TMI Blog1979 (2) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... d by an Act. 3. The amended Section 217 is challenged in the petition on the ground that it contravenes the provisions of Articles 19, 31 and 355 of the Constitution of India and also on the ground that by enacting it the legislature impinged upon the Judicial sphere. The petitioners also seek a writ of mandamus to fix at the figure mentioned in the petition the ratable value of the said property. The ratable value of the said property is the subject-matter of the pending appeal before the Chief Judge and it is agreed between the parties that it should be left to be determined in the appeal. 4. The relevant provisions of Section 217, as unamended and as amended, need to be set out. Section 217 (1) (2) (d), unamended: 217 (1). Subject to the provisions hereinafter contained, appeals against any ratable value or tax fixed or charged under this Act shall be heard and determined by the Chief Judge of the Small Cause Court. (2) But no such appeal shall be heard by the said Chief Judge, unless- (d) In the case of an appeal against a tax, or in the case of an appeal made against a ratable value after a bill for any property tax assessed upon such value has been served on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d after the said date, the Chief Judge shall not hear and decide such appeal, unless the amount of the tax claimed by each of the bills, which may have been issued since the entertainment of the appeal, is also deposited, from time to time, with the Commissioner in the first month of the half year to which the respective bill relates. In case of default by the appellant at any time before the appeal is decided, on getting an intimation to that effect from the Commissioner, the Chief Judge shall summarily dismiss the appeal. 5. Under the provisions of the unamended Section 217 no appeal against retable value could be heard unless the amount claimed by a bill for property tax was deposited with the Municipal Commissioner. Under the terms of the amended Section 217 no appeal against retable value can be entertained unless the amount of tax chargeable on the basis of the disputed ratable value is deposited with the Commissioner. In respect of pending appeals the amended Section 217 provides that they shall be summarily dismissed if the amount of the tax chargeable on the basis of the disputed rateable value up to the date of the filing of the appeal is not deposit-ed within 30 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. One of the provisions challenged was the amended Section 406 of that Act whereunder it was provided that no appeal against rateable value should be entertained unless the amount claimed from the appellant by a bill for property taxes was deposited in Court. The amended section gave to the Judge discretion to dispense with the deposit or a part thereof if he was of opinion that the deposit would cause undue hardship to the appellant. The Supreme Court held that the requirement to deposit the amount claimed as a condition precedent to the entertainment of the appeal had not the effect of nullifying the right of appeal. The Court observed, .....The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition to such conditions. It is permissible, for example, to prescribe a condition in criminal cases that unless a convicted person is rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter alia, of Section 217 to contend that the amendment sought only to fill the coffers of the Corporation and that this could not be said to be a matter of public interest for which a restriction upon the right to hold property could validly be imposed. The first paragraph of the statement states that it had become necessary to amend the Act with a view to improving the finances of the Corporation and to remove administrative difficulties. The paragraph which relates specifically to Section 217 states that, since it took time for the appeal to reach hearing, the Corporation was deprived in the meanwhile of valuable revenue; that the appellant after filing the appeal ignored subsequent bills; and that the loss on this account was estimated at about ₹ 6 crores annually. The amended provisions of Section 217 are, as I read them, intended to ensure that the appellant should secure for the Corporation the amounts concerned directly, that is for the year in respect of which the appeal is filed, and indirectly, that is for the subsequent years in respect of the property concerned until the appeal is heard and disposed of. In the judgment of a Division Bench of this Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides for a tax upon the basis, therein stated, of the rateable value of the property. Section 154 lays down how the rateable value is to be determined. Section 196 requires the Commissioner to keep a book called the assessment book in which, inter alia, the rateable values of all properties are entered. After the rateable values have been entered in the assessment book public notice is to be given and complaints invited against the amounts entered. The complaints are to be heard and investigated and upon being disposed of the necessary amendments are to be made in the assessment book. Upon this, the Municipal Commissioner is to verify and authenticate the assessment entered in the book and this becomes conclusive evidence of the tax leviable on properties. Thereupon, under the provisions of Section 200, bills are to be issued for the payment of property tax. Under the provisions of Section 217 the aggrieved property holder has a right to appeal from the decision upon his complaint to the Chief Judge. From the Chief Judge's decision, an appeal lies to the court under the provisions of Section 218 (d). Section 219 provides that if no complaint is made against the rateable value, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it to the court to apply it but itself discharged pending proceedings. The Court concluded on the basis of the facts that led up to the passing of the Ordinance that the ordinance had not taken away the power of the court to pass orders under Section 491 and that the proceedings were not to be treated as discharged. In the instant case, in any event, the section does not provide that if the requisite deposit is not made in pending proceedings, they stand discharged. In the event of the appellant's failure to make the deposit, the Chief Judge is enjoined by the section to make an order of dismissal. The pending appeal concludes, whether or not the requisite deposit is made, in a judicial order. 17. Mr. Makhija pleaded that the provisions of the amended Section 217 were harsh and left no discretion to the Chief Judge to condone the deposit, either fully or in part, in cases of undue hardship. This is undoubtedly true; but the court cannot test the validity of statutory provisions upon the touchstone of harshness or stringency. 18. Finally, Mr. Makhija suggested that the provisions of Section 217 were penal in nature and could not, therefore, be retrospective in operation. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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