S.B. Wad, J.
(1) This is a reference by the Additional District and Sessions
'WHETHERany amount of property tax is in dispute in this appeal and the same has to be deposited by the appellant in the office of the Corporation before the appeal can be heard or determined, or not ?'
Similar reference is made in the other references. They would thereforee, be disposed of by one order. For the purpose of the present reference Iill refer to the facts of Civil Reference No. 2 of 1971.
(2) The first rateable value of premises No. 2, Kalkaji Industrial Area, New Delhi, was fixed at Rs. 37,800.00 with effect from 1-4-1960 by the Corporation. With effect from 1-3-1967 the rateable value was increased to Rs.88,500.00 due to some additional construction. After the payment of the house-tax for the year 1969-70 on the said basis, the Corporation issued a notice to the landlord on 13-3-1970, under Section 126 of the Act for raising the rateable value to Rs. l,29,650.00 with effect from 1-4-1969. The grounds for revision stated in the notice were :
''(A)Previous rateable value was found to be erroneously valued; (b) Repairing and plastering of walls.'
After hearing the objections from the landlord, the revised reteable value was finally fixed at Rs. 1,16,550.00 on 10-8-1970. The landlord preferred an appeal under Section 169 of the Act. He did not deposit any tax amount pursuant to Section 170(b).
(3) In the appeal before the District Judge the landlord prayed that the question whether the property tax amount must be deposited before the appeal can be heard (or determined) or not should be referred to this court, being a question quite complex and fairly important. Accordingly the present reference was made. The Additional District Judge while referring the issue prima facie held that the appeal under Section 169 cannot be heard or determind till the amount of property tax due on the basis of enhanced rateable value under the impugned order was deposited. It may be mentioned here that the reference is limited only to the question of enhanced rateable value under Section 126 of the Act.
(4) Considering the controversy and the submissions of the parties, I find that the question could have been more happily framed by the Additional District Judge. One of the arguments of the landlord before the District Judge was that unless an actual bill or levy of the property tax is raised, no tax becomes due and there is no amount in dispute as envisaged by Section 170(b). Perhaps, because of this submission, the Addl. District Judge has framed first part of the question, namely, whether any amount of property tax is in dispute in this appeal.' The submission of the landlord is misconceived. An appeal under Section 19 can be filed both against levy as well as against assessment. If the petitioner's argument is to be accepted that would be contrary to the provisions of Section itself. It would also defeat his appeal and it may not be necessary to go to the question of the non-deposit of the tax dues. On his own reasoning his appeal would be premature because no levy or bill was raised. The Corporation has framed Assessment List Bye-laws 1959, which have a statutary force. Under Bye-law 9(5), property tax, on the basis of the amended assessment list under Section 126 falls due on the day on which the amendment is formally made in the assessment list. The bye-law makes it clear that there is no hiatus between the amendment of the assessment list and the tax becoming due. The learned District Judge is right in holding that the rate of tax is fixed by a separate notification and the bill of demand of tax is merely an arithmatical exercise and ministerial communication of the tax due. Whatever may be the case in regard to other taxes, so far as the enhancement of the property tax under Section 126 is concerned, the tax becomes due on the date the assessment list is formally amended after hearing the objections from the assessed. The original rateable value was Rs. 88, 500.00 . This was raised to Rs. l,16,550.00 The amount in dispute was the difference between the said two rateable values. The first part of the question, namely, whether any amount of property tax is in dispute in this appeal, is answered in affirmative.
(5) For answering the second part of the question it is now necessary to look to some relevant Sections closely.
'169.(1) Anappeal against the levy of assessment of any tax under this Act shall lie to the court of the district judge of Delhi.'-
'170.No. appeal shall be heard or determined under Section 169 unless- (a) the appeal is, in the case of a property tax, brought within thirty days next after the date of authentication of the assessment list under Section 124 (exclusive of the time requisite for obtaining a copy of the relevant entries therein) or, as the case may be, within thirty days of the date on which an amendment is finally made under Section 126, and, in the case of any other tax, within thirty days next after the date of the receipt of the notice of assessment or of alteration of assessment or, if no notice has been given within thirty days after the date of the presentation of the first bill or, as the case may be, the first notice of demand in respect thereof: Provided that an appeal may be admitted after the expiration of the period prescribed thereforee by this Section if the appellant satisfies the court that he had sufficient cause for not preferring the appeal within that period : (b) the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation.'
'171.The order of the court confirming, setting aside or modifying an order in respect of any rateable value or assessment or liability to assessment or taxation shall be final : Provided that it shall be lawful for the court, upon application or on its own motion, to review any order passed by it in appeal within three months from the date of the order.'
'457.The procedure provided in the Code of Civil Procedure, 1908, in regard to suits shall be followed, as far as it can be made applicable, in the disposal of applications, appeals or references that may be made to the Court of the District Judge of Delhi under this Act or any bye-law made there under.'
(6) Right of appeal is given to an assessed by Section 169. Right of appeal is always a creature of statute. Section 125 gives finality to the assessment list (rateable value) under Section 125 or Section 126 subject to the result of the appeal. If the District Court on appeal confirms or modifies rateable value or assessment, the rateable value or assessment so determined on appeal becomes final by virtue of Section 171 of the Act. Section 170 has two objects. The first object is to impose limitation on the power of the District Court to hear and determine the appeal. The limitation is incorporated in Section 170(b). Unless the disputed amount is deposited by the assessed the District Court is prohibited from hearing or determining the appeal. Section 170(a) lays down period of limitation within which the appeal should be prefered. This is the procedure part of the appeal. Section 458 empowers the Central Government to prescribue fees for the appeal. Apart from these two procedural aspects expressly laid down by the Aft, the general procedure for the hearing of the appeal is prescribed by Section 457 of the Act. Broadly speaking the procedure is oneprescribed by the Civil Procedure Code. This would mean that the provisions of Order 41 of Civil Procedure Code . will govern the appeal under Section 169 of the Act.
(7) Section 457 lays down that the procedure applicable for the disposal of applications, appeals or references shall be the same as the procedure 'in regard to suits as provided by Code of Civil Procedure, 1908.' Civil Procedure Code prescribes different procedures for suits and for appeals. It is difficult to understand how the procedure for a suit prescribed in the C.P.C. can be made applicable to appeals. The procedure for suit can be followed in case of 'applications' or 'references' as mentioned in Section 457. I do not think that said Section is intended to exclude the applications of Order 41, Rule 5 to the appeal under Section 169. I would, thereforee, hold that the procedure, as prescribed by Order 41, is the only procedure applicable to appeals under Section 169. The next qualifying provision of Section 457 is the procedure laid down by Civil Procedure Code . being made applicable 'as far as it can be made applicable.' thereforee, it is for the District Judge to decide how far the appeal procedure prescribed by G.P.C. can be made applicable. Naturally, the District Judge will have to consider the object and purpose of the Corporation Act, the scheme regarding taxation provisions, particularly the house-tax and the express provisions of the Corporation Act prescribing a different procedure.
(8) Under Older 41, Rule 5 in a money decree the appellate court directs the deposit of the decretal amount. But it can, appropriate cases, direct giving of security in lieu of the deposit of decretal amount. On satisfaction of either of these conditions the appellate court can stay execution of a money decree. As compared to a private creditor the Corporation is armed with more effective and summary powers of the realization of the tax amount. The tax dues can be recovered by the Corporation by distress and sale of immovable property of the defaulter by invoking summary powers given by Section 156 of the Act. In addition a sum not exceeding 20 per cent of the tax dues can be recovered from the defaulter under Section 155. The tax dues are more than adequately secured and the District Court while considering the question of stay of the recovery need not go into the question of security as is done in the normal civil appeals. The question raised in the reference is to be answered in this context. The short question that falls for consideration is whether the District Court has any discretion in the matter of the deposit of tax amount while hearing an appeal under Section 169, read with Section 170. On the facts stated in the Reference the question to be answered is still narrowed. It may be stated as follows : Where under Section 126 there is an increase in the rateable value and the assessment, what is the amount to be deposited by the assessed, whether the entire tax amount with the increase or the admitted amount or the disputed amount
(9) Here is Section 170 needs additional scrutiny. Unless the amount is deposited, no appeal shall be heard or determined. Normally, no appeal shall be determined unless it is heard. This would suggest that the appeal can be filed by the assessed without deposit of any amount. In other words, the appeal shall be maintainable without deposit of the tax amount. At the stage of the hearing the District Judge will ascertain whether the tax amount is to be deposited by the assessed or not. By this time if the amount is not deposited the Court will dismiss the appeal on this short ground. But if the assessed deposits only the admitted amount, will it satisfy the requirement of Section 170 or if the assessed deposits only the disputed amount will it satisfy the requirement of the said section? In other words, can the District Court insist that the entire tax amount with the increase under Section 126 should be deposited before the appeal is heard To apply the provisions to the facts before us, should the assessed deposit the tax on the basis of the admitted rateable value of Rs. 88,500.00 or should he deposit the tax amount on the dis- puted increase in the rateable value of Rs. 28.050.00 or should he deposit the tax amount on the total rateable value (with increase) of Rs. l,16,550.00
(10) Section 170(b) provides that unless 'the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation' no appeal shall be heard or determined. The literal interpretation of the words, 'the amount in dispute in appeal' would mean only the difference between the original amount and the increased amount, since the dispute is restricted to the increase in the rateable value. What is disputed in appeal is the difference by way of increase in the rateable value and, thereforee, the differential increase of the tax amount. In the present case it would mean that if the assessed deposits the tax amount on the basis of the difference or the disputed amount of the rateable value of Rs. 28,050.00 the District Court must hear and determine the appeal of the assessed. But this would lead to absurd results defeating the object of depositing the tax amount as a pre-condition of the determination of the appeal in cases arising out of the increase of the rateable value under Section 126(d). Unless the increase in the rateable value is very large, as compared to the original rateable value, the object of securing ready funds for Corporation administration would not befulfilled. Even under Section 124 it is doubtful whether the entire tax amount can be described as disputed amount. Suppose if the property is assessed to tax for the first time and the owners submits valuation of the property at Rs. l,00,000.00 . The Corporation does not accept the said valuation and holds that the valuation should be Rs.l,50,000.00 . The rateable value worked out on these two figures would differ. Since the landlord must pay house-tax, he would be ready to pay the house-tax fixed on the basis of the rateable value worked out on the valuation of the property at Rs. l,00,000.00 but he will dispute the amount of the tax worked out on the basis of the additional sum of Rs. 50,000.00 towards the valuation of house. The problem would, thereforee, be same if Section 170(b) is to be literally applied. The assessed will deposit the tax worked out on the differential value of Rs. 50,000.00 and will submit that his appeal should be heard. The provisions of the Municipal bye-laws under Sections 124 and 126, referred to in answering the first part of the question, will not support the interpretation that the entire amount afier increase shall be deposited as a pre-condition of the hearing of the appeal. The bye-laws enable us to ascertain as to when the tax amount becomes due and nothing more. It is also subject to the determination of rateable value and assessment on appeal. We are concerned here with a case where the assessed does not accept the tax liability which is said to be 'due' by the Corporation. The assessed disputes the increase and he prefers an appeal. The amount in dispute is the increase.
(11) If the literal interpretation of the Section leads to the result not intended by the scheme of taxation we will have to look to the other sections which would help to restore the true meaning to the Section. Section 457 read with Order 41 Rule 5, Civil Procedure Code . can be pressed in service to resolve the conflicting interest of the assesees and the Corporation. The District Court can in exercise of the discretion of Appellate Authority direct the appropriate sum to be deposited by the assessed before the appeal is heard. In a given case it may be proper to direct the deposit of an admitted amount. In another case, the interest of justice would be served by directing deposit of the disputed amount. The exercise of the discretion is necessary both in the interest of the assessed and the Corporation and to make Section 170 workable.
(12) A similar view was taken by Andhra Pradesh High Court in Mumcipal Corporation of Hyderabad versus Tahera, Begum, 1975 Municipalities and Corporation Cases page 42. In an appeal, questioning the enhancement of property tax by the Municipal Corporation of Hyderabad, the Chief Judge, Small Causes Court, Hyderabad, granted interim stay of the collection of the enhanced tax pending disposal of the appeal. Section 282(2)(d) of the Hyderabad Municipal Act, 1955 provides that no appeal shall be heard unless the appellant has deposited the amount claimed with the Commissioner. The High Court held that provisions of Order 41 Rule 5, Civil Procedure Code . are attracted to such an appeal in spite of the provisions regarding the deposit under Section 282(2)(d). The court, relying on the decisions of the Supreme Court, held that there is an inherent power in the Appellate Court to grant stay of the recovery of the tax.
(13) The construction of Section 170(b), as held above, would also save the section from a challenge to its constitutional validity. Section 406 of the Bombay Provincial Municipal Corporation Act, 1949 which also required the deposit of the tax amount claimed by a Corporation was struck down by the Gujarat High Court as being vocative of Article 14 of the Constitution in 1969. In 1970 an amending Act was passed which inter alias amended the said section by adding a new proviso to clause (e) of SubSection 2 of Section 406. It reads as follows :
'PROVIDED that where in any particular case the Judge is of the opinion that the deposit of the amount by the appellant will cause undue hardship to him, the Judge may in his discretion dispense with such deposit or part thereof, either unconditionally or subject to such conditions as he may deem fit.'
Even the amended Section 406 was struck down by the Gujarat High Court on the ground that the original vice of discrimination between the assesseds who deposit the tax amount and those who do not do so, continued in the amended section. In Anant Mills Co. Ltd. v. State of Gujarat, : 3SCR220 the correctness of the judgment of the Gujarat High Court (along with the other holdings of the Gujirat High Court) was challenged. The Supreme Court held that with the addition of the said proviso no vice of discrimination was left in Section 406 of the Bombay Act and upheld the constitutional validity of the Section.
(14) Administrative law has grown with the needs by of Administration. The contribution of courts to its development can be significant if the courts show intelligent perception and understanding of the administrative processes. The courts' approach suffer either from the mechanical surrender to administrative demands or to mechanical insistence of the procedural approach to normal civil law litigation. When an Administration claims a power, its necessity should be searched in its capacity to further welfare and well being of the citizens.
(15) Apart from the normal functions of a Municipal Corporation, such as water supply, drainage, construction and maintenance of streets, sanitation, public health/public safety, suppression of nuisance, the Corporation is obliged by Act to regulate trade and occupations and to undertake improvement, claims and re-housing schemes within the city. Delhi city is expanding and developing at a phenomenal rate. Huge financial resources are necessary for meeting these civic obligations. The taxation resources of the Corporation, for raising the needed finances, are very limited. They are laid down by Section 113 of the Act. Property tax forms a very large chunk of the tax resources of the Corporation. The fact that Municipal Administrations in India are stiffled in their activities due to large scale-arrears of the payment of house-tax, cannot also beignored. At the same time, the District Court must consider whether the order of deposit will cause substantial loss or extreme hardship to a tax payer. The second part of the question is answered as follows: Appeal under Section 169 cannot be heard or determined unless the amount, as directed by the District Judge, is deposited by the appellant. The District Judge has a discretion to direct deposit of an admitted amount or disputed amount or a part of the total tax amount, with or without conditions.