Asmita Dhruva Dharaskar vs City of Nagpur Corpn., Nagpur-I

B.A. Masodkar, J.—An interesting question is raised at the stage of registration of these four applications under the provisions of section 388 of the City of Nagpur Corporation Act, 1948 (hereinafter called the Act), by which the challenge is to the orders made by the District Court, Nagpur, on June 26, 1975 in the matter of municipal tax. It is only relevant for the purpose of disposing of these matters to state that under the provisions of the Act u/s 129 investigation is done on the objections raised to assessment by the Municipal Commissioner or by his delegate called the objection Officer. Sub-section (3) thereof requires determination of those objections. u/s 130 the disputes as to the liability of any land or building to assessment as well to the basis or principles of assessment can be taken before the District Court Nagpur in an appeal. Thus that Court is constituted the appeal Court and limitation is provided for presentation of the appeal to that Court within thirty days. Subsection (1) of section 130 make the decision of District Court in appeal final. In Part VIII of the Act which contains general provisions for the carrying on of municipal administration under heading "appeals" in Chapter XXIV two sections appear. u/s 387 appeals within the Corporation to Corporation Officers are provided. u/s 388 general provision is made as to appeals and revisions and obviously the final order made u/s 130 by the District Court is open to challenge before the Court to which revisions from decisions of that Court ordinarily lie. Without extracting the actual phraseology of the section, this is the scheme provided with regard to the challenge to the municipal assessment and tax. Shortly stated firstly there is original enquiry u/s 129, followed by a remedy of appeal before the District Court having finality at that stage subject only to revision provided for u/s 388.

The applicant having exhausted the remedy before the District Court has presented these applications to this Court without affixing any court-fee either on the application or on the order of the District Court attached to the applications. For doing so reliance is placed on the provisions of Bombay Court Fees Act, 1959, in that section 20 (1) (xiv), and total exemption is claimed from fees payable under any of the provisions of the Act. The Special Officer of this Court found that though the revision application may not be taxed to fee, the accompaniment, i.e. the order will have to be taxed. That is how the matter has been brought before this Court at the instance of the applicant.

Notice was issued to the State as well as to the Corporation as it involved the question of public revenue.

Mr. Dharaskar in support of his contentions claiming exemption from court-fee relies on the terms of the statute and particularly emphasized the word "petition" as contained in clause (xiv) of section 20 (1), of the Court Fees Act. He further submits that the taxing statutes should be construed if there be doubt in favour of the citizens and for that he relies on the decisions rendered under certain other clauses like clause (iii) where the word "suit" is used, but the Allahabad High Court in Indian States Bank Ltd. Vs. Mt. Rukmini Rani and Others, included therein the miscellaneous cases Similarly he relies on the construction of clause (xi) that is available in In re Court Fees Act A I R 1924 Ran 160, AIR 1942 50 and Emperor v. Maroti 14 N L R 77. According to him the petition of appeal should be so construed as to include any challenge permissible under the municipal law in the matters of municipal tax. He also relies on the common dictionary meaning of the word "appeal" which is a juridical process sought by memoranda or petitions for " deliverance of decisions of the lower Courts. According to him there is no warrant to impose court-fees at the stage of High Court when even the original appeal is made tax-free.

As against this for the State and the Corporation the learned counsel submit that there are no principles of equity or policy involved in the tax matters and the provisions of exemption will have to be given effect to the extent they permit the exemption. The provisions of the Act are presented in aid to point out that those contemplate a distinction between appeal and revision. Thus there cannot be any scope of putting two constructions on the terms of the taxing statute and then conferring benefit of exemption.

It is undoubtedly true and has been noted by this Court in Laxmi Oil Mill v. Sales Tax Officer 1976 Mh. U 326 (Special Civil Application No. 2076 of 1974, decided on 7-1-1976.), that the terms of taxing statutes are to be strictly construed and the meanings and connotations to be attached to the words in such statutes are to be understood in their common connotation as distinguished from its scientific or technical import. This Court emphasised that the language of the Legislature is primarily meant for communicating its intention to the tax payer and it should be valid presumption therefore to attribute popular meanings to the words in such statutes. Added to this principle an equally applicable principle available is that in case of doubt in the matters of tax the benefit would go to the assessee. Question however is whether there is scope to doubt.

Bombay Court Fees Act, 1959 does not define the word "appeal" as such nor it defines the words petition of appeal. The reliance placed by the learned counsel for the applicant on the decisions mentioned above which interpreted clauses (iii) and (xi) cannot be of any assistance in this regard because clause (xiv) of sub-section (1) of section 20 of the Act speaks of "petition of appeal against any municipal tax"" and the narrow question is whether a revision against any municipal tax would reasonably include this phraseology of petition of appeal. Exempting provision in clause (xiv) leaves no doubt and answers clearly that if the petition is of an appeal questioning the municipal tax, then nothing contained in the Court-fees Act make that petition chargeable with any fee. In other words none of the provisions will be attracted so as to ask for the charge of fee on the petition of appeal which questions the municipal tax.

In the context of the provisions of the Corporation Act it is obvious that the present tax with which the present applications are concerned can be subjected to appeal u/s 130 of the Act and the exemption would be available if it is a petition u/s 130 of the Act because of sub-section (1)(xiv) of section 20 of the Bombay Court Fees Act.

Now comes the question which raises a moot controversy. What is it that is provided for by section 388 of the Corporation Act by use of the phraseology that the final order made by the judge shall be subject to revision from it to a higher Court to which such revision ordinarily lies. One thing is clear before I proceed to make reference to few decisions relevant on the point that the Act itself makes distinction between appeal and revision. Both, appeal and revision are the creatures of statutes, though in either case it involves the judicial scrutiny by the higher Courts of the proceedings brought before them because of the remedy provided by the given statute. There is identity of jurisdiction to be exercised in appeal as well in revision subject however to the limits imposed upon those jurisdictions by the statute creating the jurisdiction. Process however is of judicial review by the higher authorities or higher tribunals with regard to matters in issue. There is however a marked distinction well accepted as far as civil causes are concerned, in that the appeal is treated as a continuation of the original proceeding and unless contrary is indicated, the finality of the original order is put in jeopardy by presentation of appeal and by doctrine of merger, it is the appellate order that takes the place of final order. Distinctively, revisional jurisdiction is a supervisory one and possesses inbuilt limitations in exercise of the same. The statutes creating such jurisdiction often indicate those limitations. Proceedings in revision though may terminate by orders made taking the place of the original order upon principles of merger, yet the proceedings before the revisional authority would not be the continuation of original one as in the case of appeal.

These observations have become necessary because of the submission of the learned counsel appearing for the applicant that petitions of appeals are after all applications to the higher Courts bringing the disputes decided by the lower Courts in issue for decision by those Courts. It was submitted that the initiation of the proceedings is by petitions whether it be an appeal or a revision and to a citizen who reads the taxing statutes the word "appeal" or "revision''" may appear to be interchangeable involving process of invocation of jurisdiction of the higher Courts.

Undoubtedly these are very ingenious and attractives submissions but, as stated above, the matters have to be decided in the context of the given statutes. In the present statute, i. e. the Corporation Act, there is no scope left for any such confusion or doubt. The appeal is positively indicated by section 130 and the order made in appeal is declared as final. Jurisdictionally that ends the original proceeding. Thereafter what is provided for is a revision and not an appeal. The two independent jurisdictions and remedies which are created by the statute itself cannot any manner result in raising doubts nor there is likelihood of thinking that the word "appeal" would mean revision or revision would mean a mere appeal to higher Court.

In the context of Limitation Act in AIR 1932 165 (Privy Council) , the Privy Council observed with regard to the provisions of section 96 of the CPC that any application by a party to an appeal, asking it to set aside or revise a decision of a subordinate Court is, an appeal within the ordinary acceptation of the term and that it is no less an appeal because it is irregular or incompetent. These observations of the Privy Council cannot be extended to mean that the word "appeal" includes the revision application. There the application itself was made to the Court having appeal powers. The jurisdiction of a Court of appeal was thus contemplated and was not in doubt and the question was whether an application filed to that Court would constitute an appeal or not. The phrase used by the Privy Council there, "to revise the decision of the subordinate Court" is used in the context of the controversy and not in the context to indicate that to a common man revision is the process of appeal. This decision of the Privy Council has been followed with approval by the Supreme Court in Mela Ram and Sons Vs. The Commissioner of Income Tax Punjab, . There too the Court observed that an application by a party to an appellate Court asking it to set aside or revise a decision of a subordinate Court is an appeal. Thus it appears that if in the hierarchy of Courts the appellate Court exists or is created by a statute and an application is made to that Court praying that the order of the lower Court be set aside or its decision be revised, then that application can be treated as contained in the conspectus of the term "appeal". The Full Bench of Lahore High Court in AIR 1944 458 (Lahore) construed the term "appeal" as meaning, the judicial examination by a higher Court of the decision of an inferior Court. There the question was about the jurisdiction u/s 110 of the CPC and the subordination of a single Judge of the High Court on the appellate side to the Bench hearing the Letters Patent Appeal. Though appeal was provided that indicated no subordination as such was the finding.

The term "appeal" has not been defined by the Code but the ordinary accepted connotation it carries implies in it an application involving the power of the appellate Court. In other words a jurisdiction exists in a higher Court to hear and determine the cause in the same manner as it exists in the original Court. "Appeal" signifies the power in the rising tire system of adjudication as well the modality of involving that power. It involves an exercise of judicial examination of the given cause. The memorandum of appeal may take the form of application that would contain the complaint or the grounds on which the judicial examination of the original order by the higher Court is invited. That shows that by use of words "petition of appeal" used in clause (xiv) of sub-section (1) of section 20, that application to higher Court possessing authority, power and jurisdiction as that of appeal is only indicated. Every other available mode of calling in question such orders like the one of involving judicial supervision or superintendence would not form part of it nor can be equated with "petition of appeal." This being an exemptive provision its plain scope and ambit will have to prevail and the same cannot be asked to be enlarged on supposed intention of the legislature because of some unhidden purpose to have free-from-fee access to municipal tax payers to Courts. A taxing statute like any other law will have to be interpreted and applied by gathering plain meaning of the terms used and known to legislature and it is futile exercise to add to it. "Petition of appeal" is distinct juridical process and exemption is offered by legislation to allow its intention free-from-fee and nothing more, whenever Municipal-tax statute create appeal jurisdiction and petition involving that jurisdiction is presented exemption is available.

Matters of revision lie in different departments of superintendence by the higher Courts of the causes brought before them. The nature of jurisdiction created u/s 388 after giving finality to the orders of the District Court by use of the word "revision" is firstly indicative that it does not indicate second appellate jurisdiction but merely permits invocation of supervisory jurisdiction against a final order. It is not necessary to indicate in this controversy what is the scope of the revisional authority u/s 388 itself. Like the appeal revisional jurisdiction too is the creation of the statute but its limitations are inbuilt and well-known though undoubtedly depending upon the phraseology of a given statute. It is not however the same process as is involved in an appeal that is brought into animation by invoking the revisional jurisdiction. Suffice it here to observe that revision is not an appeal nor the present Act contemplates a second appeal. It is true that this revision u/s 388 would take the form of an application and would be initiated by an application. The word "revision" having an accepted articulated and different connotation it will be impermissible to attribute to citizens i.e. tax payers that they will intermix these terms "appeal" and "revision" for the purpose of filing an application against municipal tax.

In J.P. Ojha Vs. Firm R.R. Tandan and Another, , the Allahabad High Court while considering the provisions of Order 3, rule 4 (3) of the Code of Civil Procedure, in the context to accept an application considered that the term "revision" would include the word "application." There the Court assumed in the context of the controversy that the term "appeal" was of wider connotation than the word "revision''" and also observed that u/s 37 of the Code the terms "appellate jurisdiction" may include "revisional jurisdiction" and the word! "appeal" will be deemed to include the word "revision." This was so said for deciding as to whether the vakalatnama filed would be valid for presentations of a revision or application when it contained the word "appeal" and that too for the purposes of prosecuting a remedy under the Code of Civil Procedure. For the purpose of taxing statute that decision can hardly be of any assistance. The taxing provisions may create jurisdiction by different modality and while; construing the provisions of imposition of levy of fee, that would assume its singular importance.

A revision application therefore u/s 388 of the Act cannot be treated as an application for appeal for the purpose of exemption u/s 20 (1) (xiv) of the Bombay Court Fees Act. For the purpose of the Act the appellate order has been given a finality and it may be that till that stage the scheme of the taxing statute was to keep the process free-from fee.

Against the final orders so made the revision proceedings would be initiated by an application to the Court possessing revisional jurisdiction as indicated by section 388. It was contended for the State that the matter would be governed by Schedule II and Rs. 10 will be the appropriate fee having regard to the terms of Entry-2 in Schedule II providing for revisional application to the High Court and that should be the court-fee leviable. Alternatively it is submitted that the residuary sub-clause (iii) of clause (f) of Entry 1, of Schedule II of the Bombay Court Fees Act would be attracted, this being a case of application involving the revisional jurisdiction u/s 388 of the Act (i. e. the Corporation Act).

Now it is obvious that the first submission on behalf of the State and the Corporation cannot be accepted, for, Entry 2 deals with the revisions u/s 25 of the Provincial Small Cause Courts Act or section 115 of the Code of Civil Procedure. Clearly this charge can be asked if revision is under these statutes. The term "under" indicates unmistakably that it signifies "as provided for". The cause of tax is not provided for by these enactments. Revision by taxing laws though may be akin to civil causes are not matters under "Civil Procedure Code". State cannot reasonably ask on that basis levy of fee. Though the nature of application to this Court invoking the jurisdiction conferred because of the provision of section 388 of the Act may be similar so that one contemplated by the provisions of section 115 of the Code of Civil Procedure, that does not make it a revision u/s 115 of the Code of Civil Procedure. The party is permitted approach to this Court because of section 388 of the Act. It is reasonable therefore to treat the party''s petition as an application u/s 388 of the Act as governed by Entry 1 in Schedule II. It is only by an application or petition to this Court jurisdiction as indicated or contemplated by the provisions of section 388 of the Act can be invoked. Such an application is not specified by any of the clauses in Entry 1. Therefore sub-clause (iii) of clause (f) which is residuary would be attracted and it will have to bear the court fee stamp of Rs. 5.

In the sum the order made by the taxing Officer of this Court is revised and it is adjudged that application u/s 388 against the orders made in appeals by the District Court are not exempt from the provisions of the Bombay Court Fees Act. Those will have to be stamped by affixing the stamp as is provided for by Entry 1, clause (f), sub-clause (iii) in Schedule II of Bombay Court Fees Act and the accompanying documents too will have to be appropriately stamped.

Applicant in each case is given one week''s time to pay the appropriate court-fee and thereafter the revisions will be registered and put up for admission.