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Gujarat High Court · body

2010 DIGILAW 348 (GUJ)

Ahmedabad Municipal Corp. v. Samveg Arvindbhai

2010-08-06

RAVI R.TRIPATHI

body2010
JUDGMENT 1. AHMEDABAD Municipal Corporation, through the Municipal Commissioner, is before this Court being aggrieved by judgment and order dated 13.1.1983 passed by the learned Judge, Court No. 17 of AHMEDABAD City Civil Court in Civil Suit No.2502 of 1979. The suit was filed by the plaintiff- opponent herein Shri Arvindbhai Narottambhai Sheth to recover Rs.41,865.08 ps. along with cost and interest at the rate of 6% per annum from the defendant- AHMEDABAD Municipal Corporation (hereinafter referred to as 'AMC for short). Out of this amount, a sum of Rs.27,120.28 ps. is claimed by way of refund of 2/3rd amount of general tax paid by him for the year 1976-77 in respect of ground floor and first floor of Anand Shopping Center. Further sum of Rs. 6552.92 ps. is claimed by way of refund of entire water tax for the year 1976-77 (1.4.1976- 31.3.1977) in respect of the aforesaid premises of Anand Shopping Center. A sum of Rs.8191.98 ps. is claimed by way of refund of entire conservancy tax for the year 1976-77 in respect of the aforesaid premises of Anand Shopping Center. The learned Judge was pleased to take note of the rival submissions of the parties and was pleased to frame issues, which arc recorded in para 4 of the judgment and order. For ready perusal, para 4 is reproduced hereunder :- "4. From the aforesaid pleadings, following issues arise for my determination and therefore, they are raised vide exh.30:- (1) Whether the plaintiff is entitled to refund of Rs.27,120-28 ps. by way of 2/3 refund of the General Tax paid by him for the year 1976-77 in respect of Anand Shopping Centre.? (2) Whether the plaintiff is entitled to Rs.6552-92 ps. by way of refund of entire water-tax for the year 1976-77 in respect of Anand Shopping Centre? (3) Whether the plaintiff is entitled to Rs.8,191-98 ps. by way of refund of conservancy tax for the year 1976-77 in respect of Anand Shopping Centre? (4) Whether the plaintiff proves that the suit property of Anand Shopping Centre was vacant and unproductive of rent for the year 1976-77. (5) Whether the defendant proves that the plaintiff is not entitled to the aforesaid refund as the vacancy was not notified within time prescribed under the rules? (6) What order and decree? 5. (4) Whether the plaintiff proves that the suit property of Anand Shopping Centre was vacant and unproductive of rent for the year 1976-77. (5) Whether the defendant proves that the plaintiff is not entitled to the aforesaid refund as the vacancy was not notified within time prescribed under the rules? (6) What order and decree? 5. My findings on these issues for the reasons stated below are as under :- (1) In the affirmative. (2) In the affirmative. (3) In the affirmative. (4) In the affirmative. (5) In the negative. (6) Decree in favour of the plaintiff as per order para at the end." The Corporation being aggrieved by the said judgment and order, has preferred this First Appeal. 2. LEARNED Advocate Mr. Shelat for the appellant-Corporation submitted that the learned Judge has committed an error in passing this order without appreciating the relevant provisions of law. He submitted that the learned Judge ought to have appreciated that the responsibility of declaring a premises vacant' is on the owner/ occupant of the premises. He submitted that the learned Judge has referred to wrong provision to come to the conclusion that the premises were 'vacant' for the entire period (1976-77). The learned Advocate invited attention of the Court to para in which Issue No.5 is discussed. He submitted that, 'it is not in dispute that the premises were newly constructed premises' and it was for the first time that in the year 1976, the opponent herein declared before the Corporation about the completion of the work. Not only that after the said declaration was made before the Corporation, the opponent herein applied for permission to occupy the ground floor on 24.5.1976 and he applied for permission to occupy the first floor on 10.10.1976. The learned Advocate for the Corporation further submitted that it is not in dispute that the Corporation granted permission to occupy the ground floor on 17.8.1976, whereas the permission to occupy the first floor was granted on 28.6.1978. The learned Advocate for the Corporation further submitted that it is not in dispute that the Corporation granted permission to occupy the ground floor on 17.8.1976, whereas the permission to occupy the first floor was granted on 28.6.1978. The learned Advocate for the appellant submitted that if these facts are not in dispute then, what follows is important, namely after the Corporation granted permission to occupy the ground floor on 17.8.1976 on an application being made on 24.5.1976, it was the duty of the owner/occupant to declare before the Corporation that though the permission is granted on 17.8.1976, the premises are not occupied and that the same are vacant. He submitted that in absence of any such declaration of the premises being vacant, the Corporation under the tew k obliged presume that the premises are occupied once the permission is granted. In this regard, the learned Advocate for the appellant invited attention of the Court to the provisions of Section 263 of the Bombay Provincial Municipal Corporation Act (BPMC Act). Section 263 provides for 'Completion certificates permission to occupy or use'. He submitted that to avoid hardship to the public at large, the law has provided in Clause (b) of sub- Section (2) of Section 263 that, 'when the Commissioner has failed for twenty one days after receipt of the notice of completion to intimate his refusal of the said permission'. 'In that event, a person is authorized under the law to occupy the premises.' 3. SECTION 263 of the BPMC Act on one hand makes it mandatory that every person to declare before the Corporation about completion of the construction of a building. Similarly, under sub-SECTION (2) of SECTION 263, it mandates that, "No person shall occupy or permit to be occupied any such building, or use or permit to be used the building or part thereof affected by any work until the Commissioner has failed for twenty-one days after receipt of the notice of completion to intimate his refusal of the said permission". 4. THE learned Advocate for the appellant Corporation submitted that if the law on one hand confers a right on a person to occupy premises after 21 days of his making an application seeking permission to occupy, it is to be read that, on expiry of 21 days from the date of his application for permission to occupy a building, the premises stood occupied'. He submitted that, therefore, the Corporation had issued special notice under sub rule (2) of Rule 15 and on that notice being received, the opponent for the first lime declared before the Corporation by communication dated 25.3.1977 that, 'the premises are yet not occupied'. THE learned Advocate submitted that, therefore, taking into consideration the totality of the circumstances and the provisions of law, as they stand, more particularly with a right conferred on the citizen to occupy the building on expiry of 21 days after making an application for Building Use permission, brings with itself a necessary presumption that the building is occupied on expiry of 21 days or the date of grant of permission to occupy the building, whichever is earlier. He submitted that in the present case, the opponent herein applied for permission on 24.5.1976 qua the ground floor. So, technically, the building is to be treated to be occupied on expiry of 21 days from 24.5.1976 until vacancy was notified by the opponent. THE learned Advocate submitted that at least to that extent, the present appeal is required to be allowed. The learned Advocate for the appellant Corporation submitted that the bonafides of the Corporation can be tested from the facts which are already on record of this case, viz. the Corporation has not issued any notice under Rule 15(2) qua the first floor. Not only that but the Corporation has treated the ground floor to be vacant after vacancy declaration dated 25.3.1977 was received by the Corporation. 5. AS against that, the learned Advocate Mr. Nanavati for the opponent submitted that the fact that the property was unoccupied in the year 1977-78, there was no reason to treat that property as occupied one, in the year 1976-77. He submitted that only because the permission to use the building which is granted, does not ipso facto make the building occupied. He submitted that the opponent had declared before the Corporation about the completion of the construction of ground floor and thereafter, had applied for permission to occupy the same on 24.5.1976. But, thereafter, it was the duty of the Corporation to verify as to whether the building qua which permission is granted, is occupied or not. 6. He submitted that the opponent had declared before the Corporation about the completion of the construction of ground floor and thereafter, had applied for permission to occupy the same on 24.5.1976. But, thereafter, it was the duty of the Corporation to verify as to whether the building qua which permission is granted, is occupied or not. 6. THE learned Advocate for the opponent contended that alternatively, if at all the building was to be treated as occupied, it should have been only with effect from the date on which the permission to occupy was granted. It is not possible to accept this contention because the right to occupy accrues in favour of the owner from the date on which the permission is granted or on expiry of 21 days, whichever is earlier, (emphasis supplied) None of these submissions can be accepted in light of the aforesaid provisions of law. To expect the Corporation to verify every single premises being occupied or not, is not practical and possible and that is why the law has laid a duty on the Municipal Commissioner that he has to grant or refuse permission to occupy within 21 days from the date of the application and to facilitate the citizens to enjoy their properties, the law has permitted the owner to occupy the premises on expiry of 21 days after making an application for permission to occupy. THE learned Advocate for the opponent is not able to dislodge the submission made by the learned Advocate for the appellant that the aforesaid provision brings by necessary corollary a presumption of occupation on expiry of 21 days from the date of making the application for permission to use. In view of the aforesaid discussions, this Court is of the opinion that the present appeal is required to be allowed in part and accordingly it is allowed in part. The Corporation is directed to treat the building as occupied only from the date of expiry of 21 days from the date of making of the application for permission to occupy the building. For the rest of the period, the tax levied on the basis of the building being occupied, is not tenable in law and therefore, to that extent, the order passed by the Court below will stand. For the rest of the period, the tax levied on the basis of the building being occupied, is not tenable in law and therefore, to that extent, the order passed by the Court below will stand. The building should be considered to be occupied from expiry of 21 days from 24.5.1976 till the vacancy was declared before the Corporation by communication dated 25.3.1977. (Appeal partly allowed)