MUNICIPAL CORPORATION HYDERABAD Vs. TABERA BEGUM

JUDGEMENT

(1.) This civil revision petition arises out of an appeal filed under Section 282 of the Municipal Corporations Act, 1955 hereinafter referred to as 'the Act by a tax payer, the respondent herein, questioning the enhancement of property tax made by the Municipal Corporation of Hyderabad. In the appeal, the Chief Judge, City Small causes Court, Hyderabad before whom the appeal was filed, granted interim stay of collection of the enhanced tax pending disposal of the appeal- Questioning the correctness of this stay order, the Municipal Corporation of Hyderabad has filed this civil revision petition. It is provided under Section 282 (2) (d) that no appeal should be heard by the Judge unless in the case of an appeal against tax, the amount claimed from the appellant has been deposited by him with the Commissioner. The case of the Municipal -Corporation is that the" above provision is a mandatory provision and therefore the learned Judge has no jurisdiction to grant stay of collection of the tax.

(2.) The respodent did not put in appearance in the civil' revision petition. To assist the Court Sri. M. Jagannadha Rao was appointed as amicus curiae and I am very thankful to him for the able way in which he assisted the Court. He has argued that under .Section 670 of the Act provision is made for the application of the Code of Civil Procedure relating to appeals that arise under the , Act and therefore as provided under Order 41 Rule 5 of the code of civil procedure the learned Judge is empowered to grant stay of collection of the enhanced tax. He has also argued citing a decision of the Supreme Court in Income Tax Officer vs. Mohamned Kunhi (1) that irrespective of any specific provision an appellate cpurt shall have power to grant stay as incidental or ancillary to its appellate jurisdiction. On the other hand, Sri. M. V, Ramana Reddy, learned counsel for the Municipal Corporation has argued that Section 670 has no application to the appeals arising under Section 282 of the Apt and that provision is intended to apply only to appeals from the orders of the Commissioner which are mentioned in Chapter XX in which that Section appears and if the appellate court will have power to grant stay as incidental or ancillary to its appellate jurisdiction that power must be deemed to have been taken away impliedly by reason of the provision contained in Section 282 (2) (d) It is also argued by Sri. Venkataramana Reddy that the appeal itself was not validy filed before the lower court for the reason that the appeal could not have been vatidly filed without depositing the tax with the Commissioner as provided under Section 282 (2) (A) aad therefore the order of stay passed by the lower court is without jurisdiction. So far as this last argument of the learned counsel is concerned, what is provided under section 282 (2) is that no appeal shall be heard by the judge unless the conditions mentioned therein including the condition of depositing the amount of tax with the commissioner are fulfilled, In this connection Sri. Jagannadha Rao has brought to my notice t decision of the Supreme Court in M/s Lakshmiratan Eegineering Works vs. Aaat. Commissioner, Sales Tax, Kunpur (1). In that case the Supreme Court was dealing with the provision to section 9 of the U. P. Sales Tax Act wherein it is provided that an appeal shall not be entertained unless it is acompained by satisfactory proof of payment of the admitted tax. The Supreme Court held that the word 'entertainrd' does not mean that no appeal shall be received or filed and it only means the appeal should not be heard unless satifactory proof of payment of the amount of the admitted tax is shown. In the case before us also what is mentioned in- section 282 (2) is that no aapeal shall be heard by the Judge unless the tax claimed has been deposited by the appellant with the Commissioner. Therefore, the prohibition is with regard to bearing of the appeal and not with regard to filing of the appeal It is not possible to say that the appeal is not validly filed even if it is filed without depositing the amount of enhanced tax with the Commissioner. Therefore the only question for consideration is whether in the appeal which is validly filed, the lower court has power to grant stay of collection of the tax having regard the provision contained in section 282 (2) (d) of the Act. At already mentioned above, section 670 occurs in Chapter XX of the Act. It is provided therein that save as expressly provided by that Chapter, the provisions of the Code of Civil Procedure 1908, relating to appeals from original decress shall apply to appeals to the judge from the order of the Commissioner. Chapter XX starts with section 654 and ends with section 674. In section 654 the orders of the commissioner against which appeals lie to the judge are enumerated. Therefore it is argued by Sri Venkataramana Reddy that the appeals mentioned in section 670 are those mentioned in Section 651. On the other band it is argued by Sri. Jagannadha Rao that, no such restriction is mentioned in section 670 and what is mentioned therein, is appeals to the judge from the orders of the Commissioner. Therefore, the Civil Procedure Code relating to appeals is made applicable not only with regard to appeals enumerated in Section 624 but they are also made applicable to appeals to the judge provided they are from the orders of the commissioner, whether they are those mentioned in Section 634 or not.

(3.) In the absence of any restriction mentioned in section 670 for confining the appeals mentioned therein only to the appeals mentioned in Section 654. I think Section 670 covers all the appeals against the orders of the commissioner made under whatever provision of the Act. If the appeal in question made to the Chief Judge, City Small Causes Court, can be said to be one made against an order of the Commissioner, Section 670 would be attracted which case Order 41 Rule 5 of the Code of Civil Procedure is applicable and the learned judges would be within his power to grant stay. But the important question for consideration is whether the appeal in question is one against an order of the Commissioner. A reading of sec282 under which the appeal in question is filed shows that they are appeals against rateable values or taxes fixed or charged under the Act. As provided under section 197 of the Act the authority to impose taxes is the corporation. Therefore, the appeals provided under section 282 are not against any orders of the commissioner as such. Sri Jaganadha Rao uas, however, argued that as provided under section 214 it is the commissioner who has to keep the assessment-book and as provided under Sec. 268 it is the Commissioner who has to cause demand notices served on the assessees and the respondent had come forward with the appeal only when he was served with a demand notice for the payment of the tax as enhanced and therefore it must, be taken that primarily it is the order of the commissioner which is appealed against. I do not think there is any force in this submission made by the learned counsel. The complaint of the respondent is essentially against the enhancement of tax. The subsequent action, if any, taken by the commissioner either with regard to the entries in ths assessment book or causing demand notice served on the respondent for payment of the enhanced tax are only consequential and ministerial acts taken to give effect to the enhancement of the tax made by the Corporation. Thus ths appeals is against the enhancement made by the Corporation. Therefore, the appeal in question is not an appeal against any order of the commissioner to attract ihe provisions of section 670 of the Act. Even though section 670 his no application still there is the inherent power as held by the Supreme Court in Incom-tax Officer v. Mohammed Kuahi (1) for and appellate court to grant stay. Sri Venkata Ramana Reddy has, however, argued that when there is a specific provision like the one under section 282 (2) (d) according to which no appeal should be heard unless the amount claimed towards tax has been deposited with the commissioner, it must be taken that the power inherent in the appellate court to grant stay must be deemed to have been impliedly taken away by the condition imposed for hearing the appeal. Because of the provision under section 282 (2) (d) it is only, a tax payer cannot claim bis appeal to be beard as of right unless the deposit is made. That does not necessarily mean that the power inherent in the appellate authority is taken away by necessary implication. Normally according to the provision a tax payer has to deposit the tax before his appeal is heard. But in appropriate cases, .to avoid hardship, the appellate authority by exercising, its inherent power can grant stay. Having regard to ths provision and the special nature of taxation and revenue laws the court may not exercise its power of stay in a routine way or as a matter of course, it is only when a strong prima facie case is made out or in a case where it results in real hardship to i the tax payer if stay is not granted, the court will consider whether to grant stay or not and on what conditions it wilt be granted. As held by the Supreme Court in the decision, Income Tax Officer v. Mohammadkaahi (1), referred to above, it is only in the most deserving and. appropriate cases where the court is satisfied that the entire purpose of ihe appeal will be frustrated or rendered nugatory by not granting stay or in case of real hardship, the court will think of granting stay. That means the court should give reasons tor coming to a conclusion to grant atay. Therefore, inspite of the provision contained in section 282 (2) (d) of the Act in appropriate cases the court has power to grant stay of collection of tax. The order of the lower court granting stay is only an interact order. No final order seems to have been passed. The stay petition has yet to be disposed of finally by the lower court. The lower court is directed to consider the matter in the light of the observations made above and pass find orders in the stay petition, whether to grant stay or not. With the above direction, the civil revision petition is dismissed. No coast. HYDERABAD MUNICIPAL CORPORATION ACT, 1955:Sec. 282 (2) (d) 654. 670Appealspower of Chief Judge to grant stayinherent powers of court de hors the Act to grant stay.