1994 Supreme(Guj) 247

Gujarat High Court
Judgename :B.N.KIRPAL, R.K.Abichandani
MUNICIPAL CORPORATION OF AHMEDABAD - Appellant
Versus
ORIENTAL FIRE and GENERAL INSURANCE COMPANY LIMITED - Respondent
C.A. 829 of 1983
Decided On : 09/08/1994

Headnote:(a) Bombay Provincial Municipal Corporation Act, 1949 - Secs. 2(1A)(ii), 127 & 129 - Bombay Rents, Hotel and Lodging Houses Rate Control Act, 1947 - Secs. 5(10) & 11 - `Rateable value and `annual letting value - Determination - Self occupied and rented premises - In case of self occupies premises `annual letting value is the rent at which premises might reasonable be let - Same criteria applicable in case of tenanted premises prior to 1.4.1984 - However, after 1.4.1984 the actual rent received by landlord is determinating factor for ascertaing `annual letting value of rented premises.

        (1)

       In the case of self-occupied premises, the rateable value has to be arrived at by applying the principles enunciated by the Supreme Court in Devan Daulat Rai Kapoor and Dr. Balbir Singhs cases and the decision of this Court in the case of Rajnikant Jeshingbhai Sheth & Ors.;

       (2)

       In the case of tenanted premises for the period prior to 1-4-1984, applying the principles of Devan Daulat Rai Kapoor and Dr. Balbir Singhs cases, the first rent fixed is the standard rent and if no order under Section 11 of the Rent Act is passed, then that rent will be the annual letting value;

       (3)

       In the case of tenanted premises after 1st April, 1984, in view of proviso (aa) to Section 2(1A)(ii), the contractual rent will be the annual rent;

       [Para 82]

       (b) Bombay Provincial Municipal Corporation Act, 1949 - Secs. 139, 140 & 141 - Taxation Rules (Framed under BPMC Act) - Rules 8 & 12 - Property tax - Liability of payment - Primary liability is that of lessor - Shift to tenant in certain cases - Tax due for more than one year cannot be recovered from tenant - Held, liability of tenant not to exceed the amount of rent due.

       The person primarily liable under Section 139(1)(b) is the lessor or the superior lessor. This liability, however, shifts to the occupier at the stage of assessment, and before the raising of the bill only when the provisions of Rule 12(2) are attracted. If true information with regard to the name of the person, who is primarily liable, is not given by the person in occupation of the premises, then sub-rule (2) of Rule 12 makes the occupier himself to be liable for all property taxes leviable. The liability to pay property tax, according to Section 139(1) in case of tenanted premises, is on the lessor. It is the name of the person, who is primarily liable, which is to be entered in the assessment book, as provided by Rule 9(c). The Act, in contradistinction to the Rules, contemplates realisation of property tax from the tenant under Section 140(1) in a case only after bill has been submitted to the lessor and the same remains unpaid. The stage of Rule 15(2) is prior in point of time to the raising of the bill. Under the Act, the liability to pay property tax is fastened on the occupier or the tenant only under the provisions of Section 140. The demand for property tax can be made only after the assessment book has been finalised and a bill raised.

       [Paras 56 & 57]

       (c) Bombay Provincial Municipal Corporation Act, 1949 - Taxation Rules - Rule 15(2) - Notice under - Held, special notice is mandatory.

       Special notice under Rule 15(2) is mandatory and if it is not given, the assessment will be set aside, but the Small Causes Court should itself decide as to what should be the rateable value after recording necessary evidence.

       [Para 82]

       (d) Bombay Provincial Municipal Corporation Act, 1949 - Rules 12, 15 & 16 - Appeal - Challenging annual rateable value - Can be filed by owner only.

        (5)

       An appeal against the assessment can only be filed by a person, who has filed or could have filed a complaint against the proposed rateable value, i.e. appeal can only be filed by the owner.

       [Para 82]

       (e) Evidence Act, 1872 - Sec. 102 - Bombay Provincial Municipal Corporation Act, 1949 - Sec. 406 - Appeal challenging annual rateable value - Contention that contractual rent in excessive and same not to be regarded as standard rent - Onus of proof - Is on the owner and not the Municipal Corporation.

       Onus of proof is on the person, who would fail, if a particular fact is not proved. The averment that the contractual rent charged by the owner is excessive is made by the appellant before the Small Causes Court. It would, therefore, be for the appellant to prove as to what should be the standard rent, which must be at a figure less than the contractual rent.

       [Para 28]

       (f) Words & Phrases - Waiver - Principle of - Explained.

       The principle of waiver, in such cases, is that if certain requirements or conditions are provided by a statute, in the interest of a particular person, then the requirements, or conditions, even if mandatory, may be waived by that person, if no public interest is involved, and in such a case, the act done will be valid even if the requirement or condition has not been performed.

       [Para 62]