The levy of surcharge under the Andhra Pradesh Urban Areas (Surcharge on Property Tax) Act, 1958 is not made dependent upon any assessment, but an assessment is necessary for the determination of the quantum of surcharge leviable. The procedure prescribed under Rule 9 of Schedule IV of the Madras District Municipalities Act, which requires public notice and special notice to the owner or occupier of the property concerned in case of enhancement of assessment, is applicable to the assessment and realization of surcharge under the Act.

( 1 ) THESE four second appeals involve one common question and the parties also are the same in all the four second appeals. These second appeals were referred to a Division Bench by N. D. Krishna Rao, J. , as the correctness of the view taken by Ekbote J. , in S. A. No. 617 of 1962 which was relied on by the learned counsel for the appellant before him and was questioned by the learned counsel for the respondent. The Municipal Council of Vizianagaram, represented by its Commissioner and Executive Authority is the appellant and an assessee in that Municipality is the respondent in all the four second appeals, The second appeals arise out of four suits filed by the appellant in the Court of the District Munsif at Vizianagaram for recovery of certain sums made up of:-- (1) house-tax due for certain half-years; (2) Surcharge on the said house-tax; and (3) Library cess and warrant fees.

( 2 ) IN addition to the other defences the respondent as defendant raised the plea that the demand made by the appellant in so far as it relates to the surcharge and the library cess was illegal as the procedure prescribed under Sections 78 and 80 and Rule 9 of Schedule IV of the Madras District Municipalities Act had not been followed by the appellant Municipality before the demand was made.

( 3 ) THE learned District Munsif upheld this contention of the respondent and held that the demand of tax towards surcharge and library cess made by the appellant was Illegal. In appeal preferred by the Municipality, the learned District Judge Visakhapatnam reversed the decision of the trial Court in so far as the demand of the library cess was concerned and held that the demand was made in accordance with the provisions of law. It, however, confirmed the decision of the trial Court in so far as the demand for surcharge was concerned and held that though Sections 78 and 80 of the Act have no application to the cases, since the procedure laid down by Rule 9 of Schedule IV of the District Municipalities Act was not followed before the demand was made, that demand was illegal and that, therefore, the defendant was not liable to pay the amount which represents the surcharge.

( 4 ) THE assessee has not preferred any second appeal, while the municipality has preferred these second appeals questioning the correctness of the decision of the lower appellate Court on the question of surcharge. Therefore, the only question that falls for consideration in these second appeals is whether the demand of surcharge made by the appellant against the respondent without following the procedure as laid down under Rule 9 of Schedule IV of the Madras District Municipalities Act is valid or not.

( 5 ) THE surcharge in question is sought to be levied under the Andhra Pradesh Urban Areas (Surcharge on Property Tax) Act, 1958 (Act No. XIII of l958 ). Section 3 of the Act lays down:--"notwithstanding anything contained in the Municipal Act but subject to the provisions of Section 4, there shall be levied in the cities of Hyderabad and Secunderabad and in every major municipality in the State of Andhra Pradesh. with effect from the financial year commencing on the first day of April, 1958 a surcharge on the properly tax payable; for the year in respect of every building of the class specified in column (1) of the Table below at the rate specified against each such class in Column (2) of the said Table"the table given in Section 3 of the Act prescribes varying percentages of the property-tax to be collected as surcharge based on the annual or rateable values of the buildings and also the population of the municipality concerned.

( 6 ) THE learned counsel for the appellant contended that by virtue of the provisions of Section 3 of the Act a surcharge on the property tax stood automatically levied with effect from the financial year commencing from the first day of April, 1958. His argument was that once the property tax payable for the year in respect of a building was