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[Cites 9, Cited by 2]

Gujarat High Court

Sushilaben Veljibhai Shah vs Jamnagar Municipal Corporation on 5 March, 2020

Author: Bhargav D. Karia

Bench: J.B.Pardiwala, Bhargav D. Karia

         C/SCA/8323/2019                                         JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 8323 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA

================================================================

1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

================================================================
                      SUSHILABEN VELJIBHAI SHAH
                               Versus
                   JAMNAGAR MUNICIPAL CORPORATION
================================================================
Appearance:
MS MEGHA JANI(1028) for the Petitioner(s) No. 1,2,3
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2
================================================================

    CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
           and
           HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 05/03/2020

                               ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) Page 1 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT

1. Learned Advocate Mr. H.S. Munshaw waives service of rule for the respondents.

2. By this petition under Articles 14, 226 and 300A of the Constitution of India, the petitioners have prayed for the following reliefs:

"(A) that the Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside order dated 17.12.2018 passed by Jamnagar Municipal Corporation demanding Property Tax of Rs.

4,21,167/- and be pleased to command the respondents to forthwith transfer the Said Property in the name of the Petitioners;

(B) that pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to stay operation, implementation and execution of order dated 17.12.2018 passed by Jamnagar Municipal Corporation demanding Property Tax;

(C) for ad-interim relief in terms of paragraph (B) hereinabove;

(D) for such other and further reliefs as the circumstances may require."

3. The brief facts of the present case are as under:

3.1. The petitioners are owners of land bearing Survey No. 4/1-2 paiki, Plot No. 12, Oshwal Colony Lane No.3, Jamnagar admeasuring 394.97 sq.mtrs. (for short 'the property') together with construction standing thereon, which was purchased by the petitioners by registered sale deed dated 08.08.2014.
3.2. The petitioners filed an application on 11.08.2014 with the respondent no.1 Jamnagar Municipal Corporation (for short 'the Corporation') seeking necessary change in the Page 2 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT name, pursuant to the execution of the sale deed.
3.3. It is the case of the petitioners that all taxes payable for the said property purchased by the petitioners were duly paid and nothing was outstanding, when the application seeking change of name was made by the present petitioners.
3.4. It appears that the respondent no. 2 issued a letter dated 17.07.2015 addressed to the petitioners demanding Rs.4,21,167/-, in response to the application made by the present petitioners for change of name in the records of the respondent no.1 Corporation, without giving any calculation about the tax which was shown as outstanding.
3.5. The petitioners therefore requested for bills from the respondents, in support of the alleged demand vide letter dated 21.07.2015 and further contended that such demand was not legal and prayed for withdrawal of such demand. The petitioners also challenged the communication dated 17.07.2015 before this Court by filing Special Civil Application No. 12402 of 2015. In response to the notice issued by this Court, respondent no.1 - the Corporation filed affidavit-in-reply stating that the property in question was measured on 27.02.2003 and that the construction of 442.15 sq. mtrs. was recorded. It was also stated in the affidavit-in-reply that the demand for property tax raised was for the period from 1993 to 2006. The petitioners opposed such contention Page 3 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT raised by the Corporation by filing affidavit-in-rejoinder as well as additional affidavit highlighting that there was no addition to the constructed area of the property purchased by the petitioners. It was also contended that the construction has remained unchanged since 1980. It was also explained that the construction standing on the property in question was 319.56 sq.mtrs. only, and that due to an error the total built up area of 442.92 sq. mtrs.

was indicated in the valuation report in the property survey form and the sale deed. It was also contended that, although, the built up area is 319.56 sq.mtrs., and there is an open area of 123.36 sq. mtrs., built up area is erroneously shown as 442.50 sq. mtrs.

3.6. During the course of hearing, learned Advocate for the respondent no.1 Corporation placed on record the letter dated 03.04.2017 of the Tax Officer and submitted that the petitioners would be given an opportunity of hearing by issuing fresh notice of hearing in respect of the impugned tax demand dated 17.07.2015 and till the representation of the petitioner is decided, no coercive action would be taken in respect of the said tax demand. In view of such statement, this Court (Coram: Hon'ble Ms. Justice Bela M. Trivedi) by an order dated 11.10.2018 disposed of the petition.

3.7. It appears that the respondent no.1 Corporation thereafter issued fresh notice dated 26.10.2018 calling upon the petitioners to appear before the authority for hearing in Page 4 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT respect of the demand raised for the property in question. According to the petitioners, the said notice was also without giving any details about the demand. The petitioner filed his reply / representation opposing the demand raised by the respondent no.1 - Corporation. However, the respondents once again passed an order dated 17.12.2018 raising the demand of tax of Rs.4,21,167/- for the period from 01.04.1993 to 21.03.2006.

3.8. The petitioners, therefore, once again have challenged raising all such demand by the impugned order dated 17.12.2018.

3.9. The Coordinate Bench of this Court passing an order dated 01.05.2019 granted stay against the impugned order dated 17.12.2018 during the pendency of the petition.

4.1. Learned Advocate Ms. Megha Jani appearing for the petitioners submitted that the respondent Corporation is a body constituted for the city of Jamnagar under the provisions of the Gujarat Provincial Municipal Corporations Act, 1949 (for short 'the Act, 1949') and Section 127 of the Act, 1949 authorizes the Municipal Corporation to levy taxes, which include property tax, either under Section 129 or under Section 141AA of the Act, 1949. It was pointed out that Section 141AA of the Act, 1949 authorizes Municipal Corporation to levy property tax comprising, inter-alia, of Page 5 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT general tax levied in accordance with the provisions of Section 141B of the Act, 1949.

4.2. Learned Advocate for the petitioners submitted that Section 141B of the Act, 1949 provides that for the purpose of clause

(c) of Section 141AA, general tax shall be levied annually on buildings and lands in the city at such rate per sq. meter of the carpet area of the buildings and of the area of land, as the Corporation may determine having regard to various factors like the market value of the land, the area of the city in which the buildings are situated, the length of time of the existence of the building, the purpose for which the buildings are used and whether the buildings are occupied by owners or tenants.

4.3. Learned Advocate for the petitioners thereafter invited the attention of this Court to the manner and method of levy of tax as laid down in Taxation Rules (for short 'the Rules') in Chapter-VIII of Schedule-A of the Act, 1949. Reference was made to Rule 20 which empowers the Commissioner of any Municipal Corporation to amend the assessment book either upon representation of any concerned person or upon any other information at any time during the official year to which the assessment book relates. It was pointed out that, the said Rules further provide that if the amendment has the effect of imposing any liability on a person, special written notice as provided in Rule 15(2) shall be given and the procedure laid down in Rules 16, 17 and 18 shall be followed. Learned Advocate for the petitioners also referred Page 6 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT to Rule 21A of the Rules which provides that if any new building is erected without the owner giving notice of it, the Commissioner may within one year from the date on which the relevant facts came to his notice, may proceed to fix or re-fix the ratable value of such building.

4.4. Relying upon the aforesaid provisions of the Act, 1949 and the Rules, it was submitted that, it is mandatory for the Corporation to issue notice and to hear the concerned person before amending the assessment book. It was also pointed out that, it is also mandatory that any amendment to an entry in the assessment book is to be authenticated in the same official year to which the assessment book relates. It was therefore submitted that, none of the provisions of the Act, 1949 r/w. Rules were followed by the respondent no.1 while raising the demand of the property tax of Rs.4,21,167/-.

4.5. Learned Advocate for the petitioners submitted that the liability of the property tax imposed upon the petitioners without providing the details for raising any tax bill is without competence and authority of law, as it is only on authentication of the assessment book that the liability arises for the first time. It was submitted that, the procedure for assessment and levy of property tax is required to be completed before expiry of the official year and no assessment can be made after the official year has ended. However, in the facts of the case, as the respondent Corporation has demanded tax without making any amendment to the entries made in the assessment book, Page 7 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT without issuing any notice as required under Rule 20 of the Rules and demanding the tax for the period from 1993 to 2006 is ex-facie contrary to the provisions of the Act and the Rules.

4.6. It was further submitted that the demand is also barred under Rule 21B of the Rules, as per which a demand can be made within a period of one year from the date of knowledge of a new or additional construction which might have escaped the assessment. However, in the facts of the present case, admittedly, the alleged additional construction came to the notice of the Corporation in the year 2003 and the demand of the tax which is made for the first time in 2015, which is beyond the scope of Rule 21B of the Rules.

4.7. It was also submitted that the demand raised by the respondent Corporation is on the assumption that there was additional construction. However, there is no construction on the land after 1980. It was therefore pointed out that the entire demand is without any basis.

4.8. Learned Advocate for the petitioners without prejudice to the contentions raised and in alternative submitted that, even if any additional construction was found by the respondent Corporation, the assessment was made by the respondent Corporation till 2003, on the basis of the ratable value of the property and not on the carpet area of the property and increase in the carpet area of the property would not Page 8 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT automatically result in increase in its ratable value. In such circumstances, it was prayed that the demand raised by the respondent Corporation is required to be quashed and set aside.

5.1. On the other hand, learned Advocate Mr. H.S. Munshaw appearing for the respondent Corporation vehemently opposed the petition raising a preliminary objection that the petition is not maintainable, as there is an alternative efficacious remedy available for challenging the impugned order passed by the respondent Corporation, by way of an appeal under the provisions of the Act, 1949. Learned Advocate Mr. Munshaw relying upon the averments made in the affidavit-in-reply filed on behalf of the respondent no.2 - Assistant Municipal Commissioner, Tax Department, Jamnagar Municipal Corporation, submitted that the respondent no.1 Corporation was having rent base assessment system for assessing the property tax and other taxes. The property in question was originally owned by Mr. Fulchand Lalji Shah and was assessed for the first time in the year 1984 and the ratable value was fixed at Rs.9,720/- and the property tax was assessed at Rs.1,263.60.

5.2. Learned Advocate for the respondents submitted that the Taxation Rules provide for revised assessment at least once in four years and accordingly it was revised for a period of 4 years from 1988 and the property tax amount was determined at Rs.1,822.50. It was pointed out that a part of the property was occupied by a tenant for residential purpose Page 9 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT and the assessment was made accordingly. At the relevant time, as per the records of the respondent no.1, the total area of the construction on the ground floor was 145.85 sq. mtrs. and construction on the first floor was 48.80 sq. mtrs.

5.3. Learned Advocate for the respondents further submitted that, subsequently revised assessment took place for a period of 4 years from 1992 and the property tax was reduced to Rs.1,677/- per year and at that point of time, the construction on the property in question was noticed on the ground floor- 170 sq. mtrs. and on first floor-80.00 sq. mtrs. It was pointed out that the property tax bills were issued on the same basis till 2006, and the payment of taxes were being made by the original owner of the property without any objection and nothing was in arrears.

5.4. It was submitted by the learned Advocate Mr. Munshaw that the Government of Gujarat through Urban Development and Urban Housing Department issued a resolution dated 08.05.2006 resolving that the Municipal Corporation of Jamnagar can adopt carpet area basis method for assessing property tax w.e.f. 01.04.2006. It was further pointed out that on 27.02.2003, the technical staff of the Corporation carried out the measurement of the property in question and found that on the ground floor - 60 sq. mtrs. construction with cement sheet and there was a construction of 191.25 sq. mtrs. It was submitted that on introduction of carpet area basis method, for assessment of property tax, the measurement carried out on 27.02.2003 was taken as a Page 10 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT basis and the assessment notice was sent to Mr. Dilipkumar, Mr. Pankaj and Mr. Rajesh, sons of Mr. Kapurchand Shah, through under certificate of posting and no objection was raised, and therefore, the property tax was assessed accordingly, and tax bills were sent on the basis of the total area of construction of 442.50 sq. mtrs. It was submitted that, the property tax on the basis of such calculation was being paid regularly without any objection.

5.5. Learned Advocate for the respondents therefore, relied upon the following averments made in the affidavit-in-reply for raising the demand of property tax of Rs.4,21,167/-, which reads thus:

"9. The Respondent No.2 submits that though additional construction is raised on the land in question, the concerned owners of the property at the relevant point of time have never informed Jamnagar Municipal Corporation about the same. In other words, Municipal Corporation of Jamnagar is kept in dark about the additional construction raised on the land in question and therefore, it could not assess the property accordingly and the resultant effect was non assessment. The Respondent No.2 submits that as concealment about additional construction at the site came to light, it is decided to issue a letter dated 17/07/2015 to the Petitioner No.1 in response to her application for transfer of property in her name and a copy of letter dated 17/07/2015 is annexed herewith and marked as Annexure-C. It is submitted that as per the provisions of RuIe-5 of Chapter-8, it is a bounden duty of the owner of the property to inform the Municipal Commissioner about the additional construction raised at the site within a period of 15 days thereof. In other words, as per the provisions of Rule-21 it is open to Municipal Commissioner to assess and levy property tax from the date of additional construction. It is stated that RuIe-40 of Chapter-8 permits the Municipal Commissioner to issue property tax bill accordingly. It is stated that RuIe-41 permits to issue demand notice. The Respondent No.2 submits that therefore Petitioner No.1 was instructed to pay Rs.4,21,167/- towards property tax + transfer fee of Rs.460/-. It is pertinent to note that an amount of Rs.4,21,167/- is for a period commencing from 1993 to 2006 as additional construction was raised at the site."
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C/SCA/8323/2019 JUDGMENT 5.6. Relying upon the aforesaid documents, it was submitted that the respondents are justified in raising the demand as the concerned owners of the property, at the relevant point of time never informed about the construction raised prior to 2003 and as such the impugned notice is just and proper, as per the provisions of the Act, 1949 and the Rules.
6.1. Having heard the learned Advocates for the respective parties and having gone through the materials on record, the short question arises for consideration is whether the impugned order dated 17.12.2018 passed by the respondent no.2 is tenable in law or not.
In order to answer the question arising in this petition, it would be germane to refer to the relevant provisions of the Act, 1949 and the Rules, which read as under:
"Section 127. Taxes to be imposed under this Act (1) For the purposes of this Act, the Corporation shall impose the following taxes, namely:--
(a) property taxes ;
(b) a tax on vehicles, boats and animals :
(c) a tax on mobile towers;

[Provided that in the case of a local area constituted to be a City under subsection(2) of section 3, until the expiry of a period of two years from the appointed day or of such further period not exceeding two years as the State Government] at the request of the Corporation for such City may, by notification in the Official Gazette, specify, the provisions of this section shall have effect as if there had been substituted for the words "the Corporation shall impose" the words "the Corporation may impose".] [(1A) Notwithstanding anything contained in the proviso to sub-section (1), in the case of the Municipal Corporation of the City of Rajkot, for a period of two years commencing on the 19th November, 1975, the provisions of sub-section (1) shall have effect, and shall be deemed to have had effect, as if with effect on and from the 19th November, 1975 there had been substituted for the words "the Corporation shall impose" the words "the Corporation may impose" in the said sub-

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  C/SCA/8323/2019                                          JUDGMENT



section (1).]

(2) In addition to the taxes specified in sub-section (1) the Corporation may for the purposes of this Act and subject to the provisions thereof impose any of the following taxes, namely:--

(a) * * * * * *
(b) Subject to and in accordance with the provisions of the Gujarat State Tax on Professions, Trades, Callings and Employments Act, 1976 (President's Act No. 11 of 1976) and the rule made thereunder, a tax on professions, trades, callings and employments;
c) a tax on dogs;
(d) a theatre tax ;
(e) a toll on animals and vehicles, (* * * * ) entering the City,
(f) any other tax [(not being a tax on professions, trades, callings and employment)] [or a tax on payments for admission to any entertainment] which the [State] Legislature has power under the9 [Constitution] to impose in the [State].

[(2A) Notwithstanding anything contained in sub-section (1) or sub- section (2), no tax or toll shall be levied on motor vehicles save as provided in section 20 of the Bombay Motor Vehicles Tax Act 1958, (Bom. LXV of 1958).] (3) The municipal taxes shall be assessed and levied in accordance with the provisions of this Act and the rules. (4) Nothing in this section shall authorize the imposition of any tax which the [State] Legislature has no power to impose in the [State] under the [Constitution]."

"Section 129. Property taxes of what to consist and at what rate leviable:
For the, purposes of sub-section (1) of section 127 property taxes shall comprise the following taxes which shall, subject to the exceptions, limitations and conditions hereinafter provided, be levied on buildings and lands in the City:--
[ (a) a Water tax at such percentage of their rateable value as the Corporation shall deem reasonable. for providing a water supply for the City:
Provided that the Corporation shall with the previous sanction of the Staate Government, fix the minimum amount of such tax to be levied and may fix different minima for different classes of properties:
Provided further that the minimum amount of such tax to be levied shall,-
(i) in respect of any one separate holding of land or of any one building (not being premises used exclusively for residential purpose) or of any one portion of a building which is let as a separate holding and which it not used exclusively for residential purpose, be not less than five rupees per mensem for any official year commencing on the first day of April' 1993;
(ii) in respect of any premises used exclusively for residential purpose, be not less than three rupees per mensem for any official year commencing on the first day of April, 1993;
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C/SCA/8323/2019 JUDGMENT
(b) a conservancy tax at such percentage of their rateable value, as will in the opinion of the Corporation suffice to provide for the collection, removal and-disposal of all excrementitious and polluted matters from privies, urinals and cess-pools and for efficiently maintaining and repairing the municipal drains constructed or used for efficiently maintaining and repairing the municipal drains constructed or used for reception or conveyance of such matters:
Provided that corporation shall, with the previous sanction of the State Government, fix the minimum amount of such tax to be levied and may fix different minima for different classes of properties:
Provided further that the minimum amount of such tax to be levied in respect of any one separate holding of land or of any one building or of any one portion of a building which is let as a separate holding shall be not less than two rupees per mensem for any official year commencing on the first day of April, 1993 and that the amount of such tax to be levied in respect of any hotel, club, industrial premises or other large premises may be specially fixed under section 137;
Provided also that while determining the rate of such tax under section 99 or 150, the Corporation may determine different rates for different classes of properties:]
(c) a general tax of not less than twelve per cent (but not more than thirty per cent.] of their rateable value, Which may be levied, if the corporation so determines on a graduated scale;

[(d) betterment charges leviable under Chapter XVI.] Explanation.--Where any portion of a building or a, land is liable to a higher rate of the general tax such portion shall be deemed to be a separate property for the purpose of municipal taxation."

Section 141AA - Property taxes of what to consist and at what rate leviable.-

For the purposes of sub-section (1) of section 127, property taxes shall comprise the following taxes which shall, subject to exceptions, limitations and conditions hereinafter provided, be levied on buildings and lands in the City:

(a) a water tax at such percentage of the amount of general tax levied under Section 141B as the Corporation shall deem reasonable, for providing water supply for the City:
Provided that the Corporation shall, with the previous sanction of the State Government, fix the minimum amount of such tax to be levied and may fix different minima for different classes of properties:
Provided further that the minimum amount of such tax to be levied shall,-
(i) in respect of any one separate holding of land or of any one building Page 14 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT (not being premises used exclusively for residential purpose) or of any one portion of a building which is let as a separate holding and which is not used exclusively for residential purpose, be not less than five rupees per mensem for any official year;
(ii) in respect of any premises used exclusively for residential purpose, be not less than three rupees per mensem for any official year;
(b) a conservancy and sewerage tax at such percentage of the amount of general tax levied under section 141B as will in the opinion of the Corporation suffice to provide for the collection, removal and disposal of all excrementitious and polluted matters from privies, urinals and cess-pools and for efficiently maintaining and repairing the municipal drains constructed or used for the reception or conveyance of such matters:
Provided that the Corporation shall, with the previous sanction of the State Government, fix the minimum amount of such tax to be levied and may fix different minima for different classes of properties:
Provided further that the minimum amount of such tax to be levied in respect of any one separate holding of land or of any one building or of any one portion of a building which is let as a separate holding shall not be less than two rupees per mensem for any official year and that the amount of such tax to be levied in respect of any hotel, club, industrial premises or other large premises may be specially fixed under 137: Provided also that while determining the rate of such tax under section 99 or 150, the Corporation may determine different rates for difference classes of properties;

(c) a general tax which may be levied in accordance with the provisions of Section 141B, if the Corporation so determines on a graduated scale;

(d) betterment charges leviable under Chapter XVI.

Explanation, (i) Where any portion of a building or a land is liable to a higher rate of the general tax, such portion shall be deemed to be a separate property forth: purpose of municipal taxation.

(ii) The water tax for providing water supply for the City and the conservancy tax for the collection, removal and disposal of all excrementitious and polluted matters from privies, urinals and cess- pools and for efficiently maintaining and repairing the municipal drains may be levied and collected jointly as 'water and sewerage charges' at the rate based on the carpet area and the type of the property.] 141B. 'General tax] at what rate leviable.-

(l) For the purposes of (clause (c) of section 141AA, general tax] shall, subject to such exceptions, limitations and conditions hereinafter provided, be levied annually on buildings and lands in the City at such Page 15 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT rate per square metre of the carpet areas of buildings and of the areas of lands (hereinafter referred to as "the rate of tax") as the Corporation may determine.

(2) For the purpose of levy of tax on buildings in the City under sub- section (1),

(a) the buildings may be classified into residential buildings and building other than residential; and

(b) the Corporation may determine one rate of tax for residential building and the other rate of tax for buildings other than residential:

Provided that it shall be lawful for the Corporation to determine for residential buildings, the carpet area of which does not exceed forty square metres, such rate a tax as is lower than the rate of tax determined for residential buildings generally under this sub-section.
(3) The rate of tax determined under sub-section (1) read with sub-

section (2) shall not-

(a) in respect of residential buildings, be less than ten rupees per square metre of carpet area and more than forty rupees per square metre of carpet area, and

(b) in respect of buildings other than residential, be not less than twenty rupees per square metre of carpet area and more than eighty rupees per square metre of carpet area.

(4) The Corporation may, subject to rules, increase or decrease or neither increase nor decrease the rate of tax determined under sub- section (1) read with sub-sections (2) and (3),-

(a) in the case of residential buildings, having regard to the following factors, namely:

(i) the market value of the land in the area of the City in which the buildings are situated,
(ii) the length of the time of the existence of the buildings.
(iii) the type of the buildings, and
(iv) whether the buildings are occupied by owners or tenants.
(b). in the case of buildings other than residential, having regard to the following factors, namely:
(i) the market value of the land in the area of the City in which the buildings are situated. (ii) the length of the time of the existence of the buildings,
(iii) the purpose for which the buildings are used, and
(iv) whether the buildings are occupied by owners or tenants.
(b) In lieu of the [general tax] leviable under sub-section (1) read with subsections (2) and (3), there shall be levied annually on,
(a) residential huts, and
(b) residential tenements in a chawl, each such tenement having carpet area not exceeding twenty five square metres,- such amount of tax as the Corporation may determine:
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C/SCA/8323/2019 JUDGMENT Provided that the amount so determined shall not be less than such amount as the State Government may, by notification in the official Gazette, specify.

Explanation.-For the purpose of levy of tax under this section, where an addition is made to an existing building whereby the carpet area of that building is increased, such addition shall be treated as a separate building and the length of the time of its existence shall be computed from the yea; in which the addition is made."

15. Time for filing complaints against valuations to be publicly announced.

(2) In every case in which any premises have for the first time been entered in the assessment-book as liable to the payment of property taxes, or in which the rateable value of any premises liable to such payment has been increased, the Commissioner shall, as soon as conveniently may be after the issue of the public notice under sub-rule (1), give a special written notice to the owner or occupier of the said premises specifying the nature of such entry and informing him that any complaint against the same will be received in his office at any time within fifteen days from the service of the special notice.

20. Assessment-book may be amended by the Commissioner during the official year.-

(1) Subject to the provisions of sub-rule (2), the Commissioner may upon the representation of any person concerned or upon any other information at any time during the official year to which the assessment-book relates amend the same--

(a) by inserting therein the name of any person whose name ought to be so insertedor any premises previously ommitted;

(b) by striking out the name of any person not liable to the property tax;

(c) by increasing or reducing the amount of any rateable value and of the assessmentbased thereupon;

(d) by altering the assessment on any land or building [or premises] which has been erroneously valued or assessed through fraud, accident or mistake;

(e) by inserting or altering an entry in respect of any building erected, re-erected, altered, added to or reconstructed in whole or in part after the preparation of the assessment-book ;

(f) by making or cancelling any entry exempting any premises from liability to any property tax.

(2) Where any amendment is made under sub-rule (1) which has the effect of imposing on any person any liability for the payment of property taxes which would not be incurred but for such amendment or which has the effect of increasing the rateable value of any premises as stated in the assessment book, a special written notice as provided in sub-rule (2) of rule 15 shall be given by the Commissioner and, as far as may be, the procedure laid down in rules 16, 17 and 18 shall be followed.

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C/SCA/8323/2019 JUDGMENT (3) Every such amendment shall be deemed to have been made, for the purpose of determining the liability or exemption of the person concerned in accordance with the altered entry, from the earliest day in the current official year when the circumstances justifying the amendment existed.

21A. Assessment etc. of tax in the event of failure to give notice under rule-5.-

Whenever it is noticed by the Commissioner that a new building has been erected or a building has been rebuilt or enlarged or any building which was vacant has been reoccupied or the user of any building has been changed and that the person primarily liable for the property taxes on such building has failed to give notice as required by sub- rule(1) of rule 5, the Commissioner may, within a period of one year from the date on which the aforesaid relevant facts came to his notice, proceed to fix or refix the rateable value of such building and assess or reassess the property taxes on such building in accordance with the provisions of this Act and these rules with reference to the period commencing from the year during which the building was newly erected or the building was rebuilt or enlarged or was reoccupied or the change of user took place and accordingly the taxes so assessed may be levied, collected and recovered and the provisions of this Act and these rules shall so far as may be, apply to such levy, collection and recovery.

6.2. In view of the above provisions of the Act and Rules, which provides for assessment of the property tax, it is apparent that the respondent Corporation could not have raised a demand for the period from 1993 to 2006 in the year 2015. The submissions made on behalf of the respondent Corporation that the Corporation was kept in dark about the additional construction raised on the land in question, and therefore, no assessment could be made with regard to the property in question, resulting into non-assessment is also without any basis, because there is nothing on record to show in which year such additional construction was done nor the Corporation has specified the nature of such additional construction and whether the same if at all would Page 18 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT be taxable for more than 13 years and raising such demand after 9 years. As the respondent No.1 Corporation has admitted the fact that the measurement was carried out on 27.02.2003 recording the construction of 442.50 sq. mtrs., but no assessment was made on the basis of actual construction on the property since then. Assuming that Rule 21A of Chapter-VIII of the Rules provides that, in the event of the owner having failed to give notice to the Corporation about additional construction, the Commissioner may re-fix the ratable value and assess the property on such additional construction within one year from the date on which the relevant facts of additional construction came to its knowledge. Assuming that such additional construction was done in the year 1993 and the said fact came to the knowledge of the Corporation in the year 2003, even then the Corporation failed and neglected to levy the tax with respect to such additional construction for the period from 1993 to 2003 within the period of obtaining such knowledge of it or at any time during the subsequent assessment of the property tax.

6.3. Therefore, it is not open for the respondent Corporation to raise any bill retrospectively at any time without any basis for providing any calculation for raising such demand. In the facts of the case, as the petitioners have paid all the taxes with respect to the property in question, and there was nothing outstanding. The demand of property tax of Rs.4,21,167/- raised by impugned order is contrary to the provisions of the Act, 1949 and the Rules framed there Page 19 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021 C/SCA/8323/2019 JUDGMENT under.

7. In view of the foregoing reasons, the respondent Corporation had no jurisdiction to pass the impugned order dated 17.12.2018 raising the demand of property tax of Rs.4,21,167/- for the period from 1993 to 2006, for the first time in the year 2015, at the time when the petitioners preferred an application seeking change of name, on the basis of the sale deed executed in their favour. In such circumstances, the petition succeeds and is accordingly allowed. The impugned order dated 17.12.018 passed by the respondents is hereby quashed and set aside. The respondents are directed to consider the application filed by the petitioners on 11.08.2014 within a period of three months from the date of the receipt of the writ of this order.

8. Rule is made absolute to the aforesaid extent. No order as to costs.

(J. B. PARDIWALA, J) (BHARGAV D. KARIA, J) Pradhyuman// Page 20 of 20 Downloaded on : Mon Feb 15 04:00:26 IST 2021