Madhavlal N. Pittie vs Municipal Corporation for Greater Bombay

G.N. Vaidya, J.—The petitioner in this petition under article 227 of the Constitution of India, is challenging the order dated January 14, 1969, passed by the Additional Chief Judge of the Court of Small Causes at Bombay, dismissing the petitioner''s appeal u/s 217 of the Bombay Municipal Corporation Act, 1888, on the sole ground that the appeal was filed against the Municipal Corporation for Greater Bombay and not against the Municipal Commissioner.

In connection with the question of the party respondent in an appeal before the Chief Judge of the Small Cause Court u/s 217 of the Act the following provisions in the Act are relevant. Under sections 139 and 140 property taxes are directed to be imposed on buildings and lands. Under clauses (b) and (c) of section 140 the basis for taxes is rate-able value of buildings and lands. Persons primarily liable to pay the taxes are indicated in section 146. Sections 154 to 168 relate to procedure for assessing rate-able value and ascertaining the tax payable in respect of the buildings and lands. The Commissioner is directed in the first instance to prepare assessment book containing entries indicated in section 156. u/s 163 the assessee-person responsible to pay taxes is authorised to file a complaint against the rate-able value entered in the assessment book by the Commissioner and u/s 165 he is the authority prescribed to investigate and dispose of the complaint after giving opportunity to show cause and a hearing to the complainant. The result of the decision of the Commissioner must then be entered in the assessment book which can be amended u/s 167 by the Commissioner. u/s 217 right of appeal is created in favour of the affected assessee in respect of the Commissioner''s decisions under sections 163 and 165. Chief Judge of the Small Causes Court at Bombay is the prescribed appellate authority.

The above provisions indicate that the lis or the subject matter of the appeal is the rate-able value of the building of an assessee. The two parties to the lis are the debtor assessee on the one hand and the creditor or the claimant the Municipal Corporation of Greater Bombay on the other. The Commissioner is the prescribed authority whose decisions would be under challenge in the appeal. He would not have interest of any kind in the subject matter or the lis in the appeal. A tribunal prescribed to make decisions can never be a party respondent in an appeal against its decisions though sometimes it may be joined pro forma. The Additional Chief Judge was therefore not justified to make contrary findings and dismiss the appeal of the petitioner on the ground that the Municipal Corporation was not the correct respondent and that the appeal should have been instituted against the Commissioner.

There is no section in the Bombay Municipal Corporation Act which requires the appeal to be filed either against the Municipal Corporation or against the Municipal Commissioner. All that section 217 contemplates is the appeal "against rate-able value or tax fixed or charged" under the Act. The rate-able value and tax referred to in that section are necessarily in connection with the taxation of the Bombay Municipal Corporation. u/s 5 (2) the Corporation shall, by the name of "the Municipal Corporation of Greater Bombay," be a body corporate and have perpetual succession and a common seal and by such name may sue and be sued. Mr. Sawant appearing for the Municipal Corporation submitted that Small Causes Court Judges had, in a series of decisions, taken the view that such an appeal was not competent and hence objection was taken. Matters before authorities should be decided according to law and not according to arbitrary rules upholding such unjustified objections raised by the parties, as in the instant case. No section was pointed out to us to show that an appeal filed against the Municipal Corporation was liable to be dismissed on the ground that it was not maintainable u/s 217.

Mr. Sawant submitted that appeals relating to rate-able value and taxes were determined by the Municipal Commissioner; that the Municipal Commissioner was a separate authority u/s 4; and hence it was necessary to name the Municipal Commissioner as a party respondent in the appeal. The Municipal Commissioner is invested with certain powers under the Act only for the purpose of Municipal Corporation. Mr. Sawant was unable "o point out any form or rule prescribed regarding memorandum of appeal which requires the Municipal Commissioner to be shown as respondent. He, however, referred to section 517 which only enables the Commissioner to take legal proceedings and does not lay down any provision rendering an appeal filed u/s 217 against the Municipal Corporation not maintainable. We, therefore, hold that the appeal filed by the petitioner was maintainable u/s 217 and the learned Judge of the Court of Small Causes erred in law in holding that the appeal was not maintainable.

In the result, the order passed by the Additional Chief Judge on January 14, 1969, is quashed. The Municipal Appeal No. M/277 of 1967 is restored to the file of the Court of the Chief Judge of the Small Causes Court at Bombay. The Chief Judge is directed to dispose of the said appeal in accordance with law, in the light of the observations made hereinabove. The rule made absolute with costs.