Thane Municipal Council, Thane vs Thane Co-Operative Housing Society Ltd., Thane

S.M. Hajarnavis, J.—This is an application in revision against the judgment delivered by the Additional Sessions Judge, Thana, dismissing the revision filed by the applicant against the appellate judgment delivered by the Judicial Magistrate, First Class, rejecting the preliminary objection with regard to the maintainability of the appeal filed by the applicant.

Few facts are necessary for appreciating the point that arises in this revision application. The opponent constructed some buildings in 1970 within the Municipal limits of the Thana Municipal Council. In the year 1971-72 the buildings were valued at the rateable value of Rs. 76,604 and the house tax of Rs. 16,852-88 and the education fess of Rs. 1915-10 were assessed. A notice u/s 119 (1) of the Maharashtra Municipalities Act, 1965, was issued to the opponent calling upon it to file objections. The opponent filed objections but they were rejected by the standing committee of the Thana Municipal Council on 12-7-1971. It appears that a copy of the decision was not given to the opponent. In pursuance of the assessment order a bill was served on the opponent on 18-8-1971. The opponent thus applied on 2-9-1971 for a copy of the order of the standing committee. This copy was supplied to the opponent on 16-9-1971. The opponent thereafter filed an appeal as prescribed by section 169 on the same day viz. 16-9-1971 before the Magistrate. It appears that the opponent had not deposited the amount claimed by the applicant under the bill. That amount was deposited on 28-2-1972, i.e., much after the appeal was filed. Thereafter the appeal was heard by the learned Magistrate. Two preliminary objections were raised by the applicant about the maintainability of the appeal, viz. :

(1) That the appeal was barred by limitation, inasmuch as, it was not filed within 15 days from the receipt of the bill by the opponent.

(2) That the opponent has not deposited the amount claimed by the municipal council before filing of the appeal.

The learned Magistrate, after hearing the parties, overruled the objections and ordered that the appeal be heard on merits. An application for revision filed by the Municipal Council was also rejected by the learned Additional Sessions Judge, Thana. It is against this judgment that the present application for revision has been filed.

Shri V. B. Rege, the learned counsel for the applicant, urged that the Courts below have committed an error in holding that the appeal was within time and also erred in proceeding to entertain the appeal when the opponent had not deposited the amount before filing of the appeal. He cited in his support the decision of the Allahabad High Court in Janta Cycle and Motor Mart, Kanpur Vs. Asst. Commissioner (J), III Sales Tax Kanpur Range, Kanpur and Another, . It is not possible to accept the submission of Shri Rege.

In order to appreciate the procedure regarding the appeal, it is necessary to refer to some provisions in the Maharashtra Municipalities Act. u/s 115 the Chief Officer has to cause to be prepared in prescribed manner the assessment list of buildings and lands or lands and buildings within the municipal area. u/s 117 he has to submit the list of assessment to the authorised Valuation Officer, appointed by the State Government for the municipal area, who after verifying the assessment as done by the Chief Officer, if necessary by inspection of properties concerned, shall return the list duly checked and corrected to the Chief Officer within a period of two months. u/s 118, when the list of assessment is returned by the authorised Valuation Officer, the Chief Officer shall give public notice thereof and of the place where the list or copy thereof may be inspected. u/s 119 the Chief Officer gives a public notice inviting objections to the valuation or assessment. Under sub-section (2) of section 119 the objections to the valuation and assessment shall be made before the time fixed in the notice. Section 120 reads thus:

After the period given in the public notice referred to in section 118 expires the Chief Officer shall forward to the authorised Valuation Officer for the Municipal area, the assessment list along with objections received. The authorised Valuation Officer shall investigate and dispose of the objections after allowing the objector an opportunity of being heard in person or by agent and cause the result thereof to be noted in the book kept under the last preceding section and cause any amendment necessary in accordance with such result to be made in the assessment list:

Provided that, before any such amendment is made the reasons therefore shall be recorded in the book aforesaid.

Section 121 says that the list so made by the authorised Valuation Officer shall be authenticated by him under the seal of his office and signature. Section 122 says that subject to certain alterations, authentication shall be conclusive evidence for the purposes of municipal taxes, valuation and annual rent. There is then provision for the amendment of the assessment list. Section 149 prescribes the mode of recovery of money payable under the Act.

Section 150 reads thus :

(i) When any amount becomes due to the Council under this Act or the rules or bye-laws made thereunder, the Chief Officer shall, with the least practicable delay, cause to be presented to the person liable for the payment thereof, a bill for the sum claimed as due.

(2) Every such bill shall specify the period for which, and the property, occupation or thing in respect of which the sum is claimed and shall also give notice of the liability incurred in default of payment and of the time within which an appeal may be preferred as hereinafter provided against such claim.

(3)................

The next relevant provision is section 169 which reads thus:

Appeals against any claim for taxes or other dues included in a bill presented to any person u/s 150 or any other provisions of this Act may be made to any Judicial Magistrate or Bench of such Magistrates by whom under the direction of the Sessions Judge such class of cases is to be tried.

Section 170 reads thus :

No appeal under the last preceding section shall be entertained unless-

(a) the appeal is brought within fifteen days next after the presentation of the bill complained of; and

(b) an application in writing stating the grounds on which the claim of the Council is disputed, has been made to the Council in the case of a tax on buildings or lands on both within the time fixed in the notice given u/s 119 or 123 of the assessment or alteration thereof, according to which the bill is prepared; and

(c) the amount claimed from the appellant has been deposited by him in the municipal office.

There is no dispute that an application in writing, stating the grounds on which the claim of the Council was disputed, had been made to the Municipal Council and that was dismissed on 12-7-1971 and it is thereafter that the bill for recovery of the amount was sent by the Municipal Council on 18-8-1971. The opponent then applied for a copy of the order of the Standing Committee on 2-9-1971. The copy was given to it on 16-9-1971. It is true that a copy of the order passed by the municipal authority is not required to be filed with the appeal. It cannot, however, be forgotten that what an aggrieved person does is to file an appeal against the order. If he has filed an appeal, he must have a copy of that order against which he wants to file an appeal in his possession. In Jijibhoy N. Surty v. T. S. Chettyar AIR 1928 PC 103, their Lordships of the Privy Council observed with approval as follows :

In Haji Hassum Oomer v. Nur Mahomed, decided in 1904, Sir Lawrence Jenkins C. J., and Batchelor J., held that in reckoning the time for presenting an appeal, the time required for obtaining a copy of the judgment must be excluded, even though by the rules of the Court it was not necessary to obtain a copy of the judgment to file with the memorandum of appeal.

If an assessee has to file an appeal against an order passed by the Municipal authorities, it is necessary for him to obtain a copy of that order passed against him to enable him to find out whether the order can be challenged. In the fitness of things, therefore, the time taken for obtaining the copy of the order has got to be excluded while computing the period of limitation. It cannot be said that the decision of the Standing Committee was communicated to the opponent. It raised objections when the bill was presented to it. There is no provision for filing an appeal against an order rejecting the objections of an assessee. It is only when the bill is presented that an aggrieved person has a right to file an appeal. The opponent was, therefore, justified in waiting till he received the bill. On receipt of the bill he applied for copy of the order of the Standing Committee on 2-9-1971. The copy was supplied to him on 16-9-1971 and on the same day he filed the appeal. The appeal was, therefore, in time and both the Courts below were right in rejecting the objections on the ground of limitation filed by the applicant.

So far as the deposit is concerned, section 170 reads that:

170, No appeal under the list preceding section shall be entertained unless-

(a)................

(b)....

(c) the amount claimed from the appellant has been deposited by him in the municipal office.

This section prohibits entertaining of the appeal without the deposit of the amount. The section does not say that no appeal shall be filed without making the deposit of the amount claimed by the municipality. In M/s. Laxmiratan Engineering Works Ltd. v. Assn. Commissioner (Judicial) I, Sales Tax, Kanpur Range3 the Supreme Court has observed:

To begin with it must be noticed that the proviso merely requires that the appeal shall not be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. A question thus arises what is the meaning of the word ''entertained'' in this context? Does it mean that no appeal shall be received or hide or does it mean that no appeal shall be admitted or heard and deposed of unless satisfactory proof is available? The dictionary meaning of the word "entertain"

was brought to our notice by the parties, and both the sides agreed that it means either ''to deal with or admit to consideration''. We are also of the same opinion The question, therefore, is at what stage can the appeal be said to be entertained for me purpose of the application of the proviso? It is entertained when it is filed or is it ''entertained'' when if is admitted and the date is fixed for hearing or is it finally ''entertained'' when it is heard and disposed of? Numerous cases exist in the law reports in which ins word ''entertained or similar cognate expressions have been interpreted by the Courts. Some of them from the Allahabad High Court itself have been brought to our notice and we shall deal with them in due course. For the present, we must say that if the Legislature interned that the word ''file'' or ''receive'' was to be used, there was no difficulty in using those words. In some of the statutes which were brought to our notice such expressions have in fact been used

In the present case, indication that the words "entertained" is not equivalent to the word "file" can be obtained from the section itself. The section opens with the words "No appeal shall be entertained" while in sub-clause (a) the words used are "the appeal is brought within fifteen days next after the presentation of the bill complained of". Therefore, the word "entertained" means something more other than "brought". There cannot be any dispute that the word "brought" means filing of the appeal. There is, therefore, no doubt that the word "entertained" does not mean only filing of appeal by the applicant. That being so, it cannot be said that the appeal could not be filed without first depositing the amount as contended by Shri Rege. The order passed by the Courts below is right and I see no reason to interfere with it. In the circumstances, there will be no order as to costs. Rule is discharged.