# SUPREME COURT REPORTS [1963] THE CANTONIIIENT BOARD, AMBALA CANTT v. DIPAK PARKASH AND OTHEHS

- **Citation:** [1963] 1 S.C.R. 196
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil Appeal No. 538 of 1960
- **Bench:** J. L. Kapuh, K. C. DAS GuPrA, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1963-the-cantoniiient-board-ambala-cantt-v-dipak-parkash-2537
- **Pages:** 9

## Headnote

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.
SUPREME COURT REPORTS - 197
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
1962
The Cantonment
Board Amhala Gantt .
••
Dipak P"rkash
Dtu J,
198
SUPREME COURT REPORTS [J 963]
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 Gove

## Text

1962
A;ril 8.
196
SUPREME COURT REPORTS [1963]
THE CANTONIIIENT BOARD, AMBALA CANTT.
v.
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.
SUPREME COURT REPORTS - 197
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
1962
The Cantonment
Board Amhala Gantt .
••
Dipak P"rkash
Dtu J,
198
SUPREME COURT REPORTS [J 963]
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.
SUPREME COURT REPORTS
199
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
if- liable 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~.
v.
Dip1le Parkuli
D1sJ.
1962
Thi! Confonment
Boord Ambato Contt.
v,
Dipak Parlt(lsh
D'ls J.
200
SUPREME COURT REPORTS (1963)
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
201
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
1962
The Cantonmmt
Board Amhala Contt.
•.
Dipak Parfash
DasJ.
l!JGt
The Can~onment
Board 4.mbalcJ Gantt
'·
'
Dil 11.~·
:~.-.rkash
lJas J.
202
SUPREME COURT REPORTS [1963]
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.
SUPREME COURT REPORTS
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
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.
1962
The CJntonment
BorJTd A.mb1fa c~ rt.
v.
Dipak Parkosli
DasJ.
-,
Tht Cantonment
Board Amht1!a Gantt.
v.
Dipak P,,r/,: 1sh
DasJ.
204
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.
--