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1973 Supreme(Bom) 52
IN THE HIGH COURT OF BOMBAY
(J. R. Vimadalal J.)
SHOLAPUR MUNICIPAL CORPORATION -Appellant.
v.
UMAKANT SHANKARRAO BHAGWAT -Respondent.
Advocate Appeared
For appellants - B.N. Naik.
For respondent - U. R. Lalit.
Non-compliance with the notice served under Rule 8(1) of the Rules contained in the Schedule to the Bombay Provincial Municipal Corporations Act, 1949, bars the assessee from filing an appeal under section 406 of the Act.
Headnote:
BOMBAY PROVINCIAL MUNICIPAL CORPORATIONS ACT, 1949 - SECTION 406, 453, RULE 8 - ASSESSMENT OF RATEABLE VALUE - FAILURE TO COMPLY WITH NOTICE UNDER RULE 8(1) - PRECLUSION FROM FILING APPEAL - INTERPRETATION OF MANDATORY PROVISIONS - WAIVER OF COMPLIANCE.
Fact of the Case:
The Sholapur Municipal Corporation filed a revision application challenging the order of the Assistant Judge confirming the fixation of annual letting value by the Joint Civil Judge. The opponent, owner of the building, constructed three additional floors for a cinema theatre and executed a lease agreement for the same. The Municipal Commissioner served a notice under Rule 8(1) of the Rules contained in the Schedule to the Bombay Provincial Municipal Corporations Act, 1949, requiring the opponent to furnish information for determining the rateable value. The opponent did not comply with the notice. The Commissioner revised the rateable value and issued a supplementary bill. The opponent filed a complaint, which was confirmed. He appealed to the Joint Civil Judge, who reduced the letting value. On further appeal, the Assistant Judge modified the figure.
Finding of the Court:
The Court held that the opponent was precluded from filing an appeal under section 406 of the Act due to non-compliance with the notice served under Rule 8(1). Rule 8(3) expressly provides that non-compliance with the notice bars the assessee from objecting to the assessment made by the Commissioner. This bar comes into effect after the assessment is made and applies to the filing of an appeal under section 406. The Court rejected the assessee's arguments that Rule 8 is directory, not mandatory, and that the Municipal authorities waived compliance with Rule 8(1).
Issues: 1. Whether the assessee was precluded from filing an appeal under section 406 of the Act due to non-compliance with the notice served under Rule 8(1)? 2. Whether Rule 8 is mandatory or directory? 3. Whether the Municipal authorities waived compliance with Rule 8(1)?
Ratio Decidendi: 1. Rule 8(3) of the Rules contained in the Schedule to the Bombay Provincial Municipal Corporations Act, 1949, expressly provides that non-compliance with the notice served under Rule 8(1) bars the assessee from objecting to the assessment made by the Commissioner. This bar comes into effect after the assessment is made and applies to the filing of an appeal under section 406 of the Act. 2. Rule 8 is mandatory and not directory, as the consequence of non-compliance is expressly specified in sub-rule (3) thereof. 3. The Municipal authorities did not waive compliance with Rule 8(1), as the assessee was free to file a complaint against the assessment in proceedings under Rule 15 of the said Rules even though he may not have complied with the notice under Rule 8(1).
Final Decision: The revision application was allowed. The orders passed by both the lower Courts were set aside, and the fixation of rateable value by the Commissioner was held to have become final by virtue of the provisions of section 413 of the Act.
2. The present opponent is the owner of the building in question which is situate in Sholapur. The said building originally consisted of a ground floor and amezzenine floor in respect of which, for the year 1964.65, the rateable value had been fixed at Rs. 15,550. The opponent carried on some additional construction and three more floors were added. on that building, which were designed for housing a cinema theatre, that construction being completed on August 18, 1964 On September 17, 1964, an agreement for lease for a period of 7 years (exh. 46) was executed between the opponent and a firm entitled Bhagwat Theatres in which the partners were the opponent himself, his two brothers and his father. The rent of the said three newly constructed floors which were agreed to be let as aforesaid was fixed by the said agreement for lease at Rs. 1,750 per month, one of the terms of lease being, that the lessees were to incur the necessary cost for the fittings and fixtures that would be required for using the said premises as a theatre. In due course, a lease (exh. 36) was executed and registered on March 26. 1965 consequent on that agreement for lease.
3. On October 28, 1964, the present opponent was served with a notice under rule 8 (1) of the Rules contained in the schedule to the Bombay Provincial Municipal Corporations Act, 1949 which, under section 453 thereof, are to be deemed to be part of the Act itself. The said notice, which was signed by the fax Superintendent under powers delegated to him by the Commissioner, called upon the present opponent to furnish, within the time specified therein, certain information which 'Was required by the Commissioner to enable him to determine the rateable value of the said building. It is common ground that the present opponent did not comply with that notice and did not furnish the required information in response to the same, though it is his case that some of that information was subsequently furnished by him orally to some officers of the corporation when they came on the site for inspection. On March 12, 1965 the Assessor and Collector revised the rateable value of the said building and fixed it, for the assessment year 1964.65, 'at Rs. 1.00,330, as already stated above. - By a notice dated March 13, 1965 issued under rules 15 (2) and 20 (2) of the said Rules, the present opponent was informed of the revised rateable value fixed by the Assessor and Collector and was informed that any complaint against the same should be filed within the prescribed time. On March 29, 1965 the present opponent filed his complaint and he was given a hearing in respect of that complaint on March 31, 1965. after which the rateable value as fixed on March 12, 1965 was confirmed. A supplementary bill for the assessment year 1964·65 was, in due course, affixed to the premises. It is from that order that the proceedings above referred to ensued. It is unnecessary for me to set them out again.
4. It would be convenient to refer to the relevant statutory provisions
