ORDER
Syed Shah Mohammed Quadri,
J.
1. Petitioner is a private limited company registered under the Indian Companies Act. It has been incorporated for the purpose of construction of buildings, flats and selling the same. One such venture undertaken by the petitioner is a building bearing Municipal No. 1-7-281 to 283/1. On that site, the petitioner constructed a commercial complex. The subject-matter of dispute, in this case, is demand for municipal tax in respect of the cellar of the complex, which is alleged to have been let out by the petitioner. The tax was assessed under the provisions of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’) with effect from 1-10-1989 and the arrears of tax till 31-3-1995 amounting to Rs. 1,57,464/- is now in dispute. In respect of the said demand, the petitioner seeks a Writ of Mandamus to quash the said demand notice.
2. Notice before admission was taken by the learned Standing Counsel for ihe respondents and a counter-affidavit, is filed by the respondents. In the counter-affidavit, it is, inter alia, stated that the allegation that ten petty dealers are doing business in electronics and-electrical goods in an extent of 2000 sq. feet is not correct. It is stated that the constructions of the 200 sq. feet in the second cellar was completed even in the year 1988
and the same was assessed to tax for the first time in 1989 and that the entire cellar portion was leased out to a single tenant on annual rateable value of Rs. 90,000/-. It is stated that the building was assigned premises No. 1-7-281 to 283/1 in the name of the petitioner after obtaining the rental declaration from the tenant; that the special notice under subsection (2) of Section 220 of the Act bearing No. PA/87/Cl/89, dated 21-10-1989 was issued in the name of the petitioner-company, but at the instance of the petitioner, it was served on the occupier on 23-10-1989 and that pursuant to the said notice the owner ought to have filed complaint within 15 days from the date of receipt of the notice, but no such complaint was filed. It is admitted that the demand notice was served on the petitioner demanding the arrears of tax of Rupees 1,57,464/- with effect from 1-4-1989. However, it is conceded that as the said premises was assessed tax with effect from 1-10-19S9 demand insofar as it relates to the period fom 1-4-1989 to 30-9-1989 amounting to Rupees 13J22/- has to be deducted from the amount in demand and it is stated that the correct amount in demand would come to Rupees 1,44,342/-. In the circumstances, it is prayed that the Writ Petition may be dismissed.
3. The petitioner filed a reply affidavit denying the allegations made in the counter affidavit and reiterating the facts stated in the writ affidavit.
4. Sri S. Hanumaiah, the learned counsel for the petitioner, submits that a special notice under sub-section (2) of Section 220 of the Act could be served on the occupier only when the owner is not available; as the petitioner was very much available in the same building, there was no basis for the authorities to serve the notice on the occupier. On account of non-service of notice on the petitioner, the petitioner was deprived of his opportunity of filing a complaint against the said notice, therefore, the impugned demand notice cannot be given effect to. As the demand was raised without complying with the principles of natural justice and also in violation of the provisions of Section 220(2) of the Act, the impugned notice may be quashed.
5. Sri K. N. Jwala, the learned Standing Counsel for the Municipal Corporation of Hyderabad, on the other hand, contends that the Act gives a choice to the Corporation to serve notice either on the, owner or on the occupier; therefore, service of notice on the occupier is a valid service within the meaning of Section 220(2) of the Act. As such, the demand is legally raised and the petitioner has to comply with the same.
6. The short question that arises for consideration is: Whether the service of notice contemplated under sub-section (2) of Section 220 of the Act, can be made on the occupier ignoring the owner? In other words whether the service of notice under Section 220(2) of the Act on the occupier is valid even when the owner is available?
7. To answer this question, it would be necessary to read the relevant provision here.
“Section 220(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 subsection (I), 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.”
8. From a perusal of the above provision, it appears to us that the special notice contemplated under sub-section (2) of Section 220 of the Act is in addition to the public notice. Public notice is contemplated under Section 218 of the Act. The reason appears to be that the person, who is fastened with the liability of the demand, must be given an opportunity of being heard. In such a situation, if the premises is in the occupation of the owner, the owner alone should be served with the notice under Section 220(2) of the Act. But, if some other person is in occupation and the owner is also available on the same
premises, the owner must be served with the notice. If, however, the occupier is holding the premised pursuant to the documents of lease or under any other valid document under which the occupier alone is liable to pay the tax, the service of notice on the occupier would be a valid notice within the said provision.
9. In the instant case, from the record, it appears that no rental document was executed. So, the liability to pay the tax cannot be said to be that of the occupier. The owner being liable to discharge the tax, Section 220 of the Act cannot be so construed as to hold that service of notice on the occupier would be valid and the owner will be deemed to have service of such a notice. Proper construction of that provision, in our view, would be that in cases where the occupier is not responsible for payment of the tax under the document under which he is holding possession, the owner ought to be served with a special notice under sub-section (2) of Section 220 of the Act. We, therefore, hold that the service of notice, in the instant case, is not a valid service under Section 220(2) of the Act.
10. In the circumstances, we consider it just and appropriate to direct the petitioner to approach the authorities by filing a complaint against the said special notice, within a period of 15 days from today. If such a complaint is filed within the above stipulated time, the respondents are directed to consider the same in accordance with law and pass appropriate orders thereon after giving due opportunity of being heard to the petitioner.
11. Insofar as the impugned demand is concerned, that would abide the result of the complaint made by the petitioner within two weeks from today. If the petitioner deposits 1/2 (one-half) of the amount mentioned in the impugned demand notice, within four weeks from today, the respondents are directed not to give effect to the impugned demand notice, pending disposal of the complaint petition that would be filed by the petitioner, as directed above, within to weeks from today. If no such complaint is filed within the above said period, it would be open to the authorities to proceed with the demand in accordance with law.
12. The Writ Petition is disposed of accordingly. No order as to costs. 13. Order accordingly.