In an appeal filed under section 169 of the Maharashtra Municipalities Act, 1965, an assessee cannot challenge the legality or validity of the tax itself. The scope of an appeal under section 169 of the Act is limited to assessment and valuation.

Headnote:
MUNICIPAL TAXATION - APPEAL - SCOPE - LEGALITY OR VALIDITY OF TAX - ASSESSMENT - VALUATION - OBJECTIONS - NOTICE - INDIVIDUAL NOTICE - CONDITION PRECEDENT - IMPOSSIBILITY OF PERFORMANCE - MAXIM 'LEX NON COGIT AD IMPOSSIBILIA' - AMENDMENT OF MEMORANDUM OF APPEALS.
Fact of the Case:

Three civil revision applications were filed by the Municipal Council, Morshi, challenging the orders passed by the Sessions Judge, Amravati as well as the Judicial Magistrate, First Class, Morship declaring the bills issued by the Municipal Council for recovery of amount or the year of the tax for the year 1971-72 as illegal and directing the Municipal Council to refund the amount of tax paid by the opponents.
Finding of the Court:

1. In an appeal filed under section 169 of the Maharashtra Municipalities Act, 1965 (the Act), it is not open to an assessee to challenge the legality or validity of the tax itself. 2. The scope of an appeal under section 169 of the Act is limited to assessment and valuation. 3. The condition precedent incorporated in section 170(b) of the Act for entertaining the appeal will not come into operation if individual notice as contemplated by section 119(2) of the Act was not served upon the assessee. 4. The maxim 'lex non cogit ad impossibilia' (the law does not compel the doing of impossibilities) applies when doing of some positive act, doing of which is required to be done within the prescribed time and according to the manner indicated by the rules, is made impossible of performance.
Issues: 1. Whether in an appeal filed under section 169 of the Act, an assessee can challenge the legality or validity of the tax itself? 2. Whether the scope of an appeal under section 169 of the Act is limited to assessment and valuation? 3. Whether the condition precedent incorporated in section 170(b) of the Act for entertaining the appeal will come into operation if individual notice as contemplated by section 119(2) of the Act was not served upon the assessee? 4. Whether the maxim 'lex non cogit ad impossibilia' (the law does not compel the doing of impossibilities) applies when doing of some positive act, doing of which is required to be done within the prescribed time and according to the manner indicated by the rules, is made impossible of performance?
Ratio Decidendi: 1. The provisions of section 169 of the Act are generally worded. The appeal contemplated under section 169 of the Act is an appeal against any claim for taxes and if this is so, it is open to an assessee to contend in his appeal that as the procedure prescribed by the Act is not followed, the tax itself is not either properly imposed or levied. 2. Section 169 of the Act provides an appeal against a claim for taxes or other dues included in a bill presented under section 150 of the Act. Practically similar provisions were made under Bombay District Municipal Act, 1901, with which a Division Bench of this court was concerned in the case of The Municipality of Ankleshwar v. Chhotelal (cit. supra). In the said case after making a reference to the relevant provisions of the said Act, the Division Bench observed that the scope of the appeal or revision under section 86 of the Act is indicated by several sections which have been briefly reviewed above. The basis of all the procedure, in the case of a rate on lands and buildings, is the preparation of the assessment list which contains the name of the street where the property is situated, the designation of the property, the name of the owner or occupier, the letting value of the property and the amount of the tax assessed thereon. It is the entries in this assessment list that are the subject matter of objections to be filed under section 65. The public notice given under sub-section (1) of section 65 is for the purpose of informing the public that the objections to the valuation and assessment are to be received and the objections have to state that grounds on which the valuation and assessment are disputed. After the objections are disposed of, necessary amendments have to be made in the assessment list. After the assessment list is duly authenticated, the entries in the authenticated list are conclusive evidence of the letting value of the property and of the amount of tax leviable thereon. But the entries are subject to the result of an appeal under section 86. It would thus appear that the appeal under section 86 is with respect to the valuation and assessment with respect to which objections are heard and disposed of under section 65. When a bill is presented under section 82 of the sum claimed as due by way of tax, the person to whom the bill is presented may either pay the sum due or show cause to the satisfaction of the Municipality why be should not pay the same or prefer an appeal in accordance with section 86. Section 86 makes it clear that the appeal is against the claim included in the bill. But no appeal can be heard or determined unless (1) it is filed within 15 days from the preservation of the bill, (2) the amount claimed from the appellant is deposited by him in the municipal office and (3) (this is the most important clause) an application in writing stating the ground on which the claim of the Municipality is disputed has been made to the Municipality within the time fixed under section 65 in the case of a rate on buildings or lands. It seems to us that this clause makes it clear that the appeal can only be with respect to the matters with regard to which an objection could be taken in the inquiry made by the Municipality under section 65 of the Act, and the scope of the appeal is confined only to the grounds stated in the objections made to the Municipality under that section. As we have pointed out earlier, the inquiry made by the Municipality under section 65 is limited to the valuation and assessment so far as the rates on buildings and lands are concerned. Section 86 A makes the position still clearer for, under that section every entry in the assessment list-(and this refers in particular to the valuation and assessment)-and the amount of every sum claimed from any person under the Act on account of tax-(and this refers to the quantum claimed as due under the bill)-is final subject to the decision of the Magistrate in any appeal that may be preferred. Sub-section (2) also makes it clear that the appeal before the Magistrate "is against any such entry or tax". This our opinion, makes it plain that the appeal is confined to the valuation and assessment list shown in the entry in the assessment and to the tax, i. e. the quantum of the sum claimed in the bill and to no other matters. 3. The condition precedent incorporated in section 170(b) of the Act for entertaining the appeal will not come into operation if individual notice as contemplated by section 119(2) of the Act was not served upon the assessee. It is provided by section 332 of the Act that any infirmity or error or omission or that defect shall not be deemed to render the assessment made invalid if the provisions of the Act, rules or bye-laws have in substance and effect been complied with. However, it is quite clear from the bare reading of section 119 of the Act that a satutory provision is made in this behalf with an intention to provide an opportunity to the assessee to file objections to the valuation and assessment as shown in the list. If such a notice is given and such an opportunity is afforded, then section 170 (b) creates a bar for entertaining an appeal unless such an opportunity is availed of by the assessee concerned. But in the cases before us, it is an admitted position that no individual notice at all was given to the assessees concerned. If no individual notice as such was given to them, then it was impossible for them to raise objections to the valuation and assessment relating to their property as shown in the assessment list. In substance, therefore, the condition laid down in section 170 (b) of the Act could not have been complied with by them. 4. The maxim 'lex non cogit ad impossibilia' (the law does not compel the doing of impossibilities) applies when doing of some positive act, doing of which is required to be done within the prescribed time and according to the manner indicated by the rules, is made impossible of performance.
Final Decision: The revision applications are allowed. The orders passed by the Judicial Magistrate, First Class, as well as the Sessions Judge are set aside and the matters are remanded back to the Judicial Magistrate, First Class, Morshi, for deciding the appeals on merits in accordance with law. However, in the circumstances of the case, there will be no order as to costs.

JUDGMENT

DHARMADHIKARI J.-These three Civil Revision Applications have been filed by the Municipal Council, Morshi, challenging the orders passed by the Sessions Judge; Amravati as well as the Judicial Magistrate, First Class, Morship declaring the bills issued by the Municipal Council for recovery of amount or the year of the tax for the year 1971-72 as illegal and directing the Municipal Council to refund the amount of tax paid by the opponents. As all these 3 revision applications raise common questions of fact and law, they were heard together and are being disposed of by this common judgment.

2. The three houses concerned in these cases are house No. 127 belonging to Tulsiram and houses Nos. 129 and 142 belonging to Vishwanath Gadbail. All the houses are situated in Ward No. 10 of Morshi town in Amravati district. The previous assessment figures for tbese three houses for the assessment years 1968 to 1971 were Rs. 9.55, Rs. 13.50 and Rs. 43.50 respectively. The new assessment of taxes on these very houses for the years 1971 to 1974 are Rs. 60.00, Rs.29.00 and Rs. 59.45 respectively. It is not disputed that a public notice as contemplated by section 119 (1) of the Maharashtra Municipalities Act, 1965, referred to hereinafter as the Act, was issued by the Municipal Council. Further, it is also not disputed that no individual notices were served on these assessees, as required by the latter part of section 119 (1) of the Act.

3. Municipal Council, Morshi, presented the necessary bills under section 150 of the Act on the asses sees. Being aggrieved by these bills, the assessees filed appeals before the Judicial Magistrate First Class under section 169 of the Act and raised various contentions. The main contention raised by the assessees in these appeals was that as there was an increase in the assessment, the assessees were entitled to individual notices, besides the general notice under section 119 of the Act. Since this was Dot done, the taxation as well as assessment were illegal.

4. The learned judicial Magistrate, First Class, who entertained the appeals came to the conclusion that there was a new assessment under the new Act and, therefore, individual notices were necessary and the said notices were Dot served on the assessees. In view of this he allowed the appeals and directed refund of the amount paid by the assessees.

5. Being aggrieved by this order passed by the appeals, the Municipal Council filed revision applications before the Sessions Judge, Amravati and the Sessions Judge came to the conclusion that in the instant cases there was an increase in the taxation and, therefore, individual notices under section 119 of the Act were obligatory. He further found that this was a case of imposition of a new consolidated property tax for the first time under the provisions of the Maharashtra Municipalities Act, 1965 and there is also an increase in the assessment and, therefore, the individual notices were necessary. He further came to t he conclusion that as individual notices were not served on the assessees, the tax and its recovery became illegal. In view of this, he dismissed the revision applications filed by the Municipal Council. Being aggrieved by these orders, the present civil revision applications are filed by the Municipal Council.

6, When these civil revision applications were placed for hearing before the Single Judge of this Court, the learned Single Judge directed that these revision applications should be put up before a Division Bench, as an important question of law as to the scope of appeal under section 169 of the Act as well as interpretation of the provisions of sections 170 (b) and 172 of the said Act is involved in these revision applications. In view of this order passed by Masodkar J. these revision applications are put up before us for final hearing.

7. Shri Khamborkar, the learned counsel appearing for the Municipal Council, contended before us that the Sessions Judge as well as the Judicia

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Judicial Analysis