the Cantonment Board, Ambala Cantt. v. Dipak Parkash and Othehs

Judgment

A;ril 8. THE CANTONIIIENT BOARD, AMBALA CANTT. DIPAK PARKASH AND OTHEHS (J. L. KAPUH, K. C. DAS GuPrA and RAGHUBAR DAYAL, JJ.) House Tax-Occupation of building by Military Oflicer whether occupation of Crnfral Government-Cantonment Acts, J.924 (20 of 1924), ss. 66, 84 (2), 9n(2)-Cantonmenl-' (House Accommodation) Act, 1923 (6 of 1923), ss. 5, 6, 7, 11, 12. One-half of bungalow No. 127-B, Bank Road, Ambala Cantt., was taken on lease by the Central Govrrnment and was being used by some Military Officer for his residence. The Assessment Committee of the Canton~ent Board, Ambala, made an assessment of house-tax but the ac;sessm~nt list was signed Originally by three out of four persons who formed the assessment committee and was signed by the fourth a few days later. The officer hearing the appeal entertained reasonable doubt and made a reference to the High Court under s.84(2) of the Cantonments Act, 1924, for the decision of those questions.

The questions referred to the High Court were :- (1) Whether the occupation of the property by a Military Officer amounts' to a user thereof for public purposes. (2) Whether the occupation of the Military Officer of tbe portion of the bungalow appropriated under Act VI of 1923 amounts to its occupation by the Central Government within the meaning of s. 99(2)(f) of the Cantonment Act, 1924. (3) Whether the authentication of assessment list in the present form is valid as required by the provisions of s. 96 of the Cantonments Act, 1924. The High Court answered the two question• in the affirmative and the third in the negative. The opinion of the High Court was that the occupation of the property by the Military officer amounted to .. ser for public purpose and also amounted to occupation by t11e Central Government and the authentication was valid.

Against the decision of the High Court on the second question, the Cantonment Board went in appeal to the Supreme Court on the strength of a certificate granted by the High Court. 1 S. c: R. Held, that the building in question was in occupation?{ the Central Government through the Military Officer whom it had permitted to reside in it. Where the person entitled to occupy, permits some other person to be in the building, he is in accual occupation through the other person. CrvIL APPELLATE JuRISDIC'l'ION: Civil Appeal No. 538 of 1960. Appeal from the judgment and order dated September 3, 1958, of the Punjab High Court in Civil Reference No. 2 of 1956. B. Sen, D. Gupta and P. D. Menon for the appeJlant. The respondent did not appear. 1962. April 3. The Judgment of the Court was delivered by 19~1 The Cantonmml Biard Ambala Cantl1 Dipak Parkash DAS GuPTA, J.-In an appeal against the Du J. assessment of house ta.x of bunga.low No. 127-B, Bank Road, Ambala Cantonment, by the assessment committee of the Cantonment Board, Ambala, three questions arose as regards the liability of the asseesee on which the officer hearing the appeal entertained reasonable doubt and accordingly made a reference to the High Court of Punjab under a.

84: (2) of the Cantonments Act, 1924, for the derision of these questions. Admittedly half of this BungalOw had been appropriated under the provisions of the Cantonments (House Accommodation) Act No. VI of 1923 on a lease by the Central Government and was being used at the relevant tilll_e by some military officer for his residence. It was also admitted that the assess• ment list was signed originally by three of the four persons who formed the assessment committee and w&s signed by the fourth member a few days later. The tWPellate officer set out these circumstances in The Cantonment Board Amhala Gantt . Dipak P"rkash Dtu J, his statement and then formulated the three questions thus:- "l. Whether the occupation of the property by a Military Officer under the above circumstances amounts to user thereof for the public purpose. 2. Whether the occupation of the Military off!,cer of tho portion of the Bungalow appropriated under Act No. 6 of 1923 amounts to its occupation by the Central Government, within the meaning of s.

99 (2)(6) of the Cantonments Act, 1924. 3. Whether the authentication of the Assessment list in the present case is valid as required by the provisions of Section 69, Cantonments Act., 1924". The appellate officer who is required by s. 84 (2) to state his own opinion on the points referred stated that in his opinion the occupation by the Military Officer, did not amount to user for a public purpose nor did it amount to occupation by the government and further that authentication of the assessment list was valid. The High Court answered the two questions in the affirmative and the third in the negative. In other words, the High Court's opinion is that the occupation of the property by the Military Officer amounts to user for the public purpose and also amount to occupation by the Central Government within the meaning of s. 99 (2) (f) of the Ca.tltonm1mts Act and that the authentication was valid.

Against the High Court's decision on the second question the Cantonment Board has filed this appeal on the strength of a certificate granted by the High Court. 1 S. C. R. The assessee was not represented before us but we were taken through all the relevant provisions of law by Mr. Sen who appeared for the Cantonment Board. For a proper decision of the question in controverBy it is necessary first to take note of the scheme of appropriation of houses under the Cantonments (House Accommodatfon) Act, No. VI of 1923. Under s. 5 every house situate in a Cantonment ifliable to appNpriation by the Central Government on a lease in the manner and subject to the conditions provided in the Act.

Section 6 provides that (a) where a military officer stationed in the Cantonment or a President of a military mess in the Cantonment applies in writing to the officer commanding of the Station that he is unable to secure suitable accommodation by private agreeme~t and no government property is available for the purpose and the Officer Co,mmanding is satisfied of the truth of the facts stated or(b) the Officer Commanding is satisfied on enquiry that there is not in the cantonment a sufficient and assured supply of houses available at reasonable rates of rent by private agreement, the Officer Commanding may serve a notice on the owner of any hosue wliich appears to him to be suitable r13quiring him to permit the house to be inspected, measured and surveyed. Under s.

7 if a Officer Ca.mmanding is satisfied thereafter that the house is suitable for occupation by a military officer or a military mess, he may by notice require the owner to execute a lease of the house to the Central Government; require the existing occupier, if any, to vacate the house; and require the owner to execute the ne·cessttry repairs. The section further provides that on the expiry of the lease the house shall be re-delivered to the owner in a state of reasonable repair. Secti~n 11 of the Act provides that if a house . is unoccupied, a notice under s. 7 may require the owner to give possession of the. same to the Officer Commanding withiu 21 days from the service of the notioe and lfJll Tlie Contonm.nt /J1a1d .A.m6ala o_.n~. Dip1le Parkuli D1sJ. Thi! Confonment Boord Ambato Contt. Dipak Parlt(lsh D'ls J. if a house is occupied, a notice issued under s. 7 shall not require its vacation in less than thirty days from the service of the notice.

Section 12 provides that if the owner fails to give possession of a house' to the Officer Commanding in pursuance of a notice issued under s. 7, or if the existing occupier fails•to vacate a house in pursuance of such a notice, the District Magistrate, shall enter the prPmises and .enforce the surrender of the house. It is clear from this resume of some of the provisionsilf the Act that where as the appropriation can take place under the conditions mentioned in s.6,, what happens on the appropriation having been made is that the house is made over to the possession of the Officer Commanding on behalf of the Central Government. What is done with the house ther1>after is not dealt with by the Act. Coming now to the provisions of the Canton· merits Act, !924, we have to consider firsts. 65, which is in these words :- "65.

Save as otherwise expressly prov.id· ed in the notification imposing the tax, every tax assessed on the annual value of buildings or lands or of both shall be leviable primarily upon the actun.l occupier of the property upon which the said tax is assessed, if he is the owner of the buildings or lands or holds them on a building or other lease granted by or on behalf of the government or the Board or on a building lease from any person. 2. In any other case, the tax shall be primarily leviable as follows, namely :- (a) if the property is let, upon the lessor; (b) if the property is sub-let, upon the superior lessor; (o) if the property is unlet, upon the 1 S. C. R. SUPREME COlJ&T REPORTS person in whom the right to let the same rests. :~.

On failure to recover any sum due-on account of such tax from the person primarily liable, there may be recoverd from the occupier of a.ny part of the buildings .or lands in respect of which the tax is due such portion of the sum due as bears to the whole amount due the same ratio wpich the rent annual1y payable by such occupier bears to the aggregate amount of rent so payable in respect of the whole of the said buildings or lands, or to the aggregate amount of the letting value thereof, if any stated in the authe.nticated assessment list. 4. An occupier who makes any payment for which he is not primarily Hable under this section, in the absence of any contract to the contrary, be entitled to be reimbursed by the person primarily liable for the payment, and, if so entitled, may deduct the amount so paid from the amount of any rent from time to time becoming due from him to such person.'' The right to impose the tax is conferr.ed bys. 60.

Section 99 (2) contains ~be proTisions for exemption from-the tax on property. It is in these words :- "The following buildings and lands shall be exempt from any tax on property other than a. tax imposed to cover the cost of specific services rendered by the Board, namely:- (a) places set apart for public workshop and either actually so used for no other purpose; (b) buildings used for educational purposes The Cantonmmt Board Amhala Contt. Dipak Parfash DasJ. l!JGt The Can~onment Board 4.mbalcJ Gantt Dil 11.~· :~.-.rkash lJas J. and public libraries, play-grounds and dharamsalas which are open to the public and from which no income is derived; ( c) hospitals and dispensaries maintained wholly by charitable contributions; (d) burning and burial grounds, not being the property of the Government or a Board, which are controlled under the provisions of this Act;

(e) buildings or lands vested in a Board; and (f) any buildings or lands, used or acquired for the public service or for any public purpose, which are the property of the State or in the occupation of the Centr<11 or any State Government. The tax in the present case is not one imposed to cover the cost of specific services rendered by the Board and so if the property falls within any of the clauses mentioned in els. (a) to (f) it will be entitled to exemption. We are not concerned, however, with. els. (a) to ( e) as the only claim to exemption which has been made by the owner of the property is that it falls within cl. (f). The question is whether that claim is justified. It appears to us to be clear that to be entitled to the exemption under cl. (f) the building or land must satisfy two conditions.

First, that it has been used or acquired for public service or for public purpose, and secondly, that it is either the property of the State or in the occupation of the Central or any State Government. The finding of the High Court that the building was being used at the relevant date for a public purpose is not disputed before us. That question therefore need not be further considered. What is disputed howeTer is: Was it iu the occupation of the Central 1 S. C.R. Government ? On behalf of the appellant, the Cantonment Board, Mr. Sen has strenuously urged that the portion of the building with which we are concerned in this appeal was in fact being · occupied by a Military officer and such occupation is not occupation of the Government. It is to be made clear that while it is known that this portion of the building was appropriated by the government on lease under s. 7 of the Cantonments (House Accomodation)

Act, it is not the appellant's case that the occupation of the Military Officer was as a sub· lessee of the government. Mr. Sen's argument proceeded on the basis that the government being the lessee of this portion of the building permitted a Military Officer to occupy it. The question we have to consider is whether on such occupation by · the Military Officer the building ceased to be in the occupation of the Central Govern- . ment, the lessee. It is worth noticing that while s. 65 (l) speaks of actual occupation by the owner and makes the tax primarily leviable on the owner if he is the ac.tual occupier, s. 99(2) uses the words "in the occupation of the Central or any Stare Government" and not ''in the actual occupation of the Central or the Sta.te Government". Even so, it has been argued by Mr. Seti that the word "occupation" without anything more, should ordinarily be inter· preted as actual occupation.

While this may be correct, we find it difficult to agree that when a person, entitled to actual occupation by reason of his lease permits another to occupy. it, then it ceases to be in the actual occupation of the person so permitting. Where the Centr~l or the 8tate Government after obtaining the lease under s. 7 leases it out to any person, it is itself not entitled to actual occupation but has to.put the.sub-lessee into occupation. In such a case, it may be reasonably said that the government has ceased to be in occupation. The CJntonment BorJTd A.mb1fa c~ rt. Dipak Parkosli DasJ. Tht Cantonment Board Amht1!a Gantt. Dipak P,,r/,: 1sh DasJ. SUPREME COUR'l' REPORTS (HJ63] In the case whe1e the government after titking the lease mec-ely gives a licence to some person to come and live in it, it is entitled to take away the permission at any time and thus to come into possession itself.

We can see no reason for thinking that in such a case the fact that the person to whom permission has been given i• residing in the building, makes it anytholess the actual occupation of the government. If that was so, the fact that the Military Officer may be away for months together and the members of his family or his servants are residing would make the building cease to be in occupation of the i\Iilitary Officer. That is on the face of it absurd. In our opinion, where the person entitled to occupy, permits some other person to be in the building, he is in actual occupation through such other person. Accordingly, we are of opinion that the building in question was in occupation of the Central Government through the l\Iilitary Officer whom it has permitted to reside in it. The auswers given by the High Court were therefor" correct. The appeal is accordingly dismis· sed. But, as there was no appearance for the other side, there will be no order as to costs. Appeal dismissed.