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The Sholapur Municipal Corporation Vs. Dhananjay Dhondusa Kolhapure - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 900 of 1966
Judge
Reported in(1972)74BOMLR169; 1972MhLJ398
AppellantThe Sholapur Municipal Corporation
RespondentDhananjay Dhondusa Kolhapure
DispositionApplication dismissed
Excerpt:
.....rateable value which is to prevail for the purposes of taxes to be levied for the entire official year. the rateable value has, therefore, to be the annual rateable value. the incidence of the taxes, therefore, is to be for the whole year but the tax is payable, not on one occasion, but in two half-yearly instalments on the dates mentioned in rule 30 of chap. viii of the schedule to the act. therefore, at the date when an appeal against fixation of rateable value has to be filed, the only amount which the municipal corporation can 'claim' under section 406(2)(e) of the act would be the amount of taxes payable for the first half-year and not those for the second half-year also.;the phrase 'any property tax assessed' in clause (e) of section 406(2) of the act, refers to the full amount of..........full year, has been submitted to the assessee before the 1st of october of the relevant official year. rule 39 refers to the presentation of bills for certain taxes, one of which is property taxes. sub-rule (1) of rule 39, in so far as it is relevant, provides that when any property-tax or any instalment of any such tax shall become due, the commissioner shall, with the least practicable delay, cause to be served on the person liable for the payment thereof a bill for the sum due. sub-rule (1) of rule 39 therefore contemplates presentation of a bill 'for the sum due', which would be only the instalment which has become payable according to the provisions of rule 30. the power of the commissioner is, therefore, to present the bill for the payment of 'the sum due'. in the light of the.....
Judgment:

Mody, J.

1. This is a Civil Revision Application filed by the Sholapur City Municipal Corporation against the opponent who is the owner of House No. 479, East Mangalwar Peth, Sholapur. Till some time in 1964 there was in the City of Sholapur the Sholapur Municipality, hereinafter referred to as 'the Sholapur Municipality', which was a Municipality under the Bombay Municipal Boroughs Act, 1925, hereinafter referred to as 'the old Act'. On the 1st of January 1964 the Sholapur Municipality issued a notice to the opponent under the provisions of Section 81 of the old Act intimating that the rateable value of the said house Was sought to he increased from Rs. 380 to Rs. 600 per year. Under the liberty available to the opponent under Section 81 of the old Act, the opponent filed objections against the proposal to enhance the rateable value. The opponent's objections were heard on the 17th of March 1964 by the Appellate Committee which thereafter rejected the objections. On the 30th of April 1964 the Chief Officer informed the opponent that the rateable value of the opponent's said house would be Rs. 600 for the year 1964-65. It appears that on tie same day, i.e., 30th April 1964, the Sholapur Municipality prepared a bill on the basis of the said enhanced rateable value for a sum of Rs. 167 for the property taxes for the whole year 1964-65 in respect of the said house. Certain directions in the Marathi language are printed at the back of that bill Only a part of Direction No. 1 is relevant and the same, according to an agreed translation thereof, reads:.So on receipt of this bill, half of the amount mentioned in the bill towards the first instalment be paid within 15 days from the receipt of this bill and the rest of the amount towards second instalment before 15 October in the office of the Municipality during the working days of the office excluding holidays. If there is no compliance with the above, demand notice will be issued and the amount will have to be paid along with notice fee.

2. As from 1st May 1964 the Sholapur Municipal Corporation, being the Revision Petitioner, came into existence under the provisions of the Bombay Provincial Municipal Corporations Act, 1949, hereinafter referred to as ''the new Act', and it substituted the Sholapur Municipality as from that date. The said bill dated 30th April 1964 was received by the opponent on 23rd June 1964. On 29th June 1964 the opponent paid to the Sholapur Municipal Corporation under protest a sum of Rs. 83.50, being a half of the said amount of the annual tax amounting to Rs. 167.

3. On 7th July 1964 the opponent filed a Municipal Tax Appeal, being Appeal No. 67 of 1964, in the Court of the Civil Judge, Senior Division, Sholapur, challenging the fixation of the rateable value at the said sum of Rs. 600. The revision petitioner raised a contention in that appeal that the opponent had not deposited the full amount of Rs. 167, being the amount of the tax for the whole year, and that therefore, under the provisions of Section 406(2)(e) of the new Act, the appeal was not maintainable. By his judgment and order dated 27th February 1905 the learned Civil Judge dismissed the appeal on the ground that the word 'claimed' used in the said Clause (e) of Section 406(2) referred to the amount of the tax for the whole year and that the opponent therefore was under an obligation to deposit the said full amount of Rs. 167 which he had not done and that the appeal was therefore not maintainable.

4. The opponent thereupon on 9th April 1965 filed an appeal, being Civil Appeal No. 235 of 1965, before the District Court, Sholapur, which in that case was the Court of the Extra-Assistant Judge as he was invested with the powers of the District Judge. In that appeal the opponent again challenged the quantum of the rateable value which had been fixed at Rs. 600. The learned Extra-Assistant Judge came to the conclusion that in view of the provisions of Rule 30 of the Rules appearing in the Schedule to the new Act the only amount which the opponent was liable to pay and the revision petitioner could then 'claim' Was the amount of only the instalment payable for the first half year, viz., Rs. 83.50, and not the amount of the property taxes for the said full year amounting to Rs. 167, although the said bill itself showed the amount of the property taxes for the full year; and further that the said bill itself, read with the Directions printed therein, showed that even the amount of tax claimed by that bill was that payable only for the first half-yearly instalment and that therefore the deposit, which in this case was by way of a payment under protest, was sufficient compliance with the requirements of Clause (e) of Section 406(2). It is against this judgment and order of the District Judge, Sholapur, that this revision application has been filed.

5. The relevant part of Section 406 of the new Act provides:

(1) Subject to the provisions hereinafter contained, appeals against any rateable value or tax fixed or charged under this Act shall be heard and determined by the Judge.

(2) No such appeal shall be heard unless-

(a) ...

(b) ...

(c) ...

(d) ...

(e) in the case of an appeal against a tax, or in the case of an appeal made against a rateable value after a bill for any property tax assessed upon such value has been presented to the appellant, the amount claimed from the appellant has been deposited by him with the Commissioner.

6. Section 453 of the new Act provides that the rules in the Schedule as amended from time to time shall be deemed to be part of the new Act.

7. Rules to be found in the Schedule are grouped under various Chapters. Chapter VIII contains some relevant provisions. Chapter VIII, as its Chapter heading shows, contains 'Taxation Rules.' Rules 30, 39 and 41 of the said Rules provide:

30. Each of the property-taxes shall be payable in advance in half yearly instalments on each first day of April and each first day of October.

39. (1) When any property-tax or tax on vehicles, boats and animals or any tax declared by or under this Act to be recoverable in the manner provided for a property-tax, or any instalment of any such tax shall become due, the Commissioner shall, with the least practicable delay, cause to be served on the person liable for the payment thereof a bill for the sum due.

(2) Every such bill shall specify the period for which, and the premises, property, occupation, vehicle, boat, animal or thing in respect of which the tax is charged, and shall also give notice of the time within which an appeal may be preferred against such tax and of the consequences of default in payment as hereinafter provided.

41. (1) If the amount of tax for which any bill has been served as aforesaid is not paid into the municipal office or deposited with the Commissioner as required by Sub-section (2) of Section 406 within fifteen days from the service thereof, the Commissioner may cause to be served upon the person liable for the payment of the same a notice of demand in Form G or to the like effect.

(2) For every notice of demand which the Commissioner causes to be served on any person under this section, a fee which shall amount to eight annas if the amount of the bill does not exceed one hundred rupees and to eight annas for every hundred rupees or part thereof if the amount of the bill exceeds one hundred rupees shall be payable by the said person and shall be included in the costs of recovery.

8. Now the crux of the argument of Mr. Kadam, the learned Counsel for the revision petitioner, is that the property tax is assessed for a whole year and that the only effect of Rule 30 is that the assessee is given a facility to pay that amount in two half-yearly instalments. He contended that for the purposes of Clause (e) of Section 406(2) the amount claimed would be the amount of tax for the whole year, although it may be payable in two half-yearly instalments and that therefore the payment under protest of a. half the amount of tax payable for the whole year is not sufficient compliance with the requirements of Clause (e) of Section 406(2) and that therefore the opponent's appeal to the Civil Judge, Senior Division, Sholapur, was not maintainable. Clause (e), in so far as it relates to the case of an appeal made against the rateable value after a bill for any property tax assessed upon such value has been presented to the assessee, requires the amount claimed to be deposited as provided in that clause. In the first part of Clause (e) occur the words : 'after a bill for any property tax assessed upon such value has been presented to the appellant'. The amount which is to be deposited is 'the amount claimed from the appellant'. These two provisions in the Clause (e) show that the bill contemplated in this case is to contain two things : the first being the amount of property tax 'assessed' and the second being the amount 'claimed' from the opponent. According to Mr. Kadam, both these phrases relate to the same thing, viz., the property taxes as assessed for the whole year. Mr. Kadam's argument would have been acceptable without much persuasion if the language of the two phrases was identical or similar. But it is not. There can be no doubt that the phrase 'property tax assessed' would refer to the tax as assessed for the whole year. If it is so, why are the same or similar words not repeated in the second phrase? The second phrase is, on the contrary, couched in the words 'the amount claimed'. Why is it not 'the amount of tax so assessed' or similar words? To understand the change in the language it is necessary to see the other relevant provisions in the new Act and. the Rules.

9. The effect of Section 453 is that the rules are to be deemed to be part of the new Act. The rules are, as a matter of fact, enacted by the Legislature itself. Both have been enacted simultaneously and the rules are part of the Act.

10. Section 127 of the new Act provides that the Municipal Corporation shall impose certain rates and taxes as provided in that section, one of which is property taxes. Section 129 of the new Act provides that property taxes shall, subject to the exceptions, limitations and conditions thereafter provided in the Act, be levied on buildings at rates fixed at certain percentages of their rateable value. Section 99 of the new Act shows that the rates of taxes are to be fixed for an official year but before the commencement of that official year. A combined, reading of Sections 129 and 99 leads to the conclusion that the rateable value to be fixed under Section 129 must be an annual rateable value, i.e., a rateable value which is to prevail for the purposes of taxes to be levied for the entire official year. In short, the rateable value has to be annual rateable value. Rule 30 provides that each of the property taxes shall be payable in advance in half-yearly instalments on each first day of April and each first day of October. What this rule requires therefore is that there is a statutory obligation on every Municipal Corporation to make the property-taxes payable, firstly, in advance, and, secondly, in half-yearly instalments, the date for payment of such instalments being the first day of April and the first day of October of every year. It is, therefore, clear that the incidence of the taxes is to be for the whole year but the tax is payable, not on one occasion, but in two half-yearly instalments on the dates mentioned in Rule 30. The material portion of Direction No. 1 printed at the back of the said bill, according to its agreed translation, contains a direction that on receipt of the bill half of the amount mentioned in the bill towards first instalment be paid within fifteen days from the receipt of the said bill and the rest of the amount towards the second instalment be paid before 15th October, which would in this case be 15th October 1964. The bill, on the face of it, contains diverse items of taxes aggregating to Rs. 167. This is the amount of the property taxes payable to the revision petitioner for the whole official year 1st April 1964 to 31st March 1965. It is merely a fixation of the quantum of the taxes payable in that year but what the bill directs is that within fifteen days from the date of the receipt of that bill the opponent should pay only a half of the said total amount of Rs. 167 towards the first instalment. The fixation of the property taxes for the whole year is in accordance with the provisions of Section 99, read with Section 129, of the new Act. The requirement to pay only a half of the total annual taxes is in accordance with the provisions of Rule 30. The bill and the Directions are in compliance with the provisions of the new Act. The direction to pay only a half of the amount of the taxes as contained in the bill, read with the provisions of Rule 30, clearly shows that at the date when the opponent filed his appeal before the Civil Judge, Senior Division, Sholapur, the only amount claimed by the revision petitioner from the opponent was only Rs. 83.50, that is, a half of the amount of Rs. 107, being the total amount of property taxes for the full year 1964-65. It is therefore clear that the word 'claimed' as used in Clause (e) of Section 406(2) can only mean, and in this particular case refers to, the amount payable for the first half year and not the full amount assessed for the full year.

11. There are, moreover, provisions contained in Rules 39 and 41 which confirm that the amount claimed or claimable can be only the amount due for the first half year in cases where the bill, although it would mention the amount of the taxes for the full year, has been submitted to the assessee before the 1st of October of the relevant official year. Rule 39 refers to the presentation of bills for certain taxes, one of which is property taxes. Sub-rule (1) of Rule 39, in so far as it is relevant, provides that when any property-tax or any instalment of any such tax shall become due, the Commissioner shall, with the least practicable delay, cause to be served on the person liable for the payment thereof a bill for the sum due. Sub-rule (1) of Rule 39 therefore contemplates presentation of a bill 'for the sum due', which would be only the instalment which has become payable according to the provisions of Rule 30. The power of the Commissioner is, therefore, to present the bill for the payment of 'the sum due'. In the light of the provision of Rule 39, at the date when the said bill was presented to the opponent, the only sum due was the said sum of Rs. 83.50, the remaining part of the annual tax amounting to Rs. 83.50 formed part of the second instalment and it would become due only on the 1st of October 1964. The provisions of Sub-rule (1) of Rule 30 show that the revision petitioner was entitled to present a bill only for the first sum of Rs. 83.50, because that was the only sum due, or, to put it in the language of Clause (e) of Section 406(2), that was the only amount which the revision petitioner could claim from the opponent and which, as a matter of fact, was the only sum claimed by the revision petitioner if the bill is read with the contents of the said Direction No. 1 therein. Sub-rule (2) of Rule 39 contains a provision that the bill which is presented in accordance with Sub-rule (1) is to contain a notice of the time within which an appeal may be preferred against such tax and of the consequences of default in payment provided for in Rule 41. Rule 41 provides that if the amount of tax for which any bill has been served is not paid, the Commissioner may cause a notice of demand in Form G to be served upon the assessec for payment of the same and Form G, which is the form for notice of demand, shows that the amount due was intended to be the amount of the tax for the half year. The scheme of the new Act shows that the rateable value is to be fixed before the commencement of the official year from 1st April; that Section 406 requires that the owner of the house must file the appeal within fifteen days after the accrual of the cause of action; that the cause of action would, in the ease of an appeal against rateable value, accrue, under Section 407, on the day on which the complaint made to the Commissioner against such value is disposed of; that such appeal must, of necessity, be disposed of before a bill is served under Rule 39 because the property taxes are to be a percentage of the rateable value and the rateable value itself must first be fixed to enable calculation of the amount of the property taxes; that only thereafter can a bill be presented; that if thereafter the assesses makes a default, a notice of demand in Form G is to be issued under Rule 41; and that if the assessee fails to comply with the notice of demand recovery proceedings would start. The relevant provisions show that the notice of demand and the recovery proceedings must relate to the amount which had become payable which under Rule 30 would be only the amount of the instalment which had become payable. The scheme of the Act shows that at the date when an appeal against the fixation of the rateable value has to be filed the only amount which the Municipal Corporation can 'claim' would be the amount of the taxes payable for the first half-year and not those for the second half year also. It is because of this reason that tie said two phrases occurring in Clause (e) of Section 406(2) are couched in different words. The first phrase 'any property tax assessed' refers to the full amount of the tax for the whole year, but the second phrase which relates to the amount to be deposited, namely, 'the amount claimed from the appellant has been deposited' refers to only the amount payable and therefore claimable in respect of the first half of the official year. In our opinion, therefore, the deposit by the opponent of only the said sum of Rs. 83.50 was a proper compliance with the requirement of deposit contained in the said Clause (e) of Section 406(2).

12. Our attention has, however, been invited to a judgment of Patel J. sitting as a Single Judge in Municipal Corporation, Sholapur v. Anil (1966) 68 L.R. 871. According to that judgment, the amount of deposit required to be made under Clause (e) of Section 406(2) is the full amount of the property taxes for the whole year. Now the part of the judgment relating to the point at present under consideration is very brief. It shows that the only provisions of the new Act which were considered were the said Clause (e) of Section 406(2) and Rule 30. The whole scheme of the Act was not considered. Moreover, the report clearly shows that it was decided ex parte. Mr. Kadam stated, and it also appears from the report, that it was he who appeared on behalf of the revision petitioner in that ease and that the decision was given at the time when he applied for admission of the revision petition. It would, therefore, confirm what Mr. Kadam stated that the said case was decided without a full argument. It was certainly decided without any other view being placed before the learned Judge for his consideration. In our opinion, because of these reasons the learned Judge did not have occasion to consider all the other relevant provisions of the new Act when he reached his conclusion which appears in the judgment. In our opinion, on a fuller consideration of the relevant provisions of the new Act and a fuller argument, with Counsel on the other side being present to represent the other point of view, conclusion reached by the learned Judge appears to us, with respect, to be incorrect.

13. Under the circumstances, as we have held that the opponent had sufficiently complied with the requirement of deposit, the conclusion arrived at by the learned Extra Assistant Judge is correct. We, therefore, reject this revisional application and order that the revision petitioner shall pay the costs of the opponent.


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