Judgement

MITTER, J. : These are two appeals by special leave against the judgment and order dated January 8, 1963 of the Gujarat High Court dismissing Civil Revision Applications 116 and 117 of 1961filed by the appellant and allowing similar applications Nos. 173 and 174 of 1961 filed by the respondent against the common judgment dated December 1 , 1960 passed by the District and Sessions Judge of Panchmahals.

2. The matter arises out of assessments made by the appellant constituted under the Bombay Municipal Boroughs Act, 1925, on the respondent under Section 73 of the Act. The respondents are an electricity company owning inter alia properties bearing several numbers in the municipal borough of Godhara. For the years 1956-57 and 1957-58 the appellant had fixed the valuation of the properties belonging to the respondent, at Rs.3,25,000. On appeal by the respondent, the Judicial Magistrate fixed the valuation of the properties at Rs. 90,000. On the appellant going in revision, the Sessions Judge fixed the valuation at Rs. 1,25,000. As a result of the High Court s decision the valuation stood reduced to Rs. 90,000. The present appeals are by the Municipality.

3. Under Sec. 73 (1) of the Bombay Municipal Boroughs Act, 1925 (hereinafter referred to as the Act,):

"Subject to any general or special orders which the State Government may make in this behalf and to the provisions of Sections 75 and 76, a municipality may impose for the purposes of this Actany of the following taxes, namely-

(i) a rate on buildings or lands or both situate within the municipal borough.

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The procedure preliminary to imposing tax is laid down in Section 75 and Section 78 deals with the preparation of an assessment list. Section 58 empowers the municipality to make rules prescribeing the taxes to be levied in amunicipal borough for municipal purposes etc. Rules 4, 5 and 7 relevant for our purpose read as follows:

"4. Modes of valuation: (l) For the purpose of determining tax the following properties shall be valued on the capital basis-

(a) All open lands, building and yards belonging to the Railway Administration.

(b) All buildings and lands other than those which are actually used for residential purposes belonging to Mills and Factories to which the Indian Factories Act, is applied.

(2) All properties other than those mentioned above shall be valued on the basis of the annual letting value as defined in section 3 (1) of the Act.

5. Mode of determining capital value-The capital value of properties mentioned in Rule 4 (1) shall, in each case, be determined on such reliable data as the Railway Authorities and the Agents of the mills and the factories may furnish when called upon from time to time to do so and in the absence of any such trustworthy reliable data, it shall be determined by the Chief Officer or by expert valuers employed by the municipality for that purpose.

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7. Amount of tax:-In case of properties which, as stated above, are valued on the capital basis the tax to be levied shall be assessed at Re. 0-8-0 percent of the capital value and it shall be a direct tax thereon provided however that any fraction of hundred in excess of fifty rupees shall be taken as the next higher hundred and any fraction of fifty rupees or less be taken as the lower hundred.

(2) In case of properties which, as stated above, are valued on the annual letting value the tax to be levied shall be assessed as shown in the appendix hereto. "

Under Rule 4 (l) (b) above, the buildings of the respondent had to be valued on the capital basis. Under Rule 5 the capital value of properties had to be determined on such reliable data as the respondent might furnish and in the absence thereof, it would be the duty of the Chief Officer to determine the same. Before the Judicial Magistrate, one R. R. Tewari, an Assistant Secretary of the respondent who had affirmed an affidavit showing that the approximate value of the seven items of property on which tax was sought to be imposed