Ahmed Sulleman Dinath vs The Municipal Commissioner of Bombay

Madgavkar, J.—This is an application in revision by the petitioner Ahmed Sulleman Dinath against the order of the Chief Judge of the Small Causes Court, Bombay, u/s 219 of the City of Bombay Municipal Act III of 1888, maintaining the assessment on certain buffalo stables by the Municipal assessor and disallowing Re. 1 per stable which the petitioner claimed in addition as expenditure for cleaning each stable.

A preliminary objection as to jurisdiction is raised by the learned Advocate General for the respondent, the Municipal Commissioner for the city of Bombay, on the ground that the Chief Judge is not a Court but a persona designata and his order u/s 219 Clause (3) is final. It is contended for the petitioner that whatever the case in regard to orders in election petitions u/s 33, cl.(3), where the Chief Judge''s order is conclusive, orders u/s 219 are not so: and the question is in relation to a municipal tax, that is, a debt due from the subject and the presumption should be in favour of the subject in the civil Courts; and the word "conclusive" does not debar such remedy u/s 115 of the Code of Civil Procedure.

Even in England with the remedy of the subject by way of petition of right or mandamus, much less in India, can it be assumed that the subject has a remedy in the Courts in every case of alleged excessive taxation. To take the most important heads, for instance, such as agricultural assessment or Income Tax, in the former case, the remedy is absolutely barred by enactments such as the Revenue Jurisdiction Act, and in the latter case except on a reference by the Commissioner equally so, u/s 219 the Chief Judge does not function as a Court any more than he does u/s 33. On the contrary the express enactment of Section 2 in Act XII of 1888 enabling the Chief Judge to refer questions of law or usage or construction independently of such power of reference under the Small Causes Court Act, appears to show that u/s 219 as in Section 33 he is a persona designata and not a Court. And, if so, on the ratio decidendi of the decisions of this Court such as Balaji Sakharam v. Merwanji Noivroji ILR (1895) 21 Bom. 279, Bhaishartkar v. The Municipal Corporation of Bombay ILR (1907) 31 Bom. 604 : S.C. 9 Bom. L.R. 417, R.S. Navalkar Vs. Mrs. Sarojani Naidu, , it appears to us that this Court has no jurisdiction to entertain the present application. A similar view has been taken in regard to the powers of this Court in respect of the action of a Collector under a 18 of the Land Acquisition Act in Balkrishnu Daji v. The Collector, Bombay Suburban ILR (1923) 47 Bom. 699 : S.C. 25 Bom. L.R. 398, and of a District Registrar in Madras in Manavala Goundan v. Kumarappa Reddy ILR (1907) 30 Mad. 326.

The main question, namely, the amount of assessment and of the reasonable rent, is essentially a question of fact. The single error pointed out is a reference by the learned Chief Judge to the evidence of Mr. Blair in the previous case. The error is obviously at the most one of procedure and not affecting jurisdiction.

For these reasons we allow the preliminary objection that this application does not lie. We dismiss both the applications with costs.