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Savitaben Ishverlal Vs. Surat Municipal Corporation, Surat - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1089 of 1980
Judge
Reported inAIR1985Guj174; (1985)1GLR428
ActsBombay Provincial Municipal Corporations Act, 1949 - Sections 406 and 409; Municipal Appeal Rules, 1976 - Rules 11, 12, 13 and 14; Code of Civil Procedure (CPC), 1908 - Order 41, Rule 27; Constitution of India - Article 227
AppellantSavitaben Ishverlal
RespondentSurat Municipal Corporation, Surat
Appellant Advocate B.J. Shetna, Adv.
Respondent Advocate G.N. Desai and; P.G. Desai, Advs.
Cases ReferredK. Venkataramiah v. Seetharama Reddy
Excerpt:
.....- when assessee stated specifically reasons as to allow him to lead additional evidence to satisfy appellate authority same can be allowed in interest of justice in view of sections 406 and 409 and rules 11-14 - held, matter remanded to first appellate authority to call for additional evidence in order to determine correct rateable value. - - viii of schedule-a to the act as well as the municipal appeal rules, 1976 as framed by this court in exercise of its superintendence of power under art. 406 of the act, it would be necessary to advert shortly as to what is precisely the nature of these proceedings. 416a contain the provisions of appeals against the valuation and taxes as well as appeals to civil appellate court from the orders of the first appellate authority. complaint is to..........the valuation and taxes as well as appeals to civil appellate court from the orders of the first appellate authority. s. 406(l) provides that subject to the provisions contained in part iii of chap. 26 of the act, appeals against any rateable value or tax fixed or charged under the act shall be heard and determined by the judge subject to certain conditions prescribed in sub-section (2) of s. 406. s. 407 prescribe as to when cause of complaint is deemed to have accrued which provision is necessary for purposes of computing the limitation. s. 408 provides for the voluntary arbitration. s. 409 gives some indication as to whether there is any right to adduce evidence before the appellate authority and i will read the material portion of it so far as relevant for the present.....
Judgment:
ORDER

1. These three revision applications arise out of the assessment proceedings for the purposes of assessing the property tax in respect of the house property of the petitioner herein for the assessment years 1975-76, 1978-79 and 1979-80 respectively, seeking to fix the rateable value at Rs. 45,174/-, Rs. 46,620/-, and Rs. 72,233/-, respectively by the Commissioner of the respondent-Municipal Corporation. The petitioner-assessee, therefore, carried the matter in appeal before the Civil Judge (S. D.), Surat being Assessment Appeals Nos. 13/77, 19/80 and 20/80, respectively. In course of hearing of these appeals, the petitioner-assessee moved application seeking permission to adduce evidence in support of the appeals.

2. In Appeal No. 13/77, out of which Civil Revision Application No. 1089 of 1980 arises, the Advocate for the petitioner-assessee made a cryptic application praying that the Court may proceed to conduct the appeal after recording the evidence of the parties, and in case the Court is not inclined to record the evidence, the question as to whether the evidence should be allowed to be recorded or not may be referred to the District Court as permitted under S. 410 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as 'the Act').

3. In Assessment Appeals Nos. 19/80 and 20/80, out of which Civil, Revision Applications Nos. 1731 and 1730 of 1983 arise, the Advocate for the petitioner-assessee submitted a detailed application stating the reasons for granting the permission to the assessee to adduce the evidence. The sole reason on which this permission was sought was that the Assessment Officer has not recorded any evidence and, therefore, his assessment was arbitrary and void. It was, therefore, prayed that the petitioner be permitted to adduce evidence in the appeal and in case the Court was of the opinion that no such permission could be granted and the appeal should be disposed of on the evidence as it existed on the record of the assessment proceedings, the question as to whether the assessee should be permitted to lead evidence or not be referred to the 9 District Court under S. 410 of the Act.

4. The learned Civil Judge, so far as Appeal No.13/77 was concerned, held that the proceedings before the Civil Judge were not in nature of original proceedings but were appellate proceedings in which additional evidence can be permitted only if the conditions prescribed in 0. 41, R. 27 of the Civil P. C. are complied with and, therefore, there was no necessity of referring the matter to the District Court. The learned Judge, therefore, by his order of Dec. 14, 1979 rejected the application.

5. However, in Appeals Nos. 19 and 20 of 1980, the learned Judge referred to the assessment rules known as Taxation Rules as contained in Chap. VIII of Schedule-A to the Act as well as the Municipal Appeal Rules, 1976 as framed by this Court in exercise of its superintendence of power under Art. 227 of the Constitution of India, and on reading the relevant application for permission to adduce evidence, the learned Judge could- not spell out any worthwhile reasons warranting such a permission. He, therefore, by his order of Aug. 8, 1983 dismissed both the applications.

6. These three orders are the subject matter of these revision applications before me.

7. Since these three revision applications raise some question of general importance, relating to the procedure to be adopted before the Judge exercising appellate jurisdiction under S. 406 of the Act, it would be necessary to advert shortly as to what is precisely the nature of these proceedings. S. 406 to S. 416A contain the provisions of appeals against the valuation and taxes as well as appeals to Civil Appellate Court from the orders of the First Appellate Authority. S. 406(l) provides that subject to the provisions contained in Part III of Chap. 26 of the Act, appeals against any rateable value or tax fixed or charged under the Act shall be heard and determined by the Judge subject to certain conditions prescribed in sub-section (2) of S. 406. S. 407 prescribe as to when cause of complaint is deemed to have accrued which provision is necessary for purposes of computing the limitation. S. 408 provides for the voluntary arbitration. S. 409 gives some indication as to whether there is any right to adduce evidence before the Appellate Authority and I will read the material portion of it so far as relevant for the present purposes:

'409(l) If any party to an appeal against a rateable value makes an application to the Judge 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, no 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) .........................................................

(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) l or making the valuation and, when he is so called, any party to the appeal shall be entitled to cross-examine him.'

Section 410 provides for a reference of a question of law or usage having force of law or the construction of a document arising in course of hearing of the appeal relating to rateable value or tax to the Civil Appellate Court. S. 411 provides for a further appeal to the Civil Appellate Court. S. 412 provides for the costs of the proceedings in appeal. S. 413 provides for the finality of the decision of the Assessment Authority pertaining to the rateable value, if no appeal is preferred there from or in case of appeal, or the order of the First Appellate Authority or the Second Appellate Authority, as the case may be.

8. Rule 8 of the Taxation Rules as contained in Chap. VIII of Schedule-A to the Act empowers the Commissioner to call for such information or return from owner or occupier of any budding or land or any parts thereof for purposes of determining the rateable value. The Commissioner has to maintain an assessment book in which evry official year all the necessary particulars, inter alia, the rateable value of the budding or land as determined in accordance with the provisions of the Act are to be entered Every owner or occupier of the building or land or the premises is entitled to have inspection of such assessment book under R. 14. R. 15 enjoins the Commissioner to issue a public notice so as to enable the occupier or the owner to file complaint in respect of the rateable value of his property. Complaint is to be made by a written application to the Commissioner containing, briefly but fully the grounds on which the valuation is complained of. Such complaints are to be entered into a register to be maintained in that behalf under R. 17. R. 18 enjoins the Commissioner to investigate and dispose of the complaint in presence of the complainant, if he is present or, if not, in his absence, and has to enter the result of his investigation in the books of complaints together with the amendment, if any, made therein. Under S. 406, there is a right of appeal against the rateable value and the tax so fixed as stated above. Now, till Nov. 1976 there were no rules regulating the appeal proceedings under S. 406 of the Act. This Court has in exercise of the power under Art. 227 of the Constitution made with the previous approval of the Governor of Gujarat rules known as 'Municipal Appeal Rules, 1976' which have been published in the issue of the Government Gazette, Part IV-C dt. Nov. 25, 1976 vide notification No. CH-HC-69-C-309/75 dt. Nov. 4, 1976. The material rules which are relevant for purposes of these three revision applications are contained in Rr. 11, 12, 13 and 14. 1 will read those rules so that the question raised in these applications can be appreciated in proper perspective:

'R. 11: No party shall be entitled to lead evidence in addition to what has been led in the proceedings held under S. 108 or 109 of the Gujarat Municipalities Act, 1963 or under the relevant provision 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.

R. 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 permissi6n to lead the evidence at the stage of the appeal.

R. 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 b~ proved by affidavit subject, however, to the provisions of 0. XIX of the Civil P. C. 1908 in that behalf.

R. 14. The Magistrate or the Judge, as the case may be, may suo motu or on the application of a party, hold a local inspection for the purposes of deciding the appeal. Such inspection shall be held after giving due notice., for it to the parties. Whenever such inspection is held, the Magistrate or the Judge shall make notes of such inspection and keep those notes in the record of the case as part of its record after duly exhibiting them.'

9. Before I answer the question raised in these revision applications, it is important to briefly indicate as to what is precisely the nature of the proceedings in appeal under S. 406 of the Act. A Division Bench of this Court, consisting of P.N. Bhagwati, C. J. and N. K. Vakil, J. (as they then were) while disposing of a bunch of special civil applications, being Special Civil Appln. No. 662 of 1968 and other companion matters, speaking through Bhagwati, C. J., observed in its judgment dt. 14/21/22/23/24/27th Oct. 1969 as under:

' ............It is apparent from the provision in S. 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. The Chief Judge may on the application of a party to the appeal appoint a competent person to make the valuation and such person may be called as a witness and, if he is so called, he may be cross-examined by the other side ....................'

10. To the same effect the proceedings have been viewed by the learned single Judge of this Court (Coram: S. L. Talati, J.) in Municipal Corporation of the City of Ahmedabad v. Dena Bank 1984(l) 25 Guj LR 29: (AIR 1984 NOC 18).

11. The question which arises is, whether having regard to the Appeal Rules of 1976 a framed by this Court can it be urged that since these proceedings are viewed as original proceedings, the party as a matter of course has a right to adduce evidence. I do not think that an assessee can successfully urge that he has a right as a matter of course to lead evidence in these proceedings which are appellate proceedings under the Act particularly because there is no provision in the relevant sections or the rules pertaining to the assessment and appeals which confers such a right either (sic) expressly. It is only in the contingencies which have been specified in S. 409 as well in the Rr. 11 to 14 of the Appeal Rules N, 1976 that an assessee has a right to seek permission of the Court to lead evidence in addition to what has been led in the proceedings held under the Taxation Rules contained in Chap. VIII of Schedule A to the Act subject to the permission by the Appellate Judge. It cannot be gainsaid that the First Appellate Authority has power to call for additional evidence suo motu, if he considers it necessary in the interest of justice. A party desiring to lead additional evidencv has to apply in writing for permission to do so stating precisely as to what evidence it wants to lead in the appeal proceedings and the reasons in support thereof. Unless, therefore, such an application is made, the Appellate Authority may be well justified in refusing to grant permission. On such an application being made and objections being filed by the party opposing such an application, the Appellate Authority has to decide whether, having regard to the application and the objections thereto and other papers produced in the case, it would be expedient in the interest of justice to allow such an additional evidence to be led, and in case where he allows such evidence to be led, he pert-nits other side to adduce evidence in rebuttal thereof. The Appellate Authority has also a power to allow any fact to be proved by affidavit subject to the provisions contained in 0. 19 of the Civil P. C. in that behalf. I am, therefore, of the opinion that having regard to the relevant sections, viz. Ss. 406 and 409 of I he Act and the Appeal Rules, 1976, the proceedings can be said to be original proceedings for limited purposes, namely, the purposes specified in the said relevant provisions enabling the parties to adduce additional evidence subject to rules in that behalf for purposes of determining the rateable value. If, therefore, a party has not a right as a matter of course to lead additional evidence, except as permitted by the Appellate Authority, it would be difficult to agree with the contention of the assessee in the present revision applications that the learned Civil Judge ought to have allowed the assessee to lead evidence as it matter of right and to proceed to dispose of the case after recording such evidence. Nonetheless, the question remains in the particular facts of these proceedings that when the assessee moved the application in Appeal No. 13/7/7 out of which Civil Revision Application No. 1089 of 1980 arises, on Nov. 15, 1979 the assessee did not state any specific reasons in the said application and when that application came I o be disposed of by the learned Civil Judge by his order of Dec. 14, 1978, his attention was not drawn to the Appeal Rules of 1976. However, in the assessment Appeals Nos. 19 and 20 of 1980 the assessee had stated specifically the reasons as to why the assessee should be allowed to lead additional evidence, and the learned Judge, while rejecting the said application by his order of Aug. 8, 1982, referred to the Appeal Rules of 1976. The sole reason which has been stated in the Assessment Appeals Nos. 19 and 20 of 1980 is that no evidence whatsoever was led before the Assessment Authority and, therefore, till appropriate evidence is placed on the record, it was difficult to determine the original value. The learned Judge could not have rejected this application on the ground that there was no reason for the prayer for leading additional evidence. As a matter of fact, the learned Civil Judge ought to have called for the additional evidence in the interest of justice because he could not have otherwise decided the matter as to whether the rateable value assessed by the Assessment Authority was justified or not, and whether it called for any upward revision or modification as was sought to be done by the Corporation. So far as the Assessment Appeal No. 13/77 is concerned where as stated above the cryptic application is made, it is not clear as to whether any evidence was led before the Assessment Authority and whether any grievance was made on that count before the Appellate Authority though in the memo of the revision application it has been stated in this Court that no opportunity was given for substantiating the complaint to the assessment by the Assessment Authority. Unless, therefore, proper and cogent material is placed on the record before the Assessment Authority, it would not be possible at all for the Assessment Authority and for that matter the Appellant Authority to decide as to what should be the appropriate rateable value of the property in question. The power of the Appellant Authority to call for additional evidence of his own in the interest of justice is beyond doubt. The Appellate Authority has to exercise the power of granting permission to lead additional evidence to the party seeking such a permission having regard to the exigency of the interest of justice. In that state of affairs, therefore, I am of the opinion that the original orders of the Appellate Authority should be quashed and set aside and all the three matters should be remanded to the First Appellate Authority for determining as to whether he should exercise the power for calling for additional evidence on his own in the interest of justice as prescribed under R. 11 of the Municipal Appeal Rules, 1976. If the, Appellate Authority finds that no evidence whatsoever or insufficient evidence was led before the Assessment Authority, or he should call for the additional evidence in order to adjudicate the question about the fixation of the rateable value fully and completely, he may exercise the power by permitting the parties to lead additional evidence as he may specify in his order. The power to call for additional evidence in the interest of justice is well recognised under 0. 41 R. 27 of the Civil P. C. I it is not only to enable the Court to pronounce judgment but also for any substantial cause which may include when Court considers in the interest of justice that something remaining obscured should be filled up so that it can pronounce judgment in a more satisfactory manner though it may be able to pronounce the judgment in the state of record as it is. See: K. Venkataramiah v. Seetharama Reddy, AIR 1963 SC 1526.

12. In the circumstances, therefore, these revision applications are allowed by quashing and setting aside the impugned orders of the First Appellate Authority and the matters are remanded to the First Appellate Authority for exercising the power as directed above to call for the additional evidence in order to determine the correct rateable value of the property in question. Rule in each of these revision applications is made absolute accordingly with no order as to costs.

13. Petitions allowed.


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