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Municipal Council Morshi Vs. Tulsiram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 495, 540 and 541 of 1973
Judge
Reported inAIR1978Bom92; 1977MhLJ735
ActsMaharashtra Municipalities Act, 1965 - Sections 65, 65(1), 80, 82, 86, 86-A, 86(1), 105, 106, 108, 109, 113, 114, 115, 116, 117, 118, 119, 119(1), 119(2), 120, 123, 145, 149, 150, 150(1), 151, 169, 170, 172, 332, 346(1); Bombay Provincial Municipalities Corporations Act - Sections 405 and 406; Road Traffic Act, 1930 - Sections 22; Motor Car Act, 1902 - Sections 6; Bombay District Municipal Act, 1901
AppellantMunicipal Council Morshi
RespondentTulsiram
Appellant AdvocateL.K. Khamborkar, Adv.
Respondent AdvocateJ.N. Chandurkar, Adv.
Excerpt:
a) the case focused on the scope of an appeal made by the assessee, against increased assessment - the court held that in the said appeal, that was filed under section 169 of the maharashtra municipalities act, 1965, the assessee was not authorized to challenge the validity of the tax or assessment itself - however, in the said appeal, the assessee could challenge the quantum and valuation of the assessment.;b) the assessee filed an appeal under section 169 of the maharashtra municipalities act, 1965 - however, individual notices were not served on the assessee under section 119 of the act - it was held that the said appeal could not be dismissed, on the ground that it had not complied with section 170(b) of the act. - maharashtra scheduled castes, scheduled tribes, de-notified tribes.....dharmadhikaki, j.1. these three civil revision applications have been filed by the municipal council, morshi, challenging the orders passed by the sessions judge. amravati as well as the judicial magistrate, first class, morshi, declaring the bills issued by the municipal council for recovery of amount of the tax for the year 1971-72 as illegal and directing the municipal council to refund the amount of tax paid by the opponents. as all these 3 revision applications raise common questions of fact and law, they were heard together and are being disposed of by this common judgment.2. the three houses concerned in these cases are house no. 127 belonging to tulsiram and houses nos. 129 and 142 belonging to vishwanath gadbail. all the houses are situated in ward no. 10 of morshi town in.....
Judgment:

Dharmadhikaki, J.

1. These three Civil Revision Applications have been filed by the Municipal Council, Morshi, challenging the orders passed by the Sessions Judge. Amravati as well as the Judicial Magistrate, First Class, Morshi, declaring the bills issued by the Municipal Council for recovery of amount of the tax for the year 1971-72 as illegal and directing the Municipal Council to refund the amount of tax paid by the opponents. As all these 3 revision applications raise common questions of fact and law, they were heard together and are being disposed of by this common judgment.

2. The three houses concerned in these cases are house No. 127 belonging to Tulsiram and houses Nos. 129 and 142 belonging to Vishwanath Gadbail. All the houses are situated in Ward No. 10 of Morshi town in Amravati district. The previous assessment figures for these 3 houses for the assessment years 1968 to 1971 were Rs. 9.55. Rs. 13.50 and Rs. 43.50 respectively. The new assessment of taxes on these very houses for the years 1971 to 1974 are Rs. 60.00, Rs. 29.00 andRs. 59.45 respectively. It is not disputed that a public notice as contemplated by Section 119 (1) of the Maharashtra Municipalities Act, 1965, referred to hereinafter as the Act, was issued by the Municipal Council. Further, it is also not disputed that no individual notices were served on these assessees, as required by the latter part of Section 119 (1) of the Act.

3. Municipal Council, Morshi, presented the necessary bills under Section 150 of the Act on the assessees. Being aggrieved by these bills, the assessees filed appeals before the Judicial Magistrate first class under Section 169 of the Act and raised various contentions. The main contention raised by the assessees in these appeals was that as there was an increase in the assessment, the assessees were entitled to individual notices, besides the general notice under Section 119 of the Act. Since this was not done, the taxation as well as assessment were illegal.

4. The learned Judicial Magistrate, First Class who entertained the appeals came to the conclusion that there was a new assessment under the new Act and, therefore, individual notices were necessary and the said notices were not served on the assessees. In view of this he allowed the appeals and directed refund of the amount paid by the assessees.

5. Being aggrieved by this order passed in the appeals, the Municipal Council filed revision applications before the Sessions Judge, Amravati and the Sessions Judge came to the conclusion that in the instant cases there was an increase in the taxation and, therefore, individual notices under Section 119 of the Act were obligatory. He further found that this was a case of imposition of a new consolidated property tax for the first time under the provisions of the Maharashtra Municipalities Act, 1965 and there is also an increase in the assessment and, therefore, the individual notices were necessary. He further came to the conclusion that as individual notices were not served on the assessees, the tax and its recovery became illegal. In view of this, he dismissed the revision applications filed by the Municipal Council. Being aggrieved by these orders, the present civil revision applications are filed by the Municipal Council.

6. When these civil revision applications were placed for hearing before the Single Judge of this Court, the learned Single Judge directed that these revision applications should be put up before aDivision Bench, as an important question of law as to the scope of appeal under Section 169 of the Act as well as interpretation of the provisions of Section 170(b) and 172 of the said Act is involved in these revision applications. In view of this order passed by Masodkar J. these revision applications are put up before us for final hearing.

7. Shri Khamborkar, the learned counsel appearing for the Municipal Council, contended before us that the Sessions Judge as well as the Judicial Magistrate, First Class, committed an error in rejecting the contentions raised on behalf of the Municipal Council. According to Shri Khamborkar, the authorities below have not properly understood the scope of an appeal filed under Section 169 of the Act. The learned counsel further contended that the appeal contemplated by Section 169 is an appeal against a bill presented under Section 150 of the Act. The scope of this appeal is limited. In such an appeal only assessment and valuation can be challenged and it is not open to the assessee-appellant to challenge the legality or validity of the tax or the assessment itself. In support of his contention Shri Khamborkar has relied upon a decision of this Court in Municipality of Ankaleshwar v. Chhotalal Ghelabhai Gandhi : (1955)57BOMLR547 . The learned counsel further contended that .the provisions of the Act as well as the provisions of the Bombay District Municipal Act are part materia and, therefore, the said decision applies to the. controversy raised in these civil revision applications with all force.

8. On the other hand, it is contendedby Shri Chandurkar, the learned counsel appearing for the assessors that in an appeal filed under Section 169 of the Act it is open for an appellant to challenge even the legality and the validity of the tax as well as its assessment. According to the learned counsel, the provisions of Section 169 of the Act are generally worded. The appeal contemplated under B. 169 of the Act is an appeal against any claim for taxes and if this is so, it is open to an assessee to contend in his appeal that as the procedure prescribed by the Act is not followed, the tax itself is not either properly imposed or levied. Shri Chandurkar further contended that as iti these cases it is an admitted position that individual notice as contemplated by Section 119 of the Act was not given to the assessees, it is quite obvious that the Municipal Council hag not followed themandatory procedure prescribed by theAct and, therefore, the authorities below were right in coming to the conclusion that the levy of the tax itself was illegal. In support of his contention Shri Chandurkar has relied upon a subsequent decision of this Court in Miraj City Municipality v. American Board of Foreign Mission : AIR1967Bom276 .

9. For properly understanding the controversy raised before us it will be necessary to refer to certain relevant provisions of the Act. Chapter IX of the Act deals with Municipal Taxation. Section 105 deals with imposition of compulsory taxes, whereas Section 108 deals with imposition of other taxes which are voluntary in nature. Section 109 lays down a procedure preliminary to imposing tax under Section 108 of the Act. Then Sections 113 onwards in Chapter IX deal with assessment and liability to tax on buildings and lands etc. Section 113 contemplates appointment of authorised valuation officer and then comes Section 114 which lays down as to how the rateable value should be determined. Then Sections 115, 116, 117 and 118 deal with the preparation of the assessment lists etc. as well its publication. Section 119 with which we are concerned in these revision applications read as under:

'119 (1) The Chief Officer shall at the time of the publication of the assessment list under the last preceding section give public notice of a date not less than thirty days, after such publication, before which objections to the valuation or assessment in such list shall be made; and in all cases in which any property is for the first time assessed or the assessment is increased, he shall also give notice thereof to the owner or occupier of the property, if known, and if the owner or occupier of the property is not known, he shall affix the notice in a conspicuous position on the property.

(2) Objections to the valuation and assessment on any property in such list shall, if the owner or occupier of such property desires to make an objection, be made by such owner or occupier or any agent of such owner or occupier to the Chief Officer before the time fixed in the aforesaid public notice, by application in writing, stating the grounds on which the valuation or assessment is disputed; all applications so made shall be registered in a book to be kept by the Chief Officer for the purpose.'

10. Section 120 of the Act lays down a procedure as to how the objectionsraised are to be dealt with. Then comes Section 121 which provides for authentication of list of assessment and by Section 122 the said authentic list is made conclusive. According to Section 122 of the Act, subject to such alterations, as may be made in the said list under the provisions of the next succeeding section and subject to the result of any appeal or revision filed under Section 169 or 171, the entries in the assessment list so authenticated and deposited and the entries, if any, inserted in the said list under the provision of the next succeeding section shall be accepted as conclusive evidence, for the purposes of tax, valuation or annual rent etc. Then Section 123 provides for amendment of assessment list etc. The other provisions of the said Chapter deal with the other taxes with which we are not concerned in these civil revision applications. Then comes Chapter X which deals with recovery of Municipal claims. Section 149 provides a mode of recovery of money claimable under the Act. Then come Sections 150 and 151 which read as under:

'150 (1) When any amount becomes due to the Council under this Act or the rules or by-laws made thereunder, the Chief Officer shall, with the least practicable delay, cause to be presented to the person liable for the payment thereof, a bill for the sum claimed as due.

(2) Every such bill shall specify the period for which, and the property, occupation or thing in respect of which the sum is claimed and shall also give no-lice of the liability incurred in default, of payment and of the time within which an appeal may be preferred as hereinafter provided against such claim.

(3) If a person to whom such bill is presented pays, within fifteen days from the presentation thereof, the whole sum claimed as due then a discount equal to one per cent of such sum, shall be paid by the Council to him in such manner within such period as may be prescribed.

151. If the person to whom a bill has been presented as provided under the last preceding section does not, within fifteen days from the presentation thereof, either.

(a) pay the sum claimed as due in the bill, or

(b) show cause to the satisfaction of the Chief Officer why he is not liable to pay the same, or

(c) Prefer an appeal in accordance with the provisions of Section 169 against the claim.

The Chief Officer may cause to be served upon the person liable for the payment of the said sum a notice of demand in the form of Schedule IV or to the like effect.'

After the bills are presented according to Section 150 of the Act, two modes are available to the assessee to challenge the bills, one is to show cause to the satisfaction of the Chief Officer why he is not liable to pay the sum or to prefer an appeal in accordance with the provisions of Section 169 of the Act against the claim made. Section 169 deals with appeals to Magistrates, whereas Section 170 lays down a procedure for filing such an appeal. Section 171 provides a revision application against an order passed by the Magistrate in the appeal and then comes Section 172 which lays down a bar of other proceedings. Sections 169 to 172 of the Act read as under:

'169. Appeals against any claim for taxes- or other dues included in a bill presented to any person under Section 150 or any other provisions of this Act may be made to any Judicial Magistrate or Bench of such Magistrates by whom under the direction of the Sessions Judge such class of cases is to be tried.

170. No appeal under the last preceding section shall be entertained unless-

(a) the appeal is brought within fifteen days next after the presentation of the bill complained of ; and

(b) an application in writing stating the grounds on which the claim of the Council is disputed, has been made to the Council in the case of a tax on buildings or lands or both within the time fixed in the notice given under Section 119 or 123 of the assessment or alteration thereof, according to which the bill is prepared; and

(c) the amount claimed from the appellant has been deposited by him in the municipal office.

171. The decision of the Magistrate or Bench of Magistrates in any appeal made under Section 169 shall, at the instance of either party, be subject to revision by the Court to which appeals against the decision of such Magistrate or Bench of Magistrates ordinarily lie.

172. No objection shall be taken to any valuation, assessment or levy nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act.'

Therefore, it is quite obvious from the scheme 89 laid down in Chapters IX and X oi the Act that Chapter IX deals with the imposition of compulsory and voluntary taxes whereas Chapter X deals with recovery of Municipal claims only. Section 169 appears in Chapter X and it provides (for) an appeal against a claim for taxes included in a bill presented to any person under Section 150 of the Act. Practically similar provisions were made under Bombay District Municipal Act, 1901, with which a Division Bench of this Court was concerned in the case of Municipality of Ankleshwar v. Chhotelal : (1955)57BOMLR547 (cit. supra). In the said case after making a reference to the relevant provisions of the said Act, the Division Bench observed as under :

'The scope of the appeal or revision under Section 86 of the Act is indicated by several sections which have been briefly reviewed above. The basis of all the Procedure, in the case of a rate on lands and buildings, is the preparation of the assessment list which contains the name of the street where the property is situated, the designation of the property, the name of the owner or occupier, the letting value of the property and the amount of the tax assessed thereon. It is the entries in this assessment list that are the subject-matter of objections to be filed under Section 65. The public notice given under Sub-section (1) of Section 65 is for the purpose of informing the public that the objections to the valuation and assessment are to be received and the objections have to state that grounds on which the valuation and assessment are disputed. After the objections are disposed of, necessary amendments have to be made in the assessment list. After the assessment list is duly authenticated, the entries in the authenticated list are conclusive evidence of the letting value of the property and of the amount of tax leviable thereon. But the entries are subject to the result of an appeal under Section 86. It would thus appear that the appeal under Section 86 is with respect to the valuation and assessment with respect to which objections are heard and disposed of under Section 65. When a bill is presented under Section 32 of the sum claimed as due by way of tax, the person to whom the bill is presented may either pay the sum due or plow cause to the satisfaction of the municipality why he should not pay the same or prefer an appeal in accordance with section 86. Section 86 makes it clear that the appealis against the claim included in the bill. But no appeal can be heard or determined unless (1) it is filed within 15 days from the presentation of the bill, (2) the amount claimed from the appellant is deposited by him in the municipal office and (3) (this is the most important clause) an application in writing stating the ground on which the claim of the municipality is disputed has been made to the municipality within the time fixed under Section 65 in the case of a rate on buildings or lands. It seems to us that this clause makes it clear that the appeal can only be with respect to the matters with regard to which an objection could be taken in the inquiry made by the municipality under Section 65 of the Act, and the scope of the appeal is confined only to the grounds stated in the objections made to the municipality under that Section. As we have pointed out earlier, the enquiry made by the municipality under Section 65 is limited to the valuation and assessment so far as the rates on buildings and lands are concerned. Section 86-A makes the position still clearer for, under that section every entry in the assessment list--(and this refers in particular to the valuation and assessment) --and the amount of every sum claimed from any person under the Act on account of tax -- (and this refers to the quantum claimed as due under the bill) --is final subject to the decision of the Magistrate in any appeal that may be preferred. Sub-section (2) also makes it clear that the appeal before the Magistrate 'is against any such entry or tax.' This in our opinion, makes it plain that the appeal is confined to the valuation and assessment shown in the entry in the assessment list and to the tax, i. e. the quantum of the sum claimed in the bill and to no other matters.

It was argued by Mr. Thakore that this would be placing a too restricted construction on Section 86 of the Act. He said that under Sub-section (1) an appeal could be preferred on any ground whatsoever. But where the appeal is in respect of a rate on buildings or lands, it is necessary that an application stating the grounds - on which the claim is disputed should have been made in writing to the municipality under Section 65. Mr. Thakore's contention was that clause (b) of Section 86 (1) should be construed as a proviso imposing a restriction applicable only to a rate on lands and buildings to the effect that objection should have been taken by an application under Section 65, where the propriety ofthe assessment and rate is being challenged. But he argued that that did not preclude other points being raised in appeal, such as the defective nature of the bill presented or the legality of the tax imposed and the procedure followed in imposing it. In this connection Mr. Thakore referred to the case M. & Section M. Rly. v. Bezwada Municipality where it was held by the Privy Council that (at p. 73 of AIR) :

'The proper function of a proviso is to except and deal with a case which Would otherwise fall within the general language of the main enactment and its effect is confined to that case. Where the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, So as to exclude from it by implication what clearly falls within its express terms.' In our opinion, however, the provision contained in clause (b) of Section 86 (1) of the Act is not a proviso in any sense. It is really a condition precedent to an appeal being heard and determined, for the section clearly says that no appeal shall be heard or determined unless an application in writing stating the ground on which the claim of the municipality is disputed has been made to the municipality within the time fixed under section 65. Unless such an application has been made within the time specified, no appeal can be heard and determined. We can illustrate the point by taking a case where the valuation and assessment, as stated in the list prepared under Section 63, is not disputed by the person concerned, and therefore he does not file any objection under Section 65. In such a case, if he prefers an appeal against the claim included in a bill, the appeal cannot be heard and determined in respect of any matter, whether it is with regard to the validity of the tax or the defective nature of the bill presented, clause (b) of Section 86 (1) is, in our opinion, a clear pointer to the scope of matters to be dealt with in appeal. They must relate to the propriety of the valuation and the assessment as stated in the entry in the assessment list or to the quantum of the amount claimed as tax in the bill presented under Section 82.'

Thereafter the Division Bench dealt with a contention raised by Mr. Thakore, who appeared for opponent assessee in that case, that the bill presented did not fulfill the statutory requirements and thesaid contention was repelled by the Division Bench by observing as under :

'It may be that the opponents may succeed if they file a suit to recover from the municipality any tax levied under a distress warrant based on a defective bill. But what we are concerned with in the present case is the question whether this point can be raised in an appeal under Section 80 of the Act. It would thus appear that the question that the bill did not conform to the statutory requirements of Section 82 cannot be raised in an appeal before a Magistrate under Section 86. If it cannot be raised in respect of a rate on buildings or lands, it would follow that it cannot be raised also in respect of a bill for other than taxes. It seems to us therefore that the learned Sessions Judge was wrong in rejecting the claim of the Municipality on the ground that the bill did mot conform to the statutory requirements of Section 82 in that it did not state the period for which the sum was claimed and did not state the time within which an appeal may be preferred ..... This is made perfectly plainwhen Section 86-A says that an appeal is against such entry, i. e. valuation and assessment and also against 'the tax' meaning the actual amount claimed by way of tax.'

Ultimately the Division Bench came to the conclusion that the question about the validity of a rate on lands and buildings cannot be raised in the objections under Section 65 of the Act and. therefore, in an appeal under Section 86. A contention was also raised in the said ease that the expression 'the appeal against the assessment' should be held to include an appeal against the validity and legality of the assessment and not merely against the quantum of the amount claimed. This contention was negatived by the Division Bench and the Division Bench held that the word 'assessment' is used in the various sections of the Bombay District Municipal Act means the actual sum for which the tax-payer is liable and for which the bill is presented under Section 82 of the Act. In view of this, the Division Bench allowed the revision application and set aside the order passed by the Sessions Judge dismissing the revision application on the ground that the bill did not conform to the statutory requirement of Section 82 of the Bombay District Municipal Act.

11. In substance, therefore, in the said case this Court held that an appeal pro-vided by Section 86 of the Bombay District Municipal Act which is similar to Section 169of the Maharashtra Municipalities Act, 1965 is merely confined to the valuation and assessment shown in the entry in the assessment list and to the tax, final is, the quantum of the sum claimed in the bill and no other matter. In such an appeal it is not open to a party to raise a question of validity and legality of the tax. The word 'assessment' is used in the Act to mean the actual sum for which the tax-payer is liable and for which the appeal is presented. As the question about the validity of rates on lands and buildings cannot be raised in an objection under Section 65 of the Bombay District Municipal Act, in an appeal under Section 86 of the said Act also the said question cannot be raised and the objections are merely confined to the valuation and assessment and not to the validity or legality of the tax. The provisions of Section 65 of the Bombay District Municipal Act are similar to the provisions of Section 119 of the Mah. Municipalities Act, 1965. In our opinion, this judgment of the Division Bench therefore applies on all fours to the present cases also, as the provisions are pari materia. In view of this decision of the Division Bench it is not necessary to make a detailed reference to the various provisions of the Act over again.

12. It is pertinent to note that the case of this Court in Municipality of Ankleshwar V. Chhotelal : (1955)57BOMLR547 was subsequently referred to in Balkrishna Vora v. Poona Municipal Corporation : (1963)65BOMLR119 . In that case the provisions of Sections 405 and 406 of Bombay Provincial Mpl. Corporations Act fell for consideration of this Court and ultimately this Court came to the conclusion that in an appeal provided under Section 406 of the said Act, the scope of appeal does not cover the vires of the tax or the legality of the tax which is sought to be levied. It provides for an appeal against rateable value or tax fixed or charged and looking to the general scheme of the said Act, by the words 'tax fixed or charged' what was meant was the amount or quantum of tax and not the legality of the same.

13. The Supreme Court had also an occasion to consider this aspect of the matter, though in different context, in New Manek Chowk Spg. and Wvg. Mills Co. Ltd v. Municipal Corporation of the City of Ahmedabad : [1967]2SCR679 . Alter making a reference to the variousprovisions of Bombay Provincial Municipal Corporations Act, including Section 406, ultimately the Supreme Court observed as under (at p. 1811) :

'The net result of all this is that unless the assessee pays the amount of tax demanded, his appeal cannot be heard so that if he questions the rateable value or the levy of the tax, he must in any event, deposit the amount demanded. In effect, the Act and the appeal rules do not take any provision for relief to an assessee who complains that the assessment book has been prepared in violation of the law.' (Underlining is ours).

14. Therefore, it is quite obvious to us that in an appeal under Section 169 of the Act it is not open to an assessee to challenge the legality or the validity of the tax it self.

15. This position becomes further clear from the provisions of Section 170 of the Act itself. Under Section 170 no appeal against any claim for taxes or other dues can be entertained by a Court unless the appeal is brought within 15 days next after the presentation of the bill complained of and an application in writing stating the grounds on which the claim of the Council is disputed has been made to the Council in the case of a tax on buildings or lands or both within the time fixed in the notice given under Section 119 or Section 123 of the assessment or alteration thereof, according to which the bill is prepared. Section 119 of the Act does not deal with the imposition of the tax itself. The question of imposition of tax is dealt with by Sections 105 and 108 of the Act. From the various provisions of the Act, including Sections 105, 106, 108, 109, 119, 145, 332 and 346 (1), it is quite obvious that the word 'levy' is used by the Legislature as distinct from the imposition of the tax itself. Therefore, by giving an extended meaning to the said word, it is not possible for us to widen the scope of an appeal provided by Section 169 of the Act.

16. An argument was also advanced by Shri Chandurkar that the provisions of Section 169 of the Act should be construed in the light of Section 172 which provides for bar of other proceedings. In our opinion, that will not be the proper course for construing the scope of an appeal under Section 169 of the Act. The purpose and scope of Section 172 of the Act is entirely different and distinct. The said section does not throw any light so far as the scope of an appeal provided bySection 169 of the Act is concerned. The scope of appeal provided under Section 169 of the Act will depend upon harmonious construction of the various provisions of the Act. As already observed, Chap. X of the Act deals with recovery of Municipal claims. In this very Chapter Sections 150 and 169 appear. The appeal contemplated by Section 169 is against a claim for taxes or other dues included in a bill presented under Section 150 and nothing more. If this is so, then in our opinion, in an appeal provided under Section 169 of the Act it is not open for the appellant to challenge the very legality or validity of the tax itself.

17. The decision to which a reference is made by Shri Chandurkar in Miraj City Municipality v. American Board of Foreign Mission : AIR1967Bom276 (cit. supra) is distinguishable. In that case the earlier decision of this Court in the Municipality of Ankleshwar v. Chhotalal : (1955)57BOMLR547 (cit. supra) was referred to and distinguished. The question which fell for consideration before the Division Bench in that case was altogether different and, therefore, the said decision is obviously distinguishable and is of no assistance while deciding the controversy involved in these civil revision applications.

18. Shri Chandurkar has also relied upon another decision of this Court in Chalisgaon Borough Municipality v. Mul-tanchand, : AIR1956Bom675 . In the said case the question relating to the scope of appeal was neither raised nor argued. Further, we find that the said decision was also considered by this Court in Veraval Municipality v. Diamond Talkies (1958) 60 Bom LR 59. In this case both the decisions of this Court namely, in the Municipality of Ankleshwar v. Chhotelal : (1955)57BOMLR547 and Chalisgaon Borough Municipality v. Multanchand AIR 1958 Bom 575 (Both (cit. supra)) were referred to. So far as the case in Chalisgaon Borough Municipality v. Multanchand is concerned, this Court observed that the said ruling is distinguishable on facts because there the question of validity or legality of the Municipality's power to make the assessmentwas not directly in issue and was not canvassed. The question actually canvassed was one of liability for the previous year according to a rate fixed in the next year. Ultimately the single Judge of this Court followed the decision in the case of the Ankleshwar Municipality and held that the objection onthe ground that the levy was invalid and illegal or beyond the competence of the Municipality cannot be raised in the objections under Section 65 of the District Municipal Act and that it was also not within the jurisdiction of the Magistrate under Section 86 of the said Act to entertain and decide that question. Therefore, in our opinion, the law laid down by this Court in the case of the Municipality of Ankleshwar v. Chhotalal (cit. supra) will obviously govern the scope of an appeal even under Section 169 of the Act.

19. A contention was also raised by Shri Khamborkar, Ihe learned counsel for the Municipal Council, that the appeals filed by the assessees were not maintainable as the assessees had not complied with the condition laid down in Section 170 (b) of the Act. According to him, it is no where stated in the memorandum of appeals that the appellants-assesses had filed an application in writing stating the grounds on which the claim of the Council is disputed within the time fixed in the notice given under Section 119 of the Act. Shri Khamborkar further contended that unless this condition was satisfied, the Judicial Magistrate had no authority or jurisdiction to entertain the appeals and, therefore, on this short ground, the appeals filed by the appel-lants-assessees were liable to be dismissed. It is not possible for us to accept this contention.

20. As already observed, Section 119 of the Act provides in clearest terms that in oases of the properties which are assessed for the first time or in respect of which assessment is increased, apart from the publication of the public notice, the Chief Officer is obliged to give a notice thereof to the owner or occupier of the property. This gives an opportunity to the occupier or the owner of the property to file objections to the valuation and assessment of the property, as shown in the list. Sub-section (2) of Section 119 of the Act lays down the procedure of filing of such objections. The owner or occupier can raise an objection in writing stating the grounds on which the valuation or assessment is disputed and then Section 120 lays down as to how these objections are to be dealt with. The procedure contemplated by Section 119 of the Act is in conformity with the well-established principles of natural justice. As observed by the Supreme Court in A. K. Kraipak v. Union of India : [1970]1SCR457 'the aim of the rules of natural justice is to secure justice or to put itnegatively to prevent miscarriage of justice.' Therefore, the statutory provisions will have to be read consistently with the provisions of natural justice, because the Court must presume that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice, unless the statutory provisions, either specially or by necessary implication, exclude the application of any or all the rules of natural justice.

21. It is no doubt true that it is provided by Section 332 of the Act that any infirmity or error or omission of other defect shall not be deemed to render the assessment made invalid if the provisions of the Act, rules or by-laws have in substance and effect been complied with. However, it is quite clear from the bare reading of Section 119 of the Act that a salutary provision is made in this behalf with an intention to provide an opportunity to the assessee to file objections to the valuation and assessment as shown in the list. If such a notice is given and such an opportunity is afforded, then Section 170(b) creates a bar for entertaining an appeal unless such an opportunity is availed of by the assessee concerned. But in the cases before us, it is an admitted position that no individual notice at all was given to the assessees concerned. If no individual notice as such was given to them, then it was impossible for them to raise objections to the valuation and assessment relating to their property as shown in the assessment list. In substance, therefore, the condition laid down in Section 170 (b) of the Act could not have been complied with by them. The requirement of Section 170 (b) is, therefore, impossible of performance and that too on account of reasons beyond control of the assessees. Practically it was the Municipal Council which is in wrong box. It was the Municipal Council which failed to give an individual notice to the assessees as contemplated by Section 119 (2) of the Act. In these circumstances, in our opinion, the condition precedent incorporated in Section 170 (b) of the Act for entertaining the appeal will not come into operation at all. In this context a reference could usefully be made to a decision of this Court in Yadav v. Maharashtra Revenue Tribunal, Nagpur 1965 Mh LJ 753 and particularly towards the following observations of this Court in paras. 24 to 29 of the said decision :

24. In my judgment, there is considerable force in this contention urged onbehalf of the petitioner and it must be upheld, and in view of the circumstances pointed out above it must be held that the law would excuse non-performance of an act which became impossible of performance on account of reasons beyond the control of the landlord. The maxim lex non cogit ad impossible (the law does not compel impossibilities) would govern the circumstances of the case on point. Maxwell on Interpretation of Statutes, 10th Edition observed at p. 373 as follows :

'Enactments which impose duties on conditions are, when these are not conditions precedent to the exercise of a jurisdiction, subject to the maxim lex non cogit ad impossibilia aut inutilia. They are understood as dispensing with the performance of what is prescribed when performance of it is idle or impossible. In such cases, the provision or condition is dispensed with when compliance is impossible in the nature of things. It would seem to be sometimes equally so where compliance was, though not impossible in the sense, yet impracticable without any default on the part of the person on whom the duty was thrown'.

Broom, commenting on this maxim, states the law at pages 162 and 163 in his boob on legal Maxim as follows:

'This Maxim, or, as it is also expressed, impotentia excusat Legem, is intimately connected with that last considered, and must be understood in this qualified sense, that impotentia excuses when there is a necessary or invincible disability to perform the mandatory part of the law, or to forbear the prohibitory. It is akin to the maxim of the Roman Law, nomenclature ad impossibilia, which, derived from common sense and natural equity, has been adopted and applied by the law of England under various and dissimilar circumstances.

The law itself and the administration of it, said Sir W. Scot, with reference to an alleged infraction of the Revenue Laws, must yield to that to which everything must bend to necessity; the law, in its most positive end peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling to impossibilities, and the administration of laws must adopt the general exception in the consideration of all particular cases 'in the performance of that duty, it has three points to which the attention must bedirected. In the first place, it must see that the nature of the necessity pleaded be such as the law itself would respect, for there may be a necessity which it would not. A necessity created by a man's own act, with a fair previous knowledge of the consequences that would follow, and under circumstances which he had then a power of controlling, is of that nature. Secondly, that the party who was so placed used all practicable endeavours to surmount the difficulties which already formed that necessity and which, on fair trial, he found insurmountable. I do not mean all the endeavours which the wit of man, as it exists in the acutest understanding, might suggest, but such as may reasonably be expected from a fair degree of discretion and an ordinary knowledge of business. Thirdly, that all this shall appear by distinct and unsuspected testimony, for the positive injunctions of the law, if proved to be violated, can give way to nothing but clearest proof of the necessity that compelled the violation.' Craies on Statute Law, 5th Edition, at page 248, has observed dealing with the aspect as follows :--

'Impossibility as excuse for non-compliance with absolute provisions. Under certain circumstances compliance with the provisions of statutes which prescribe how something is to be done will be excused. Thus, in accordance with the maxim of law, lex non cogit ad impossible if it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God or King's enemies, these circumstances will be taken as a valid excuse.' Then it is concluded from Campbell v. Earl of Dalhousie, (1868) 1 SC 259, which went up to the House of Lords, in which the question arose whether the succeeding tenant in tail was liable to pay the sums of money to the representatives of Lord Breadalbane, the House of Lords held that he was liable, and that compliance with the provisions of the Act having been rendered impossible by the death of Lord Breadalbane, the omission was to be executed. The Lord Chancellor observed.

'If by the act of God it becomes impossible that the claim can be signed, it appears to me that it would be construing the Act of Parliament in a way in which no clause of the kind has beenconstrued, if we held that, where the Act of God thus prevented a compliance with the words of a statute, the proprietor or his representatives should thereby be prevented from making a claim for improvements.'

It would appear that the act of God would equally apply when circumstances make it impossible or at any rate impracticable to carry out mandatory provisions of law within the time specified by the law.

25. In this connection it is worthwhile to note a few precedents where the maxim seems to have been applied. Eager v. Furnivall (1881) 17 Ch D 115 was a case where a testator dies in 1875, leaving devised by his will made in 1872 a leasehold property to his daughter. The daughter predeceased the testator, leaving only a child who was her heiress at law. The plaintiff who was the husband of the deceased daughter, claimed as a tenant for his life as the tenancy came by courtesy. It was held that the plaintiff was entitled to the lease-hold property as his wife died before the death of testator.

26. The case of Finny v. Godfrey (1869) 70 LR Equity Cases, p. 356 is even more apposite. Under a direction in a statute, prior to taking a bill pro confessor against an absconding defendant an order for his appearance by a certain date had to be posted on the door of the parish church where the defendant made his usual abode, within 30 days of absconding. In the case reported, the taking of the bill was conditional upon the abode of the defendant being the last abode. But it was held that the condition could be dispensed with in the case of extra-parochial residence. It was held that, as it was, the compliance with the law was conditional upon there being a Parish Church, there was no Parish Church, and the last abode of the defendant was not in the parish, and therefore, the mode of posting an order on the door of the church could not be understood as a condition precedent.

27. The maxim was also considered in another case before the Queen's Bench Division, which was confirmed by the Court of Appeals, reported in Hick v. Rodocanachi, (1891) 2 QB 626, Lindley, J. observed as follows :

'In this state of the authorities it appears to me most in accordance with principle to act upon the maxim 'lexnon cogit ad impossibilia'. We have to deal with implied obligations, and I am not aware of any case in which an obligation to pay damages is ever coast by implication upon a person for not doing that which is rendered impossible by causes beyond his control'. 28. The same principle in a slightly different form seems to have been applied in recent case of Harding v. Price, (1948) 1 KB 695. In that case the trailer attached to a lorry collided with and damaged a stationary car while passing it. It was found as a fact that the driver of the lorry because of the noise the trailer was making did not know of the accident. He therefore did not stop or report the accident to the police as required by Section 22 of the Road Traffic Act, 1930. It was held that though the word 'knowingly' did not appear in Section 22, whereas it appeared in Section 6 of the repealed Motor Car Act, 1902, the omission of the word in the re-enacted section merely relieved the prosecution from the burden of proving knowledge on the part of the defendant, and it did not follow that the driver might not set up and prove lack of knowledge as a defence. It was further held that if a statute contained an absolute prohibition against the doing of an act, as a general rule mens rea was not a constituent of the offence; but there was for this purpose a difference between a statutory provision prohibiting en act and one imposing a duty to do something on the happening of an event. The driver could not report something of which he had no knowledge and therefore he was not guilty of the offence.

29. Thus according to the maxim when doing of some positive act, doing of which is required to be done within the prescribed time and according to the manner indicated by the rules, is made impossible of performance, the penalty for non-performance cannot be reasonably attracted and the non-performance will be excused. Even in a proceeding for mandamus, a return which is shown to be legally impossible of performance is a good return. (See Tapping on Mandamus, page 359).'

A reference could also be made to the decision of the Supreme Court in Cochin State Power and Light Corporation Ltd. V. State of Kerala. : [1965]3SCR187 wherein after referring to the maxim 'lex non cogit ad impossibilia' (the law does not compel the doing of impossibilities), the Supreme Court held that the performance of impossible duty must beexcused. In view of this well settled principle, in our opinion, as the assessees had no opportunity to raise objections as contemplated by Section 119 (2) of the Act, because individual notices were not served upon them, then to such a case the condition incorporated in Section 170 (b) of the Act will obviously not apply.

22. In the view which we have taken, therefore, the revision applications will have to be allowed. The appeals filed by the assessees were allowed by the appellate authority, namely, the Judicial Magistrate. First Class, on the ground that the assessment itself was illegal. The Revision Applications filed by the Municipal Council were also dismissed by the Sessions Judge on the same ground. As we have come to the conclusion that the legality or the validity of the assessment of the tax cannot be challenged by the assessee in an appeal under Section 169 of the Act, obviously the orders passed by the authorities below cannot be sustained.

23. However, we find from the memorandum of appeals filed by the assessees before the Judicial Magistrate, First Class, that they have also challenged the assessment of tax on the ground that it is arbitrary and unreasonable. It is not disputed before us by Shri Khamborkar, the learned counsel for the Municipal Council, that it is open to the appellants to challenge the quantum of assessment as well as the valuation in an appeal filed under Section 169 of the Act. Therefore, to that extent the appeals filed by the assessees must survive. As the said question has not been decided by the appellate authority, namely, the Judicial Magistrate, First Class, the matters will have to go back to him for deciding it afresh in accordance with law. In view of the fact the assessees had mainly challenged the assessment of the tax on the ground of its legality and validity, it appears that they have not raised necessary contentions to challenge the quantum of the tax or the valuation on its merit. Since we are remanding back the matters to the appellate authority for deciding them afresh on merits, in our opinion, the appellants should be given an opportunity to amend their memorandum of appeals so as to enable them to raise proper contentions in this behalf. Accordingly, liberty is granted to the appellants-assesses to amend their memorandum of appeals.

24. In the result, therefore, the revision applications are allowed. The orderspassed by the Judicial Magistrate, First Class, as well as the Sessions Judge are set aside and the matters are remanded back to the Judicial Magistrate, First Class, Morshi, for deciding the appeals on merits in accordance with law. However, in the circumstances of the case, there will be no order as to costs.

25. Revision application allowed.


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