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Hajee Mohammad HussaIn Sait of Hajee Abdulla Hajee Abubucker and Co. Vs. the Commissioner and Council, Corporation of Madras - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtChennai High Court
Decided On
Case NumberCase Referred Nos. 9 to 11 and 29 of 1950
Judge
Reported inAIR1951Mad765; (1951)IMLJ231
ActsMadras City Municipal Act, 1919; Taxation Rules - Rule 15; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 22
AppellantHajee Mohammad HussaIn Sait of Hajee Abdulla Hajee Abubucker and Co.
RespondentThe Commissioner and Council, Corporation of Madras
Appellant AdvocateS. Ramachandra Iyer and ;E.R.C. Davidan, Advs. for King & Partridge
Respondent AdvocateJohn
Cases ReferredAhmed Ali & Co. v. Comr.
Excerpt:
- - whether a notice of intention to appeal given notafter, but before the decision of the taxation appeals committee is communicated to the asseasee, is a good notice under rule 15 (a) (i). taxation rules in schedule iv(4), city municipal act. we fail to see anything in the language which compels us to agree with the learned judge. the reasoning of the learned judges can be best stated in their own words: i agree & should like to add in connection with the last point discussed by my learned brother that the word 'within' has been used, in my opinion, in order 41, rule 22 (1), c. we only decided that aa appeal would be incompetent unless the requirements of rule 15 had been satisfied & in that case we found one of the requirements, namely, the payment of tax, had not been complied with......a notice of intention to appeal given notafter, but before the decision of the taxation appeals committee is communicated to the asseasee, is a good notice under rule 15 (a) (i). taxation rules in schedule iv(4), city municipal act.'there were three assessments of property taxby the gomr. of three properties belonging tothe assesses & there were three appeals to thetaxation appeals committee against the assessment of the comr. these three appeals were dismissed by the committee on 24-2-1949. on 1-3-1949, the assessee gave to the comr. notice of his intention to appeal against the decision of the taxation appeals committee. he followed up by presenting petns. of appeal on 9-3-1949. the decision of the appeals committee was communicated to the party on 7-3-1949 by registered.....
Judgment:

Rajamannar C.J.

1. These three references under Rule 17, Schedule IT (4), City Municipal Act raise the same question for decision formulated by the Ct. of Small Causes:

'Whether a notice of intention to appeal given notafter, but before the decision of the Taxation Appeals Committee is communicated to the asseasee, is a good notice under Rule 15 (a) (i). Taxation Rules in Schedule IV(4), City Municipal Act.'

There were three assessments of property taxby the Gomr. of three properties belonging tothe assesses & there were three appeals to theTaxation Appeals Committee against the assessment of the Comr. These three appeals were dismissed by the Committee on 24-2-1949. On 1-3-1949, the assessee gave to the Comr. notice of his intention to appeal against the decision of the Taxation Appeals Committee. He followed up by presenting petns. of appeal on 9-3-1949. The decision of the Appeals Committee was communicated to the party on 7-3-1949 by registered post. When the appeals came up for hearing before the Ct. of Small Causes, a preliminary objection was taken that the appeals were not maintainable, because the requirements of Rule 15 (a) (i) had not been complied with. The objection was based on the fact that the appeals were filed before the party wasserved with the decision of the Appeals Committee. The learned Chief Judge of the Ct. of Small Causes upheld this objection & dismissedthe appeals in limine. Rule 15 (a) (i) originally ran thus:

'An appeal shall lie to the Ct. of Small Causes against any decision of the Taxation Appeals Committee constituted under H. 14 but no such appeal shall be heard by the said Ct., unless (1) a notice of intention to appeal has been given to the Comr. within 10 days from the date of the decision.'

2. By Notfn. No. 662, Local Administration dated 14-8-1942, published in the Fort St, George Gazette, for the words 'from the date of the decision' the following words were substituted, viz., 'from the date on which such decision was communicated by registered post.' It may be mentioned that a similar substitution was made in Sub-clause (ii) of Rule 15 (a) providing for the presentation of appeals. The learned Judge thought that the language of the rule strictly construed supported the objection on behalf of the Corporation, because the rule contemplated a notice only after the communication of the decision of the Appeals Committee. We fail to see anything in the language which compels us to agree with the learned Judge. There is nothing in that provision which makes it incumbent on the assessee who is aggrieved by the decision of the Taxation Appeals Committee to give notice only after the communication of the decision of the Committee. The only relevant words as regards the time limit are 'within ten days from the date on which the decision was communicated by registered post.' All that is material is to find out when 10 days expire. Any notice of intention to appeal given before that date would be sufficient compliance with the requirement of the rale. 'Within ten days' should be read as 'not beyond ten days.'

3. The learned Chief Judge referred to case decided on a construction of Order 41, Rule 22, C. P.C., which contains the words 'within one month from the date when he (the resp.) receives notice of the hearing of the appeal.' A Division Bench of the Lahore H. C. in Mst. Koshalia V. Biazuddin, A. I. R. 1936 Lah. 362 ; 162 I. C. 336 (the learned Judge was wrong in thinking it was the decision of a single Judge) took the view that a memorandum of cross-objectiona filed by a resp. before he was served with notice of the appeal would not be a valid memorandum. The reasoning of the learned Judges can be best stated in their own words:

'The use of the word 'within' would fix 'two limits, an interior limit starting from the date of receipt of the notice & a posterior limit of one month after that date. The 'cross-objections' filed before that date would not be cross-objections at all in the strict legal sense of the word.'

It appears from the report that this position was conceived by learned counsel. This view, however, did not prevail in that Gt. In Labhu Bam v. Bam Par-tap, I. L. R. (1945) Lah. 18 : A.I.R. 1944 Lah. 76 , it was inter alia decided by an F. B. of that Ct. that a reap. could submit a memorandum of cross-objections as soon as an order was made issuing notice of the date of appeal though service was not actually effected on him. At p. 41 of the report, Din Mohammad J. who delivered the leading judgment after referring to the case in Mst. Koshalia v. Riazuddin, A. I. R. 1936 Lah, 362 : 162 I. C. 336 said:

'The only question is whether the right of a reap. to file his cross-objections is so restricted as is adumbe-rated in Mt. Koshalia v. Eaizuddin, A.I.R. 1936 Lah. 362. In other words, could it be the intention of the Legislature in enacting Order 41, Rule 22, to specify the point of time in which such cross-objections could be filed at both ends?'

Abdur Rahman J, dealt with the question at greater length & his observations are veryuseful:

'I agree & should like to add in connection with the last point discussed by my learned brother that the word 'within' has been used, in my opinion, in Order 41, Rule 22 (1), C. P. C., to convey what may be expressed by the words 'not beyond.' Having regard to the period given to an applt. for preferring an appeal & apparently with the intention of preventing an unnecessary delay, the period of one month was being given to a resp. from the date of service on him of notice of the day fixed for hearing the appeal beyond which he was not to be ordinarily allowed to put in his cross-objections. That a resp. can file cross-objections at any time alter an appeal has been admitted even before he is actually served with the notice of hearing of appeal is not open to doubt. In such a ease service will be deemed to have been effected on the resp. on the day on which he files cross-objections. If that be the correct position, it would seem to follow that the words 'within one month from the date of service on him' were meant to provide the maximum number of days during which cross-objections could be filed by a resp. as of right unless the period was extended by the appellate Ct.'

In Dasrulal v. Narayan, A.I.R. 1937 Nag. 105 : I. L. B. (1937) Nag. 401, the learned Judge Pollock J. took the same view as the P. B. of the Lahore H. C. above referred to. We agree with these decisions.

4. We are unable to see why the word 'within' should suggest two ends. The plain language of the rule suggests only one limit, the date before which the notice of intention to appeal should be given. As already mentioned, it does not prescribe any more than Order 41, Rule 22, C. P. C., that either notice of intention to appeal or the presentation of the appeal should be only after a particular date.

5. The learned Chief Judge appears to have been unnecessarily obsessed by what was supposed to have been decided by this Ct. in Ahmed Ali & Co. v. Comr., Corporation of Madras : (1949)1MLJ455 . That decision has no bearing on the question which falls for decision in this case & Dr. John very properly did not rely upon our prior ruling in any manner. We only decided that aa appeal would be incompetent unless the requirements of Rule 15 had been satisfied & in that case we found one of the requirements, namely, the payment of tax, had not been complied with. We hold, therefore, that the appeals were competent.

6. The Corpn. will pay to the assessee the costs of this reference.

7. Referred Case No. 29 of 1950.--The answer to the question in this case which is the same which was decided in R. C. nOS. 9, 10 & 11 of 1950 is that the notice of intention to appeal was properly given & the appeal was competent.

8. The Corporation will pay the costs of the reference to the assessee.


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