Bombay High Court
Wandleside National Conductors Ltd. vs Municipal Corporation For The City Of ... on 26 April, 1989
Equivalent citations: 1989(1)BOMCR655, (1989)91BOMLR812, 1989MHLJ755
JUDGMENT Kotwal, J.
1. (The following paras of the judgment are made for reporting by His Lordship), xxx xxx xxx xxx
7. As to whether an appeal provision is prescribed under section 406 of the Act qua the order directing levy of octroi would hardly be open for any debate in view of the clear prescription in section 406. This is placed in Chapter 26 regarding the proceedings before the Judge, District Judge and Magistrates. It is divided into 10 parts each part being complete by itself. Section 406 falls in Part III relating to appeals against valuation and taxes. It obviously applies even to the octroi since the octroi is also accepted as a tax on which there is hardly any dispute. The said provision in so far as is relevant reads as---
'Section 406 : (1) Subject to the provisions hereinafter contained appeals against any rateable value or tax fixed or charged under this Act shall be heard and determined by the Judge.
(2) No such appeal shall be entertained unless-
(a) it is brought within fifteen days after the accrual of the cause of complaint;
(b) ............................................................................................................
(c) in the case of an appeal against any tax in respect of which provision exists under this Act for complaint to be made to the Commissioner against the demand, such complaint has previously been made and disposed of;
(d) .............................................................................................................
(e) in the case of an appeal against a tax, or in the case of an appeals made against a rateable value the amount of the disputed tax claimed from the appellant, or the amount of the tax chargeable on the basis of the disputed rateable value, upto the date of filing the appeal has been deposited by the appellant with the Commissioner."
The other sub-sections of this provision are not so material to this controversy. Section 407 prescribes the cause of complaint when to be deemed to have accrued and suggests that in respect of an appeal against any tax as referred in sub-clause (c) of sub-section (2) of section 406 it shall be on the day when the complaint against the tax which is not covered by the earlier sub-clause releting to sub-clause (c) of sub-section (2) of section 406 then it shall be on the day when the payment thereof is demanded or when the bill thereof is served. Section 408 relates to the permissibility of an arbitration in that behalf prescribing that where any such appeal against the tax charged is pending and all the parties agree that the matter be referred to arbitration they may apply to the Judge for an order of reference and the Judge may grant the same when the provisions of arbitration Act relating to arbitration suits would be applicable whereafter the said Judge would be deemed to be a correct Court within the meaning of the Arbitration Act and the application itself would be treated as an application made in the suit. Section 410 gives liberty to the Judge to refer the matter along with his opinion on any particular point for decision to the District Court in such an appeal even agaisnt tax involving any question of law or usage having the office of law or the construction of the document. Section 411 provides an appeal to the District Court for any decision of the Judge passed in an appeal under section 406 where the rateable value exceeds Rs. 2000/- and also upon a question of law or usage having a force of law or construction of the document. Sub-clause (29) of section 2 of the Act prescribes 'the Judge' means the Judge of the Court of Small Causes, and in any other City the Civil Judge (Senior Division) having jurisdiction in the City.
8. The scheme of section 406 and the further section in Part III of that Chapter would make it clear that the mechanics in that behalf is complete by itself providing for an appeal and also providing in a fit case to refer the matter to arbitration and even permits the Judge to refer to the District Court if any question as stipulated there is involved. On the basic aspect as to whether the appeal is maintainable under section 406 as raised by Shri Naik the wording of this provision and especially the terminology used in sub-section (1) and sub-section (2) is quite clear making the said contention wholly illustory. It is thus manifest that sub-section (1) prescribes that the appeal "shall be heard and determined" by the Judge against the tax charged under the Act and therefore this main clause itself connotes the maintainability of an appeal since it has got to be heard and determined by the Judge. This is obviously against an order of charging the tax namely the octroi and the Judge as prescribed under the Act thus gets jurisdiction under this provision to "hear and determine the appeal". Hearing and dedtermination of an appeal obviously proceeds on the foundation of the maintainability of the appeal itself or otherwise there is no question of granting any hearing of such appeal. This is high-lighted by the contrast in the terminology used in sub-clause (2) which prescribes certain conditions and unless those are satisfied the appeal "shall not be entertained". Those conditions include the question of limitation and also the deposit being made of the amount demanded in that behalf against which the appeal is filed. Now significantly the embargo put by this sub-clause (2) relates and restricts only to the "entertaining the appeal" and it is lifted immediately when the requirements such as limitation and depositing the amounts are satisfied. It is manifest that this glaring contrast in the terminology used in sub-clauses (1) and (2) when read properly makes it clear that the appeal has got to be heard and finally determined under sub-clause (1) once it is filed and therefore its maintainability is not only implicity but is express. Sub-clause (2) does not wipe out the effect of sub-clause (1) but only stipulates that once such an appeal is filed for the hearing and determination under sub-clause (1) then the Judge would not entertain it on its merits unless the requirements carved out in various sub-clauses are satisfied which include the question of limitation and the appellant depositing the amount demanded and the moment those requirements are satisfied then the appeal has got to be entertained and therefore it has got to be heard and determined in accordance with law. Such clause of entertaining the appeal unless the stipulations thereunder are satisfied does not knock out the very maintainability of the appeals for hearing and determination under sub-clause (1). Both fall entirely on different tracks though connected together and in any event the deliberate user of the different terminology in these two provisions namely that the appeal shall be heard and determined under sub-clause (1) and the appeal shall not be 'entertained' unless the requirements are satisfied makes the situation quite clear about the legislative intent and it is further clarified by the clear position that the first clause which is the main one grants permissibility of filing an appeal which has got to be heard and determined on merits while the second clause carves out stipulation on procedure as the condition precedent for entertaining the appeal. Thus "hearing and determining" the appeal is an entirely different concept from "entertaining an appeal". Even in the second clauses the appeal continues to be maintainable though its hearing and determination may be pin-pointed unless and until the other requirements are satisfied which are more or less procedural. In other words when the appeal is filed under sub-clause (1) the Court has merely to find out under sub- clause (2) whether it is within time and whether the deposite has been made out and if it is so found then appeal has got to be entertained on merits. In other words the right to file appeal under sub-clause (1) is not taken away by insertion of sub-clause (2). Even if both the clauses are read together the position remains intact that the aggrieved party has a right to appeal against any tax so charged under the Act and such an appeal becomes maintainable in law under sub-clause (1). Sub-clause (2) only prescribes certain procedural qualifications and for entertaining the appeal as the appeal is required to be filed within 15 days and some other conditions. The contention of Shri Naik, therefore, that the appeal itself is not maintainable under sub-clause (1) and even if the requirements under sub-clause (2) are satisfied obviously cannot be upheld. The conclusion, therefore, is inescapable that an alternate remedy of appeal is prescribed under the Act against the tax charged before the Judge being the authority prescribed under the Act itself. All the requirements, therefore, are satisfied on the facts of this case also as the grievance is against the tax charged under the Act. It is also accepted that the Commissioner has negatived the protest of the petitioners in that behalf. The contention of Shri Naik, the learned Counsel that no provision is made either under the Act or the Rules for making a complaint to the Commissioner against the demand of the tax has also no substance having regard to the relevant provisions of the Act and the rules which need not be elaborated but which are claimed in that field and this clause again relates to the entertaining of the appeal and to the filing of the appeal itself. Even otherwise on facts the requirements of that clause are fufilled in this case which is apparent from various circumstances and documents and in fact it is not seriously disputed and as such there would be no difficulty even for entertaining the appeal on that count. Even otherwise this clause like any other clause in sub section (2) relates to the procedural part creating some difficulty in entertaining the appeal and has nothing to do with the maintainability of the appeal as alternatively if as suggested by Shri Naik there is no provision for complaint being made to the Commissioner then its non compliance would not affect the right of the petitioners to file and appeal under sub-clause (1) since the non entertaining of the appeal on that ground would not be permissible. In other words, basically the substantive provision of clause (1) grants permissibility of levelling protest and challenge to the order of charging octroi by preferring appeal. Thus read together the position admits of no other inference but that the remedy of appeal was available to the petitioners in the instant case. As suggested all the said provisions of the Act and the procedural law in filing the appeal are self contained and even permit reference to arbitration or reference to the District Court if a contigency arises and in particular reference to an arbitrator may become necessary in a case where there involved several technical aspects which can be better thrashed out before the arbitrator.
9. In view of this position it is satisfactorily established that the petitioners had an alternate remedy of appeal under section 406 of the Act against the tax that is charged and which has been made the subject matter of this petition and secondly it is an admitted position that the petitioners have not availed of the said alternate remedy but have straightway filed this petition under Article 226 of the Constitution of India.
10. The next question, therefore, would be as to whether this objection raised by Shri Sawant the learned Counsel about the matainability of this petition in the absence of availing of the alternate remedy by the petitioners should be entertained and determined on merits and this is in the context of Shri Naik's contention that this objection is being raised for the first time nearly nine years after the filing of the petition and specially when no objection was taken at any stage earlier and in particular at the time when both the parties were heard before passing the interim order which is indicated herein above. It is no doubt true that the contention raised by Shri Naik cannot be said to be wholly devoid of any substance and the lapse on the part of the respondents in not raising objection for several years even at the stage of interim relief having consented thereto cannot be rightly brushed aside. As the counter part the contention of Shri Sawant, the learned Counsel for the respondent that notwithstanding such a lapse the objection involves a neat question of law which goes to the root of the matter cannot be thrown overboard wholly on that cannot also cannot be lightly ignored. However, it also cannot be equaly over-looked that in a fit case even if there is alternate remedy available which is not availed of still entertaining of a writ petition under Article 226 of the Constitution of India is not wholly precluded. It has, therefore become necessary to have harmonious consideration of all these three situations as under such situations the Court may be justifiably slow in dismissing the petition on that count and it is for that purpose that the parties were allowed to argue the matter on merits essentially find out whether the proceeding can be finally disposed of on merits when a substantial period of nine years has elapsed and the petition has already been admitted long back. This of course not undermening the thrust of the objection raised on behalf of the Corporation by Shri Sawant, especially when no explanation is tendered as to why such an appeal was not filed by the petitioners. Even a cursory consideration of the rival contentions on the merits of the matter would justifiably lead to the conclusion that all the respective rival contentions are essentially based on facts which very much would require some evidence and a vast extent of material and which exercise can hardly be undertaken in this extraordinary and limited jurisdiction under Article 226 of the Constitution of India and the facts in the instant case are such that it may become difficult to effectively adjudicate on the issues involved and resolve the controversy in the absence of adequate data and merely on the basis of the affidavits and some certificates relied upon by both the parties. On the contrary, the lower Appellate forum would be the proper one where all the faces can be properly unfolded and even evidence can be led so as to have proper adjudication on the matter and under that mechanism even the parties may be prompted to consider whether the matter could be referred to arbitration on which forum it can be better adjudicated since all the technical aspects can be properly thrashed out there. any way the limited field available on this forum creates formidable difficulty in adjudicating the matter one way or the other and which may not be conducive to the interest of justice. To high-light this position only a few features can be referred.
xxx xxx xxx xxx xxx Rule discharged with no order as to costs.