The only provision under the Act which provides the manner in which the corporation could recover the property taxes is found in Section 128 of the Act. For ease of reference the same is reproduced here:“ 128. Manner of recovering municipal taxes.
A municipal tax may be recovered by the following
processes in the manner prescribed by rules: –
(1) by representing a bill,
(2) [***],
(3) by distraint and sale of a defaulter's movable
property,
(4) by the attachment and sale of a defaulter's
immovable property,
(5) in the case of octroi and toll, by the seizure and sale
of goods and vehicles,
(6) in the case of property tax by the attachment of rent
due in respect of the property,
(7) by a suit.”{Para 3}
4. The Taxation Rules as provided in Chapter VIII of Schedule D to the Act(Rules) also does not in terms indicate any power in the Respondent Corporation to seal the defaulting property and disconnect the electric supply to it for recovery of property taxes.
5. As none of the aforesaid provisions in the Act and the Rules indicate any power in the corporation to seal the defaulting property and/or disconnect the supply of electricity to the defaulting property, we asked Mr. Patil the learned counsel of the Corporation, the source of its power to seal the property and disconnect electricity supply to be defaulting property. Mr. Patil, the learned counsel appearing for the Corporation did concede there is no specific power in the Act and/or the Rules which
entitles the Corporation to seal and disconnect the electric supply to the defaulting property. He submits that it is incidental to the Corporation's power to sell the property under Rule 47 of the Rules after attachment under Section 42 of the Rules. In this case there has been no attachment of the defaulting property, so no question of any sale or exercise of incidental power can arise. In any event, a power to seal and disconnect electric supply is a very drastic power which would make defaulting property unusable only because the property taxes have not been paid.
The action of sealing the defaulting property and cutting of its electric supply is consequently without jurisdiction as it is not supported by any provisions of law. The Act and the Rules thereunder provides the manner in which the property taxes in respect of the property is to be recovered by the Corporation and the Corporation and its officers are bound to strictly follow the provisions of the Act and Rules and not read into the provisions/powers which are not explicitly found in the statute so as to clothe themselves with powers which they do not possess.
6. In the above view, the impugned sealing of the 15 mobile towers as well as disconnecting of electric supply by the respondent no.1Corporation is completely without jurisdiction. In the above view, we direct the corporation to forthwith reconnect the electric supply as well as deseal the subject 15 mobile towers. The same should be done latest by this evening.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3367 OF 2017
ATC Telecom Infrastructure Private Limited . Vs Nashik Municipal Corporation
CORAM: M. S. SANKLECHA &
A. K. MENON, JJ.
DATE : 21st MARCH, 2017
1. This petition was mentioned yesterday for urgent reliefs. This in
view of the fact that the respondent no.1corporation
had sealed 15
mobile towers on 18th March, 2017 for alleged failure to pay the property
taxes. It was kept on board today for admission after notice to
respondentCorporation.
2. This petition under Article 226 of the Constitution of India
challenges:
(a) the sealing of 15 mobile towers as well as disconnecting the electric
supply to the sealed mobile towers;
(b) the property tax bills annexed to the petition at Exhibit B to B17
and
along with the final notices annexed to the petition at Exhibit D
to D40.
This, inter alia, on the ground that the petitioner has failed to pay the
property taxes as well as penalty under the Maharashtra Municipal
Corporation Act (the Act).
3. The only provision under the Act which provides the manner in
which the corporation could recover the property taxes is found in Section
128 of the Act. For ease of reference the same is reproduced here:“
128. Manner of recovering municipal taxes.
A municipal tax may be recovered by the following
processes in the manner prescribed by rules: –
(1) by representing a bill,
(2) [***],
(3) by distraint and sale of a defaulter's movable
property,
(4) by the attachment and sale of a defaulter's
immovable property,
(5) in the case of octroi and toll, by the seizure and sale
of goods and vehicles,
(6) in the case of property tax by the attachment of rent
due in respect of the property,
(7) by a suit.”
4. The Taxation Rules as provided in Chapter VIII of Schedule D to the
Act(Rules) also does not in terms indicate any power in the Respondent Corporation to seal the defaulting property and disconnect the electric supply to it for recovery of property taxes.
5. As none of the aforesaid provisions in the Act and the Rules indicate
any power in the corporation to seal the defaulting property and/or
disconnect the supply of electricity to the defaulting property, we asked
Mr. Patil the learned counsel of the Corporation, the source of its power to
seal the property and disconnect electricity supply to be defaulting
property. Mr. Patil, the learned counsel appearing for the Corporation did
concede there is no specific power in the Act and/or the Rules which
entitles the Corporation to seal and disconnect the electric supply to the
defaulting property. He submits that it is incidental to the Corporation's
power to sell the property under Rule 47 of the Rules after attachment
under Section 42 of the Rules. In this case there has been no attachment
of the defaulting property, so no question of any sale or exercise of
incidental power can arise. In any event, a power to seal and disconnect
electric supply is a very drastic power which would make defaulting
property unusable only because the property taxes have not been paid.
The action of sealing the defaulting property and cutting of its electric
supply is consequently without jurisdiction as it is not supported by any
provisions of law. The Act and the Rules thereunder provides the manner
in which the property taxes in respect of the property is to be recovered by
the Corporation and the Corporation and its officers are bound to strictly
follow the provisions of the Act and Rules and not read into the
provisions/powers which are not explicitly found in the statute so as to
clothe themselves with powers which they do not possess.
6. In the above view, the impugned sealing of the 15 mobile towers as well as disconnecting of electric supply by the respondent no.1Corporation is completely without jurisdiction. In the above view, we direct the corporation to forthwith reconnect the electric supply as well as deseal the subject 15 mobile towers. The same should be done latest by
this evening.
7. So far as the petitioners challenge with regard to the impugned
property bills at Exhibit B to B17
and E to E24
and the final notice
annexed at Exhibit D to D40
are concerned, we note that the petitioners
have filed representations on 6th March, 2017 and 14th March, 2017 with
the respondent no.1 corporation. The communication dated 6th March,
2017 is the petitioners representation on why the demand for property
taxes made by the corporation in the impugned property tax bills and final
notices are not warranted. The representation dated 14th March, 2017
merely seeks a breakup of the alleged arrears of property taxes payable by
the petitioners. Mr. Patil on instructions states that the breakup of the
arrears of property taxes in the form of bills issued will be handed over to
the petitioner's representative, if he visits the office of Mr. Rohidas
Dorkulkar, Dy. Commissioner, Tax and Valuation Department at 4.00 p.m.
on 24th March, 2017. So far as the representation dated 6th March, 2017 is
concerned, the respondent corporation will hear the petitioners on the
same and dispose of the petitioners representation in accordance with law.
It is agreed between the parties that Mr. Rohidas Dorkulkar, Deputy
CommissionerTax
and Valuation Department, would hear the petitioners
on the representation dated 6th March, 2017 on 29th March, 2017 at 4.00
p.m.
8. The petitioners have undertaken to pay the undisputed amount of
property taxes of Rs.47 lakhs on or before 28th March, 2017. Needless to
say that till such time the Deputy CollectorAssessor
disposes of the
petitioners representation dated 6th March, 2017, the corporation will not
not act further upon the impugned property bills and final notices.
9. In the above view, nothing now survives in this petition. Therefore,
petition is disposed of in above terms. No order as to costs.
(A. K. MENON, J.) (M. S. SANKLECHA, J.)
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