Q.
Section 147(2) of Local Government Act 1976 provides that:
"If any such sum or any part thereof remains due and unpaid by the end of February or by the end of August in each year, as the case may be, it shall be deemed to be an arrear and may be recovered as provided in Section 148"
Explain the process that can be undertaken by Local Authority to recover arrears in assessment.
(25 marks, 2014 Q6)
A.
See also:
What do you mean by 'DISITA'?
Proceedings for recovery of an arrear
148. (1) For the recovery of an arrear the local authority may issue a warrant of attachment in Form F of the First Schedule hereto and may seize by virtue thereof any movable property, belonging to the owner or occupier liable to pay the same, which is found within the local authority area and may also seize any movable property, to whomsoever belonging, which is found on the holding in respect of which the arrear is due:
Provided that no warrant of attachment shall be issued by the local authority unless it has served a notice, in Form E of the First Schedule hereto, posted or delivered to the owner or any one of the owners, if more than one, at the last known address, calling on him to pay the arrear within fifteen days of the posting or delivery.
(2) The warrant shall be executed by an officer of the local authority who shall make an inventory of the property attached there under, and shall at the same time give notice in Form G of the First Schedule hereto, to the person in possession of the property at the time of attachment:
Provided that where in the opinion of the officer executing the warrant the value of the movable property to be attached is of a lesser value than the arrear to be recovered or there is no movable property to be attached as in the case of a holding which is vacant or unoccupied no such inventory need be made and in such a case he shall affix a notice in Form H of the First Schedule hereto on some conspicuous part of the holding or any one of the holdings in respect of which the arrear is due to the effect that procedure for the recovery shall be instituted under section 151.
(3) Such officer may break open in the daytime any house or building for the purpose of effecting such attachment.
(4) The fee for a warrant of attachment shall be of such amount as the local authority may fix from time to time and shall be costs of the attachment.
Sale of property attached
149. (1) Unless the arrear with costs be paid within seven days from the date of the attachment the property attached or such part thereof as may be necessary shall be sold by public auction:
Provided that where the property seized is of a perishable nature or where expense of keeping it in custody will exceed its value it may be sold at once.
(2) The expenses of the maintenance of livestock and the custody of moveable property shall be costs of the attachment.
Attachment and sale of holding
151. (1) If the arrear cannot be recovered in the manner provided in section 148 it shall be lawful for the Registrar of the High Court upon application made by the local authority, or by any officer of the local authority authorized by the local authority in that behalf, to order the attachment and sale of the holding or holdings in respect of which the arrear has accrued.
(2) Such attachment and sale may be effected in the manner provided by the law relating to civil procedure for the execution of a decree by attachment and sale of immovable property.
(3) The Registrar of the High Court shall, from the proceeds of sale, provide first for the costs of attachment and sale, then for payment to the local authority of the amount of the arrear, together
with interest thereon at the rate of six per centum per annum and costs, and in the event of there being any surplus remaining the Registrar shall, if he is satisfied as to the right of any person claiming such surplus, pay the amount thereof to him, and if he is not so satisfied, shall place the amount on deposit in the Treasury to be held in trust for the person who may ultimately succeed in establishing his claim thereto.
(4) The local authority may in its discretion refrain from seizing and selling, or may release from attachment, any property lawfully seizable under section 148 where such property is the property of the occupier, being a tenant, of the holding or of a person not liable to pay an arrear due in respect of such holding.
(5) Where the property is the property of a tenant-occupier, the local authority shall refrain from seizing and selling or shall release from attachment such property:
(6) The amount of any rent paid by a tenant-occupier to the local authority under subsection (5) may be deducted by such tenant-occupier from the next and following payments of rent to the owner of the holding.
Brief Summary
The Law prescribes the power of the Local Authority to recover the arrear by first sending a notice (Form E of First Schedule), where outstanding is due in 15 days. If unavoidable, a warrant of attachment (Form F of the same) may be produced after having failed the notice (Form G of the same) in the process to seize any movable property to recover the amount outstanding.
If the amount of movable property seized is still less than the arrear outstanding, the officer could affix a notice in Form F of the First Schedule, to recover the sum under S.151. This means the property is to be disposed of by the Local Authority to recover the arrears.
This procedures would follow the rules in the High Court, whereby the proceeds of sale would cover first the cost of the sale of the holding, and remaining to pay the arrears owed by the holding together with interest of 6% per annum. Only after having paid off all balances and costs, the remaining is part paid to the owner of the holdings.
Ref:
S.148, S.149 and S.151 of Local Government Act 1976, available at
http://www.agc.gov.my/Akta/Vol.%204/Act%20171.pdf