The Cantonment Board, Ambala Cantt. Vs.
Dipak Parkash & Ors  INSC 121 (3 April 1962)
03/04/1962 GUPTA, K.C. DAS GUPTA, K.C. DAS
CITATION: 1963 AIR 963 1963 SCR Supl. (1) 196
House Tax-Occupation of building by Military
Officer whether occupation of Central Government-Cantonment Acts, 1924 (20 of
1924), ss. 65, 84 (2), 99(2)-Cantonments (House Accom- modation) Act, 1923 (6
of 1923), ss. 5 , 6, 7, 11, 12.
One-half of bungalow No. 127-B, Bank Road,
Ambala Cantt., was taken on lease by the Central Government and was being used
by some Military Officer for his Residence The Assessment Committee of 'the
Cantonment Board, Ambala, made an assessment of house-tax but the assessment
list was signed Originally by three out of four persons who formed the
assessment committee and was signed by the fourth a few days later. The officer
bearing the appeal entertained reasonable doubt and made a reference to the
High Court under s.84(2) of the Cantonments Act, 1924, for the decision of
those questions. The questions referred to the High Court were :- (1) Whether
the occupation of the property by a Military Officer amounts to a user thereof
for public purposes.
(2) Whether the occupation of the Military
Officer of the portion of the bungalow appropriated under Act VI of 1923
amounts to its occupation by the Central Government within the meaning of s.
99(2)(f) of the Cantonment Act, 1924.
(3) Whether the authentication of assessment
list in the present form is valid as required by the provisions of s. 96 of the
Cantonments Act, 1924.
The High Court answered the two questions in
the affirmative and the third in the negative. The opinion of the High Court
was that the occupation of the property by the Military officer amounted to
user for public purpose and also amounted to occupation by the Central
Government and the authentication was valid. Against the decision of the High
Court on the second questions the Cantonment Board went in appeal to the
Supreme Court on the strength of a certificate granted by the High Court.
197 Held,, that the building in question was
in occupation of the Central Government through the Military Officer whom it
had permitted to reside in it. Where the person entitled to occupy, permits
some other person to be in the building, he is in actual occupation through the
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 538 of 1960.
Appeal from the judgment and order dated
September' 3, 1958, of the Punjab High Court in Civil Reference No. 2 of 1956.
B. Sen, D. Gupta and P. D. Menon for the
The respondent did not appear.
1962. April 3. The Judgment of the Court was
delivered by DAs GUPTA, J.-In an appeal against the assessment of house tax of
bungalow No. 127-B, Bank Road, Ambala Cantonment, by the assessment committee
of the Cantonment Board, Ambala, three questions arose as regards the liability
of the assessee on which the officer bearing the appeal entertained reasonable
doubt and accordingly made a reference to the High Court of Punjab under a. 84
(2) of the Cantonments Act, 1924, for the decision of these questions.
Admittedly half of this Bungalow had been.
appropriated under the provisions of the Cantonments (House Accommodation) Act
No. VI of 1923 on a lease by the Central Government and was being used at the
relevant time by some military officer for his residence. It was also admitted
that the assessment list was signed originally by three of the four persons who
formed the assessment committee and was signed by the fourth member a few days
later. The appellate officer set out these circumstances in 198 his statement
and then formulated the three questions thus .lm15 "1. Whether the occupation
of the property by a Military Officer under the above circumstances amounts to
user thereof for the public purpose.
2. Whether the occupation of the Military
officer of the portion of the Bungalow appropriated under Act No. 6 of 1923
amounts to its occupation by the Central Government, within the meaning of a.
99 (2)(6) of the Cantonments Act, 1924.
3. Whether the authentication of the
Assessment list in the present case is valid as required by the provisions of
Section 69, Cantonments Act, 1924".
The appellate officer who is required by s.
84 (2) to state his own opinion on the points referred stated that in his
opinion the occupation by the Military Officer, did not amount to user for a
public purpose nor did it amount to occupation by the government and further
that authentication of the assessment list was valid.
The High Court answered the two questions in
the affirmative and the third in the negative. In other words, the High Court's
opinion is that the occupation of the property by the Military Officer amounts
to user or the public purpose an also amount to occupation by the Central
Government within the meaning of s. 99 (2) (f) of the Cantonments Act and that
the authentication was valid.
Against the High Court's decision on- the
second question the Cantonment Board has filed this appeal on the strength of a
certificate granted by the High Court.
199 The assessee was not represented before
us but we were taken through all the relevant provisions of law by Mr. Sen who
appeared for the Cantonment Board. For a proper decision of the question in
controversy it is necessary first to take note of the scheme of appropriation
of houses under the Cantonments (House Accommodation) Act, No. VI of 1923.
Under s. 5 every house situate in a
Cantonment is liable to appropriation by the Central Government on a, lease in
the manner and subject to the conditions provided in the Act.
Section 6 provides that (a) where a military
officer stationed in the Cantonment or a President of a military mess in the
Cantonment applies in writing to the officer commanding of the Station that he
is unable to secure suitable accommodation by private agreement and no
government property is available for the purpose and the Officer Commanding is
satisfied of the truth of the facts stated or(b) the Officer Commanding is satisfied
on enquiry that there is not in the cantonment a sufficient and assured supply
of houses available at reasonable rates of rent by private agreement, the
Officer Commanding may serve a notice on the owner of any house which appears
to him to be suitable requiring him to permit the house to be inspected,
measured and surveyed. Under s. 7 if a Officer Commanding is satisfied
thereafter that the house is suitable for occupation by a military officer or a
military mess, he may by notice require the owner to execute a lease of the
house to the Central Government; require the .existing occupier, if any, to
vacate the house; and require the owner to execute the necessary repairs. The
section further provides that on the expiry of the lease the house shall be re-
delivered to the owner in a state of reasonable repair.
Section 11 of the Act provides that if a
house is unoccupied, a notice under s. 7 may require the owner to give
possession of the same to the Officer Commanding within 21 days from the
service of the notice and 200 if a house is occupied, a notice issued under s.
7 shall not require its vacation in less than thirty days from the service of
the notice. Section 12 provides that if the owner fails to give possession of a
house to the Officer Commanding in pursuance of a notice issued under s. 7, or
if the existing occupier fails to vacate a house in pursuance of such a notice,
the District Magistrate, shall enter the premises and enforce the surrender of
It is clear from this resume of some of the
provisions of the Act that where as the appropriation can take place under the
conditions mentioned in s.6" what happens on the appropriation having been
made is that the house is made over to the possession of the Officer Commanding
on behalf of the Central Government. What if; done with the house thereafter is
not dealt with by the Act.
Coming now to the provisions of the Cantonments
Act, 1924, we have to consider first s. 65, which is in these words :-
"65. Save as otherwise expressly provided in the notification imposing the
tax, every tax assessed on the annual value of buildings or lands or of both
shall be leviable primarily upon the, actual occupier of the property upon which
the said tax is I assessed, if he is the owner of the buildings or lands or
holds them on a building or other lease granted by or on behalf of the
government or the Board or on a building lease from any person.
2. In any other case, the tax shall be primarily
leviable as follows, namely a) if the property is let, upon the' lessor;
(b) if the property is sub-let, upon the
(c) if the property is unlet, upon the 201
person in whom the right to let the same rests.
3. On failure to recover any sum due on
account of such tax from the person primarily liable, there may be recovered
from the occupier of any part of the buildings or lands in respect of which the
tax is due such portion of the sum due as bears to the whole amount due the
same ratio which the rent annually payable by such occupier bears to the
aggregate amount of rent so payable in respect of the whole of the said
buildings or lands, or to the aggregate amount of the letting value thereof, if
any stated in the authenticated assessment list.
4. An occupier who makes any payment for
which he is not primarily liable under this section, in the absence of any
contract to the contrary, be entitled to be reimbursed by the person primarily
liable for the payment, and, if so entitled, may deduct the amount so paid from
the amount of any rent from time to time becoming due from him to such
person." The right to impose the tax is conferred by a.
60. Section 99 (2) contains the provisions
for exemption from the tax on property. It is in these words:
"The following buildings and lands shall
be exempt from any tax on property other than a tax imposed to cover the cost
of specific services rendered by the Board, namely :- (a) places set apart for
public workshop and either actually so used for no other purpose;
(b) buildings used for educational purposes
202 and public libraries, play-grounds and dharam salas which are open to the
public and from which no income is derived;
(c) hospitals and dispensaries maintained
wholly by charitable contributions;
(d) burning and burial grounds, not being the
property of the Government or a Board, which are controlled under the
provisions of this Act;
(e) buildings or lands vested in a Board;
and ( f) any buildings or lands,used or
acquired for the public service or for any public pur- pose,which are the
property of the State or in the occupation of the central or any State
The tax in the present case is not one
imposed to cover the cost of specific services rendered by the Board and so if
the property falls within any of the clauses mentioned in cis. (a) to (f) it
will be entitled to exemption. We are not concerned, however, with cls. (a) to
(e) as the only claim to exemption which has been made by the owner of the_
property is that it falls within el. (f). The question is whether that claim is
It appears to us to be clear that to be
entitled to the exemption under el. (f) the building or land must satisfy two
conditions. First, that it has 'been used or acquired for public service or for
public purpose, and secondly, that it is either the property of the State or in
the occupation of the Central or any State Government. The finding of the High
Court that the building was being used at .the relevant date for a public
purpose is not disputed before us. That question therefore need not be further
considered. What-is disputed however is : Was it in the occupation of the
Central 203 Government ? On behalf of the appellant, the Cantonment Board, Mr.
Sen has strenuously urged that the portion of the building with which we are
concerned in this appeal was in fact being occupied by a Military officer and
such occupation is not occupation of the Government. It is to be made clear
that while it is known that this portion of the building was appropriated by
the government on lease under s. 7 of the Cantonments ( House Accommodation)
Act, it is not the appellant's case that the occupation of the Military Officer
was as a sub-lessee of the government. Mr. Sen's argument proceeded on the
basis that the government being the lessee of this portion of the building
permitted a Military Officer to occupy it. The question we have to consider is
whether oil such occupation by the Military Officer the building ceased to be
in ',-,he occupation of the Central Government, the lessee.
It is worth noticing that while s. 65 (1)
speaks of actual occupation by the owner and makes the tax primarily leviable
on the owner if he is the actual occupier, s. 99(2) uses the words ((in the
occupation of the Central or any State Government" and not "in the
actual occupation of the Central or the State Government". Even so, it has
been argued by Mr. Sen that the word "occupation" without anything
more, should ordinarily be interpreted as actual occupation.
While this may be correct, we find it
difficult to agree that when a person, entitled to actual occupation by reason
of his lease permits another to occupy it, then it ceases to be in the actual
occupation of the person so permitting.
Where the Central or the State Government
after obtaining the lease under s.7 leases it out to any person, it is itself
not entitled to actual occupation but has to put the sub-lessee into
occupation. In such a case it may be reasonably said that the government has
ceased to be in occupation.
204 In the case where the government after
taking the lease merely gives a licence to some person to come and live in it,
it is entitled to take away the permission at any time and thus to come into
We can see no reason for thinking that in
such a case the fact that the person to whom permission has been given is
residing in the building, makes it any the less the actual occupation of the
government. If that was so, the fact that the Military Officer may be away for
months together and the members of his family or his servants are residing
would make the building cease to be in occupation of the Military Officer. That
is on the face of it absurd. In our opinion, where the person entitled to
occupy, permits some other person to be in the building, he is in actual
occupation through such other person.
Accordingly, we are of opinion that the
building in question was in occupation of the Central Government through the
Military Officer whom it has permitted to reside in it.
The answers given by the High Court were
The appeal is accordingly dismissed. But, as
there was no appearance for the other side, there will be no order as to costs.