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1999 DIGILAW 6 (BOM)

Sushma Rani Jhanjee through her husband and power of Attorney v. Margao Municipal Council and another

1999-01-12

R.K.BATTA, R.M.S.KHANDEPARKAR

body1999
JUDGMENT - R.M.S. KHANDEPARKAR, J.:---The petitioner challenges the Notice of Demand dated 18th March, 1993 issued by the respondent No. 1 against the respondent No. 2 in respect of the house tax for the period from 1st February 1985 till 31st March, 1993 pertaining to the premises by name Tourist Hostel at Margao, bearing House No. 2140 situated in Ward No. 14 of Margao Municipal Council. The challenge is three fold: firstly, that the respondent No. 1 has not followed the procedure prescribed under the Goa, Daman and Diu Municipalities Act, 1968 (hereinafter called as "the Municipality Act") before demanding the tax; secondly, that the primary liability of the house tax is that of the lessor and that there cannot be any demand for arrears of tax for a period exceeding one year from the occupier in terms of section 122(3) of the Municipality Act; and thirdly, the rateable value cannot be more than the fair rent payable in terms of the provisions of the Rent Act in force in the State. 2.Few facts which are relevant for the decision in the matter are that the respondent No. 2 is the owner in respect of the premises in question wherein the petitioner had been running a restaurant pursuant to an agreement entered between the parties on 22nd April, 1985. Sometimes in or about June 1989, the respondent No. 2 initiated eviction proceedings against the petitioner under the Goa Public Premises (Eviction of Unauthorised Occupants) Act, 1988 (hereinafter called as "Public Premises Act") and by judgment and order dated 26th October 1989 passed by the Estate Officer, the petitioner was directed to be evicted from the said premises. The said order was challenged by the petitioner in appeal before the Appellate Authority which was dismissed on 31st July, 1990 and the eviction of the petitioner ordered by the Estate Officer was confirmed. The petitioner thereupon sought to challenge the said eviction proceedings in the writ petition which was registered as Writ Petition No. 219 of 1990 in this Court. The same was filed on 16-8-1990 and was disposed of in terms of the Minutes of the Order on 7-2-1992. In terms of the said order if the house tax was found to be payable in respect of the premises in question, the petitioner agreed to pay the same with liberty to the petitioner to challenge the liability. The same was filed on 16-8-1990 and was disposed of in terms of the Minutes of the Order on 7-2-1992. In terms of the said order if the house tax was found to be payable in respect of the premises in question, the petitioner agreed to pay the same with liberty to the petitioner to challenge the liability. Thereafter, on 18th March 1993, a demand notice, the one which is under challenge in the present petition, was served upon respondent No. 2 by the respondent No. 1 demanding a total sum of Rs. 75,821.80 as the house tax payable on that date in respect of the premises in question. By letter dated 16th March 1993, the respondent No. 2 informed the petitioner about the said demand notice and called upon the petitioner to pay the said amount payable under the said demand notice. Thereafter, on 27th August 1993, the petitioner was evicted from the said premises pursuant to the said order passed under the Public Premises Act. 3.As regards the first ground of challenge, it is the contention of Shri V.P. Thali, learned advocate appearing for the petitioner, that the respondent No. 1 has not followed the procedure contemplated under section 111 to section 120 in Chapter IX of the Municipality Act. Moreover, as rightly submitted by Shri V.B. Nadkarni, learned Sr. Advocate appearing for the respondent No. 1, the perusal of the petition discloses that the petitioner has nowhere disclosed as to what is the exact breach of procedure committed by the respondent No. 1 in the matter of imposition of house tax in relation to the premises in question. The petitioner has, after reproducing various provisions from section 111 to section 120 of the Municipality Act, stated in the petition that:- "Before issuing the impugned notice of demand dated 18-3-1993, no such procedure as contemplated under sections 111 to 120 has been followed by the respondent No. 1. Therefore the notice of demand, which is issued in breach of procedure, is ex facie illegal and without jurisdiction and, therefore, liable to be quashed and set aside." Apart from these averments, the petition nowhere discloses any details regarding the alleged breach of procedure by the respondent No. 1 while imposing the house tax. Therefore the notice of demand, which is issued in breach of procedure, is ex facie illegal and without jurisdiction and, therefore, liable to be quashed and set aside." Apart from these averments, the petition nowhere discloses any details regarding the alleged breach of procedure by the respondent No. 1 while imposing the house tax. The respondent No. 1 in its affidavit-in-reply while denying the allegations of breach of procedure, has stated that the allegations with regard to the breach of procedure are too vague and without any details. In addition thereto, the respondent No. 1 has also stated in the said affidavit that as provided under section 110, the rateable value of the suit premises was worked out at Rs. 1,13,907.60 on the basis of the fact that the annual rent paid was Rs. 1,26,564/- at the rate of Rs. 10,547/- per month and the final figure of the rateable value was arrived at after deducting Rs. 12,656.40 from the annual rent and the tax was accordingly fixed at Rs. 9,112.60 being 8 per cent of the rateable value. The affidavit further discloses that by notice dated 10th January 1989 the respondent No. 2 was intimated of the revised assessment in respect of the building in question and about the fact of upgradation of the Margao Municipal Council from 'B' class to 'A' class and objections were invited to be filed on or before 21st February 1989; however, did not receive any objections from whomsoever against the assessment. There has been no counter filed by the petitioner. Being so, there is absolutely neither material nor any details before us even to suggest remotely that there had been any breach of procedure on the part of the respondent No. 1 in the matter of imposition of house tax with regard to the building in question. Mere allegation of breach of procedure does not lead to the conclusion that the respondent No. 1 had not followed the provisions of law while imposing the house tax. A party accusing the Municipality of breach of procedure has to disclose the facts and materials which can disclose any such breach of procedure. In the absence of such materials, all the submissions on behalf of the petitioner in regard to the first ground of challenge are to be rejected. A party accusing the Municipality of breach of procedure has to disclose the facts and materials which can disclose any such breach of procedure. In the absence of such materials, all the submissions on behalf of the petitioner in regard to the first ground of challenge are to be rejected. 4.The second ground of challenge is relating to the primary liability regarding the payment of house tax and bar to claim arrears exceeding the period of one year from the occupier of the premises in terms of sections 121 and 122 of the Municipality Act. There is no dispute that the respondent No. 2 is the owner of the premises in question and the petitioner was the occupier of the premises for the relevant period. According to section 121 of the Municipality Act, in cases where the building belongs to Government, the liability to pay the house tax is that of actual occupier, subject however, that in respect of the buildings vesting in the Government and occupied by servants of Government, the liability of tax is naturally upon the Government. In case the premises are not owned by the Government, the primary liability is that of lessor if the premises are let out; or of the superior lessor if the premises are sub-let; or of the person in whom the right to let the premises vests if they are unlet; or of the person in possession if the premises are not let out to him. Section 122 deals with the instances of liability of occupier to pay the tax and sub-section (3) thereof, upon which heavy reliance is placed by Advocate Shri Thali in support of his argument, reads thus:- "(3) No arrear of a property tax shall be recovered from any occupier under this section which has remained due for more than one year, or which is due on account of any period for which the occupier was not in occupation of the premises on which the tax is assessed." 5.In the case in hand, the question of primary liability or otherwise to pay the house tax does not arise at all in view of the order dated 7th February 1992 passed in Writ Petition No. 210 of 1990. The relevant paragraphs from the said order in this respect read thus:- "(6)(iii) However, if ultimately, it is found that the tax is payable, the petitioner shall pay the same, but will be at liberty as occupier of the premises since 1-2-1985 to challenge the levy of the said tax. .................... 6(v) The petitioner has undertaken to this Court to discharge this liability within 4 weeks of receipt of a notice from respondent No. 1." It is thus clear that the petitioner had clearly agreed to pay the tax demanded by the respondent No. 1 from the respondent No. 2 for a period any time after 1-2-1985 till the petitioner ceased to occupy the premises and it was approved by this Court by its order dated 7-2-1992. The period of demand in the case in hand is undisputedly during the occupation of the premises by the petitioner. In any case even in terms of section 121(1)(b)(iv) a person in possession of the premises is also liable to pay the house tax. Once it is not in dispute that the petitioner had been in possession of the premises for the relevant period and it was clearly agreed upon by the petitioner in Writ Petition No. 219 of 1990 to pay the house tax dues in case of such tax becoming payable by the respondent No. 1 and pursuant to which the order was passed by this Court in the said writ petition, it is not open for the petitioner now to raise the dispute regarding her liability to pay the same. The only right which has been reserved by the petitioner in terms of the said order is to challenge the levy of the tax itself. 6.As regards the submission in relation to bar to claim arrears for a period exceeding one year from the occupier of the premises in terms of section 122(3), the same is devoid of substance. As rightly submitted by Shri Nadkarni, learned Sr. Advocate appearing for the respondent No. 1, the provisions in section 122(3) can be invoked only in case of demand of tax in terms of section 122(1) of the Municipality Act and not otherwise. As rightly submitted by Shri Nadkarni, learned Sr. Advocate appearing for the respondent No. 1, the provisions in section 122(3) can be invoked only in case of demand of tax in terms of section 122(1) of the Municipality Act and not otherwise. In the case in hand, admittedly, there is no such demand by the respondent No. 1 in terms of section 122(1) of the Municipality Act and, therefore, the question of avoiding her liability by taking shelter of the provisions contained in section 122(3) of the Municipality Act does not arise at all. 7.The last ground of challenge is that the rateable value fixed by the respondent No. 1 in respect of the premises in question is more than the fair rent in respect thereof and hence, the same has not been determined in terms of provisions of law applicable thereto. The submission of Shri Thali in this regard is that the rateable value cannot be more than the fair rent of the premises. Referring to section 110 of the Municipality Act, he submitted that the Apex Court has held that the rateable value of any premises for the purpose of calculation of the house tax cannot exceed the standard rent in respect of such premises. In that regard he sought to place reliance upon the judgment of the Apex Court in the matter of (East India Commercial Co. Pvt. Ltd. etc. v. Corporation of Calcutta)1, reported in 1998(3) Supreme 425 and (Municipal Corporation of Delhi v. M/s. Express Newspapers Ltd.)2, reported in 1998(5) Supreme 476 . As against this, Shri Nadkarni submitted that section 110 clearly provides the method of determining the rateable value of the premises and it clearly lays down that the rateable value is to be determined on the basis of actual rent paid or the rent which may reasonably be expected in respect of the premises for which the rateable value is to be determined and considering the fact in the case in hand that the rateable value has been calculated on the basis of the actual rent paid by the respondent No. 2, there was no occasion for reference to any Rent Act or to find out the fair rent in respect of the premises in question. He further submitted that the premises in question are fully covered by the Public Premises Act and, therefore, there is no occasion for application of the Rent Act in cases where the premises are covered by the Public Premises Act. He sought to rely upon the judgments of the Apex Court in the matter of (Government Servant Co-operative House Building Society Ltd. and others v. Union of India and others)3, reported in A.I.R. 1998 S.C.W. 2680, (Miss A. Sundarambal v. Government of Goa, Daman Diu and others)4, reported in A.I.R. 1988 S.C. 1700 and (Ashoka Marketing Ltd. and another v. Punjab National Bank and others)5, reported in 1992 Bank.J. 331(S.C.) in support of his submission. 8.Section 110 of the Municipality Act reads thus:- "110. Rateable value how to be determined.---(1) In order to fix the rateable value of any building or land assessable to a property tax, there shall be deducted from the amount of rent for which such building or land might reasonably be expected to let, or for which it is actually let, from year to year, whichever is greater, a sum equal to ten percentum of the said annual rent, and the said deduction shall be in lieu of all allowances for repairs or on any other account whatever. (2) The value of any machinery contained or situated in or upon any building or land shall not be included in the rateable value of such building or land." On plain reading of the said section, it is evident that the rateable value of a building is to be determined on the basis of:- (a) the amount of rent for which a building may reasonably be expected to be let out, or (b) the amount of rent for which it is actually let out. In both the cases, the rent is in relation to a period of an year and 10% of such rent amount is to be deducted in lieu of allowances for repairs or on any other count whatever in order to arrive at a figure of the rateable value in respect of the building. In both the cases, the rent is in relation to a period of an year and 10% of such rent amount is to be deducted in lieu of allowances for repairs or on any other count whatever in order to arrive at a figure of the rateable value in respect of the building. Moreover, section 110 clearly provides therein that in case of any difference between the actual rent collected by the landlord and the rent which may reasonably be expected for the premises if let out, then the amount which is greater than the other is to be accepted as the amount of rent for the purpose of determination of rateable value. In other words, even assuming that the fair rent of a building is less than the actual rent collected by the landlord, for the purpose of determination of rateable value, the amount which is relevant is the one which is actually collected as rent in respect of the premises and not the fair rent in respect of such premises. Therefore, wherein the actual rent is collected by the lessor/owner and it is not disputed to be lesser than the fair rent, there cannot be any question of considering the fair rent of the premises for the purpose of determination of the rateable value. The provisions contained in section 110, therefore, clearly provide a method for determining the rateable value in respect of a building for the purpose of calculation of the house tax. Once it is clear that the provision itself is clear in its meaning, it is not permissible to read something in the provision by interpreting the same by referring to the provision in some other Act. While construing the provisions in a Statute, it cannot be forgotten that it is essential for the Court to give full effect to the natural meaning of the words used in the Statute when the words are clear and unambiguous. 9.However, before arriving at any final decision in this regard, it will be worthwhile to peruse various judgments relied in the matter. 10.In East India Commercial Co. Pvt. Ltd. etc. 9.However, before arriving at any final decision in this regard, it will be worthwhile to peruse various judgments relied in the matter. 10.In East India Commercial Co. Pvt. Ltd. etc. v. Corporation of Calcutta (supra), the question which arose for consideration was relating to the determination of annual value under section 168 of the Calcutta Municipalities Act, 1951 in respect of buildings which were actually let out to tenants on rent agreed upon but not fixed by the Controller under the Rent Restriction Act for the purpose of assessment of property tax. Sub-section (1) of section 168 of Calcutta Municipalities Act, 1951 provided that:- "For the purpose of assessment to the consolidated rate the annual value of any land or building shall be deemed to be the gross annual rent at which the land or building might at the time of assessment be reasonably expected to let from year to year, less, in the case of a building, an allowance of ten per cent, for the cost of repairs and for all other expenses necessary to maintain the building in a state to command such gross rent; Provided that in respect of any land or building the rent of which has been fixed under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 or the West Bengal Premises Tenancy Act, 1956, the annual value thereof shall not exceed the annual amount of the rent fixed." The Apex Court, after considering various decisions, held that the principle which was deducible was that when the Municipalities Act requires the determination of annual value, such provisions are to be read along with the Rent Restriction Act which provides for determination of fair rent or standard rent and that, reading the two Acts together, the rateable value cannot be more than the fair or standard rent which can be fixed under the Rent Control Act. The Apex Court, however, clearly held that the exception to the said rule is that whenever any Municipalities Act itself provides the mode of determination of annual letting value, then the determination of the annual rateable value has to be according to the terms of the Municipalities Act. The Apex Court, however, clearly held that the exception to the said rule is that whenever any Municipalities Act itself provides the mode of determination of annual letting value, then the determination of the annual rateable value has to be according to the terms of the Municipalities Act. The ratio of this decision is that whenever the Municipalities Act itself provides a mode for determination of rateable value, there is no question of referring to any Rent Act or any other legislation to find out the method for calculation of rateable value and the rateable value has to be determined strictly in terms of the provisions contained in the Municipalities Act itself. The decision rather than in any way supporting the contention of the learned Advocate for the petitioner, clearly supports the case of respondent No. 1. 11.In Municipal Corporation of Delhi v. M/s. Express Newspapers Ltd. (supra), the Apex Court has held that in determining the standard rent of a new building the cost of land cannot be again taken into account when the cost of the same has already been taken into account in determining the standard rent of the old building. The decision is in no way relating to the matter in issue. The Apex Court in the said case was dealing with a point relating to the manner of determination of rateable value of new building constructed on the same plot of land on which an old building was already standing. It has been time and again held by the Apex Court as well as by this Court that a precedent is an authority only for what it actually decides and not for what may reasonably or even logically follows from it. A decision of the Apex Court in that regard in the matter of (M/s. Goodyear India Ltd. v. State of Haryana another)6, reported in A.I.R. 1990 S.C. 781 is very clear. A decision of the Apex Court in that regard in the matter of (M/s. Goodyear India Ltd. v. State of Haryana another)6, reported in A.I.R. 1990 S.C. 781 is very clear. 12.In Government Servant Co-operative House Building Society Ltd. and others v. Union of India and others (supra), the Apex Court was dealing with the issue of determination of rateable value in terms of section 116(1) of Delhi Municipal Corporation Act, 1957 along with the provisions of Punjab Municipalities Act, 1911, Delhi Rent Control (Amendment) Act, 1988 and Delhi Rent Control Act, 1958 and in that regard held that to determine the quantum of property tax, it is necessary to arrive at the rateable value of the land or building and that under section 116(1) the rateable value is the annual rent at which such land or building might reasonably be expected to be let from year to year less certain deductions. Referring to its earlier decisions in the matter of (Dewan Daulat Rai Kappor v. New Delhi Municipal Committee)7, A.I.R. 1980 S.C. 541 and (The Corporation of Calcutta v. Smt. Padma Debi)8, A.I.R. 1962 S.C. 151, it has been observed that in those decisions the Apex Court has already held that the actual rent payable by a tenant to the landlord would, in normal circumstances, afford reliable evidence of what the landlord might reasonably expect to get from a hypothetical tenant, and finally therefore, has held that the annual rent actually received by the landlord, in the absence of any special circumstances, would be a good guide to decide the rent which the landlord might reasonably expect to receive from a hypothetical tenant. 13. Considering the above referred decisions, it is clear that in cases where the Municipalities Act itself provides for a mode of determination of rateable value, there can be no question of referring to any rent legislation to find out the fair rent or the standard rent and the rateable value is to be determined in terms of the provisions laid down under the Municipalities Act itself. As already seen above, section 110 of the Municipality Act itself provides for mode of determination of the rateable value. Being so, the question of referring to the Rent Act in the State for the purpose of determination of rateable value does not arise at all in the facts and the circumstances of the case in hand. As already seen above, section 110 of the Municipality Act itself provides for mode of determination of the rateable value. Being so, the question of referring to the Rent Act in the State for the purpose of determination of rateable value does not arise at all in the facts and the circumstances of the case in hand. 14.As it is clear from section 110 of the Municipality Act itself that the mode for determination of rateable value is clearly provided in the said section itself, we are not required to address ourselves to other points regarding the non-applicability of the Rent Act pursuant to the premises being covered by Public Premises Act. In this view of the matter, the submission by the learned Advocate for the petitioner in respect of the challenges to the Demand Notice issued by the respondent No. 1 against the respondent No. 2 are devoid of substance and, therefore, cannot be accepted and the petition is liable to be rejected. 15.The learned Advocate for the respondent No. 1 did submit that while dismissing the petition, there must be direction to pay the interest on the balance amount due and payable in respect of the Demand Notice, by way of penalty. Shri S.D. Lotlikar, learned Advocate appearing for the respondent No. 2, in that regard submitted that the liability to pay interest should be of the petitioner alone. However, we are afraid, no such relief can be granted in this petition to the respondent No. 1. This shall not, however, come on the way of the respondent No. 1 to claim such interest, if they are entitled to, in the appropriate proceedings in that regard. The Draft of Rs. 50,822/- deposited by the petitioner with the Court should be handed over to the respondent No. 2, who shall, on encashment thereof, pay the amount to the respondent No. 1 within two weeks from today. 16.In the result, the petition fails. The same is dismissed and the rule is discharged with costs of Rs. 2,000/- payable by the petitioner to each of the respondents. Petition dismissed.