Gangeshwar Prasad, J.
1. These nine Special Appeals have been filed by the Municipal Board of Kanpur (hereinafter referred to as the Board) against the judgments of a learned Single Judge of this Court in nine writ petitions filed by the Board. All the writ petitions raised identical questions and they were all dismissed by the learned Judge for reasons given in his judgment in writ petition No. 1451 of 1959 which has given rise to Special Appeal No. 407 of 1959. All the Special Appeals are, therefore, being disposed of by a common judgment.
2. The Board, which was functioning under an Administrator, assessed respondent No. 2 of each of these appeals to a tax on the annual value of certain buildings and lands. Against the assessment, the said respondents (hereinafter referred to as the assessee) preferred appeals under Section 160 of the U, P. Municipalities Act (hereinafter referred to as the Act) before Sri A. P. Misra, Additional Commissioner, Kanpur, who had been appointed as the appellate authority by the State Government through a notification which was as follows:--
'Section A Municipal
January 2, 1958
No. 5077-B/XI-C-192-57. In supersession of notification No. 4501-B/XI-C-192-57, dated November 23, 1957 and in partial modification of notification No. 4396(a)-P/XI-B-182-50, dated August 31, 1956, the Governor has, in exercise of the powers conferred by Sub-section (2) of Section 160 of the U. P. Municipalities Act 1916, read with item (U) of the Schedule appended to the 'U. P. Local Bodies (Adaptation of Laws) Order. 1953' published with notification No; 4613/XI-B-7 (Kabal)-58, dated December 18, 1953, been pleased to empower Sri A. P. Misra, Additional District Magistrate, Kanpur, to entertain appeal as specified in Sub-section (1) of the said section in respect of the Municipal Board, Kanpur.
B.D. Sanwal, Sachiv.'
It will be noticed that the notification described Sri A. P. Misra as Additional District Magistrate Kanpur, and not as Additional Commissioner Kanpur, but it is admitted that this was a mistake and that the mistake was rectified by the State Government through a corrigendum. Sri A. P. Misra heard the appeals and by his orders dated January 31, 1959, he reduced the amount of tax in the case of each of the assessees. It was against the said orders of Sri A. P. Misra Additional Commissioner Kanpur, that the writ petitions giving rise to these appeals were filed by the Board and the prayer was that the orders passed by Sri A. P. Misra be quashed.
3. The contentions raised by the Board before the learned Single Judge were three: firstly, Sri A. P. Misra was not a duly appointed authority for entertaining appeals under Sub-section (2) of Section 160 of the Act; secondly, Sri A. P. Misra acted without jurisdiction in taking evidence in appeal as he did; and thirdly, the appeals were not decided by Sri A. P. Misra on correct principles. All these contentions were rejected by the learned Judge and the petitions were dismissed. Before us, Sri S. C. Khare, the learned counsel for the Board, emphasised only the first of the abovemen-tioned three contentions, and it is essentially that contention which we have to examine in these appeals.
4. Section 160 of the Act, which provides for appeal against taxation, runs as follows:--
'(1) In the case of a tax assessed upon the annual value of buildings or lands or both an appeal against an order passed under Sub-section (3) of Section 147, and, in the case of any other tax an appeal against an assessment, or any alteration of an assessment, may be made to the District Magistrate or to such other officer as may be empowered by the State Government in this behalf.
(2) Provided that where a board has been superseded under Section 30 and the District Magistrate has been appointed under Clause(b) of Section 31 or Where an Administrator has been appointed under Section 3 of the U. P. Local Bodies (Appointment of Administrators) Act, 1953, to exercise and perform the powers and duties of the Board, the appeal shall lie to such authority as may be prescribed.'
It is not in dispute that by virtue of the provisions of the U. P. Local Bodies (Adaptation of Laws) Order, 1953 referred to in notification quoted above, subsection (2) of Section 160 of the Act, under which the notification purports to have been issued, is applicable to the Board, The point which, on the argument advanced by Sri S. C. Khare, needs determination is whether the issue of the notification fulfilled the requirement of Sub-section (2) of Section 160 of the Act and had the effect of constituting Sri A. P. Misra the appellate authority under the said provision.
5. The argument of the learned counsel was this:
The expression 'prescribed' used in Sub-section (2) of Section 160 means, according to its definition Riven in Section 2(17)(i) of the Act prescribed by or under the Act or rules made thereunder or by or under any other enactment. Sub-section (2) of Section 160 does not itself prescribe the appellate authority but only empowers the prescribing to be done, and it cannot, therefore, be said that the authority has been prescribed by the Act; again, Sub-section (2) of Section 160 does not provide by whom the appellate authority is to be prescribed and, consequently, it is not within the power of the State Government to prescribe the authority by means of a mere notification and no authority prescribed in that manner can be an authority prescribed under the Act Having regard to the definition of the expression 'prescribed', the only method of prescribing the appellate authority is by a rule made under Section 296 of the Act The notification issued by the State Government is, however, not a rule, and in any case it is not a rule made under the Act as the requisite conditions to the making of a rule as laid down in Section 23 of the U. P. General Clauses Act, which is attracted because of Section 300 of the Act were not complied with.
6. Obviously, no appellate authority has been prescribed by the Act. The question to be considered is whether the State Government is competent, by virtue of Sub-section (2) of Section 160, to prescribe the appellate authority without recourse to its rule-making power under Section 296 of the Act and, if it does so, the appellate authority may be said to have been prescribed under the Act The view taken by the learned Single Judge is that since Sub-section (2) of Section 160 is, as its opening words show, a proviso to Sub-section (1) of the section, it has to be read along with Sub-section (1) and not as detached from it. The result to which, according to the learned Judge, a reading of the two sub-sections together leads may be stated in his own words:
'In my opinion, the effect of reading Sub-section (2) along with Sub-section (1) would be that the words 'shall lie to such authority as may be prescribed' occurring in Sub-section (2) shall have reference to the words 'to such other officer as may be empowered by the State Government in this behalf' occurring in Sub-section (1). In other words, all that the words 'the appeal shall He to such authority as may be prescribed' mean is such authority as may be pre-scribed under Sub-section (1) of Section 160. Apart from the fact that this is the only logical and grammatically correct interpretation possible, it would be noticed that if the idea was that some other authority was to prescribe the appellate authority contemplated by subsection (2) of Section 160 provision would have been made for prescribing such an authority and the legislature would not have left the whole matter in a vacuum. It was not necessary to mention after the words 'the appeal shall lie to such authority as may be prescribed1 the words 'by the State Government' because as I have said above Sub-section (2) has got to be read along with Sub-section (1) of Section 160 and inasmuch as it was already provided that the authority other than the District Magistrate shall be appointed by the State Government it was not necessary to repeat the same thing again after the words 'the appeal shall lie to such authority as may be prescribed' occurring in Sub-section (2) of Section 160.'
7. Sri S. C. Khare urged that in view of the definition of the expression 'prescribed' in Section 2(17)(i) the words 'as may be prescribed' used in Sub-section (2) of Section 160 cannot have the same meaning as the words 'as may be empowered by the State Government' occurring in Sub-section (1) and they must be understood in terms of the definition. The learned counsel contended that, even if Sub-section (2) is only a proviso to Sub-section (1), the difference in the language employed by the legislature in the two Sub-sections is indicative of the fact that two different methods of constituting the appellate authority are contemplated by the two sub-sections. He further contended that on the interpretation put forward by him prescribing of the appellate authority under Sub-section (2) of Section 160 would not be left in a vacuum, as observed by the learned Single Judge, and the State Government may prescribe the appellate authority by framing a rule in exercise of the power conferred upon it by Section 296 of the Act after complying with the conditions imposed by Section 23 of the U. P. General Clauses Act. After a careful consideration of the arguments advanced before us and after examining the relevant provisions of the Act, we have, however, reached the conclusion that the words, 'as may be prescribed' used in Sub-section (2) of Section 160 mean 'as may be prescribed by the State Government', and that the State Government may prescribe the appellate authority without framing a rule in that behalf under Section 296.
8. It does not admit of any doubt that Sub-section (2) of Section 160 is in the nature of a proviso to Sub-section (1). It is of no consequence that the two portions of Section 160 have been described as separate sub-sections, because that is only a matter of legislative style and not a matter affecting their real relation to each other. Sub-section (2) has, therefore, not to be read in isolation but as a part of Sub-section (1). Now, Sub-section (1) of Section 160 made an order of assessment appealable to the District Magistrate also, and a different provision in regard to the appellate authority had consequently to be made for that situation in which the District Magistrate had been appointed under Section 31(b) of the Act to exercise the powers and duties of a Board, Sub-section (2) of Section 160 was, therefore, enacted to take out appeals against assessments made in the aforesaid situation from the operation of Sub-section (1) to this extent that they would lie not to the District Magistrate also but only to the other authority indicated in Sub-section (1).
It is true that the words used in subsection (1) are 'such other officer as may be empowered by the State Government' whereas the words in Sub-section (2) are 'such authority as may be prescribed', but the difference in phraseology is not, to our mind, suggestive of any difference in the idea sought to be expressed. No doubt, the legislature is ordinarily presumed not to have employed in an enactment different words in regard to the same subject matter without contemplating a difference in the idea conveyed, particularly when such different words find place in the same provision. But, that is a presumption to which undue importance is not to be attached in the ascertainment of the legislative intent, In Maxwell's Interpretation of Statutes (9th Edition), at page 326 the position in regard to this presumption has been stated as follows:--
'But, just as the presumption that the same meaning is intended for the same expression in every part of an Act is, as we have seen, not of much weight, so the presumption of a change of intention from a change of language (of no great weight in the construction of any document) seems entitled to less weight in the construction of a statute than in any other case, for the variation is sometimes to be accounted for by a mere desire to avoid the repeated use of the same words, sometimes by the circumstance that the Act has been compiled from different sources, and sometimes by the alterations and additions from various hands which Acts undergo in their progress through Parliament.'
Similarly, in Craies on Statute Law (6th Edition), at page 143, it has been said:
'But although, as has been said, this presumption is generally to be made, and 'it is certainly to be wished', as the Judicial Committee said in Casement v. Fulton, (1845) 5 Moore PC 130 at p. 141, 'that, in framing statutes the same words should be employed in the same sense', still, there are many instances to be found of the legislature departing from language previously used for the purpose of conveying a certain meaning without intending to depart from that meaning .....'when the legislature', said Blackburn J., 'change the words of an enactment, no doubt it must be taken prima facie that there was an intention to change the meaning'. This, however, is not necessarily so, for we find as a matter of fact, that the same learned Judge observed in Hadley v. Perks, (1866) 1 QB 444 at p. 457 in drawing Acts of Parliament, the legislature, as it would seem, to improve the graces of the style, and to avoid using the same words over and over again, constantly change the words without intending to change the meaning.'
Having regard to the manner in which the two sub-sections of Section 160 are related to each other and to the object of enacting Sub-section (2) it seems to us that the variation in language referred to above is not indicative of any variation in meaning. Sub-section (2) is not a self-contained provision and just as the words 'the appeal' occurring therein have reference to the appeal provided for in Sub-section (1), the words 'such authority as may be prescribed' have reference to the other appellate authority besides the District Magistrate provided for in that sub-section. Precision certainly required adherence to the phraseology employed in Sub-section (1), but a repetition in Sub-section (2) of the words 'as may be empowered by the State Government in this behalf' might have been thought by the draftsman to be a little lacking in grace of style or unnecessary. It may also be noted that Sub-section (2), in the shape in which it stands at present, was not enacted contemporaneously with Sub-section (1) but was introduced by an amendment made in the Act in 1953. Having regard to the form and the context of Sub-section (2) and to the reason and purpose behind its enactment, we agree with the learned Single Judge that the words 'such authority as may be prescribed' used in the sub-section mean and should be read as 'such authority as may be prescribed by the State Government.'
9. It cannot be disputed and was indeed not disputed by Sri S. C. Khare that if the words 'such authority as may be prescribed' used in Sub-section (2) of Section 160 are to be read as 'such authority as may be prescribed by the State Government', Sri A. P. Misra was a duly constituted appellate authority. What was urged by Sri S. C. Khare was that in construing the words 'such authority as may be prescribed' it is not permissible to add to them the words 'by the State Government' because the words employed by the statute do not in view of the definition of the expression - 'prescribed', remain meaningless and ineffective without that addition. On a close examination of the provisions of the Act, it would, however, appear that in order to effectuate Sub-section (2) it has to be held that the necessary implication of the words 'such authority as may be prescribed' is that the authority is to be prescribed by the State Government. According to the contention of the learned counsel, the appellate authority has not been prescribed either by or under the Act, and in view of the definition of the expression 'prescribed' the authority can only be prescribed by a rule made under the Act. Now, the obligation and the power of the State Government to make rules are contained in Section 296 of the Act which, in so far as it is relevant for our purpose, runs as follows:--
'296. Obligation and power of State Government to make rules -- (1) The State Government shall make rules consistent with this Act in respect of the matters, described in Sections (95, 127, 153 and 235).
(2) The State Government may make rules consistent with this Act -- (a) providing for any matter for which power to make provision is conferred, expressly or by implication, on the State Government by this or any other enactment in force at the commencement of this Act.'
It would be noticed that Sub-section (1) casts a duty upon the State Government to make rules consistent with the Act in respect of matters described in the provisions enumerated therein. It would also be noticed that all those provisions expressly provide that the matters with which they deal shall be regulated by rules. We may mention that the first two among them state that the rules are to be made by the State Government, but the remaining two do not explicitly say so. The difference is, however, not material because Sub-section (1) of Section 296 itself makes it obligatory for the State Government to make rules in regard to the matters described in the aforesaid provisions. In contrast to Sub-section (1) of Section 296, Sub-section (2) of the said section is general in its terms and Clause(a) thereof confers upon the State Government the power to make rules consistent with the Act providing for any matter for which power to make provision is conferred expressly or by implication on the State Government by the Act or by any other enactment in force at the commencement of the Act.
Clause (a) of Sub-section (2) of Section 296, therefore, postulates two things: firstly, that, either expressly or by implication, the power to make provision in respect of a matter has been conferred; and secondly, that, either expressly or by implication, the said power has been con-ferred upon the State Government. It seems clear that the words 'expressly or by implication' govern not merely the preceding words in the Clausebut also the words 'on the State Government' and, indeed, it is only by reading the clause in this manner that, even according to the contention of the learned counsel, a rule in respect of the matter mentioned in Sub-section (2) of Section 160 may be made by the Government. The power to make a provision with respect to the appellate authority has certainly been expressly conferred by subsection (2) of Section 160, but there is no express conferment of that power upon the State Government. How then can the State Government make a rule in respect of the matter dealt with by Sub-section (2) of Section 160 unless it is held that the sub-section has conferred the power on the State Government by implication? And this implication can be found in Sub-section (2) of Section 160 because of Sub-section (1) of that Section and because of the general scheme of the Act which confers powers of this nature only on the State Government.
The position, therefore, is that Sub-section (2) of Section 160 has either to be regarded as altogether devoid of meaning, use and effect and, to use the words of the learned Single Judge as having 'left in a vacuum' the matter for which it attempted to make a provision, or it has to be understood as implying that the prescribing of the appellate authority under it has to be done by the State Government. Surely, the alternative of so reading the sub-section as to make it totally ineffective and nugatory has to be avoided if it is possible to do so on a reasonable construction of its language in the context of the preceding sub-section of which it is a part and a proviso and of the Act in which it finds place. We may here draw attention to the following observations of their Lordships of the Supreme Court in Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1953 SC 394:
'While no doubt it is not permissible to supply a clear and obvious lacuna in a statute and imply a right of appeal it is incumbent on the court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application. The construction urged for the appellant renders Section 6 (of the Vindhya Pradesh Criminal Law Amendment (Special Courts) Ordinance No. 5 of 1949) futile and leaves even a convicted person without appeal. We have no hesitation in rejecting it' (Words in brackets ours)
We may also mention that Sri S. C. Khare did not press for the acceptance of the first of the two alternatives indicated above and he only urged that the purpose of the sub-section has to be effectuated by the State by having recourse to its rule-making power under Section 296. That power, however, can, as shown above, be held to be exercis-able only if the words 'such authority as may be prescribed' are construed as carrying the implication that the prescribing has to be done by the State Government or, in other words, they are read as 'such authority as may be prescribed by the State Government.' Thus, there is no escape from the conclusion that if Sub-section (2) of Section 160 is to serve any purpose and the absurdity of having provided for an appeal without providing for the constitution of the appellate authority is not to be imputed to the legislature, the words 'such authority as may be prescribed' must be interpreted as meaning and be read as such authority as may be prescribed by the State Government'
10. If, then, words 'such authority as may be prescribed' mean and have to be read as 'such authority as may be prescribed by the State Government', it is not necessary for the State Government to make a rule under Section 296 of the Act for prescribing the appellate authority. The State may prescribe the authority under Sub-section (2) of Section 160 itself and if it does so, the authority will be an authority prescribed under the Act and, therefore, 'prescribed' in accordance with the definition of that expression in Section 2(17)(i) of the Act
11. It is another matter altogether that the State Government may have the power to prescribe the appellate authority by means of a rule too, but that is not the only method of doing so. In fact it appears to us that the requirements of Section 23 of the General Clauses Act which attach to the making of a rule by the State Government would be a little inappropriate in relation to the prescribing of appellate authority to hear appeals against assessment But quite apart from that there seems to be no doubt that Sub-section (2) of Section 160, by its own term, authorises the State Government to appoint the appellate authority, and it is not necessary for the State Government to employ its rule-making power under Section 296 for that purpose.
In this connection it is significant that in Sections 119(2) and 151(2), the Act expressly lays down that the things to be prescribed thereunder have to be prescribed by rule; in Section 228(2) the legislature has taken care to say that in Sub-section (1) of the said section the word 'prescribed' means prescribed by rule: while in Section 59(3) where the words 'State Government' find place in the first part of the sub-section the legislature has not expressly stated by whom the prescribing spoken of in the second part has to be done. Considering the language used in these provisions it seems reasonable to infer that whenever the legislature intended that a certain thing has to be prescribed only by a rule framed under the rule-making power of the State, it has explicitly said so. In Sub-section (2) of Section 160 the legislature has not done so and this supports the conclusion that the State Government need not prescribe the appellate authority by means of a rule framed under the power given by Section 296 and may do so even under Sub-section (2) of Section 160 in exercise of the power con-ierred upon it by that Sub-section itself.
12. For the reasons discussed above we hold that Sri A. P. Misra who was empowered by the State Government under the notification quoted above to entertain appeals against assessment was a duly constituted appellate authority under subsection (2) of Section 160 of the Act, and the impugned orders cannot be said to have been passed without jurisdiction. This disposes of the main contention advanced before us on behalf of the appellant but, before leaving it, we may refer to a question which was raised on behalf of the respondents in connection with that contention.
13. It was urged on behalf of the respondents that at no stage of the appeals before Sri A. P. Misra did the appellants take any objection as to the jurisdiction of Sri A. P. Misra to entertain the appeals, and the appellant, was, therefore, precluded from raisins the question of jurisdiction in a writ petition. The stand taken by the appellant was that till the disposal of the appeals by Sri A. P. Misra it was unaware of the fact that no rule constituting Sri A. P. Misra the appellate authority for hearing appeals against assessment had been framed by the State Government, and there was, in these circumstances, nothing in the conduct of the appellant which may preclude it from challenging the jurisdiction of Sri A. P. Misra by means of writ petitions, and, in any case, even the acquiescence of the appellant to the assumption of jurisdiction by Sri A P. Misra could not act as a bar to claiming relief on the ground of lack of jurisdiction.
The respondents repudiated the correctness of the stand taken by the appellant and contended that after the appointment of the Administrator over the Board which took place in July 1953 appellate authorities' for assessment appeals were appointed by the State Government from time to time under notifications of the kind quoted above, that thousands of assessment appeals were preferred by as-sessees during this period without any plea of want of jurisdiction having ever been raised by the Board, that the appellant was fully aware of the fact that it was only by means of the above quoted notification that Sri A. P. Misra was appointed as the appellate authority under Sub-section (2) of Section 160. and that the conduct of the appellant disentitles it to raise the question of lack of jurisdiction. Since we have come to the conclusion that Sri A. P. Misra was a duly constituted appellate authority and he had jurisdiction to hear and decide the appeals filed by the assessees and to pass the impugned orders, it is wholly unnecessary for us to deal with this aspect of the controversy between the parties.
14. Sri S. C. Khare did not seriously dispute before us the power of the appellate authority to take additional evidence. An appeal is a continuation of the original proceeding and we agree with the learned Single Judge that the powers exercisable by the appellate authority must be regarded as co-extensive with those of the Board. Sri A. P. Misra was, therefore, competent to take additional evidence. We further agree with the learned Judge that as the appellant never objected to the taking of the additional evidence by Sri A. P. Misra, it is not open to it to urge that Sri A. P. Misra had no power to do so.
15. The correctness of the principle of assessment adopted by the appellate authority was not challenged before us by the learned counsel for the appellant in the course of his argument and we are, therefore, not called upon to examine that question.
16. The appeals have no force andthey are accordingly dismissed with costs.