1. This is a second appeal arising from a suit which had been filed by the respondent for a declaration that the assessment made by the appellant municipality of house-tax in respect of the year 1950-51 was illegal inasmuch as the assessment had been increased as compared to what it was in the previous year and yet no notice was given to him. The respondent prayed besides that the amount of excess tax which the municipality levied and which according to him came to Rs. 175-11-0 be refunded to him. The trial Court as well as the appellate Court uphold this contention and the appellant-municipality has come in appeal.
2. Now, a preliminary objection which has been taken is that no second appeal lies inasmuch as the suit which had been filed by the respondent is a suit of the nature cognizable by a Court of Small Causes and the amount or valuation of the subject-matter being loss than Rs. 500 no second appeal lies.
3. It is contended on behalf of the appellant that when the respondent framed this suit he framed it as one for a declaration that the assessment which had been effected by the appellant-municipality was illegal and for a consequential relief of refund of the excess tax which had been levied by it. The respondent stated specifically in para. 6 of the plaint that he should be given a declaration that the assessment was illegal. By para. 8 of the plaint he stated that he was valuing the relief, which he was entitled to value in a suit framed as a suit for a declaration and consequential relief, at Rs. 175-11-0, and by the prayer clause also he prayed for a declaration that the assessment was illegal. Consequently Clause (19) of the Second Schedule to the Provincial Small Cause Courts Act (IX of 1887) applied and the Small Causes Court had no jurisdiction to try the suit.
4. Now, a view has been taken in some cases that asking for a declaration when the suit is really speaking a suit for refund of tax illegally levied does not prevent the suit from being a suit of the nature cognizable by the Court of Small Causes. One can understand of course that if a suit for declaration does not lie, the declaration would be a meaningless declaration and it would be proper to consider such a suit as a suit for refund alone. Section 42 of the Specific Relief Act is not exhaustive and there are suits which, though not covered by the section, may properly be filed as suits for a declaration. It appears to us however that it is not necessary to go into that question for the purpose of the present appeal, inasmuch as the appeal must fail on merits.
5. The facts of the case are not in dispute. It appears that in respect of the year 1949-50 there was effected a revised assessment of which notice had been given to the respondent. The respondent objected to the assessment, but the standing committee overruled the objection. The respondent then went in appeal to the Resident Magistrate, Kalyan, against the notice of demand, but the decision of the Magistrate had not been given, when on March 31, 1950, the assessment-list in respect of the year 1950-51 was prepared. A public notice of the assessment list for 1950-51 appears to have been given, but no individual notice of the assessment was given to the respondent, because it was not known whether the Magistrate would give the respondent any relief or not, and his ease was apparently not regarded as one of increase of assessment. It does not appear that the respondent objected to the assessment of 1950-51. Then on July 3, 1950, the Magistrate reduced the assessment in respect of the year 1949-50 and it is not in dispute that the house-tax leviable under his decision was Rs. 512-8-0. The list for the year 1950-51 had already been however prepared on March 31, 1950. It had also been authenticated and deposited in the office of the municipality and the municipality in January 1951 sent to the respondent a bill in accordance with this assessment. The respondent appears to have paid the tax and then filed the suit, from which the present appeal arises, for a declaration that the assessment was illegal on the ground that no notice was served upon him under Section 80 of the Bombay Municipal Boroughs Act, 1925.
6. Now, the contention which has been advanced on behalf of the appellant-municipality is that as the Magistrate had not given his decision on March 31, 1950, the action of the municipality adopting for 1950-51 the list of assessment, which the standing committee had already made in respect of the previous year, was perfectly correct. No individual notice of the assessment had consequently to be given. A public notice had been given by the municipality, and as the respondent must have known that he had preferred an appeal to the Magistrate which had not yet been decided, it was his duty to appear in answer to the public notice and raise his objection to the levy of assessment contemplated by the municipality. It is now conceded that the Magistrate gave his decision on July 3, 1950, long before the municipality sent a bill to the respondent in respect of the house-tax payable for the year 1950-51. But it is said that that action of the municipality was perfectly legal as the respondent had failed to object to the assessment list for the year 1950-51.
7. Now, whether notice of the assessment should have been given to the respondent or not depends upon whether it can be said that there was an increase in the assessment. The assessment in respect of the year 1949-50 was upon a valuation upon which only a sum of its. 512-8-0 was payable. It is true that when the standing committee first made the authenticated list in respect of the year 1949-50, they fixed the valuation of the respondent's house at a figure upon which the tax of Rs. 688-3-0 was leviable. But that does not make any difference. This assessment was objected to, the standing committee overruled the objection, subsequently there was an appeal to a Magistrate and the Magistrate reduced the assessment whereby tax of only Rs. 512-8-0 was payable. The provisions of Section 81(6) of the Bombay Municipal Boroughs Act then became applicable. It says :-
Subject to such alterations as may be made therein (i.e. in the authenticated list) under the provisions of Section 82 and to the result of any appeal or revision made under Section 110, the entries in the assessment-list so authenticated and deposited and the entries, if any, inserted in the said list under the provisions of Section 82 shall be accepted as conclusive evidence-
(i) for the purposes of all municipal taxes, of the valuation, or annual letting value on the basis prescribed in the rules regulating the rate, of buildings, lands and both buildings and lands to which such entries respectively refer, and
(ii) for the purposes of the rate for which such assessment-list has been prepared, of the amount of the rate leviable on such buildings or lands or both buildings and lands in any official year in which such list is in. force.
8. Now, Clause (i) of Sub-section (6) of Section 81 does not have the words 'in any official year in which such list is in force.' It is said however that even so the list as corrected in accordance with the decision of the Magistrate is conclusive evidence of the valuation of the building only for the year 1949-50 for which originally the municipality had made a higher valuation which was reduced by the Magistrate. We shall accept for the purpose of argument that the entry in the assessment-list corrected consequent upon the decision of the Magistrate was conclusive evidence of tho valuation of the respondent's property for the purpose of taxation only for the year 1949-50. But there can be no doubt that when the municipality sent a bill to the respondent, it was asking him to pay a higher assessment. In that case the provisions of Section 81 have got application. Sub-section (7) of that section says :-
The Chief Officer, shall, at the time of the publication of the assessment-list under Section 80, give public notice of a date, not less than one month 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.
It is to be noticed that whereas the first part of this clause requires that a public notice is to been given at the time of the publication of the assessment-list, the second part which refers to the individual notice which is to be given to the owner or occupier of the property is not confined to the time of publication of the assessment-list. It can apparently be given at any time when the assessment is increased, and it is obvious that inasmuch as at the time when the bill in this case was prepared the municipality knew full well that the assessment was increased, it should have given the individual notice referred to in the latter part of Sub-section (1) of 65.
9. Mr. Rege who appears on behalf of the municipality says however that when in this case the municipality appear to have adopted the assessment-list of the previous year as it was entitled to do under the provisions of Section 84(1), on March 31, 1950, it had no reason for supposing that the Magistrate was going to reduce the assessment, and he says that the Chief Officer was not bound when the decision of the Magistrate was given to revise the assessment which had already been effected. That may well be. It appears to us that there were two courses open to the Chief Officer after the Magistrate gave his decision in July 1950. He could move the standing committee to exercise its powers under Section 82(1), so that the standing committee could revise the assessment if they chose to do so. It is true that Section 82(1) has got application only in certain circumstances. But the standing committee may alter the assessment-list when it is erroneous because of fraud, accident or mistake. In this case there would be no difficulty in regarding that the entry in the assessment list was an entry erroneous through mistake, because it was made on the basis of the assessment-list of the previous year at a time when the decision of the Magistrate had not been given. Once it is conceded that the assessment of the previous year had to be corrected in accordance with the decision of the Magistrate whenever it was given, it is obvious that when the municipality prepared a fresh list upon the basis of the list for the previous year, which they were entitled to do under Section 82(1), an error crept in the list because when the list was made it took the figure which had to be corrected later on when the Magistrate gave his decision but had not been corrected.
10. In the alternative, if the municipality still wished to levy assessment at a figure higher than the one which was originally mentioned in the assessment-list, as it was prepared on March 31, 1950, it had got to proceed under Section 81(1). If the municipality had done that, the respondent could have objected to the assessment, and if the municipality still insisted upon levying the assessment, he could have appealed to a Magistrate.
11. The learned trial Judge was therefore quite right in holding that the assessment-list is illegal in respect of the respondent's property on the ground that it had been prepared without giving to the respondent the notice referred to in Section 81(1) of the Bombay Municipal Boroughs Act.
12. The appeal is, therefore, dismissed with costs.