1. In premises Nos. 361 and 368, Harrisganj, Kanpur, petitioner Sri Ram Mahadeo Flour and Oil Mills, a partnership firm, is in occupation. The premises are subjected to house tax and water tax by the Kanpur Cantonment Board under the provisions of the Cantonments Act, 1924. In respect of assessment year 197l-72 the amount initially demanded as house tax and water tax was deposited by the petitioner. Subsequently on July 6, 1972 further amounts were demanded by the Cantonment Board towards house tax and water tax for the same year. The petitioner deposited the amount under protest but assailed the assessment by filing appeals. Similarly, when additional amount as demanded from the petitioner for the year 1972-73. the petitioner deposited the same under protest. These appeals, it appears, came up for disposal before the Prescribed Authority on Oct. 30, 1972. No one was present on behalf of the petitioner so that the Prescribed Authority dismissed the same in default of the petitioner without going into the merits of the appeals. The petitioner then filed an application, supported by an affidavit, for recall of the order dated 30th Oct., 1972 on the ground that the person who was entrusted with the conduct of the ease had suddenly fallen ill so that he could not appear before the Prescribed Authority, namely. the Additional District Magistrate on the date fixed. The application was rejected by the Additional District Magistrate on May 14, 1973. The petitioner then came to this Court for relief by filing this writ petition under Art. 226 of the Constitution.
2. The contention of the learned counsel for the petitioner is that the Prescribed Authority was not entitled to dismiss the appeal in default and that it was bound to dispose it of on merits even though the petitioner-appellant was not represented before the Prescribed Authority. When the case was taken up, it has been urged that there is no provision in the Cantonments Act enabling the Prescribed Authority to dismiss an appeal in default. Reliance has been placed upon some decisions in support of the submission.
3. The provisions relating to appeals against the assessment or levy or refusal to refund any tax under the Cantonments Act are contained in Sections 84 to 88 of the Act. Section 84 enables a person aggrieved by any assessment or levy or refusal to refund a tax to file an appeal before the District Magistrate or swell other officer as may be empowered by the Government. Sub-section (2) of this section permits reference of a question of law in respect whereof the officer entertains a reasonable doubt to the High Court for its decision. Section 87 lays down the conditions upon compliance whereof the appeal is to be heard or determined. Section 88 which attaches finality to the appellate order reads thus:--
'88. Finality of appellate orders :--The order of an appellate authority confirming, setting aside or modifying an order in respect of any valuation or assessment or liability to assessment or taxation shall be final: Provided that it shall be lawful for the appellate authority, upon application or on its own motion, to review any order passed by it in appeal if application in this behalf is made within three months from the date of the original order.'
4. A perusal of the aforesaid provisions leads unmistakably to the conclusion that whenever an appeal is filed and the conditions requisite for hearing and determining it are fulfilled, the appellate authority has to dispose it of on its merits by confirming, setting aside or modifying an order in respect of any valuation or assessment or liability to assessment or taxation. There is nothing in these provisions enabling the Prescribing Authority to refrain from going into merits of an appeal if the appellant is not represented before it
5. In Commr. of Income-tax, Madras v. S. Chenniappa Mudaliar, AIR 1969 SC 1068, it was ruled by the Supreme Court that having regard to the substantive provisions of the Indian Income-tax Act, 1922 the inescapable conclusion was that under Section 33(4) the appellate tribunal was to dispose of the appeal on its merits and could not short circuit the same by dismissing it for default of appearance. The Supreme Court came to the conclusion, particularly in view of the fact that the proceedings before the appellate tribunal were quasi judicial in character and there was nothing, either express or implied, in the provisions noticed by it to suggest that the appeal could be disposed of without going into its merits in case the appellant was not present before the appellate tribunal The Supreme Court also felt that the fact that a reference could be taken to the High Court in its advisory jurisdiction from a decision of the tribunal was also suggestive of the conclusion that it was intended that the matter should be decided by the tribunal on merits.
6. We have noticed that under Section 84(2) a provision has been made for a reference to this Court of a question of the nature mentioned in that provision for the opinion of this Court in case some reasonable doubt arose in the mind of the officer hearing the appeal on a question as to the liability to or the principles of assessment of a tax when the appeal was heard by him. We have also noticed that under the proviso to Section 88 the appellate authority can review an order passed by it in appeal either on its own motion or on an application made to it within the prescribed period of limitation. These provisions would be rendered nugatory in case the power, in the absence of any express provision to that effect, is conceded to the appellate authority to dismiss an appeal in default
7. In Smt. K.L. Sehgal v. Commr., Allahabad, 1971 All U 595 : (AIR 1971 All 573) a Division Bench of this Court was called upon to decide the question whether a revision under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (Act No. III of 1947) could be dismissed in default After referring to a number of decisions under various Acts and analysing the provisions of U. P. Act No. III of 1947. the Bench felt that a revision could not be dismissed in default by the Commissioner. The Bench took note of the circumstances that it was open to the Commissioner, in a revision, to reverse the order of the District Magistrate or to make such alteration as was found by him to be just and proper. From it the Bench concluded that a decision altering or reversing the order must be a decision on the merits of the case.
8. In Kamta Prasad v. Additional District Magistrate (City), Kanpur, Civil Misc. Writ Petn. No. 5269 of 1973 decided on Feb. 26, 1976, a learned single Judge of this Court (K.C. Agarwal, J.), following the principles laid down by the Supreme Court in Chenniappa Mudaliar's case (AIR 1969 SC 1068) (supra), held that the provisions of the Cantonments Act, 1924 did not entitle the Additional District Magistrate to dismiss the appeal in default.
9. In view of what we have said earlier, we are clearly of the opinion that the Prescribed Authority (The Additional District Magistrate, Kanpur) was in error in dismissing the appeals filed by the petitioner before it in respect of the year 1971-72 in default. The orders dated Oct. 30, 1972 passed by him in that respect were without jurisdiction.
10. Since we have held that the orders dismissing the petitioner's appeals for default were without jurisdiction, it is not necessary for us to go into the further question whether the refusal of the Additional District Magistrate to restore the appeals to their original numbers was founded on justifiable reasons. Once the orders of Oct. 30, 1972 are held to be without jurisdiction, the inevitable consequence would be that the appellate authority would have to hear and dispose of the appeals filed by the petitioner on merits.
11. The petition succeeds and is allowed The orders dated Oct. 30, 1972 (Annexures 9 and 10 to the writ petition) dismissing the appeals Nos. 16 and 15 relating to the premises Nos. 361 and 368, Harrisganj, Kanpur respectively are quashed. The Additional District Magistrate (City) Kanpur is directed to restore the two appeals to their original numbers and dispose them of on merits after notice to both the parties.
12. We direct the parties to the petition to bear their own costs of this Court.