Dismissed¶89

Municipal Corporation, Indore v. Rai Bahadur Seth Hiralal & Others

Supreme Court31 Oct 19671967 INSC 250 · [1968] 2 S.C.R. 1251967 INSC 250

Case brief

AI extract

What is this about?

house tax; gross annual letting value; net annual letting value; 10% statutory allowance; saving clause; repealing and saving provision; s. 2(c); s. 73(2); s. 79(1)-(2); ss. 75-76; s. 76(6) authentication; conclusive evidence of assessment list; adopted assessment list; Madhya Bharat Municipalities Act 1954; Indore City Municipal Act 1909; Municipal Corporation Indore; refund of excess tax; charitable trust trustees; Shelat J; Civil Appeal No. 141 of 1965; 1968 2 SCR 126

What did the court decide?

None to the appellant; the High Court's decree of the suit ordering refund of the excess amount against the Corporation was upheld and the appeal was dismissed with costs, the costs of this appeal and of Appeal No. 383 of 1965 to be taxed on the footing of one hearing fee. ¶89

Municipal Corporation, Indore versus Rai Bahadur Seth Hiralal & Others — Supreme Court (1968) — LawSathi Research

What the court decided

AI extract

Outcome

¶89

Issue for consideration

Whether the levy of house tax at 7% of the gross annual letting value prescribed under the rules of the Indore Act was saved by s. 2(c) of the 1954 Act notwithstanding s. 73(2) requiring assessment on the net annual letting value after deducting the 10% statutory allowance. +1 more

¶8

Court's answer

The saving and deeming provisions of s. 2(c) apply only to the extent that what is saved is consistent with the new Act; they can apply only if the tax is assessed in the manner consistent with s. 73, i.e., on the net and not the gross annual letting value after deducting the 10% statutory allowance.

¶56

Ratio / Principle

Accepting the construction of s. 2(c) urged by counsel would render s. 73(2) nugatory, since the Corporation could then go on imposing the tax on the basis of the gross annual letting value for ever despite the express provision for levying it on the net annual letting value.

¶56

Key takeaways

Though a Municipality need not prepare a fresh assessment list every year and may adopt an earlier assessment list (fresh revision once in every 4 years under s. 79(1)), the adopted list becomes the assessment list for that particular official year as if it was a new list, subject to the procedure of publication, invitation of objections and authentication under ss. 75 and 76.ratio¶82
The word 'if' appearing in sub-section 2 of s. 79 is obviously a mistake and must be read as 'as if', because the word 'if' standing by itself makes no sense at all.ratio¶81
The Corporation was entitled to adopt the assessment list prepared for 1952-53 for the assessment years 1953-54 and 1954-55 under s. 79, but that fact did not entitle it to impose house tax on the basis of the gross annual letting value, as such imposition is inconsistent with s. 73.

Detailed headnote1 paragraphs

Madhya Bharat Municipalities Act, 1954 (repealing the Indore City Municipal Act, 1909) — Saving clause s. 2(c) saves rules, taxes and rates under the repealed Act only to the extent they are consistent with the new Act. House tax levied at 7% of the gross annual letting value is inconsistent with s. 73(2), under which the annual letting value is the gross annual letting value less the 10% statutory allowance; the levy is therefore not saved by s. 2(c), otherwise s. 73(2) would be rendered nugatory. Assessment lists — s. 79(1) permits a Municipality to adopt an earlier assessment list provided the list is completely revised once in every 4 years; by sub-s. (2) the provisions of ss. 75 and 76 (publication, lodging and disposal of objections, authentication under s. 76(6)) apply every year as if a new assessment list had been completed; the word 'if' in sub-s. (2) is a misprint for 'as if'. An adopted list becomes conclusive evidence of valuation and tax only after that procedure. The Corporation could adopt the 1952-53 list for 1953-54 and 1954-55, yet could not tax on the gross value; the excess of Rs. 1,461 was recoverable. High Court rightly decreed refund; appeal dismissed with costs (one hearing fee shared with Appeal No. 383 of 1965).

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MUNICIPAL CORPORATION, INDORE

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RAI BAHADUR SETH HIRALAL & OTHERS

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October 31, 1967

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[J. c. SHAH, S. M. S!KRI AND J.M. SHELAT, JJ.]

¶7

Madhya B11arGt Municipalities· Act (Act 1 of 1954) repealing !1tdorc City Mt1nicipa/ Act 4 of 1909-S. 79 of nel-' Act pcrn1ittin;: an .• assessment lisfi for taxes on houses and lands heing prepared once in 4 yearsAs1·es.nne11t list under ohf Act <ll/Opt£•d for periocl covered by neu· ActHouse tax levied on gross annual letting nature of houses (S undt•r nld Act-New Act requiring tax to he levied on net vtilue after .gi-·ing statutory allowance of 1017-b-S., 2(c) ho\v far saves old basis of taxation.

¶8

The Madhya Bharat Municipalities Act 1954 came into forCL' on January 26, 1954. The Indore City Municipal Act, 1909 which had till then governed the Indore Municipality was thereby repealed. Under the repealed Act the Indore Municipality used to levy and co11ect house tax at th·o rate of 7% of the gross annual letting value. Under s. 7'(2) of the 1954' Act house tax was to be ass·ossed on the 'basis of the gross D annual letting value Jess l 0% statutory allowance for repairs etc. Ho'\' ever, even for the period after the passing 6f the ne'"'· Act, the Municipal Corporation,. purporting to act under s. 79( 1) of the 1954 Act. adopted rt.he latest as:sessment list prepared under the old Act and levied house tax at the old rate of 7% of the gros.. annual letting value. The respondents who Were trustees of certain house property filed a suit chaHenging 'the levy on the basis of the gross annual letting value when s. ·73(2) of the 1954 Act required the tax to be assessed on the riet value after dedu.ction of the statutory alloWance. The suit was decreed by the · Trial Court and the appeals filed by the Corporation befort the District Judge and th·o High Court were dismissed. The Corporation by speciul leave, came to this Court and urged : (i) that the levy at 7~0 of the gross anrlual letting value prescribed under the rules of the Indore Act was saved by s. 2(c) of the 1954 Act; (ii) that under s. 79(1) the Corporation was required to prepare a fresh assessment list only once in four years, that it was therefore entitled to adopt for the years in question the latest assessment list prepared under the old Act. and the said assessment Jist having been so adopted was conclusive evidence as to the annual rental value of house. and the house tax imposed thereon.

¶9

}{ELD : (i) While section 2(c) saves the rules and taxes imposed under the old Act it saves them only to the extent that they are consistent with the new Act. The saving and deeming pro-visions of s. 2(c) can only apply if the tax is assessed in the manner consistent with the G provisions of s. 73, that is, if it is assessed on the net and not the gross annual letting value after deducting I()% statutory allowance. The Corporation could not be allowed to go- on imposing the tax on the basis of the gross annu~I letting value for ever despite the express provision in s .. 73. The tax imposed by the Corporation at the rate of 7% of the gross annual letting value was not therefore sav•ed by s. 2(c). [129E-H]

¶10

(ii) OrdinariJy the Munic;pal Corporation has to prepare a fresh .:ti. assessment list every year. The legislature has however by s. 79( l) cmpriwered the Corporation to adopt the valuation and assessment con~ . tained in the assessment list Pl'Cpared in an earlier year provided. how'(ever, thar .jt prepares a fresh 1is~ one~ jn_ every 4 years. But sub-s. (2)

¶11

( 1968) 2 S.C.R

¶12

SUPREME COURT Rf PORTS

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126

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¶15

of s. 79 rovi<lcs xprcssly lat "·hen such a prvious list is adopted for a particular offic1al year 1t can be done suh1cct to Jhc provision, ·:;;'.), 75 <in<l 76. The list so adopted ha-. therefore to bt: puhlished, has to in\itc ohjcction"^/ and ha.,: to he authenticated 1n th"! mann_er _prescribed by :-.. 76(6) afrcr Jisping of the objection if any and 1t l!<I rhcn only thul it hccomc.-s conclusive evidence of the v.iluation ;ind the tax asse ... scd thereon for that particular official 'car. If it were othcrwi"ic .:1 housc-0"·nc.r "·oukl have no opportunity _io_ object to the assc,smcnt for four years even though the value of his house may have Uccrca.licd for some reason or the other. Section 79 has tbcrcfort.: to be contrucd to mean that though a Municipality need not prepare a fresh as>essment list every year and need prepare such Jist once in every 4 year an-.! can adopt an car1ier assessment list such an adopteJ li~a becomes th.: assessment list for that particular year as if it was a ne""· list and to which ss. 75 and 76 apply. [130E-JJIC]

¶16

Accordingly. the Corporation ¥.'as entitled to adopt for the official years in question the late..;t list prepared under the old Act. and under s. 79 lilat li'it v.·ould hci.:0mc the a\iscssmcnt list for the sa!d years provided that the.: provision~ of s~. 75 and 76 arc fol101Ad. Even then the appellant Corporation "'·oukl ·nor be entitled to impose hous-; tax on the basis of the gross annual Jetting value as such impoo;ition \•.'oul<l be inconsistent with s. 73 und.::r \vhich the annu;il letting value ¥.·oul<l he the groc;s annual Jetting v:1luc less I Of ~tatutory allo""·ance. [ 13 l DI

¶17

Even on the fooling 1h:1t the reo;olution passed hy the Indore Municipality to lcviy· the tax <it ?'if- of th: gross annual Jetting v;:iluc and on the ha<i;s of which the last Jic;t undL'r the old Act was prepared wa.~ sav.:d <in<l y.·a~ dcc-n1ed to have h-.:cn made under the 1954 Act it could he Je..-:n1cd to have been o ntade in so f;ir as it \Vas consist.:n• with the provi~ions of lhc Act. Therefore to thL· -zxtent that it was inconsistent with ··'· 73 it '-''as nci1hcr saved nor deemed to have bt.~n made under the A·.;t and h;u.l 10 be adjusted in the light of the provisions of s. 73<2). I 131G-H]

CIVIL APPELLATE JURISDJCrION: Civil Appeal No. 141 of 1965.

¶22

Appt:a[ by special leave from the judgment and order dated December 7, 1963 of the Madhya Pradesh High Court, Indore Bench in Second Appeal No. 378 of 1961.

¶23

¶24

B. P. Jhandharia, P. C. Bhartari, J. B. Dadacha11ji and 0 C. Mathur, for the appellant.

¶25

W. S. Barlingay, V G. Tambrekar_ and A.G. Ratnaparkhi, fo. respondcnls Nos. 1, 2 and 4 to 7.

¶26

The Judgment of the Court was delivered by

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¶28

Shela!, J. This aprcal bv special leave is directed against the judgment and order of the High Court of Madhya Pradesh in Second Appeal No. 378 of 1961

¶29

The respondents as trustees of a charitable trust are the owners of certain houses situate in Indore City. Prior to January 26, 1954 the Indore Municipality was governed by the Indore Cit:i Municipal Act, 4 of 1909. By virtue of the power conferred QJ1 ii by that Act the Municipality used to levy and collect house tax

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¶31

MUNICIPAL CORPORATION v. HIRALAL (She/at, J.)

¶32

127

¶33

A at the rate of 7 % of the gross annual letting value of these houses and the trustees duly paid such tax. After. the formation of the State of Madhya Bharat, the legislature of that State passed the Madhya Bharat Municipalities Act, J 954 which came mto force on January 26, 1954. The 1954 Act repealed amongst other Acts the Indore City Municipal Act, 1909. The Indore Munici-

¶34

B pality however purported to levy the house tax on the basis of the gross annual Jetting value at the rate of 7% of such value for the tmancial years l 9:i3-54 and 1954-55. This was objected to by the respondents on the ground that under the 1954 Act the tax could be assessed on the basis of gross annual letting value less l 0% statutory allowance in lieu of costs of repairs or on aily other account whatsoever. The difference came to Rs. 1,461, and

¶35

c of this the trustees claimed refund on the ground that the Municipality had collected the excess from them under pain of distress. The Municipality having refused to refund the excess the respondents filed the suit to recover it on the ground that the excess •tmount was illegally recovered. The Trial Court decreed the suit and the appeals filed by the Corporation in the District Court

¶36

D and the High Court were dismissed.

¶37

To appreciate the stand taken by the appellant Corporation il is necessary to examine some.of the provisions of the two Act.•. s~c. 21 of the Indore City Municipal Act authorised 'the Municipcil Council to impose tax on houses, buildings "r lands withiv E the municipal limits at a rate not exceeding 121% of the gross annual letting value. As aforesaid, this Act amongst other· Acts was repealed by the Madhya Bharat Municipalities Act, 1954. Sec. 2 of the 1954 Act which contains both a repealing and saving provisions repealed the several Acts set out therein. Clause (a) however pr0vides that such repeal shall not affect the validity or invalidity of anything already done under any of the said enactF ments. Clause (c) of sec. 2 provides that all rules, orders, byelaws, notifications and notices, taxes and rates, made, passed, framed, issued or imposed or deemed to have been .made, passed, framed, issued or imposed, shall so far as they are not inconsistent . with this Act, be deemed to have been made, passed, framed, issued or imposed, as the case may be, under this Act. Sec. 69 G authorises a Municipality to impose the several taxes set out therein including the tax on houses, buildings or lands or both. Sec. 70 lays down the procedure which the municipality would have to follow before it imppses any one of those taxes. Sec. 73 provides that when a tax on buildings or lands or both is imposed, the Chief Executive Officer shall cause an assessment list of all H buildings or lands in the municipality to be prepared containinr the particula·s therein set out. Among>! such particub•s are the valuation based on capital or annual letting value as the case may be on which the property is assessed. Sub-sec. 2 provides that in"

¶38

128

¶39

[1968) 2 S.C.R.

¶40

SUPREME COUllT REPORTS

¶41

assessing the tax on buildings or lands, where the valuation determined under clause (d) of sub-section I is the annual letting value, a sum equal to I 0% of such valuation shall be deducted therefrom in lieu of allowance for costs of repairs or on any account whatsoever. Sec. 7 5 provides for the publication of the asses. menr list and the right of the o" ner or occupier of properties included in the list to take inspection thereof and to make extracts therefrom. Sec. 76 provides for a public notice of time fixed for lodging objections to such assessment list and the hearing of such objections. Sub-sec. 4 of sec. 76 provides for the authentication of the list. Sub-section 6 lays down that subject to such alterations as may be made therein under sec. 77 and to the result of any appeal or revision made under sec. 190 in the case of City Municipality and under sec. 90 in the case of other municipalities. the entries in the assessment list so authenticated shall be accepted as conclusive evidence for the purposes of all municipal taxes of the valuation or annual letting value of buildings and lands to which such entries respectively refer and for the purposes of the tax for which such assessment list has been prepared of the amount of tax lcviable on such buildings or lands "in any official year in which such list is in force." Sec. 79(1) provides that it would not be necessary for a Municipality to prepare a ·new assessment list for every year. It further provides that subject to the , condition that such assessment list shall be completely revised not less than once in every 4 years the Municipality may adopt the valuation and assessment contained in the list fo any year with such alterations as may be necessary for the year immediately following. But sub-section 2 lays down that the provisions of s. 75 and s. 76 shall be applicable every year as if a new assessment list has been completed at the commencement of the official year.

These provisions show that though by sec. 2 the new Act repealed the Indore City Municipal Act, 1909 along with other Acts, the legislature by sec. 2(c) saved certain things done under the repealed Acts, viz., rules bye-laws, orders, notifications and notices, taxes and rates made, framed, passed, or imposed or deemed to have been made. framed, passed or imposed under the repealed Acts and added a fiction that so far as they are not inconsistent with the new Act they shall be deemed as if they were made, framed, passed or imposed as the case may be under this Act. We are informed by Counsel that under the rules made under the repealed Indore City Municipal .Act, 1909 the Municipality had imposed the tax on houses at the rate of 7% of their gross annual letting value, that an assessment list on that basis was prepared for the year 1952-53 and that the Municipality has been levying tax at the said rate on the basis of lhe said assessment list for the two subsequent years.

MUNICIPAL CORPORATION v. HlRALAL (She/at, J.)

¶53

129

¶54

¶55

A Counsel for the appellant Corporation argued that the .Corporation was entitled to levy. the house tax at the rate of 7% of the gross annual letti!lg value and that it was not bound to deduct the 10% allowance provided by sec. 73(2) from such gross annual letting value. The argument· was, firstly, that the appellant Corporation could do so because the rules made under B the Indore Act are saved by sec. 2(c) and therefore the rate of 7% of the gross annual letting value at which the tax was levied also has been saved and secondly, that under sec. 79(1) of the 1954 Act the Corporation need not prepare a fresh assessment list every year, that it has to prepare a fresh assessment list only once in every 4 years, that the Corporation therefore can and in fact has adopted the said list for the two years in question and c that that being so, the list so adopted was in force during the years in question and has to be accepted under s. 76(6) as conclusive evidence of the annual letting value as also for the amount of tax leviable on the buildings or lands or both. He contended that that being the position the respondents were debarred from ob· jecting to the annual letting value nnd the quantum of tax based D on it as entered against the respondents' properties in the said a5sessment list.

¶56

We are not impressed with these contentions as in our .view t'.iey are not warranted on the true construction of the provisions o{ the Act. The Indore Municipal Act being no longer in force as from January 26, 1954, obviously no tax could be levied or E imposed thereunder after that date. The rules made and the taxes imposed under the repealed Act are no doubt amongst other things saved and are deemed to have been made, framed, passed or imposed under the .new Act but cl. (c) cf sec. 2, it must nut be forgotten, lays down an important qualification that they are to be deemed to have been made, or imposed etc., under the new Act to the extent that they are consistent with the provisions of F the Act. Sec. 73 read with sec. 69 provides that a tax on houses or buildings shall be levied on the annual letting value and that in assessing such tax a sum equal to 10% of such letting value shall be deducted therefrom. The tax levied under the old Act and the rules framed thereunder on the basis of the gross annual Jetting value is obviously inconsistent with the provisions of s. G 73 of the Act. The saving and the deeming provisions in s. 2(c) can' only apply if the tax is assessed in the manner consistent with the provisions of s. 73, that is, if it is assessed on the net and not the gross annual letting value after deducting 10% statu· tory .allowance in lieu of the costs of repairs or .any other account whatsoever. If the construction of sec. 2(c) as suggested by CounH sel were to.be accepted it would render sec. 73 (2) nugatory, for, the Municipal Corporation in that case can go on imposing the tax on the basis of the gross annual Jetting value for ever despite the express provision for levying tax on the basis of net annual

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(I 9q8) 2 S.C.R.

130

SUPREi\fE-GOJJRT REPORTS

< I

\ l • l

} I \ ( \

\ I ! !

letting value, i.e., the value arrived at after deducting ·10% of the gross annual letting value. •

¶68

The second .part of the contention is equally unacceptiibie because. if accepted, it will be contrary to the provisions of sections 75,76 and 79 of the Act. After JiOing through the procedure laid down in ss. 70, 71 anp 72 sec. 73'. enjoins upon· the Chief Executive Officer to have an assessment list made containing il\ter a/ia valuation or· annual letting value at which the property is assessed and !he amount of. tax assessed on the basis of suc!i V'jluati9n or ann'ual letting value. ,Under ss. 75 and 76 when the assessment list is J)fepared in accordance with the provisions of sec. 73 it has to be published and time has t~ b~ fixed for l,odging objections against the • entries thereil). After such objections are heard and disposed of the asseSsment list has to be {1uthei:ticated a~ provided by sec. 76(6),. ~~b-sec. ,6 of sec. 76 lays down that such ·assessment list when· authenticated becomes c9nclusive evidence for purposes of ail taxes, of the valuation or annual letting value and of the amo11nt of tax leviable on such buildings' or lands or both in any official year in which such list is in force. The Municipal tax is ai:! anm11a!' tax leviable for a ·particular official year and the assessment list on the basis df which the tax is assessed is for each such official ·year. This is supported by the words "such assessment·'list" and 'of tlie amount of tax leviable .... in any official year in which such list is in force~ 'in sec. 76(6).

s •

~~ ~

. ---

Ordiniuily therefore the Municipal Corporation has ·10 prepare a fresp assessment list every year. The legislature howevet has empowered by sec. 79, as qther State legislatu:·cs'.have similarly d,one in several Municipal Acts, to adopt the valuation and assessment contained in the assessment list prepared iri an ea-rlier year prpvided, hqwever, that it prepares a fresh hst once in every 4 years, But sub-sec. 2 of sec. 79 provides expressly th,a,t, when Sl!ch ;i previous list is adopted for a partii;:ular official year it can_ be done subject to the provisions of sections 75 and 7y. I I) '.other words, an assesmeTJt. list being for ~ particular official yar even when an assess1nent, list prepared in an •earlier yar is adopted i.t becomes the list fqr such subsequent year subject. t'l the procedure laid down in secs. 75 and 76. The list so adopt· has therefore to be published, has ,to invi,te objections anq has f~ be authenticated in the ·manner prescribed by sec. 76 (6) aftei: disp9sing qf Jhe objections if .any and it is. the,n cin,ly t!J,at it pe-· comes_ onclusiy evidence of the ':'aluation and -!h~ tx sisid, thereon for that particular official year .. If it were ·8thi:; the annual lettini; value or the value estimqted on a parlieuTar ouilding or house would !le static for 4 yeap; during whicl} the Corporation can. go on adopting the :issessme'nt list prepared 'ID' an earlier year and the.owner_ or the oupier Qf,thf) building would

. ~

MUNICIPAL CORPORATION v. HIRALAL (She/at, /.) 131

¶80

A b~ deprived of the right to object to the valuation or the annual letting value or the tax assessed thereon for, at least 4 years even though the valuation or the annual letting value thereof may have decreased for one reason or the other. In order to prevent such. a result the legislature has provided· by sub-section 2 of sec. 79 that where a municipality adopts a previously prepared list for

¶81

8 any subsequent year the provisions of ss. 75 and 76 shall be applicable as if a new assessment list has been completed at the commencement of that particular official year. The word, "if' appearing in sub-sec. 2 of sec. 79 is obviously a mistake and must be read as "as if' because the word "if" standing by itself makes no sense at all. Sec. 79 therefore has to be construed to mean that though a Municipality need not prepare a fresh assess-

¶82

c m_ent list every year and need prepare such list once in every 4 years and can adopt an earlier assessment list such an adopted list bl;comes the assessment list for that particular yeaf as if it was a new list and to which ss. 75 and 76 apply.

¶83

The result of the foregoing discussion is that the appellant D Corporation was entitled to adopt the assessment list prepared· for the year 1952-53 for the two assessment years, 1953-54 and 1954-55, under sec. 79 and therefore that list became the assess-men! list for each of the 2 years in question. That fact however does not entitle the appellant Corporation to impose the housetax on the basis of the gross annual letting value as such imposi-Lion is inconsistent with sec. 73 under which the annual letting E value ,would be the gross annual letting value less 10% statutory allowance.

¶84

But the contention was that the tax imposed on the basis of the gross annual letting value was saved by sec. 2(c) and that that saving coupled•with the fact that the assessment· list prepared for 1952-53 was adopted for the years in question made the entries F in the assessment list so adopted conclusive evidence of the annual letting value and the aruount of tax assessed thereon and entitled the Corporation to collect the tax assessed on the gross annual letting value. Then:-fore, it was argued, both the annual letting value and the amount of tax shown in that list were conclusive evidence and could not be assailed. Counsel however forgets G that even on the footing that the resolution passed by the Indore Municipality to levy the tax at 7 % of the gross annual Jetting value and on the strength of which the list for 1952-53 was prepared was saved and was deemed to have been made under the 1954 Act it can be deemed to have been so made in so far as it is consistent with the provisions of the Act. Therefore, to the extent that it is inconsistent with sec. 73 it is neither saved nor· 1 H deemed to have been made under the Act and has to be adjusted in the light of the provisions of sec. 73(2). It follows that the appellant-Corporatiorrwas not entitled to demand the tax assessed

¶85

( 1968] 2 S.C.R.

¶86

132

¶87

SlJPREME COURT REPORTS

¶88

¶89

on the gross annual letting value. The High Court therefore was right in decreeing the suit and to order refund of the said excess amount against the appellant Corporation. The appeal fails and is dismissed with costs. The costs of this appeal as also those in the next appeal No. 383 of 1965 are to be taxed on the footing of one hearing fee.

¶90

¶91

G.C. Appeal dismissed.

Municipal Corporation, Indore v. Rai Bahadur Seth Hiralal & Others

Case brief

What is this about?

What did the court decide?

Municipal Corporation, Indore v. Rai Bahadur Seth Hiralal & Others

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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