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Jaysing Ratilal Kotak Vs. Municipal Commissioner for Greater Bombay and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 274 of 1967
Judge
Reported inAIR1972Bom197; (1971)73BOMLR885; 1972MhLJ179
ActsBombay Municipal Corporation Act, 1888 - Sections 166(2), 167, 217(1), 217(2) and 218
AppellantJaysing Ratilal Kotak
RespondentMunicipal Commissioner for Greater Bombay and anr.
Appellant AdvocateC.V. Sheth, Adv.
Respondent AdvocateK.K. Singhavi, Adv. and ;K.K. Desai, Adv., i/b., A.M. Desai, Attorneys
Excerpt:
.....the act. sub-section (2) of section 217 only provides that the appeal is not to be 'heard' by the chief judge of the small cause court unless certain conditions specified therein are fulfilled. if those conditions, or the appropriate condition, is not fulfilled, the remedy may be postponed or even barred, but the right of appeal conferred by sub-section (1) of section 217 is not taken away thereby.;the use of the expression 'conclusive evidence' in section 166(2) of the act means that no other evidence can be led to detract from the finality of the evidence in regard to rateable value that is to be found in the assessment book. it cannot mean that the rateable value so entered in the assessment book cannot be changed by appropriate procedure as provided in the act.;somawanti v. state of.....1. this is an appeal against an order of mr.n.m. shah, chief judge of the court of small causes, dated 28th january 1967 dismissing an appeal filed before him under section 217 of the bombay municipal corporation act, 1888 (hereinafter referred to as the act) on the ground that the same fell outside the purview of the said section and was, therefore, not maintainable. the appellant who purchased a flat on ownership basis some time in june 1966 made a representation to the municipal commissioner under section 167 of the act for reducing the amount of rateable value in respect of the said flat. the municipal commissioner, however, rejected that representation, and it is from that rejection that the present appellant sought to file an appeal to the chief judge of the court of small causes.....
Judgment:

1. This is an appeal against an order of Mr.N.M. Shah, Chief Judge of the Court of Small Causes, dated 28th January 1967 dismissing an appeal filed before him under Section 217 of the Bombay Municipal Corporation Act, 1888 (hereinafter referred to as the Act) on the ground that the same fell outside the purview of the said section and was, therefore, not maintainable. The appellant who purchased a flat on ownership basis some time in June 1966 made a representation to the Municipal Commissioner under Section 167 of the Act for reducing the amount of rateable value in respect of the said flat. The Municipal Commissioner, however, rejected that representation, and it is from that rejection that the present appellant sought to file an appeal to the Chief Judge of the Court of Small Causes under Section 217 of the Act. The learned Chief Judge took the view that as under clause (c) of sub-section (2) of S. 217 an appeal against any amendment made in the Assessment Book under Section 167 during final year could not be heard unless a complaint made by the aggrieved person within 15 days after he first received the notice of the amendment had been disposed of an appeal was competent only if the Assessment Book was amended during an official year. He held that as in the present case such an amendment was not made, but had been refused, no appeal lay from the same. The learned Judge also relied on clauses (a) and (d) of sub-clause (2) of S. 217, as well as on Section 218, and came to the conclusion that the appeal filed before him in the present case fell outside the purview of Section 217 and was not maintainable and he, therefore, dismissed the same. It is from that order that the present appeal has been preferred under S. 218-D(1)(b) of the Act.

2.I do not agree with the way in which Section 217 of the Act has been construed by the learned Chief Judge. In my opinion, sub-section (2) cannot limit the right of appeal conferred by sub-section (1) of S. 217 of the Act. Sub-section (2) only provides that the appeal is not to be 'heard' by the Chief Judge unless certain conditions specified therein are fulfilled. If those conditions, or the appropriate condition, is not fulfilled, the remedy may be postponed or even barred, but the right of appeal conferred by sub-section (1) of S. 217 is not taken away thereby. To take just one illustration, if clause (d) of sub-clause (2) of Section 217 is not fulfilled by reason of the fact that that deposit required thereby is not made by the appellant with the Commissioner, the appeal cannot be heard till that deposit is made, but that has nothing to do with the maintainability of the appeal as such, nor does it constitute a limitation on the right of appeal conferred by sub-section (1) of S. 217. It follows that merely because a particular case may not fall under one or other of the clauses of sub-section (2) of S. 217 or under Section 218 which is consequential thereto, one is not led to the conclusion that no appeal would lie to the Chief Judge of the Court of Small Causes in such a case. If the facts of a particular case do not bring it within one or other of the clauses of sub-section (2) of Section 217, or within S. 218, the only result would be that the right of appeal conferred by Section 217 would stand unfettered by any condition or limitation. I am, therefore, unable to agree with the reasoning of the learned Chief Judge, and under the circumstances, the conclusion at which he has arrived must be held to be erroneous.

3. Mr. Singhvi on behalf of the Corporation has attempted to support the order of the learned Chief Judge on two new grounds which are not to be found in that Order, and he is entitled to do so. The first ground is that under sub-section (2) of S. 166 an entry in regard to rateable value in the Assessment Book is stated to be 'conclusive evidence' in regard to the same, subject to 'such alterations' as may be made on a representation made under Section 167 of the Act. Mr. Singhavi has, therefore, contended that when, on a representation made under Section 167, no alteration is made in regard to the rateable value becomes conclusive and no appeal lies from the same to the Chief Judge under Section 217 of the Act. I am unable to accept that argument of Mr. Singhavi. The expression 'conclusive evidence' has been construed by the Supreme Court in the case of Smt. Somavanti v. State of Punjab : [1963]2SCR774 . In that judgment, the Supreme Court has laid down that there is no difference between the expressions 'conclusive evidence' and 'conclusive proof'. The Supreme Court has further laid down that once the law says that certain evidence is conclusive, it shuts out any other evidence which would detract from the conclusiveness of that evidence and the aim in such a case is to give finality to the establishment of the existence of a fact from the proof of another fact. It is, therefore, clear that the use of the expression 'conclusive evidence' in sub-section (2) of S. 166 only means that no other evidence can be led to detract from the finality of the evidence in regard to rateable value that is to be found in the Assessment Book. It cannot however, mean that the rateable value so entered in the Assessment Book cannot be changed by appropriate procedure as provided in the Act. In other words, the use of the expression 'conclusive evidence' in sub-section (2) of S. 166 cannot have any bearing on the question as to whether an appeal is or is not maintainable under Section 217 of the Act, but has a bearing only on the question of proof of rateable value as and when it arises. The argument of Mr. Singhavi based on sub-section (2) of Section 166 must, therefore, be rejected.

4. The second ground on which Mr. Singhavi sought to support the Order of the learned Chief Judge was that sub section (1) of S. 217 provides for an appeal only against any rateable value 'fixed or charged' under the Act, and that when a representation under Section 167 of the Act is rejected by the Commissioner, it cannot be said that he fixes any rateable value under that Section. Mr. Singhavi has rightly contended that the word 'charge' has no application to the present case. The only question, therefore, is whether the word 'fixed' as used in sub-section (1) of S. 217 should be construed in the manner contended for by Mr. Singhavi. First and foremost, it must be pointed out that though Section 217 uses the word 'fixed' in sub-section (1) thereof, that word does not occur in the earlier provisions relating the rateable value, except in Section 154 of the Act. The statutory provisions relating to the procedure for disputing the rateable value entered in the Assessment Book by the filing of a complaint under Section 162 do not use the word 'fixed' in regard to the result of the proceeding that ensues upon such a complaint. If Mr. Singhavi's contention were to be right, the result would, therefore, be that even when such an application is dismissed, no appeal would lie from that dismissal under Section 217 of the Act. The result of placing this construction would be that the right of appeal conferred by Section 217 would be limited to the very few cases in which, on such a complaint being filed, the complaint is not wholly dismissed but the rateable value is reduced to a figure which is higher than that which the complainant had prayed for. I do not think there is any reason to place such a limited construction on Section 217 which confers the right of appeal. On principle, there is no reason why, if an appeal should lie from an alteration of a single rupee in the rateable value by the Commissioner acting on a representation made to him under Section 167 of the Act, no appeal should lie from a total rejection of that representation by the Commissioner. If any alteration effected by the Commissioner upon a representation made to him under Section 167 amounts to 'fixing' of rateable value. I see no reason why the rejection of that representation by him should not amount to fixing the rateable value at the very figure at which it stands in the Assessment Book. I, therefore, hold that when a representation made to the Commissioner under Section 167 is wholly rejected by him, in effect, he fixes the rateable value at the same figure as that at which it is entered in the Assessment Book. Any other construction would unduly restrict the right of appeal conferred by sub-section (1) of S. 217 of the Act and lead to unreasonable results.

5. I, therefore, allow this appeal, set aside the order of the learned Chief Judge of the Court of Small Causes and remand the matter back to him to be disposed of in accordance with law. Costs of the appeal will be costs in the cause.

6. Appeal allowed.


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