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The Municipal Borough of Ahmedabad Vs. the Aryodaya Ginning and Manufacturing Co., Limited - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 58 of 1941
Judge
Reported in(1941)43BOMLR816
AppellantThe Municipal Borough of Ahmedabad
RespondentThe Aryodaya Ginning and Manufacturing Co., Limited
Excerpt:
.....interfere in revision against such orders.;a magistrate hearing an appeal under section 110 of the bombay municipal boroughs acticle 1925, is an ordinary court and as such can allow additional evidence, oral or documentary, to be led before him.;in an appeal under section 110 the question of the assessment itself can be challenged.;the words 'decision upon any appeal' in section 111 of the act do not imply that the decision of the appeal referred to means the final decision. the revising court, therefore, can interfere in revision with interlocutory orders passed by a magistrate under section 110 of the act.;secretary of state for india v. narsibhai dadabhai (1923) i.l.r. 48 bom. 43, s.c. 25 bom. l.r. 992, referred to. - - 6. the revision application made to this court is against the..........out of an order made by the special first class magistrate, ahmedabad, under section 110 of the bombay municipal boroughs act (bom. xviii of 1925), by which the municipality of ahmedabad is governed. there was a revision application filed in the court of the extra additional sessions judge against the magistrate's order under section 111 of the act by the ahmedabad municipality. this application was rejected and the municipality has applied in revision to this court.2. the order passed by the magistrate was an interlocutory one and dealt with the question of the right of the opponent to lead oral and documentary evidence before the magistrate in the appeal pending before him. the contention of the municipality was that a magistrate hearing an appeal under section 110 of the bombay.....
Judgment:

N.J. Wadia, J.

1. This application arises out of an order made by the Special First Class Magistrate, Ahmedabad, under Section 110 of the Bombay Municipal Boroughs Act (Bom. XVIII of 1925), by which the Municipality of Ahmedabad is governed. There was a revision application filed in the Court of the Extra Additional Sessions Judge against the Magistrate's order under Section 111 of the Act by the Ahmedabad Municipality. This application was rejected and the Municipality has applied in revision to this Court.

2. The order passed by the Magistrate was an interlocutory one and dealt with the question of the right of the opponent to lead oral and documentary evidence before the Magistrate in the appeal pending before him. The contention of the Municipality was that a Magistrate hearing an appeal under Section 110 of the Bombay Municipal Boroughs Act could not allow additional evidence, oral or documentary, to be led before him, but must decide the matter on the evidence already led by the parties before the standing committee of the Municipality under Section 81.

3. It is necessary to consider the scheme of the Act in connection with the imposition of taxes in order to understand the position taken up by the applicant Municipality. Under Section 73 of the Act the Municipality can impose certain specified taxes subject to the general or special orders made by Government. Among these taxes is a general water-rate or a special waterrate or both for water supplied by the Municipality which might be imposed on buildings and lands. Under Section 78, when a rate on buildings or lands or both is imposed, the Chief Officer has to cause an assessment list of all buildings or lands or lands and buildings in the Municipal borough to be prepared containing inter alia the valuation, based on capital or annual letting value, on which the property is assessed, and the amount of the tax assessed thereon. Under Section 80 after the assessment list has been completed the Chief Officer has to give public notice of it and of the place where the list may be inspected. Under Section 81 the Chief Officer is bound at the time of the publication of the assessment list under Section 80 to give public notice of the date before which objections to the valuation or assessment in such list shall be made. Under Sub-clause (2) of the section such objections to the valuation and assessment of any property included in the list published under Section 80 have to be made by the owner or occupier or any agent of such owner or occupier to the standing committee by an application in writing stating the grounds on which the valuation or assessment is disputed; and under Sub-clause (3) the standing committee, after allowing the applicant an opportunity of being heard in person or by agent, has to investigate and dispose of the objections, cause the result thereof to be noted in the book kept under Sub-clause (2) of the section, and cause any amendment necessary in accordance with such result to be made in the assessment list. The sub-clause provides that the powers and duties of the standing committee under this sub-section may be transferred to any other committee appointed by the Municipality, or with the permission of the Commissioner, to any officer or pensioner of the Crown. When all the objections have been disposed of and the necessary corrections made in the assessment list it has to be authenticated by the signatures of the Chairman and at least one other member of the standing committee under Sub-clause (4) to the section; and under Sub-clause (6) the list so authenticated, subject to such alterations as may be made in it under Section 82, and subject to the result of any appeal or revision made under Section 110, is to be conclusive evidence for certain purposes. under Section 104 the Chief Officer has to present a bill for the amount due to the Municipality and if the amount of the bill is not paid within fifteen days from the presentation of the bill the Chief Officer may cause a notice of demand to be served upon the person. under Section 110 appeals against any notice of demand issued under Section 104 may be made to any Magistrate or Bench of Magistrates by whom under the directions of the District Magistrate such class of cases is to be tried; and Section 111 provides that the decision of the Magistrate or Bench of Magistrates upon any appeal is subject to revision by the Court to which appeals against his or their decisions ordinarily lie.

4. The opponent company appealed to the Special Magistrate, First Class, Ahmedabad, who was the Magistrate empowered to hear appeals under Section 110, on the ground that the amounts demanded by the Municipality were unduly high and unjustified, being based on an exaggerated valuation; and in order to prove its contention before the Magistrate the opponent applied to be allowed to lead evidence; both oral and documentary. On behalf of the applicant Municipality it was contended that no such evidence could be allowed to be led at that stage as the opponent had had every opportunity to produce evidence before the appeal committee, to whom the functions of the standing committee under Section 81 had been delegated, and if the permission asked for were granted it would convert the Court into a Court of first instance. The learned Magistrate came to the conclusion that he was entitled to allow evidence to be led before him. There was a revision application against that order to the learned Additional Sessions Judge who held that the order of the Magistrate dealt with a mere question of procedure, and was not an order which finally decided the appeal, and that therefore he had no power to interfere in revision at that stage, his view being that the power of revision given to him by Section 111 could only be exercised when the appeal had been finally decided by the Magistrate, and that there was no right of revision under that section against a mere interlocutory order such as this.

5. In our opinion the view taken by the learned Judge is wrong. The language of Section 111 of the Bombay Municipal Boroughs Act is very similar to the language of Section 115 of the Code of Civil Procedure. The latter section provides that the High Court may call for the record of any case which has been decided by any Court subordinate to it and in which no appeal lies, and may in certain circumstances interfere in revision. Section 111 of the Bombay Municipal Boroughs Act provides that the decision of the Magistrate or Bench of Magistrates upon any appeal shall be subject to revision by the Court to which appeals against his or their decisions ordinarily lie. There was. at one time a considerable difference of opinion between the different High Courts whether the words 'case decided' in Section 115 of the Code included part of a case, and whether the High Court could interfere in revision with interlocutory orders. The view taken by this Court was that the High Court has power to interfere in revision with interlocutory orders, and that the High Court would in the exercise of its discretion interfere with an interlocutory order if it came to the conclusion that the order was wrong, even though the order was one which could be challenged in an appeal from the final decree: vide Secretary of State for India v. Narsibhai Dadabhai (1923) I.L.R. 48 Bom. 43. There is no reason why the words 'decision upon any appeal' in Section 111 of the Bombay Municipal Boroughs Act should be interpreted differently from the words 'case decided' in Section 115 of the Code of Civil Procedure. There is nothing in the language of the former section which necessarily implies that the decision of the appeal referred to in that section means the final decision. The learned Sessions Judge was wrong in our opinion in the view which he took that he was not entitled to interfere in revision with the order made by the learned Magistrate.

6. The revision application made to this Court is against the order of the Sessions Judge as well as against the order of the Magistrate which the Sessions Judge refused to interfere with and it is therefore necessary to go into the merits of the question.

7. Mr. Thakor who appears for the applicant Municipality has urged three contentions before us. It is argued first that a Magistrate acting under Section 110 is merely an appellate authority upon whom no powers of taking evidence have been conferred by the statute, and that therefore no evidence could be taken by him. The Act undoubtedly does not contain any provisions giving specific powers to the Magistrate acting under Section 110 to take evidence, to summon witnesses, to order the production of documents or to administer oaths. But the Magistrate acting under Section 110 of the Bombay Municipal Boroughs Act is not a persona designata but an ordinary Court, whose decisions are subject to revision by the Court to which appeals from his decision would ordinarily lie, and, as has been recently held by this Court in Lokmanya Mills Ltd. v. Municipal Borough, Barsi : (1939)41BOMLR937 , a further revision application lies to the High Court against an order in revision passed by a Sessions Judge under Section 111 of the Bombay Municipal Boroughs Act from an order passed by a Magistrate under Section 110 of the Act. In this respect the Magistrate acting under Section 110 of the Bombay Municipal Boroughs Act differs from the Magistrate dealing with appeals under Section 86 of the Bombay District Municipal Act, and from the Chief Judge of the Small Cause Court acting under Section 217 of the City of Bombay Municipal Act. In these cases the Magistrate or the Chief Judge is a persona designata, and this explains why in the City of Bombay Municipal Act it was found necessary to confer specific powers upon the Chief Judge to summon and enforce attendance of witnesses and compel them to give evidence and to compel the production of documents. No such special provision was necessary under the Bombay Municipal Boroughs Act because the appellate authority under Section 110 is a Court, and it has inherent powers to summon witnesses, to compel production of documents and to administer oaths. There is therefore no force in the contention that the Magistrate acting under Section 110 has no power to take evidence because such powers are not specifically conferred, on him by the Act.

8. The next contention is that at any rate he is an appellate authority and cannot ordinarily take evidence, and that it would only be in special circumtances such as are dealt with in Order XLI, Rule 27, of the Code of Civil Procedure, that he could allow evidence to be led in an appeal.

9. The position of a Magistrate acting under Section 110 is a very anomalous one. It was held in In re Dalsukhnam : (1907)9BOMLR1347 that a Magistrate hearing an appeal of the kind mentioned in Section 86 of the Bombay District Municipal Act was merely an appellate authority having jurisdiction given by the Act to deal with a question of civil liability, that fie was not therefore an inferior criminal Court, and that a revision application against his order would not lie to the High Court on its criminal side under Section 435 of the Code of Criminal Procedure. In Surat Municipality v. Hamiduddin (1937) 40 Bom. L.R. 387 the same view was taken by Mr. Justice Norman with regard to the provisions of Sub-section 110 and 111 of the Bombay Municipal Boroughs Act, and it was held that in such a case a revision application would lie to the High Court only on the civil side. The same view was taken in Lokmanya Mills Ltd. v. Municipal Borough, Barsi : (1939)41BOMLR937 . It may therefore be taken as settled that a Magistrate acting under Section 110 is an appellate authority having jurisdiction given by the Act to deal with a question of civil liability, and not a persona designata.

10. The question still remains whether a Magistrate acting under this section is in the position of a Court hearing a civil appeal as regards the taking of evidence, i.e. whether normally he would be bound to decide the appeal on the evidence already led before the lower tribunal, the standing committee of the Municipality, and could only allow additional evidence to be led before him in appeal under the special conditions laid down in Order XLI, Rule 27, of the Code of Civil Procedure. The provisions of Sub-section 110 and 111 are peculiar. Although the authority upon which the appellate jurisdiction is conferred is a criminal Court, the matters which it is called upon to decide are of a purely civil nature, and it is for this reason that this Court has held that a second revision application against the Magistrate's order would lie to the High Court on the civil side, even though the revision provided by Section 111 lies to another criminal Court, namely the Sessions Court. The fact that the appellate authority under Section 110 is a Court from whose decision a revision application lies to its superior Court, the Sessions Court, and a further revision application lies to the High Court, suggests that the Legislature must have contemplated that the Magistrate acting under Section 110 would base his decisions upon evidence which the revising Courts could consider. Section 81 of the Bombay Municipal Boroughs Act which provides for objections to the assessment list prepared by the Chief Officer being lodged before the standing committee, and which gives the standing committee power to investigate and dispose of such objections, does not give the standing committee any power to summon witnesses or to administer oaths or to compel the production of documents. All that the section provides is that the standing committee shall allow the applicant an opportunity of being heard in person or by agent. If this is the only evidence on which the. standing committee can base its decision, and if the Magistrate hearing the appeal is not allowed to take any other evidence and is to be compelled to base his decision on the evidence already adduced before the standing committee, there will in most cases be very little material before the Magistrate to enable him to decide the appeal satisfactorily, and very little material on which the revising Courts can deal with applications made to them. In this connection it is significant that under the City of Bombay Municipal Act the Chief Judge of the Court of. Small Causes, by whom as a persona designate appeals against any rateable value or tax fixed or charged under the Act can be heard and determined, is given specific powers by Section 508 of the Act to summon and enforce the attendance of witnesses, to compel them to give evidence, and to compel production of documents. The Act contemplates that in hearing an appeal under Section 217 the Chief Judge may allow evidence to be led, and it seems to us that a similar interpretation must be put upon the provisions of Section 110; and this conclusion derives support from the fact to which I have already referred that a Magistrate acting under Section 110 is not a persona designata but an ordinary Court, against whose decisions revision applications are expressly provided for by the Act itself. The learned Magistrate has pointed out that the evidence before the standing committee in this case consisted of valuation statements prepared by the valuation officer of the Municipality and the opponent's objections, and a statement prepared by the opponent's engineer. There was no evidence to show on what data the figures relied on by the two sides were based, and unless the Magistrate was permitted to take evidence it would be very difficult for him to come to any satisfactory decision on the appeal. It is true that Section 110 refers to the Magistrate exercising powers under that section as an appellate authority. But, as I have already pointed out, the provisions of this section, and of similar sections in the other Acts, are of a somewhat anomalous nature, and it would be difficult to regard the Magistrate's powers under this section as being strictly limited to those of an appellate Court. The fact that the tribunals from whose decisions the appeals are provided are tribunals which could not take evidence on oath or compel evidence to be given would itself require that somewhat wider powers than those of an ordinary appellate Court should be exercisable by the Magistrate under Section 110. It may be noted that Section 110 refers to appeals of this class being 'tried' by the Magistrate, a term which would ordinarily be used of original trials rather than of appeals. Taking into consideration the peculiar position of the Magistrate under Section 110 we think that he must have the power of taking evidence if he considers such evidence necessary. Since he is an authority deciding a question of civil liability his position is analogous to that of a civil Court, and the considerations which should govern him in deciding whether evidence should be allowed would be similar to those which would prevail with a civil appellate Court, though, for the reasons mentioned above, there would have to be considerably more latitude in such matters than a civil appellate Court could allow. .

11. The third contention urged by Mr. Thakor for the applicant is that an appeal under Section 110 being not against the assessment but against the notice-of demand, the question of the assessment itself could not be challenged at all in such an appeal except on some ground of illegality such as a wrong person being made liable. We are unable to put such a very restricted interpretation upon the language of Section 110. It is obvious that such an interpretation would deprive the persons taxed of all right of appeal except in an extremely limited number of cases, and it does not seem to have been the intention of the Legislature so to restrict the right of appeal.

12. The view taken by the learned Magistrate about his power to allow evidence to be led is in our opinion correct. He has in his order given reasons why in this particular case it was necessary to allow such evidence to be led. The rule will, therefore, be discharged with costs.


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