if he finds the rateable value to be high. The principles for fixation of rateable value are well-known. Ordinarily, a rateable value will be arrived at after particulars had been given by the owners or occupiers under Rule 8 of the Rules. On the receipt of the notice, it will be for the complainant to lead evidence and prove as to what should be the correct rateable value. A hearing is contemplated by Rule 18 and if the assessee requires any clarification with regard to the entry made in the assesssment book, we see no reason as to why this clarification would not, ordinarily, be given. Be that as it may, Rule 15(2) docs not require the giving of any particulars in addition to what is stated therein. The aforesaid decisions of various Courts, therefore, can be of no assistance to the respondents. {Para 75}

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Under which circumstances can the court determine the correct rateable value of the property for assessing property tax?

  But, where the principle of waiver does not apply and a notice under Rule 15(2) is not issued and an assessment is made, then after coming to the conclusion that the assessment is a nullity, can the Small Cause Court quash the assessment simpliciter or does it have a duty or jurisdiction to take further action in the matter. {Para 68}

69. The provisions of Rule 20 clearly show that the power of the Commissioner to make changes in the entry can be exercised only during the official year itself. Once this official year is over, the Commissioner will have no jurisdiction to make any alteration. In Anant Mills Co. Ltd. v. Municipal Corporation, Ahmedabad, 1993(2) G. L. H. 897, it was held by a Division Bench of this Court, after examining the scheme of the Act, that the assessment must be completed before the close of the relevant official year and once the official year has expired, the Commissioner cannot assess and levy property tax and, therefore, the Court also cannot issue direction to the Commissioner to do something which was not permissible under the Act. The quashing of the assessment would mean that the Commissioner would not be in a position to reassess and levy property taxes and the taxes for those official years would be totally lost to the Corporation. This being the position, the appellate court cannot and should not set aside the assessment and remand the case for de novo assessment by the Commissioner. Any remand would, obviously, serve no useful purpose.

70. In view of the aforesaid position in law, it was submitted by the learned counsel for the Corporation that in such cases, the Chief Judge or the Judges of the Small Cause Court themselves should determine the rateable value in accordance with law. The counsel for the respondents, however, contended that if the assessment is a nullity, because of non-compliance with the provisions of Rule 15(2), or otherwise, then the Small Cause Court has no option but to quash the assessment, in toto.

71. The principle underlying the judgment in Anant Mill's case clearly answers the aforesaid question in favour of the Corporation. In that case, it had been contended that the Chief Judge has no jurisdiction to entertain the grounds affecting legality of the assessment. It was also submitted in that case, on behalf of the assessee, that if the Chief Judge came to the conclusion that the method of assessment was illogical or irrelevant and the assessment, therefore, invalid, then it would not be competent for the Chief Judge to determine the rateable value afresh by applying the appropriate method in a correct manner. Elaborating further, it was submitted that all that the Chief Judge would be able to do would be to declare the assessment invalid and leave it to the Commissioner to make a fresh assessment according to the correct method and this would, again, result in the Corporation losing the tax altogether. Similar is the contention raised before us, namely, that the assessment is bad as proper procedure is not followed. Rejecting the submission, the Division Bench, in Anant Mills' case, at page 922, observed as follows :--

".....This contention is also, in our opinion, without substance. It ignores the scheme of the provisions in regard to appeals contained in the Act. We have already pointed out that an appeal may be preferred against the rateable value and in this appeal the assessee would challenge the determination of the rateable value made by the Commissioner. He may challenge it on any ground available to him and such ground may well relate to the method of valuation adopted for the purpose of determining the rateable value. It is apparent from the provision in Section 409 Sub-section (1) and particularly the words "before evidence as to value has been adduced" that the appeal against rateable value is in the nature of an original proceeding where evidence as to value may be led by both parties. The Chief Judge may on the application of a party to the appeal appoint a competent person to make the valuation and such person may be called as a witness and if he is so-called, he may be cross-examined by the other side. The evidence as to value which may be adduced before the Chief Judge in the appeal may be based on any method which is regarded by the party or his witness as appropriate. It cannot be restricted to the method of valuation adopted by the Commissioner. So also when a competent person is directed to make a valuation, he may value it according to the method which he regards as proper there is no requirement in the statute that his, valuation must be based on the method adopted by the Commissioner. The entire question as to retable value would be open before the Chief Judge and as contemplated under Section 411 Clause (a), it would be for the Chief Judge to fix the ratable value and the decision of the Chief Judge fixing the ratable value would be final, subject to appeal to the High Court and the Commissioner would be bound to give effect to such decision as provided in Section 413. The whole scheme of the provisions clearly contemplates that in the appeal against the ratable value, the Chief Judge would have to fix the ratable value after considering the evidence as to value which may be adduced before him and it is implicit in this process that he would also have to decide which method of valuation should be adopted. If, therefore, the Chief Judge takes the view that the contractor's test method is inappropriate or inapplicable, he can decide which other method should be adopted and fix the rateable value by applying such method on the basis of the evidence before him."

It was contended by Shri Modi that such a course would be clearly contrary to the judgment of the Supreme Court in the case of Martin Burn Limited v. Calcutta Municipal Corproation, AIR 1966 SC 529 and that if the order of assessment is not valid, because of non-compliance with Rule 15(2), or any other Rule, then the Court would have no jurisdiction to undertake the exercise of fixing the ratable value itself. Similar contention was also raised in Anant Mills case. The Court examined the relevant provisions of the Calcutta Municipal Act, 1928, and compared the same with the provisions of the Bombay Provisional Municipal Corporation Act, and then observed as follows:--

".... This decision given on the basis of a scheme of taxation contained in the Calcutta Act can hardly be of any relevance when we are considering a question arising under a totally different scheme of taxation contained in the Corporation Act. The power of the Court of Small Cause under the Calcutta Act was to cancel the assessment or to revise or alter the valuation and the Supreme Court held that since the method on the basis of which the valuation was made by the Corporation was illegal, the Court of Small Cause could not do anything except cancel the assessment; it would not make an independent valuation itself by adopting the correct method, for that would not be revision or alteration of the valuation. But here under the Corporations Act the power of the Chief Judge in appeal against rateable value is not restricted merely to revision or alteration of the valuation. On the contrary it is a wide power conferred in general terms without any words of limitation. It says that an appeal against the rateable value shall be heard and determined by the Chief Judge. The Chief Judge is empowered to fix the rateable value after considering the evidence a to value adduced before him and the Commissioner is enjoined to give effect to the decision of the Chief Judge. The principles of the decision in Martin Burn's case can, therefore, have no application under the Corporation Act.

30. The result of this discussion is that if we quash and set aside the assessment made by the Deputy Municipal Commissioner on any of these grounds urged on behalf of the petitioners, the tax for the official years 1967-68 and 1968-69 would be lost to the Corporation whereas no such drastic consequence would ensue if these grounds are left to be decided by the Chief Judge in the appeals preferred by the petitioners. The Chief Judge can entertain these grounds and if he is of the view that the contractors method adopted by the Deputy Municipal Commissioner is not proper or relevant to the determination of the annual rental value, he can determine the annual rental value of the premises by applying the appropriate method and the tax can be levied on the petitioners on the basis of such ratable value. The latter alternative would do full justice to the peitioners without causing grave and undue hardship which would inevitably result to the Corporation if the former alternative were adopted. We, therefore, refuse to entertain these grounds in the exercise of our jurisdiction under Article 226 of the Constitution. They can be decided by the Chief Judge in the appeals preferred by the petitiones...."

We are in respectful agreement with the aforesaid observations in Anant Mill's case. Following the said ratio, it would mean that even if the assessment is held to be not in accordance with law, whether because of the wrong method followed with regard to determining the rateable value or because of any irregularity or illegality in procedure or because of violaton of the principles of natural justice or because notice under Rule 15(2) had not been issued, then the Small Cause Court would itself have the jurisdiction to examine evidence and determine the correct rateable value. It would be wholly inappropriate for the Small Cause Court to merely quash the assessment, which would have the effect that for the official years in question, the entire tax would be lost to the Corporation. In effect, the ratio decidendi of the decision in Anant Mills' case is that the Small Cause Court exercises the same power and will have the same jurisdiction, which is exercised by the Commissioner for the purposes of determining what should be the correct rateable value.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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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

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Under which circumstances Appellate court can call upon Municipal Corporation to produce additional evidence at appellate stage?

 It is no doubt true that the Municipal authorities, due to negligence or otherwise, did not place these orders of delegation on the record of the Small Cause Court. Our attention has, however, been drawn to the Rules, known as "Municipal Appeal Rules, 1976" made by this Court in exercise of the powers conferred under Article 227 of the Constitution. Rule 10 of, the said Rules, inter alia, states that the written reply shall be set out in paragraphs numbered consecutively stating whether the facts are disputed by the respondent or not. In the instant case, there has been a general denial in the written statement, with regard to the validity of the orders passed, but that is not material because Rule 11 gives the Magistrate or the Judge power to suo motu call for additional evidence if he considers it necessary in the interest of justice. In our opinion, the Small Cause Court ought to have suo motu called for additional evidence. As has been stated in the said Civil Application, powers have been delegated by the Municipal Commissioners right since 1961. The Small Cause Courts ought to have enquired and required orders of delegation being placed on record. Section 49 and Section 69 both envisage delegation of powers and it would have been proper exercise of jurisdiction if the Small Cause Courts had demanded leading of such evidence. In any case, this Court has powers under Order 41 Rule 27 to entertain the application. Merely because there has been possible negligence on the part of the Corporation in not producing the orders of delegation before the Small Cause Court should not result in an undue or unjust benefit being given to a tenant and the Corporation being deprived of the tax legitimately due under the Act. This is a case where due to the fault in producing evidence in order to meet a technical objection on the part of the tenants, payment of legitimate tax dues are sought to be avoided. For the negligence of the Corporation's lawyer or its employees, public revenue should not be allowed to suffer and just dues must be paid. To our opinion, the power of the appellate court to allow fresh evidence even at the appellate stage under Order 41, Rule 27 cannot be disputed. The circumstances contained in the said provision are clearly satisfied. In this connection, reference may be made to the case of Billa Jagan Mohan Reddy v. Billa Sanjeeva Reddy, (1994) 4 SCC 659 where it has been observed that :--

"....It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27, CPC the appellate court would receive the documents and consider their effect thereof...."

In the present case, the interest of justice does require the acceptance of the documents, which clearly show that the Officers under whose signature the notices were issued and who passed the orders of assessment and sent the bills were duly empowered to do so. Accordingly, Civil Application No. 2232 of 1994 is allowed.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Whether civil suit challenging the valuation, assessment or levy, or liability of any person to be assessed or taxed for property tax is maintainable?

  In Bata Shoe Company's case, the Supreme Court, which was dealing with Section 84(3) of C.P. and Berar Municipalities Act, which is in pari materia with the provisions of Section 172 of the Maharashtra Municipalities Act, held that Section 84(3) of C.P. and Berar Municipalities Act expressly prohibits challenge to a valuation, assessment or levy, "in any other manner than provided in the Act" and since the Act has devised its own special machinery for enquiry into and adjudicating upon such challenges, the common remedy of a suit stands necessarily excluded and cannot be availed of by a person aggrieved by order of assessment to octroi duty. It was observed by the Supreme Court in this case that since the special machinery was devised for enquiry and adjudicating upon the duty of the tax, the common remedy of suit stands necessarily excluded and cannot be availed by a person aggrieved by the order of assessment. The octroi collected by Municipal Committee of Jabalpur on the goods imported by Bata Shoe Company was subsequently sought to be revised. It was revised and was paid by Bata Shoe Company and further, having paid such revised octroi duty, a suit was filed questioning the legality of refund or opening of the octroi already paid. It was held that the Municipal Committee had jurisdiction to reopen the cases to collect the tax. {Para 6}

7. The Supreme Court interpreted Section 84(3) of the C.P. and Berar Municipalities Act and held that such challenge to the valuation, assessment or levy could not be raised by filing a suit. It was observed by the Supreme Court that the decision of the Municipal Committee could not be said to be without jurisdiction. The case in Bharat Kala Bhandar Vs. Municipal Committee, Dhamangaon, reported in (1965)3 SCR 499 was distinguished by the Supreme Court, in which it was held that the action on the part of the Municipal Committee was unconstitutional. In Bharat Kala Bhandar's case, a suit was filed for recovery of excess tax paid by the plaintiff under Section 66(1)(b) of the Central Provinces Municipal Tax Act, 1922 on the ground that after coming into force of Section 142-A of the Government of India Act, 1935, till January 25, 1950, a tax in excess of Rs.50/- p.a. could not be imposed by the Municipal Committee. It was held in that case that the Municipal Committee had acted unconstitutionally as it was not entitled and it had no jurisdiction to collect tax in excess of Rs.50/-, as laid down under the provisions of Section 142 of the Government of India Act.

8. Thus, in Bata Shoe Company's case, the Supreme Court held that Section 84(3) of C.P. and Berar Municipalities Act expressly prohibited a challenge to the valuation, assessment or levy in any other manner than provided in the Act and since C.P. and Berar Municipalities Act has devised its own special machinery for enquiring into and adjudicating upon such challenges, the common remedy of a suit stood necessarily excluded and could not be availed of by person aggrieved by order of assessment. It was further held that Section 84(3) excluded expressly the power of any other authority than is provided in this Act to entertain an objection to any valuation, assessment or levy of octroi/tax. The provisions of Section 84(3) of C.P. and Berar Municipalities Act, as stated earlier, is in pari materia with Section 172 of the Maharashtra Municipalities Act and, therefore, the suit challenging valuation, assessment or levy of tax cannot be filed. The remedy provided under Section 169 of the Act i.e. filing of appeal before Magistrate and revision against the order of Magistrate will have to be availed of.

9. While deciding the aforesaid Bata Shoe Company's case, the Supreme Court did not disapprove the principles laid down in Bharat Kala Bhandar's case, wherein it was held that the act of the authority was unconstitutional and without jurisdiction, separate suit lay against it. In the case in hand, it is not the case of the plaintiff that the act of Municipality in imposing the tax was unconstitutional or without jurisdiction. On the contrary, the case of the original plaintiff was that the imposition of tax was exorbitant, unreasonable and that the procedure laid down under the Act was not followed. By applying the ratio laid down in Bata Shoe Company's case, this Court has, thereafter, in number of cases, held that the challenge to the procedure relating to the levy of any tax and assessment of the property for the purpose of tax amounts to challenge the assessment itself. When the plaintiff challenges the assessment on the basis that the provisions of the Act had not been correctly appreciated or followed and the tax was levied on the property without any basis, it is nothing but challenging to the assessment itself. It has been held by this Court in the case of Chief Officer, Sangamner Municipal Council Vs. Narayandas Jagannath Karwa (supra) that in such cases the bar under Section 172 of the Act will operate in respect of challenge to assessment on the ground of non-compliance of the Rules or of denial of principles of natural justice and of malice. This has been the consistent view of this Court. This Court, in Gandhi Agencies, Barshi Vs. Municipal Council, Barshi (supra), held that the suit for injunction seeking to restrain the Municipal Council from recovering octroi so as to include amounts allowed as discount in the invoice could only be challenged by way of appeal and revision and that jurisdiction of civil court to try suit is barred. This Court, by another judgment in the case of Ulhasnagar Municipal Council Vs. Arjun Kungooram Balani (supra), held that challenge to demand of Municipal for recovery of taxes by civil suit claiming declaration and injunction was barred under Section 172 of the Maharashtra Municipalities Act and that civil court had no jurisdiction. It was further held that the remedy lies by way of appeal under Section 169 of the Act before the Judicial Magistrate.

10. There is no dispute that in that case the plaintiff, who owned houses within the area of Municipal Council, Aurangabad, was issued with the bills in respect of the house, claiming consolidated property tax and that the original plaintiff, respondent herein challenged this saying that the tax was exorbitant, unreasonable and that the procedure laid down in the Act was not followed. It was never the case and was not shown that the Maharashtra Municipality Act was unconstitutional or without jurisdiction. What was stated was the procedure elapses and that could not be challenged in view of the Supreme Court's ruling in many cases, some of which have been cited in the foregoing paragraphs.

11. The defendant, in its written statement, had taken a plea of bar of civil suit. Both the courts below have erroneously held that the suit was not barred under Section 172 of the Maharashtra Municipalities Act. This Court, after careful consideration of the cases cited by learned counsel for the appellant, and for the reasons recorded in the foregoing paragraphs, holds that the civil suit challenging the valuation, assessment or levy or liability of any person to be assessed or taxed, cannot be questioned by filing suit and that it can be challenged in the manner provided in the Act itself.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

A.S. BAGGA, J.

Municipal Corporation, Aurangabad Vs. Shaikh Mohammed S/O. Shaikh Yusufsaheb

Second Appeal No.195 of 1984

5th March, 2004

Citation: 2004(3) ALL MR 532

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