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PETITIONER: THE CANTONMENT BOARD, AMBALA CANTT.

       Vs.

RESPONDENT: DIPAK PARKASH AND OTHERS

DATE OF JUDGMENT: 03/04/1962

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS KAPUR, J.L. DAYAL, RAGHUBAR

CITATION:  1963 AIR  963            1963 SCR  Supl. (1) 196

ACT: House Tax-Occupation of building by Military Officer whether occupation  of Central Government-Cantonment Acts, 1924  (20 of  1924), ss. 65, 84 (2), 99(2)-Cantonments  (House  Accom- modation) Act, 1923 (6 of 1923), ss. 5 , 6, 7, 11, 12.

HEADNOTE: One-half  of bungalow No. 127-B, Bank Road,  Ambala  Cantt., was  taken on lease by the Central Government and was  being used  by  some  Military  Officer  for  his  Residence   The Assessment Committee of ’the Cantonment Board, Ambala,  made an  assessment  of  house-tax but the  assessment  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 bearing  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  the  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 questions 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 user for public  purpose  and also  amounted to occupation by the Central  Government  and the  authentication was valid.  Against the decision of  the High Court on the second questions the Cantonment Board went in  appeal  to  the  Supreme Court  on  the  strength  of  a certificate

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granted by the High Court.  197 Held,,  that the building in question was in  occupation  of 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 actual occupation through the other person.

JUDGMENT: CIVIL APPELLATE JURISDICTION: 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 appellant. The respondent did not appear. 1962.  April 3. The Judgment of the Court was delivered by DAs  GUPTA, J.-In an appeal against the assessment of  house tax of bungalow 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 assessee on which the officer bearing 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 decision 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 time by  some military  officer for his residence.  It was  also  admitted that  the assessment list was signed originally by three  of the four persons who formed the assessment committee and was signed by the fourth member a few days later.  The appellate officer set out these circumstances in 198 his statement and then formulated the three questions thus .lm15      "1.  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 officer of  the portion of the Bungalow appropriated under Act No. 6 of 1923 amounts to its occupation by the Central Government,  within the meaning of a. 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 or the public  purpose an  also  amount  to occupation by  the  Central  Government within  the meaning of s. 99 (2) (f) of the Cantonments  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.  199 The assessee was not represented before us but we were taken

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through  all the relevant provisions of law by Mr.  Sen  who appeared for the Cantonment Board.  For a proper decision of the  question in controversy it is necessary first  to  take note  of  the scheme of appropriation of  houses  under  the Cantonments (House Accommodation) Act, No. VI of 1923. Under s. 5 every house situate in a Cantonment is liable  to appropriation  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  agreement   and   no government  property  is available for the purpose  and  the Officer  Commanding 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 house which appears  to  him  to  be suitable requiring him to permit the house to be  inspected, measured and surveyed. Under s. 7 if a Officer Commanding 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 necessary 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. Section  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 within 21 days from the service of the notice and 200 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 premises and enforce the surrender of the house. It  is clear from this resume of some of the  provisions  of 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 if; done with  the  house thereafter is not dealt with by the Act. Coming  now to the provisions of the Cantonments Act,  1924, we have to consider first s. 65, which is in these words :-               "65.  Save as otherwise expressly provided  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, actual occupier of the property upon               which the said tax is I 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’

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             lessor;               (b)   if  the  property is sub-let,  upon  the               superior lessor;               (c)   if the property is unlet, upon the                201               person  in  whom  the right to  let  the  same               rests.               3.    On  failure  to recover any sum  due  on               account of such tax from the person  primarily               liable,  there  may  be  recovered  from   the               occupier of any 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  which  the  rent               annually 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               authenticated assessment list.               4.    An  occupier who makes any  payment  for               which  he is not primarily liable  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 conferred by a.               60.   Section 99 (2) contains  the  provisions               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               202               and public libraries, play-grounds and  dharam               salas  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  pur-               pose,which are the property of the State or in               the  occupation  of the central 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 cis.  (a) to (f) it will be entitled to exemption.   We  are not  concerned,  however, with cls. (a) to (e) as  the  only claim to exemption which has been made by the owner of  the_ property  is that it falls within el. (f).  The question  is whether that claim is justified. It  appears  to us to be clear that to be  entitled  to  the

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exemption  under el. (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  however  is  : Was it in  the  occupation  of  the Central  203 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 Accommodation) 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 oil such occupation  by  the  Military Officer  the building ceased to be in ’,-,he  occupation  of the Central Government, the lessee. It  is worth noticing that while s. 65 (1) speaks of  actual occupation by the owner and makes the tax primarily leviable on the owner if he is the actual occupier, s. 99(2) uses the words  ((in  the  occupation of the  Central  or  any  State Government" and not "in the actual occupation of the Central or  the State Government".  Even so, it has been  argued  by Mr.  Sen that the word "occupation" without  anything  more, should  ordinarily  be  interpreted  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 Central or the State 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. 204 In  the  case where the government after  taking  the  lease merely  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  is residing  in  the building, makes it anytheless  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  Military 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 Military Officer whom it has permitted to reside in it. The answers given by the High Court were therefore  correct.

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The  appeal is accordingly dismissed.  But, as there was  no appearance for the other side, there will be no order as  to costs.                          Appeal dismissed 205