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Baroda Municipal Corporation Vs. J.D. Desai, Asstt. Judge and anr. - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR308
AppellantBaroda Municipal Corporation
RespondentJ.D. Desai, Asstt. Judge and anr.
Excerpt:
- - multimedia, or any other material what ever, whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths, doorsteps, walls including compound walls and fencing and the like under section 2 sub-section (28-a), industrial premises means premises including the precincts thereof in any part of which a manufacturing process is being carried on or is ordinarily carried on. 5. these special civil applications, therefore, fail and rule is discharged in each matter with costs-only so far as contesting respondents are concerned and no order as to costs where there is no contest......section 2 sub-section (1a), annual letting value means the annual rent for which any building or land or premises, exclusive of furniture or machinery contained or situate therein or thereon, might, reasonably be expected to let from year to year with reference to its use, and shall include all payments made or agreed to be made to the owner by a person (other than the owner) occupying the building or land or permissions account of occupation, taxes, insurance or other charges incidental thereto. section 127 of the act provides that for the purposes of the act, the corporation shall impose inter alia property taxes under section 129 property taxes shall comprise the taxes mentioned therein, namely, a water tax, a conservancy tax and a general tax we are not concerned with betterment.....
Judgment:

B.J. Divan, C.J.

1. The petitioner in each of these Special Civil Applications is the Municipal Corporation of the City of Baroda and each of these Special Civil Applications has been filed under Article 227 of the constitution challenging the order of the learned Assistant Judge, Baroda, in taxation, appeal matters. The common feature of each of this group of matters is that in each case, the second opponent concerned, being the owner of the property, has got several distinct buildings though standing on one and the same plot of land and the question is whether under the provisions of the Bombay Provincial Municipal Corporations Act, 1949, it was open to the municipal authorities to add up together the rateable values of each of these properties for the purpose of assessment to municipal taxes. We will take up the facts in special civil application No. 118 of 1971 as those facts are typical of the facts in the rest of the cases.

2. The second respondent in Special Civil Application No. 118 of 1971 is a limited company and has constructed premises and a number of buildings near its factory these premises and buildings are given on licence basis by the limited company to the members of its staff. The municipal corporation assessed all the said buildings and premises collectively and the limited company objected stating that all these buildings and premises should not have been assessed in one group and that a separate bill for each building should have been issued. An appeal under the provisions of the municipal Act was presented to the Civil Judge (Senior Division), Baroda, putting forward its contention against the totalling up of the rateable value of all the buildings simply on the ground that they were situated on one and the same plot of land. The learned Civil Judge (Senior Division) accepted the contentions of the second respondent company and by his judgment and order, set aside the bills. He also directed that the municipal corporation shall assess the annual letting value of each of the units separately and shall issue the tax notices accordingly. Against this decision of the learned Civil Judge (Senior Division), the matter was taken up in appeal before the district court, Baroda, by the municipal corporation and the learned assistant judge, Baroda, who heard the appeal ultimately dismissed the appeal with costs the present Special Civil Application has been preferred against this judgment and order of the learned assistant judge.

3. It may be pointed out that in this particular group of cases we are concerned with the provisions of the Bombay Provincial Municipal Corporations Act, 1949, and we will, therefore, refer to the relevant provisions of that Act. Section 2 Sub-section (5) lays down an inclusive definition of the word building and according to that definition, building includes a house, out-house, stable, shed, hut and other enlosure or structure whether of masonry, bricks, wood; multimedia, or any other material what ever, whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths, doorsteps, walls including compound walls and fencing and the like under Section 2 Sub-section (28-a), industrial premises means premises including the precincts thereof in any part of which a manufacturing process is being carried on or is ordinarily carried on. Section 2 Sub-section (46) defines the word premises as including messages buildings and lands of any tenure whether open or enclosed, whether built on or not and whether public or private. Section 2 Sub-section (49) defines properly tax to mean a tax on buildings and lands in the city under Section 2 Sub-section (30) land includes land which is being built upon or is built upon or covered with water benefits to arise out of land things attached to the earth or permanently fastened to anything attached to the earth and rights created by legislative enactment over any street. Section 2 Sub-section (53) defines rack rent to mean the amount of the annual rent. For which the premises with reference to which the term is used might reasonably be expected to let from year to year as ascertained for the purpose of fixing the rateable value of such premises under Section 2 Sub-section (54) rateable value means the value of any building or land fixed, whether with reference to any given premises or otherwise, in accordance with the provisions of the Act and the rules for the purpose of assessment to property taxes and under Section 2 Sub-section (1A), annual letting value means the annual rent for which any building or land or premises, exclusive of furniture or machinery contained or situate therein or thereon, might, reasonably be expected to let from year to year with reference to its use, and shall include all payments made or agreed to be made to the owner by a person (other than the owner) occupying the building or land or permissions account of occupation, taxes, insurance or other charges incidental thereto. Section 127 of the Act provides that for the purposes of the Act, the corporation shall impose inter alia property taxes under Section 129 property taxes shall comprise the taxes mentioned therein, namely, a water tax, a conservancy tax and a general tax we are not concerned with betterment charges so far as the present case is concerned Section 130 deals with water tax, Section 127 with conservancy tax and on what premises it shall be levied and Section 132 with general tax. Under Section 453 the rules in schedule a as amended from time to time shall be deemed to be part of the Act. Under Section 454 the corporation may add to schedule a rules not inconsistent with the provisions of the Act (which expression shall in this section be deemed not to include the said schedule (a) to provide for any matter dealt with or for any of the purposes specified in the said schedule a and may, subject to the same limitations, amend, alter or annul any rule in the said schedule a under Section 455 the power to make, add to or alter or rescind any rule under Section 454, shall be subject to the condition of the rules being made after previous publication. All rules made under Section 454 shall be finally published in the official gazette and shall there upon have effect as if enacted in the Act. In addition to the publication in the official gazette, the corporation may determine in each case what further publication, if any, is required for rules made or proposed to be made schedule a to the Act contains different rules as contemplated by Section 453 and chapter viii of schedule a contains taxation rules. We are concerned in the present case with Rules 7, 9 and 11. Under Rule 7 in respect of industrial premises and in respect of any other premises, which the Commissioner may decide to treat as one property having regard to the nature of the premises and the use or uses to which they are put or are capable of being put the rateable value of the buildings and land comprised in such premises shall be determined premises-wise. For the purpose of fixing the rateable value, different parts of any premises may be valued according to their use. In order to fix the rateable value of any building or land or premises assessable to a property tax there shall be deducted from the amount of the annual rent for which such building land or premises might reasonably be expected to let from year to year a sum equal to ten per cent of the said annual rent and the said deduction shall be in lieu of all allowances for repairs or on any other account whatever. Rule 9 provides for keeping of an assessment book by the Commissioner and sets out in detail what should be contained in the assessment book. Rule 11 is in these terms:

11. (1) when any building or land or premises is let to two or more persons holding in severalty, the Commissioner may, for the purpose of assessing such building or land or premises to the property taxes, either treat the whole thereof as one property, or with the written consent of the owner of such building or land or premises, treat each several holding therein or any two or more of such several holdings together, or each floor or flat, as a separate property.

(2) when the Commissioner has determined to treat all the several holdings comprised within any one building or land or premises under this section as one property, he may subject to any general conditions which may from time to time be prescribed by the standing committee in this behalf at anytime not later than seven days before the first day of any half year for which an instalment of general tax will be leviable in respect of the said property, sanction a drawback of one-fifth part of the general tax so leviable.

(3) every person who applies for a draw back under Sub-rule (2) shall furnish to the Commissioner full and correct information regarding the property in respect of which the claim for drawback is made and the several holdings comprised therein in such form and with such particulars as may be required by the Commissioner in accordance with the general conditions prescribed in this behalf by the standing committees.

4. Now we are concerned in this group of Special Civil Applications with several buildings, each distinction itself situated on one plot of land it is no ones case that any particular building is let to-two or more persons in this group of matters. What is let out by the owner of the property is each separate building by itself and the land on which the building stands also forms part of the tenancy or is governed by the licence as the case might be. It is no doubt true that the word land in the definition section as we have pointed out above, includes land which is being built upon or is built upon but it must not before gotten that the building as such is each individual building and it is no ones case so far as these facts are concerned that any particular building owned by the same owner is let to two or more persons. The material words this section, in our opinion, in are any building. The material words of Rule 7 have also to be borne in mind and these words are that for the purpose of determining the rateable value in respect of other premises, that is, in respect of premises other than industrial premises which the Commissioner may decide to treat as on property having regard to the nature of the premises and the use or uses to which they are put or are capable of being put the rateable value of the buildings and lands comprised in such premises shall be determined premises-wise we are not concerned in the present case with industrial premises and under Section 2 Sub-section (46), as pointed out above, premises includes buildings. Therefore, Rule 7 requires that the Commissioner must decide to treat premises other than industrial premises as one property having regard to the nature of the premises and the use or uses to which they are put or are capable of being put. It is, therefore, clear when one reads Rule 7 with Rule 11 that there must be a letting out of any building or premises to two or more persons and it is only when there is such letting to two or more persons holding in severally, that the Commissioner gets the power under Rule 11 to treat either the whole property as one property or, with the written consent of the owner of such building or land or premises, to treat each several holding therein or any two or more of such several holdings together, or each floor or flat, as a separate property. In our opinion, since each building under consideration in this group of cases is a separate building by itself and a separate premises by itself, it is not possible for us to hold that the Commissioner had the power to treat all these different buildings as one unit for taxation purposes by grossing up the annual rental value of each of those buildings. Of course, if there are outhouses, stable etc. Attached to one particular building, they will all be considered as one building for the purpose of assessing and fixing of the annual letting value but when there are several houses given to different individuals, each separate from the other by a wire fencing, it cannot be said that they are one building, and the power of the municipal Commissioner to gross annual letting value under Rule 11 can only arise when one and the same building is let to two or more persons. Under these circumstances the conclusion arrived at by the learned Civil Judge (Senior Division) Baroda and the learned Assistant Judge, Baroda, was correct and it must be held that the Commissioner was not entitled to total up the rateable value or annual letting value of each of these buildings just because they belonged to the same owner and were situated on one and the same plot of land.

5. These Special Civil Applications, therefore, fail and rule is discharged in each matter with costs-only so far as contesting respondents are concerned and no order as to costs where there is no contest.


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