Basappa Rudrappa Betgeri & Ors Vs.
Hubli Dharwar Muncipal Corporation [1971] INSC 126 (27 April 1971)
BHARGAVA, VISHISHTHA BHARGAVA, VISHISHTHA
SHELAT, J.M.
DUA, I.D.
CITATION: 1971 AIR 1427 1971 SCR 535
ACT:
Bombay Municipal Boroughs Act, 1925, ss. 73,
85-Levy of house tax by municipality on lessees of buildings owned by
municipality-Validity of levy.
HEADNOTE:
The respondent Corporation was originally
constituted as a Borough under the Bombay Municipal Boroughs Act, 1925 having
been converted into a Corporation in 1962. The Borough owned several buildings
in the area of its jurisdiction and some of these were given on lease to the
appellants in 1953.
The leases were renewed in 1955. Neither in
the original leases nor in the fresh leases was there any mention of the
liability of the tenants to pay the house tax. Subsequent to the execution of
the fresh leases bills were received from the respondent by the appellants
calling upon them to pay the house tax imposed in respect of the buildings
belonging to the respondent which were on lease with the appellants. The
appellants filed a suit challenging the legality of the imposition of this
house tax. The main ground taken was that the Municipality could not impose a
house tax on buildings owned by itself. The trial court held that the
respondent was not competent to levy from the tenants any sum in excess of the
agreed rents and that in the circumstances of this case notice under s. 206-A
of the Act was not necessary. The Additional District Judge in appeal agreed
that the levy was not valid but held the suit not to be maintainable for want
of a notice under s. 206-A.
The High Court in second appeal held that the
levy was valid and that a notice under s. 206-A was necessary. In appeal by
special leave to this Court,
HELD: There is nothing in the scheme of the
Act to indicate that buildings belonging to the municipality itself cannot be
subjected to the house-tax which can be imposed under s. 73 of the Act. The
language of s. 85 specifically envisages imposition of such a tax on buildings
belonging to the municipality. It clearly lays down that such a tax shall be
leviable primarily from the actual occupier of the property on which the tax is
assessed, even if he holds it on a lease from the municipality. The fixation of
such responsibility primarily on the occupier holding a building on lease from
the municipality could only be laid down on the basis that the buildings owned
by the municipality can be subjected to the tax. Once the tax is imposed on
such a building it would be payable by the occupier if he holds it as a lessee
of the municipality. There is nothing anomalous in such taxation because the
tax is not levied by the municipality on itself but on the lessee.
[On the above view the court did not find it
necessary to decide whether before the filing of the suit by the appellants a
notice under s. 206-A of the Act was necessary.]
CIVIL APPELLATE JURISDICTION :Civil Appeal
No. 2206 of 1966.
Appeal by special leave from the judgment and
order dated February 23. 1966 of the Mysore High Court in Second Appeal No. 888
of 1961.
536 S. V. Gupte Naunit Lal S.S. Khanduja and
Swaranjit Sodhi for the appellants.
K. R Chaudhuri, for the respondent The
Judgment of the Court. was delivered by Bhargava, J.-This appeal by special
leave arises out of a suit challenging the validity of imposition of house-tax
and notices issued for realisation of that tax from the appellants. The
respondent, the Hubli Dharwar Municipal Corporation, was originally constituted
as a Borough under the Bombay Municipal Boroughs Act, 1925 (hereinafter
referred to as "the Act"). At the relevant time, when the disputes
leading to the suit arose, it was still a Borough, but it became a Corporation
subsequently in the year 1962.
The Borough owned several buildings in
Dharwar. Some of these buildings were given on leases', to the appellants.
These leases were executed in favour of the
appellants by the ]Borough some time in March and April, 1953.
Thereafter, by a General Committee Resolution
No. 36 dated 29th June, 1953, the Borough decided to recover house-tax and
other municipal taxes from the private individuals who were tenants of the
municipal buildings leased out to them.
In pursuance of this Resolution, a notice was
issued by the President of the Borough that all the citizens in occupation of
the buildings owned by the Municipality must pay the taxes assessed on them in
respect of the premises under their occupation. On 9th September, 1953, the
appellants preferred joint objections against the levy of the house-tax and its
realisation from them. On 9th September, 1954, the Government of Bombay
sanctioned the amendment to the then existing Housetax-Rules framed under the
Act in respect of this Borough, and the General Committee passed a Resolution
on the 19th February, 1955 sanctioning the levy of taxes on Municipal owned
buildings, adopting the sanctioned taxes and bringing them into force with
effect from 1st April, 1955 by giving necessary public notice as required by
law. Notice under section 77 was published on 25th February, 1955 and then the
taxes came into force on 1st April, 1955. Thereafter, fresh lease-deeds were
executed by the respondent in favour of the appellants on 11th May, 1955. It
may be mentioned that, neither in' the original leases of 1953, nor in the
fresh leases of 1955, was there any mention about liability of the tenants to
pay the housetax. Subsequent to the execution of these fresh leases, bills were
received from the respondent by the appellants calling upon them to pay the
house-tax imposed in respect of the. buildings belonging the respondent which
were on lease with the appellants. The appellants thereafter filed the suit out
of which the present appeal has arisen, challenging the legality of the
imposition of the tax. The main ground taken was that the 537 Municipality
could not impose a house-tax on buildings owned by itself, so that the
imposition of-this house-tax was invalid in law. 'The suit was resisted on the
plea that it was a valid taxation. A further defence was taken that the suit
was bad for failure, on the part of the appellants to give notice to the
respondent under section 206-A of the Act. The trial Court decreed the suit,
holding that the respondent was, not legally competent to levy from the
tenants, any sum in excess of the agreed rents, and the bills issued for
recovery of excess were not valid and that, in the circumstances of this case.
notice under s. 206-A of the Act was not necessary. On appeal the and
Additional District Judge agreed with the trial Court that..the levy of the tax
was not justified, but held that the suit, without a proper notice under
section 206-A of the Act was not maintainable He therefore, allowed the appeal
and dismissed the suit with costs. On second appeal, the High Court of Mysore
upheld the dismissal of the suit, but on both the grounds, viz., that the tax
was validly levied, and that the suit was not maintainable for want of proper
notice under section 206-A of the Act. It is against this decision that the
appellants have come up to this Court. It may be mentioned that the appellants
sued the Borough in a representative capacity as representing all the tenants
of buildings belonging to the Borough.
Learned counsel for the appellants took us
through the various provisions of the Act and relied on the scheme of the Act
to urge that a Municipality could not tax its own buildings. The power to
impose a tax on buildings is contained in section 73 of the Act, the relevant
portion of which is as follows "73. (1) Subject to any general or special
orders which the State Government may make in this behalf and to the provisions
of sections 75 and 76 a municipality may impose for the purposes of this Act
any of the following taxes, namely :(1) a rate on building or lands. or both
situate within the municipal borough;" A proviso to this provision,, which
is relevant, may also be quoted:
"-Provided further that:
(a) no tax imposed as aforesaid, other than a
special sanitary cess, a drainage tax or a water-rate, shall,without the
express consent of, the Government be leviable in respect of any building or
part of any building or of any vehicle, animal or other property, belonging to
Government and used solely for public purpose and not used or intended to be
used for proposes of profit; and no toll shall be leviable in respect of any'
animal or vehicle 538 used for the passage of troops or the conveyance of
Government stores or of any other Government property, or for the passage of
military or police-officers on duty or the passage or conveyance of any person
or property in their custody, Section 74 then provides for payment of an ad hoc
sum ascertained in the manner provided in that section by the Government or
district local board in lieu of a rate on buildings vesting in the Government or
in the district local boards which are exempted under clause (a) of the proviso
quoted above. Section 75 then lays down the procedure for imposition of the tax
and s. 75(c) gives the right of filing objections to the inhabitants of the
borough. It may be noted that the right of Ming objections is not confined only
to owners of buildings, but is granted to inhabitants of the borough which will
not exclude the Government or the district local board in respect of their
buildings which may not satisfy the requirements of the proviso to section 73
inasmuch as they may not be actually used for public purposes and, hence, may
be liable to be taxed. Section 78 makes provision for preparation of an
assessment list and requires that that list should contain the names of the
owner as well as occupier, if known. Section 79 deals with cases where the
person primarily liable for payment of this tax cannot be ascertained, and
makes it sufficient to designate him in the assessment book/as "the
holder" of such premises without further description. Section 80 lays down
the manner in which the completed assessment list is to be published and gives
a right to every person claiming to be either the owner or occupier of property
included in the list, and any agent of such person, to inspect the list and to
make extracts therefrom without charge. Finally, attention was drawn to the
provisions of section 85, which lays down who is to be primarily responsible
for payment of the tax, in the following language:"85. A tax imposed in the
form of a rate on buildings or land or both. shall be leviable primarily from
the actual occupier of the property upon which the tax is assessed if he is the
owner of the property, or holds it on a building, or other lease from the
Government or from the municipality, or on a building lease from any person.
Otherwise the tax shall be primarily leviable as follows, namely :(a) if the
property is let from the lessor;
(b) if the property is sublet, from the
superior lessor, (c) if the property is unlet, from the person in whom the
right to let the same vests 539 We are unable to agree, with learned counsel
for the appellants that this scheme of the Act contains any indication that
buildings belonging to the municipality itself cannot be subjected to the house-tax
which can be imposed under section 73 of the Act. In fact, the language of
section 85 specifically envisages imposition of such a tax on buildings
belonging to the municipality. It clearly lays down that such a tax shall be
leviable primarily from the actual occupier of the property on which the tax is
assessed, even if he holds it on a lease from the municipality. The fixation of
such responsibility primarily on the occupier holding a building on lease from
the municipality could only be laid down on the basis that the buildings owned
by the municipality can be subjected to the tax. Once the tax is imposed on
such a building, it would be payable by the occupier if he holds it as a lessee
of the municipality. The same-principle applies in the case of buildings held
on a lease from the Government. It may be noted that all Government buildings
are not exempted from the tax. Only those buildings are exempted which are used
solely for public purposes and are not used or intended to be used for purposes
of profit. Learned counsel urged that it is anomalous that a, municipality
should be permitted to impose tax on buildings owned by itself But this
argument loses sight of the fact that the tax is primarily payable by the
occupier and not by the owner. The purpose of imposition of tax by a,
municipality on its own buildings is to ensure that it is paid by the lessees
of those buildings.
Of course, if the building is not on lease,
the imposition of the tax would serve no purpose at all. That, however, will
not make the imposition of tax by the municipality on its own buildings invalid
which imposition will be really effective whenever that building is given out
on lease to any other person. In these circumstances, we fully agree with the
High Court that the tax was validly imposed and the suit challenging its
realisation from the appellants had to fail.
In view of our decision on the validity of
the tax, the question whether a notice under section 206-A of the Act was
necessary or not becomes immaterial. The appeal fails and is dismissed with
costs.
G.C. Appeal dismissed.
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