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Municipal Corporation of the City of Ahmedabad Vs. Dena Bank - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1984)1GLR29
AppellantMunicipal Corporation of the City of Ahmedabad
RespondentDena Bank
Cases ReferredAnil Ice Factory v. Union of India and Ors.
Excerpt:
- - therefore, it clearly appears that the deputy assessor and tax collector has been authorised to defend any appeal against rateable value or tax brought under section 406 and there mentioned is made regarding section 481(1)(d) which i have already quoted above and which is for the purpose of defending, admitting or compromising any appeal against a rateable value or tax brought under section 406. the main petition can be signed by the advocate and it is not necessary always that it should be signed by the petitioner himself, provided of course the petitioner or his authorized agent has signed the vakalatnama. here i am fully satisfied that the deputy municipal commissioner had power to sign the vakalatnama and the deputy assessor and the tax collector had a power to defend and,.....s.l. talati, j.1. a common question is raised in both the petitions and, therefore, these two petitions are being disposed of by this common judgment. few relevant facts for the purpose of dealing with these petitions may be stated.2. in special civil application no. 5412 of 1982 ahmedabad municipal corporation valued for the purpose of assessment of property-tax for the financial year 1981-82 and its annual letting value effective on 10-9-1981 was fixed at rs. 3,30,692/-. appropriate entries were made in the assessment book under taxation rules. dena bank filed a complaint against the valuation but the valuation came to be confirmed by the appellate officer by his order dated 9-2-1982. thereafter dena bank preferred municipal valuation appeal no. 826 of 1982 before the judge of the court.....
Judgment:

S.L. Talati, J.

1. A common question is raised in both the petitions and, therefore, these two petitions are being disposed of by this common judgment. Few relevant facts for the purpose of dealing with these petitions may be stated.

2. In Special Civil Application No. 5412 of 1982 Ahmedabad Municipal Corporation valued for the purpose of assessment of property-tax for the financial year 1981-82 and its annual letting value effective on 10-9-1981 was fixed at Rs. 3,30,692/-. Appropriate entries were made in the assessment book under Taxation Rules. Dena Bank filed a complaint against the valuation but the valuation came to be confirmed by the Appellate Officer by his order dated 9-2-1982. Thereafter Dena Bank preferred Municipal Valuation Appeal No. 826 of 1982 before the Judge of the Court of Small Causes at Ahmedabad under Section 406 of the Bombay Provincial Municipal Corporations Act, 1949. While the appeal was pending on behalf of the respondent i.e. Ahmedabad Municipal Corporation, an application was submitted on 4-10-1982. The prayer was that Dena Bank may be asked to produce the sale-deed showing the consideration paid by the Bank for the purchase of the land over which building is constructed and the relevant account books which could show the costs of construction of the building in question. That application ultimately came to be rejected on 14-12-1982. That order is now challenged by Municipal Corporation of the City of Ahmedabad by filing Special Civil Application No. 5412 of 1982.

3. Special Civil Application No. 196 of 1983 deals with a similar type of case where Central Bank of India is concerned. The Municipal Corporation assessed for the Municipal tax Central Bank of India on the basis of the gross rateable value of Rs. 3,97,801/-. That matter also was taken in appeal by filing Municipal Valuation Appeal No. 1492 of 1982 under the provisions of Section 406 of the Act and during the pendency of that appeal on 23-12-1982 on behalf of the Municipal Corporation an application was submitted praying that Central Bank of India may be directed to disclose the market value of the land purchased by it and also the cost of the construction of the superstructures and that should be done by producing the documents and filing the affidavits. That application came to be rejected by the Chief Judge by passing an order on 6-1-1983. That order is now challenged by filing Special Civil Application No. 196 of 1983.

4. Now so far as Special Civil Application No. 196 of 1983 is concerned the learned Advocate Shri Modi raised a preliminary objection which is required to be dealt with first. Here it may be stated that no such preliminary objection was taken by the learned Advocate Shri G.N. Desai who argued Special Civil Application No. 5412 of 1982. The preliminary objection is two-fold. The first objection is that vakalatnama produced in court by the learned Advocate Shri Shelat is signed by the Deputy Commissioner and it was required to be signed by the Municipal Commissioner himself. The second objection is that the petitioner which is solemnly affirmed was required to be solemnly affirmed by the Municipal Commissioner but it is not so solemnly affirmed but it is solemnly affirmed by the Deputy Assessor and Tax Collector Shri C.M. Shah. Several office orders were produced, some by the learned Advocate Shri Vakil and some by the learned Advocate Shri Modi. Office Order No. 2372, dated 10-8-1977 shows that the power to sign vakalatnama has been given by the Municipal Commissioner to Deputy Municipal Commissioner. Another order is Office Order No. 2458 which is dated 7-8-1979. That order is passed in supersession of all previous orders in respect of deputation of powers and duties under Section 49(1) of the Act and in that also the power to sign vakalatnama in favour of an advocate, pleader or any other legal practitioner engaged on behalf of the Ahmedabad Municipal Corporation in court matters including matters of proceedings under the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 before the Competent Officer are given to the Deputy Municipal Commissioner. Now the learned Advocate Shri Modi drew my attention to item No. IV of Part II of that order which runs as under:

Part-II

The powers and duties hereby deputed shall be exercised and performed, subject to the following reservations:

xx xx xx xx xx xx xx xx4. Excepting the powers under Clauses (a) and (b) of Sub-section (1) of Section 481 of the Act in respect of taking of or withdrawing from proceedings etc. all other powers under the said section shall be exercised by the Municipal Commissioner.

Reading this my attention was drawn to Section 481(2) Clause (d) of the Act, which runs as under:

481.(1) The Commissioner may-

(a) xx xx xx xx xx xx xx xx(b) defend, admit or compromise any appeal against a rateable value or tax brought under Section 406.

It was very vehemently urged by the learned Advocate Shri Modi that here is the matter pending in the court of Chief Judge, Small Causes Court, Ahmedabad which is an appeal under Section 406 and the Municipal Commissioner alone had the power to defend, admit or compromise that appeal and, therefore, the Deputy Municipal Commissioner cannot sign the vakalatnama. This is most technical way of looking at this particular problem. The Commissioner had a power to defend which would include not to defend the appeal if filed under Section 406. If he decides to defend the appeal it does not necessarily follow from that, that all the ministerial acts thereafter required to be done for the purpose of defending the appeal should be done by him. To sign vakalatnama is one of such acts. It cannot be suggested for a moment that the Municipal Commissioner did not decide to defend the appeal filed. Merely signing the vakalatnama by the Deputy Commissioner who is authorised to sign the vakalatnama it cannot be suggested that that act amounted to defending the appeal. He was signing the vakalatnama because the Commissioner must have decided to defend the appeal otherwise the Deputy Municipal Commissioner who is working under him would never venture to sign the vakalatnama because ultimately the fees are to be paid from the office of the Corporation.

5. The second objection is regarding the affidavit. The learned Advocate Shri Modi drew my attention to two office orders Nos. 2565 and 2608 dated 22-5-81 and 26-4-82 respectively. Both the office orders are identical and they deal with the powers to sign the written statements etc. and a Schedule is attached to those office orders which reads as under:

Schedule

Power to sign written statements in connection with civil litigation in different courts, on behalf of Ahmedabad Municipal Corporation with previous approval of Municipal Commissioner except affidavits of High Court.

It was urged that the written statements in connection with civil litigation in different courts though could be signed by the persons who may have been given authority to sign those statements but the Municipal Commissioner kept the power of filing the affidavits with him in regard to the proceedings in High Court and, therefore, when the affidavit is not filed by the Municipal Commissioner the petition was required to be rejected. To demolish this argument the learned Advocate Shri S.B. Vakil drew my attention to the Rules framed by this High Court and those rules are 'High Court Appellate Side Rules' and the relevant rules are in Chapter XVII. They begin with the heading 'Applications under Articles 226 and 227 of the Constitution, and Rules for the issue of Writs and Orders under the said Articles.' The relevant portion runs as under:

Every petition under this rule shall be supported by an affidavit by the petitioner or one of the petitioners or by a person acquainted with the facts of the case.

The learned Advocate Shri Vakil relying on this rule submitted that Shri C.M. Shah, Deputy Assessor and Tax Collector is a person acquainted with the facts of the case and, therefore, he filed the affidavit. My attention was also drawn to the office order No. 502 and in particular Schedule II of that Order. The powers are delegated under the provisions contained in Section 69(1) of the Act, subject to the revision and general control by the Municipal Commissioner. Schedule II reads as under:

Schedule II

Further powers under the Act: Power to defend any appeal against a rateable value or tax brought under Section 406.

Column No. 4 describes the officers to whom the powers are delegated and Schedule II falls under the head 'further powers delegated to Deputy Assessor and Tax Collector'. Section 481 (1)(d) is also specifically mentioned. Thereafter in bracketed portion it is written as under:

(Vide O.O. No. 2396 dt. 3-4-1978 as sanctioned by S.C. Reso. No. 3477 dt. 22-3-1971)

Now. therefore, it clearly appears that the Deputy Assessor and Tax Collector has been authorised to defend any appeal against rateable value or tax brought under Section 406 and there mentioned is made regarding Section 481(1)(d) which I have already quoted above and which is for the purpose of defending, admitting or compromising any appeal against a rateable value or tax brought under Section 406. The main petition can be signed by the advocate and it is not necessary always that it should be signed by the petitioner himself, provided of course the petitioner or his authorized agent has signed the vakalatnama. That position is clear by amending the High Court Appellate side Rules, 1960 where the following correction is made:

For the last sentence appearing in paragraph 1 of Rule 1 of chapter XVII at page 57 (as substituted vide correction Slip No. 16), substitute the following:

The petition shall be signed either by the petitioner or the petitioners, as the case may be or by his or their advocate. In case the petitioners, as the case may be, sign it, it shall also be countersigned by his or their advocate.

The learned Advocate Shri Modi vehemently urged in regard to the office Order no. 502 which is signed by the then Municipal commissioner Shri F.J. Heredia. He submitted that he might have delegated his power. But order came to an end it was required to be shown that the present Municipal Commissioner also passed such an office order. He submitted that as soon as the principal goes away the agency stands terminated. It is only required to be stated that the Municipal Commissioner never dies and an individual who occupies the position may retire resign, die, or go away. The Municipal Commissioner continues and he acts as per the power which he derived either from the Act or the powers which are given to him by the standing committee resolution and it was sanctioned. Now that commissioner by resolution has given to two officers viz. Deputy Municipal commissioner and deputy Assessor and tax collector. The officer simply exercised those powers.

6. My attention was drawn to a case Darshan Hisiery Works v. Union of India and Ors. Reported in 22 G.L.R. at pase 533. In that case in paragraph 11 what was held was as to how the statutes were required to be interpreted. It was observed as under:

Where there was two provisions in an Act, one of which is specific or of a special character and the other of a general character the specific or special provision qualifies the general one. Thus, when there is a specific provision in an Act, which covers a particular case, it is not proper to apply another general provision, the application is not free from doubt. In other words where a special provision deals with a particular thing or case of things, a more general provision even though its terms would cover the particular thing the clause of things, is excluded from application thereto by of reason of the particular provision.

On the basis of this ruling it was submitted that Section 481(1)(d) of the Act, made a specific provisions and this specific provisions and this specific provision was that the Municipal Commissioner may defend any appeal against the rateable value or tax brought under Section 406. Now, therefore, the argument was that Deputy Municipal Commissioner cannot defend it and the Deputy Assessor and the Tax Collector cannot file the affidavit. It is only required to be stated that when the Act and in particular Section 69 authorises the delegation of power and if it is done there is nothing wrong about it. The reason is simple and obvious. Thousands of legal proceedings and hundreds of such appeals cannot be defended by one Municipal Commissioner and if he tries to do it he will never be able to attend any Municipal work. The Legislature, therefore, thought that the Municipal authorities and Municipal Commissioner must have power to delegate powers to other officers who work under him. Of course the Municipal Commissioner has a power to keep control, revise and supervise and may even cancel the delegation and redelegate those powers to some officers. Now, therefore, if the standing committee of the Municipal Corporation and the Municipal Commissioner himself thought that this particular power to defend the appeals filed under Section 406 may be defended by the Deputy Assessor and Tax Collector it cannot be suggested that anything wrong was done because it would be that person who would be conversant with that particular matter. The High Court Appellate Side Rules also prescribe that a person conversant may file affidavit. The petition may be signed by an advocate or the petitioner and advocate both but in any case the signature of an advocate is made a must and not that of the petitioner. The petitioner has to sign the vakalatnama. Once the vakalatnama is signed all petitions are required to be submitted by the advocate concerned because so far as the court is concerned the court knows the advocate only and not the petitioner. If the advocate does not sign the petition and it is allowed to be signed by the petitioner only it is more likely that forgeries might take place because the office may not know the petitioners at all and, therefore, the rule prescribes that even if it is signed by the petitioner his advocate must sign. That guarantees that it is the real petitioner who has signed the petition. So far as the affidavits are concerned it is the person who is conversant with the matter is required to file the affidavit. The affidavits cannot be filed by the advocate because he is not conversant but he certainly gives identification of the person so that there is guarantee that the petitioner who is signing the affidavit is in fact the correct person. With these safeguards if the petition is presented in this Court which is signed by the advocate whose vakalatnama is signed by the Deputy Municipal Commissioner and when Deputy Assessor and Tax Collector files affidavit and that person is identified properly by a person who knew him and the affidavit is sworn before the Assistant Registrar of this Court it cannot now be suggested that this petition is required to be thrown out merely on such technicalities. One more thing is required to be stated. Even if I had agreed with any of the technical objections the petitions could not have been dismissed because opportunity thereafter is required to be given to correct the mistake, if any, and thereafter if mistake is not collected then only order of dismissal could be passed. This would only delay the matter. Here I am fully satisfied that the Deputy Municipal Commissioner had power to sign the vakalatnama and the Deputy Assessor and the Tax Collector had a power to defend and, therefore, he had power to file affidavit. Under these circumstances I only say that the technical objections raised are rejected.

7. Coming to the real crux of the problem which is more important and that problem is whether under Article 227 of the Constitution of India this Court would interfere with the order passed by the Chief Judge, Small Causes Court by which he rejected by a reasoned order an application given by the Ahmedabad Municipal Corporation. Now for that purpose the learned Advocate Shri Vakil firstly started with Section 2(1 A) of the Act,. It defines 'annual letting value'. There are two clauses. The second Clause is relevant which is extracted as under:

2. (1A) 'annual letting value' means-

(ii) in relation to any other period, the annual rent for which any building or land or premises, exclusive of furniture or machinery contained or situate therein or thereon, might reasonably be expected to let from year to year with reference to its use.

Much stress was laid on the words 'reasonably be expected'. The purpose was to show that it has reference to standard rent which is fixed in the cases where the contractual rent is excessive though the premises may have been let for the first time. A reference was made to various authorities (1) for the purpose of showing as to what 'annual letting value' could be and (2) regarding the scope, nature and ambit of appeal proceedings filed under Section 406 of the Act. First case to which reference may be made is the case of The Ancmt Mills Co. Ltd. v. State of Gujarat and Ors. reported in 14 G.L.R. at page 826. There the meaning of the words 'annual letting 'value' was considered. The Division Bench of this Court observed as under:

The 'annual letting value' is the pivot on which rests the entire superstructure of property taxes. Section 2(1A), introduced in the Bombay Municipal Corporations Act with retrospective effect by Gujarat Act, 5 of 1970 gives two definitions of 'annual letting value', one for the period prior to 1st April, 1979 in Clause (i) and the other for the subsequent period in Clause (ii). Both definitions are given retrospective operation from the date of commencement of the Corporations Act. provision of one measure of tax for the period prior to 1st April, 1970 and another for the period subsequent to it cannot be said to be discriminatory in any sense of the term. No one has the right to continuance of the same measure of tax; no one can say that it shall not be altered at any time. Such alteration cannot be regarded as discriminatory, merely because the measure of tax is different before the alteration.

Now so soon as the concept of 'annual letting value' is introduced the concept of standard rent would automatically come into play and, therefore the Division Bench held that the basis of taxation would be the rent at which the property may reasonably be expected to be let or in other words, the rental value of the property. What is sought to be taxed is the value of the property to the owner and that is measured by the rent which the owner of the property may reasonably expect to get from a hypothetical tenant.

8. Another case to which a reference may be made is the case of Saipansaheb Wd. Nawoodsaheb v. Laxman Venkatesh Naik reported in 57 Bombay Law Reporter at page 413. In that case the concept of the standard rent is discussed and it is held:

Under Section 5(10)(b)(i) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the rent at which the premises were let on September 1, 1940, does not automatically become the standard rent, but it becomes standard rent subject to the provisions of Section 11 of the Act, and, therefore, the Court has jurisdiction to fix a rent different from the rent prescribed under Section 5(10)(b)(i) where a case falls under Section ll(l)(e)of the Act.

Clause (a) of Section 11 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 does not refer to the dispute as to amount of rent, but the dispute is as to the amount of standard rent.

In fixing the standard rent the correct approach should be, what is the net return which a landlord should be reasonably allowed on his investment.

9. The third case to which a reference may be made is the case of Rajnikant Jeshingbhai Sheth and Ors. v. Rameshchandra Kantilal Bhatt and Ors. reported in 23 (1) G.L.R. at page 71. It is held as under:

Having regard to the language of Section 11 of the Bombay Rent Act, the Court must fix what it considers to be just as the standard rent bearing in mind provisions of the Act and the circumstances of the case.

It was further held as under:

Under Section 11 of the Act, where the premises are let after first day of September, 1940, the Court can interfere and fix the standard rent at such amount as it deems just and reasonable if the rent charged is in the opinion of the Court excessive.

It was also held:

There is always a gap between what is reasonable and what is excessive, and what is excessive does not begin where what is reasonable necessarily ends. If the contractual rent is within this gap between what is excessive and what is reasonable, the Court has no jurisdiction to fix a just rent in such a case.

Ultimately having regard to that particular case it was held:

It would be reasonable to allow a net return of 7 per cent on the cost of construction on the ground floor and 7.25 per cent on the cost of construction of the upper floors, since the Municipal taxes are paid by the tenants.

10. The fourth case to which reference was made is the case of Devan Daulat Raj Kapoor etc. etc. v. New Delhi Municipal Committee and Anr. etc. etc. reported in : [1980]122ITR700(SC) . In that case also the connotation of the word 'reasonable' was considered and it was held that annual letting value cannot exceed the standard rent; the landlord actually receiving the higher rent is immaterial.

11. Now, therefore, the net result of all the authorities would lead to a legal aspect as to how 'annual letting value' is required to be understood when one reads Section 2(1A)(ii). In this particular case as 1 have already observed earlier this is the clause which is applicable and annual letting value in regard to these properties would mean as to at what rent these properties might reasonably be expected to be let from year to year with reference to its use. Now so far as these propositions of law are concerned there is no dispute.

12. Before I go to the heart of the matter I may refer to other authorities which were referred to in the course of the arguments.

13. The first case is of Ahmed Sulleman Dinath v. The Municipal Commissioner of Bombay reported in 32 Bombay Law Reporter at page 178. In that case it was held:

The decision by the Chief Judge of the Bombay Small Cause Court as to the rateable value of a building under Section 219 of the City of Bombay Municipal Act, 1888. is as a persons designata, and no revision application lies against die decision.

14. In another case The Municipal Borough of Ahmedabad v. The Aryodaya Ginning and . reported in 43 G.L.R. at page 816, it was held:

A Magistrate to hearing an appeal under Section 110 of the Bombay Municipal Boroughs Act, 1925, is an ordinary Court and as such can allow additional evidence, oral or documentary, to be led before him.

In an appeal under Section 110 the question of the assessment itself can be challenged. The words 'decision upon any appeal' in Section Ill of the Act do not imply diat the decision of the appeal referred to means the final decision. The revising Court, therefore, can interfere in revision with interlocutory orders passed by a Magistrate under Section 110 of the Act.

These authorities were cited with a view to submit that the powers of a Court are analogous while dealing with either a Revision Application or where no revision application lies while hearing the petition under Article 227 of the Constitution of India.

15. Thereafter reference was made to a common judgment delivered by the Division Bench of this Court in Special Civil Application No. 662 of 1968 and other petitions where after reviewing several authorities it was held ultimately that it was competent to the Chief Judge to determine the rateable value afresh by applying appropriate method in a correct manner. Interpreting Section 409 of the Act it was observed as under:

It is apparent from the provision in Section 409 Sub-section (1) and particularly the words 'before evidence as to value has been adduced' that the appeal against rateable value is in the nature of an original proceeding where evidence as to value may be led by both parties.

It was further observed as under:

The evidence as to value which may be adduced before the Chief Judge in the appeal may be based on any method which is regarded by the party or his witness as appropriate; it cannot be restricted to the method of valuation adopted by the Commissioner.

On the basis of this ruling it was strenuously urged that the proceedings before the Chief Judge from which these two petitions arise were original proceedings and, therefore, the evidence was required to be led and the Chief Judge was not bound to go by the method adopted by the Municipal Commissioner and, therefore, the orders passed are erroneous and interference by this Court is necessary.

16. I may also refer to the case of Gopichand Khoobchand Sharma v. The Works Manager Loco Shops Western Railway and Anr. reported in 7 G.L.R. at page 291. In that case it was observed as under:

By entertaining a petition under Article 227 of the Constitution the High Court does not seek to exercise jurisdiction to issue any high prerogative writ; the jurisdiction which the High Court exercises under Article 227 is of superintendence, a jurisdiction somewhat analogous to the revisional jurisdiction which the High Courts have under diverse statutes and just as in an application for revision it is not necessary to make the Court whose order is sought to be revised a party to the application, so also in a petition invoking the jurisdiction of the High Court under Article 227, the Tribunal whose order is sought to be challenged is not necessary party.

On the basis of this ruling it was urged that the power of this Court under Article 227 is analogous to the powers which the High Court has when it exercises revisional jurisdiction under different statutes.

17. Another case to which the reference was made is the case of Manji Dharmshi and Ors. v. Patel Kadva Bhaha and Ors. reported in 7 G.L.R. at page 405. What was considered was the effect and scope of Order 41, Rule 27 Civil Procedure Code and it was observed as under:

Under Order 41, Rule 27(1)(b) of the Civil Procedure Code, the stage of allowing additional evidence arises only when the evidence on record has already been examined and some lacuna or defect in the evidence as it stands on the record has been found by the appellate Court.

If this irregularity were to be permitted to continue, the result would be that at all subsequent stages, the additional evidence which has been permitted, would have to be disregarded. Under these circumstances the High Court can exercise its powers under Section 115(a) Civil Procedure Code.

Now on the basis of the above rulings it was vehemently urged that the learned Chief Judge committed on error inasmuch as he never realised that the proceedings before him were original proceedings where the evidence was required to be led and further fell into error when he thought that Municipal Commissioner had adopted one method which was carpet area method, and now recourse cannot be had to any other method for the purpose of arriving at annual letting value. That power was not with the Municipal Commissioner and it was open for the Chief Judge to have his own method of arriving at the annual letting value of the two buildings in question. For this purpose the order passed by the Chief Judge from which Special Civil Application No. 5412 of 1982 arises, it was pointed out that in judgment paragraph 11 the Chief Judge observed that the valuation is determined on carpet area method and, therefore, the cost of the land and construction cost cannot be called for. In the second case the learned Chief Judge held that the evidence of cost of construction was irrelevant. It was urged that these arc errors in construing the law and, therefore, revisional jurisdiction or power of superintendence was required to be exercised. Now one has to remember that these arc the orders which arc passed at an interlocutory stage and any observanons made at an interlocutory stage are not binding to the Judge while disposing of the matter finally. The real grievance was that the evidence is shut out and the Chief Judge now is not likely to follow the method other than which is followed by the Municipal Commissioner. It was further urged that even if the Chief Judge decided to follow one or the other method his judgment is not likely to be final because it is subject to appeal and the matter could be even taken to the higher forum viz. Supreme Court and, therefore, in order that the matter may not be required to be remanded it was necessary that all evidence should be allowed. Ultimalely after allowing all evidence the Chief Judge may determine any one of the methods and ultimately any party aggrieved may take up the matter to the highest forum and without any remand the matter could be disposed of. At first sight the argument is attractive. But one has always to remember that while allowing the evidence also one has to follow the procedure laid down by law. Here what was tried to be done was that in appeals filed by the banks the respondent was calling upon the appellants to produce the documents in their possession which could be done under Order XI of the Civil Procedure Code. The question immediately would arise as to whether Order XI is ever made applicable to the proceedings of this nature. Here the procedure is completely and fully laid down as to how the evidence is required to be led.

18. The first relevant section in regard to appeals is Section 409 of the Bombay Provincial Municipal Corporations Act, 1949 which reads as under:

409. (1) If any party to an appeal against a rateable value makes an application to the Jude either before the hearing of the appeal or at any time during the hearing of the appeal, but before evidence as to value has been adduced to direct a valuation of any premises in relation to which the appeal is made, the Judge may, in his discretion, appoint a competent person to make the valuation and any person so appointed shall have power to enter on, survey and value the premises in respect of which the direction is given:

Provided that, except when the application is made by the Commissioner, such direction shall be made by the Judge unless the applicant gives such security as the Judge thinks proper for the payment of the costs of valuation under this sub-section.(2) The costs incurre for valuation under Sub-section (1) shall be costs in the appeal, but shall be payable in the first instance by the applicant.

(3) The Judge may, and on the application of any party to the appeal shall, call as a witness the person appointed under Sub-section (1) for making the valuation and, when he is so called, any party to the appeal shall be entitled to cross-examine him.

Now, therefore, this section gives power to both the parties to submit an application to the Judge for the purpose of getting an expert valuer appointed and there is a provision that the evidence could be led as to value even apart from getting an expert appointed. Further under Section 434, Clause (2) it has been laid down as under:

434. (2) All other matters for which no specific provision has been made under this Act shall be governed by such rules as the State Government may from time to time make after consultation with the High Court.

Now the State Government in consultation with the High Court did frame the rules and they are published in Gujarat Government Gazette Part IV-C No. CH-HC-69-C 3001/75. They are known as 'The Municipal Appeals Rules, 1976'. These rules are framed by the High Court with the previous approval of the Government of Gujarat. The rules prescribe that after an appeal is presented the other side shall be served with a copy and shall have a right to file a written reply. Thereafter it is laid down as to how the evidence is required to be led and for that purpose one has to look to Rules 11, 12 and 13 and they are as under:

11. No party shall be entitled to lead evidence in addition to what has been led in the proceedings held under Section 108 or 109 of the Gujarat Municipalities Act, 1963, or under the relevant provisions of the Act and rules in Schedule A to the Bombay Provincial Municipal Corporations Act, 1949, as the case may be, unless permitted by the Magistrate or the Judge, as the case may be. The Magistrate or the Judge, may, however, suo motu call for additional evidence if he considers it necessary in the interest of justice.

12. A party desiring to lead additional evidence shall apply in writing for permission to do so. It shall state in its application as to what evidence it wants to lead and reasons for permission to lead the evidence at the stage of the appeal.

13. If after hearing the objections of the opposite party and perusing the petition of appeal and the written reply of the respondent, if any, and the other papers produced in the case, the Magistrate or the Judge, as the case may be, is of the opinion that it would be expedient in the interest of justice to allow such additional evidence to be led, the same may be allowed to be led, provided, however, that where one party is allowed to lead additional evidence, the opposite party shall also be allowed, if it is so desired, to lead evidence in rebuttal of such additional evidence. The Magistrate or the Judge, as the case may be, may allow any fact to be proved by affidavit, subject however, to the provisions of Order XIX of the Code of Civil Procedure, 1908, in that behalf.

Rule 14 deals with local inspection and thereafter Rule 15 which is of some importance is as under:

15. The provisions of Order XI Rules 15, 16, 17, 18, 19, 21, 30, 31, 32, and 56 of the Code of Civil Procedure, 1908, shall so far as may apply to these appeals. The Judge or Magistrate, as the case may be, shall also have, for reasons to be recorded, powers to remand the case.

Now, here under Rule 15, Order 1 Rule 27 is specifically omitted which is for leading additional evidence in appeal. This was perhaps done because this was an original proceeding and for that purpose the evidence is required to be led in consonance with Section 409 of the Act or once has to follow after filing the written statement Rules 11, 12 and 13. Now, therefore, the Judge has ample power of inspection of examining an expert at the instance of the parties and allow the parties to lead evidence and also rebuttal evidence and further power under Rule 11 is to suo motu call for additional evidence if he considers necessary in the interest of justice. Now, therefore, here was the case where the parties after filing the written statement had to request the Judge and I am sure the Judge would if a proper request is made appoint a valuer. The valuer could be examined. Further evidence also could be led and the Municipal authorities had full power under Chapter VIII to get information from the Registrar under Rule 4. The information may be called for from the owner under Chapter VIII. It may be stated that these are the powers under Chapter VIII at the time of assessment which the Municipal authorities may exercise in one way or the other choosing a particular method in their own way. Thereafter a complaint is filed, objections are heard and final determination is made. That final determination is subject to appeal to the Chief Judge which is an original proceeding. Now merely it is an original proceeding one cannot have resort to the whole Civil Procedure Code when there are specific rules made by this High Court under the relevant provisions of the Act itself and, therefore, though one may say that while rejecting the applications the reasons given by the Chief Judge may be erroneous, the ultimate order of rejecting an application cannot be considered to be improper. It was suggested that the best evidence was shut out which was in possession of the appellant. There are ways and ways of getting that evidence and the method and manner in which such evidence could be brought on record is already there under the rules which are framed and the Judge has enough powers to call for any evidence suo motu also. Under these circumstances one can say that it is not necessary for this High Court to interfere with any order which is passed at an interlocutory stage even though one may suggest that the reasons while passing the order given by the Judge appeared to be erroneous. I may here refer to a case of The Martin Burn Ltd. v. The Corporation of Calcutta reported in A.I.R. 1966 Supreme Court at page 529. In paragraph 14 the learned Judges observed as under:

(14) We can now deal with the reasoning on which the High Court in the present case justified its order of remand. It realised that by making the order it was depriving the appellant of one of the chances to object to the valuation namely, the chance under Section 139, but it felt that by upholding that right of the appellant it would be depriving the Corporation of its rates wholly as the time limit prescribed by Section 131(2)(b) had expired. It thought that it was faced with two evils and that it would be choosing the lesser of the two if it allowed the Corporation a chance to collect its rates. With great respect, we find this line of reasoning altoghether unsupportable. A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not. When the High Court found that Section 131(2)(b) had been attracted to the case, it had no power to set that provision at naught.

Now, therefore, one may like it or not one has to follow the law and the rules framed. It is the procedure which is to be followed in Court of law. It is a game, in a way where one succeeds or fails but one cannot have his own method. The method is prescribed and governed by the statutes and the rules made thereunder. How to make use of them, how to convince the Judge one way or the other, how to ultimately persuade him to suo motu call for evidence, is an art which is not written in the books. But one has to carefully without ignoring the law and the rules play his own part and success depends upon how successfully method of persuation and the method of application of law succeeds. Now that, therefore, 1 may only say that neither the Chief Judge is bound by the observations that he made nor is he bound by the observations that I make. He is only bound by law and the rules and I am sure that when he finally deals with the matter he will follow the procedure laid down as indicated above and come to his own judgment and any observations made at an interlocutory stage will not come either in his way or in the way of any of the parties to the litigation.

19. Before I close I may refer to two other cases. One is the case of Sarpanch Lonand Gram Panchayat v. Ramgiri Gosavi and Anr. reported in A.I.R. 1968 Supreme Court at page 222. The scope and ambit of Article 227 of the Constitution are discussed and it is laid down as under:

The power of superintendence over tribunals vested in the High Court under Article 227 of the Constitution is not greater than the power under Article 226 and is limited to seeing that the tribunal functions within the limits of its authority. The High Court will not review the discretion of the authority judicially exercised, but it may interfere if the exercise of the discretion is capricious or perverse or ultra vires. The High Court may refuse to interfere under Article 227 unless there is grave miscarriage of justice. The Court cannot interfere merely because it might take a different view of the facts and exercise the discretion differently.

Another case is of Anil Ice Factory v. Union of India and Ors. reported in 23 (2) G.L.R. 714 : 1982 Gujarat Law Herald at page 113. The Division Bench of this Court observed as under:

High Court will interfere with the decision of the Excise authorities culminating in the decision of the Central Government in exercise of revisional powers provided and only provided any error on the face of the record is committed.

This was observed while discussing the scope and ambit of Article 227 of the Constitution of India. Now that, therefore, without dealing with these two matters any further I may only say that I am not inclined to interfere with the orders passed by the learned Chief Judge merely because it is possible to suggest and argue that the reasonsing of the learned Chief Judge is erroneous or that it is quite likely that the best evidence may not come on record. It is clear that reading the law and the rules there are enough provisions in law by which not only the best evidence but all evidence could he brought on record and there are further powers given to the Judge himself who can suo motu call for the evidence and ultimately the Judge himself would be deciding the matter by following any of the methods he chooses best on the evidence before him and that decision is subject to appeals which might lie in accordance with law. Now that, therefore, it is not necessary to interfere with the order passed at an interlocutory stage.

20. I may here mention that it is not thought fit to admit the matter because I was addressed for atleast more than ten hours by the advocates on both sides and. therefore, nothing more could have been urged if the matter was admitted and finally heard. Therefore, the matter was heard as if all final arguments are being addressed and both the parties had the fullest opportunity to address this Court in all its details and having found that it is not likely that I may have taken any different view on further final hearing, and therefore I have not admitted these two matters.

21. Under the circumstances both petitions are summarily dismissed. Notice discharged with no order as to costs.

Interim relief to continue for a period of three weeks from today.


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