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M.S. Bhopshetti Vs. B.V. Bhat - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtMumbai
Decided On
Case NumberSecond Appeal No. 738 of 1937
Judge
Reported inAIR1944Bom188; (1940)42BOMLR223
AppellantM.S. Bhopshetti
RespondentB.V. Bhat
DispositionAppeal allowed
Excerpt:
bombay municipal boroughs act (bom. xviii of 1925), secs. 110, 111-municipality-tax-decision of magistrate-suit to determine liability to municipal taxation-civil court-jurisdiction to entertain suit-indian limitation act (ix of 1908), article 14-executive order-judicial order-limitation.; a civil court has jurisdiction to entertain a suit in respect of any liability to municipal taxation. such a suit is an independent suit, and need not be filed after exhausting the other remedies provided in section s 110 and 111 of the bombay municipal boroughs act, 1925.; hari v. belgaum municipality (1929) 31 bom. l.r. 1249 and kanhardas v. keshav (1934) 37 bom. l.r. 235, followed.; article 14 of the indian limitation act, 1908, applies only to orders which require to be set aside in a regular suit..........that they were not liable as they belonged to a public institution. he, therefore, appealed to the bench magistrates under section 110 of the bombay municipal boroughs act. the magistrates held on april 29, 1933, that the buildings were not liable to house-tax and directed a refund of the amount. thereupon the present suit was filed by the municipality on november 27, 1934, for a declaration that the decision of the magistrates' court was null and void and that the property was liable to house-tax and for other consequential reliefs.2. the defendant contended that the municipality was not entitled to levy the tax inasmuch as the defendant body was a public institution and was therefore exempt from municipal taxation. it was further contended that the civil court had no jurisdiction to.....
Judgment:

Divatia, J.

1. This appeal has been preferred by the City Municipality of Dhulia against the decree of the District Judge in appeal dismissing the suit on the ground of limitation. The defendant is the honorary secretary of an institution called Rajwade Sanshodhan Mandal at Dhulia which owned two buildings in Dhulia City. According to the plaintiff-Municipality those buildings were liable to the Municipal house-tax and bills were sent for the two years 1931-32 and 1932-33. The defendant's case was that they were not liable as they belonged to a public institution. He, therefore, appealed to the Bench Magistrates under Section 110 of the Bombay Municipal Boroughs Act. The Magistrates held on April 29, 1933, that the buildings were not liable to house-tax and directed a refund of the amount. Thereupon the present suit was filed by the Municipality on November 27, 1934, for a declaration that the decision of the Magistrates' Court was null and void and that the property was liable to house-tax and for other consequential reliefs.

2. The defendant contended that the Municipality was not entitled to levy the tax inasmuch as the defendant body was a public institution and was therefore exempt from Municipal taxation. It was further contended that the civil Court had no jurisdiction to hear the suit as the decision of the Bench Magistrates that they were not liable to taxation was final. He also pleaded the bar of limitation on the ground that the suit ought to have been filed within one year from the date of the Magistrates' decision.

3. The trial Court found on all the points in the plaintiff's favour. It held that the general public had no right to use the buildings as a public institution under the Municipal rules, that they are, therefore, liable to be assessed and not exempt from the house-tax, that the decision of the Magistrates was not final so as to bar the jurisdiction of the Court, that there was no bar of limitation and that the plaintiff-Municipality was, therefore, entitled to levy the house-tax on the defendant's property.

4. The defendant appealed, and the two points before the learned District Judge were whether the suit was barred by limitation and whether an exemption from taxation could be claimed on the ground that the general public had a right to use the buildings. On the second point the learned Judge confirmed the finding of the trial Court and held that the general public had no right to use this property and that therefore it was not exempt from Municipal taxation. But on the point of limitation the learned Judge was; of the opinion that the suit was barred under Article 14 of the Indian Limitation Act because it was filed more than one year after the decision of the Bench Magistrates. That decision was given on April 29, 1933, and the suit was filed on November 27, 1934. The appeal having been allowed on that ground, the suit was dismissed and the present appeal has been filed against the dismissal of the suit on that ground.

5. The appellant's case is that the suit is not governed by Article 14 inasmuch as the order of the Bench Magistrates was not an order of an officer of Government falling under Article 14. The view of the learned Judge was that the order of the Bench Magistrates was an order of an officer of Government in his official capacity and that it must be set aside before the civil Court can declare that the buildings were liable to Municipal taxation.

6. Section 110 of the Bombay Municipal Boroughs Act provides that appeals against any notice of demand issued under Sub-section (3) of 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. The next Section 111 provides, among other things, that the decision of the Magistrate or Bench of Magistrates upon any appeal shall, at the instance of either party, be subject to revision by the Court to which appeals against his or their decisions ordinarily He, and that effect shall be given by the Chief Officer to every decision of the said Magistrate or Bench of Magistrates on any appeal or any decision in revision on such appeal against any such tax.

7. The question is whether under these two Section s the order passed by the Bench Magistrates is to be regarded as final in the sense that unless it was set aside by a regular suit no civil Court can grant a declaration inconsistent with that order. It is conceded before me that the jurisdiction of the civil Court is not barred because of the order passed by the Bench Magistrates and that a civil suit does lie. It has recently been held by our Court in Kanhardas v. Keshav (1934) 37 Bom. L.R. 235 that the words in Section 111 of this Act that the decision passed on appeal by the Magistrate was, at the instance of either party, subject to revision by the Court to which appeals would ordinarily lie, are not mandatory in the sense that it was incumbent on either party to adopt the remedy provided in the Section, and that the civil Court had jurisdiction to entertain a regular suit. A previous decision of our High Court in Hari v. Belgaum Municipality : AIR1930Bom68 is quoted in the judgment in this case, and it was held there that there was nothing to prevent a suit being filed by an assessee even though he might not have followed in its entirety the procedure for appealing to the Magistrate laid down in Section 110 of the Act. It is further held in Kmhardas v. Keshav that quite apart from the Municipal Act the civil Court has jurisdiction to deal with a civil right such as liability to taxation. The effect of this decision is that not only has the civil Court jurisdiction to entertain a suit with regard to any liability to Municipal taxation but that also such a suit is an independent suit and is not to be filed after exhausting the other remedies provided in Section s 110 and 111 of the Bombay Municipal Boroughs Act. Section 111 does not say that the decision of the Magistrate or any other order passed in revision of that decision is final till it is set aside in a regular suit, and that result in my opinion follows as a corollary from the decision in Hari v. Belgaum Municipality, that there was nothing to prevent a suit being filed even though an assessee might not1 have followed in its entirety the procedure for appealing to the Magistrate. Article 14 would apply only to those orders which require to be set aside in a regular suit before any relief inconsistent with the order could be obtained. But the order of the Bench Magistrate being not such an order, Article 14 in my opinion can have no application to the facts of the present case. The order passed by the Bench Magistrates in appeal, though subject to revision, seems to me to be a summary order which did not prevent a suit being filed even without preferring an appeal to the Magistrates against the notice of demand. There are authorities to show that Article 14 does not apply to such an order. In my opinion, therefore, the present suit is not governed by Article 14, and is, therefore, not time-barred. Moreover the order of the Bench Magistrates was a judicial and not a quasi-judicial or an executive order. It can be revised by the Sessions Court and it has been recently held that the order of the Sessions Court in revision is again open to revision by the High Court : Surat Municipality v. Homiduddin (1937) 40 Bom. L.R. 387 and Lokmanya Mills Ltd. v. Municipal Borough, Barsi : (1939)41BOMLR937 . A judicial order does not fall under Article 14 : Govinda Bala v. Ganu Abaji : (1908)10BOMLR749 . For this reason also, the present suit does not fall under Article 14.

8. The finding on the second issue in the appellate Court that the defendant's property is liable to Municipal taxation as the general public had no right to use it has not been assailed before me.

9. In the result, therefore, the appeal is allowed with costs of this Court, the decree of the lower appellate Court is set aside and that of the trial Court is restored.


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