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Phiroz Framroze Taraporewalla and anr. Vs. Municipal Corporation of Poona - Court Judgment

LegalCrystal Citation
SubjectCivil;Municipal Tax
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1058 of 1950
Judge
Reported inAIR1952Bom283; (1952)54BOMLR233; ILR1952Bom617
ActsBombay Municipal Boroughs Act, 1925 - Sections 110; Bombay Provincial Municipal Corporation Act, 1949 - Sections 406, 406(1), 411, 434, 434(1), 437 and 490; Bombay General Clauses Act; Code of Civil Procedure (CPC), 1908
AppellantPhiroz Framroze Taraporewalla and anr.
RespondentMunicipal Corporation of Poona
Appellant AdvocateB.G. Thakore and ;J.R. Vimadalal, Advs. and ;Gagrat & Co.
Respondent AdvocateR.N. Bhalerao, Adv.
Excerpt:
- - i fail to see how section 434 and section 437 in any way help the contention of the petitioners. it is perfectly true that if a right of appeal is given by a statute, that right of appeal cannot be taken away retrospectively unless the legislature in express terms deprives a person of that right. unless i find from the language of the act that such a new right has been conferred upon the petitioners although they did not enjoy it when the new act was passed, i cannot come to the conclusion that the petitioners have now a right to go to the small causes court judge and then to appeal from his decision to the district judge......corporations act which in any way is contrary to what is provided in the bombay general clauses act with regard to the effect of a repealed statute and the effect of a repealed statute is that all pending proceedings are saved, and therefore the appeal pending before the learned magistrate is saved and he has jurisdiction to hear and dispose of that appeal. the result is that the application fails and is dismissed with costs.[6] application dismissed.
Judgment:

Chagla, C.J.

[1] This revision application raises a question as to the jurisdiction of the Poona Magistrate to hear an appeal from an order of the Chief Officer, Poona Borough Municipality, with regard to assessment of the property of the petitioners in Poona, after the Bombay Provincial Municipal Corporation Act came into force. The assessment was made by the Chief Officer on 31-12-1949, and the assessee preferred an appeal to the Magistrate on 28-1 1950, and the new Act, (LIX [69] of 1949) came into force on 15-3 1960. Under Section 406 (1) of the now Act, appeals against any rateable value or tax fixed or charged under the Act shall he heard and determined by the Judge, and 'the Judge' is defined, for the purpose of Poona, as the Judge of the Small Caused Court. Therefore, the contention is that although the petitioners had preferred their appeal to the Magistrate under the Municipal Boroughs Act, by reason of the new Act coming into force and by reason of Section 403 the Magistrate ceased to have jurisdiction to hear that appeal and the Small Causes Court Judge because a competent appellate tribunal and he alone could hear that appeal against the order of assessment.

[2] Now, this Act repeals the Municipal Boroughs Act by Section 490, and therefore by virtue of the Bombay General Clauses Act all pending proceedings under the old Act would be saved. When the Municipal Boroughs Act was repealed, the petitioners' appeal was pending before the Magistrate, and under the General Clauses Act that proceeding would not be affected by any provision in the new Act. Mr. Thakore contends that there is a clear intendment in the Act itself which goes to show that the Legislature wanted the pending proceedings to be affected and the Legislature also intended to give a retrospective effect to Section 406 of the Act. My attention is drawn to Section 434(1) which provides that the Civil Procedure Code shall apply to appeals to the Judge from the orders of the Commissioner, and it is pointed out that under the Act the taxing authority is the Commissioner and not the Chief Officer and appeals from the orders of the Commissioner with regard to assessment are provided, as pointed out, to the Judge, and therefore in those appeals the provisions of the Civil Procedure Code would apply. Under Section 437, the provisions of the Code of Criminal Procedure shall, so far as may be, apply to all inquiries and proceedings under this Act before the Magistrates. Mr. Thakore says that the intention of the Legislature was that appeals should be governed by the Civil Procedure Code, and therefore if this appeal continues before the Magistrate, the provisions of the Criminal Procedure Cods would apply which was not the intention of the Legislature. I fail to see how Section 434 and Section 437 in any way help the contention of the petitioners. Both these sections provide for proceedings which arise under the Act. The proceeding I am considering did not arise under the Act but had arisen under the repealed Act and these were pending when the Act wag repealed, and I see no difficulty as to the application of the law to these proceedings. I do not see what the Criminal Procedure Code has got to do with assessment and rating, and although the Magistrate is constituted an appellate Court, he deals with rating and assessment as a special authority appointed under the Municipal Boroughs Act.

[3] My attention is then drawn to Appendix IV and Clause 4, Sub-clause (4) of that Appendix, provides :

'All prosecutions instituted by or on behalf of the said Municipality or local authority, and all suits and other legal proceedings instituted by or against the said Municipality, local authority or any officer of the said Municipality or local authority pending on the said date shall be continued by or against the Commissioner or the Corporation for the said City, as the case may be, as if the area was constituted to be a City when such prosecution, suit or proceeding was instituted.'

On a plain interpretation of this sub-clause, all that it means and all that it conveys is that any pending proceeding which might have been instituted by or against a Municipal authority under the Municipal Boroughs Act should be continued by or against the Commissioner. Therefore, the pending appeal of the petitioners, although it was against the Chief Officer, by reason of this provision it shall be continued against the Commissioner. But this sub-clause does not in any way affect pending proceedings nor does it in any way direct a transfer of pending proceedings to the new Courts recognized under the new Act. It is rather significant to contrast this with the language used in Sub-clause (2) of Clause 4 which provides that all proceedings pending before any authority of the Municipality or local authority On the day which under the provisions of this Act are required to be instituted before or undertaken by the Commissioner shall be transferred to and continued by him and all other such proceedings shall, so far as may be, be transferred to and continued by such authority before or by whom they have to be instituted or undertaken under the provisions of this Act. Therefore, with regard to the specific authorities mentioned under this sub clause the Legislature provides for a transfer, but only such transfer is provided with regard to appeals pending before the Magistrate under the repealed Act.

[4] Mr. Thakore then points out that under Section 411 an appeal is provided to the District Court from the decision of the Judge dealing with a question of assessment of rating. Mr. Thakore Bays that under the old Act there was only a power of revision given to the High Court and Me. Thakore says that that is a valuable right given to the subject. It is perfectly true that if a right of appeal is given by a statute, that right of appeal cannot be taken away retrospectively unless the Legislature in express terms deprives a person of that right. A right of appeal has been considered as a vested right, but the only vested right that the petitioners had was to appeal to the Magistrate and then go in revision to the High Court. That right has not been in any way affected by the new Act. What Mr. Thakore, however, wants is a new right which he never possessed, viz. the right to appeal to the District Judge. Unless I find from the language of the Act that such a new right has been conferred upon the petitioners although they did not enjoy it when the new Act was passed, I cannot come to the conclusion that the petitioners have now a right to go to the Small Causes Court Judge and then to appeal from his decision to the District Judge.

[5] In my opinion, there is nothing in the provisions of the Provincial Municipal Corporations Act which in any way is contrary to what is provided in the Bombay General Clauses Act with regard to the effect of a repealed statute and the effect of a repealed statute is that all pending proceedings are saved, and therefore the appeal pending before the learned Magistrate is saved and he has jurisdiction to hear and dispose of that appeal. The result is that the application fails and is dismissed with costs.

[6] Application dismissed.


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