2014 Supreme(Bom) 80

High Court of Judicature at Bombay
A.S. OKA & M.S. SONAK, JJ.
Walchandnagar Industries Limited
Versus
The Municipal Corporation of the City of Pune & Others
Writ Petition No. 9588 of 2013
Decided On: 16-01-2014

Headnote:Bombay Provincial Municipal Corporation Act, 1949 - Section 406(2)(a) - Constitutional validity of. - Held, provisions of Section 406(2)(a) of Act, providing for deposit of disputed tax amount with Commissioner as condition precedent, is constitutionally valid. In upholding constitutional validity of clauses which provide for pre-deposit of disputed amount as a pre-condition for entertainment of an appeal, various Courts have applied the position established in law, that the right of appeal is a creature of a statute and it is for the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. If the statute does not create any right of appeal then no appeal can be filed. The right of appeal is neither an absolute right nor an ingredient of the principles of natural justice. There is a clear distinction between a suit and an appeal. While every person has an inherent right to bring a suit of civil nature unless the suit is barred by statute, in regard to an appeal, the position is opposite. The right to appeal inheres in no one and therefore, for maintainability of an appeal there must be authority of law. When such a law authorises filing of an appeal, it can impose conditions as well. The object of such provisions is to keep in balance the right of appeal conferred upon a person aggrieved with a demand of tax and the right of the Corporation to speedy recovery of the tax. A disability or disadvantage arising out of parties own default or omission cannot be taken to be tantamount to the creation of two classes offensive to Article 14 of the Constitution of India, especially when that disability or disadvantage operates upon all persons who make the default or omission.

       In this sense, Court is concerned with a statute dealing with an economic matter. There is always a presumption in favour of the constitutionality of a statute. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call-trial and error method. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The Courts cannot be converted into Tribunals for relief from such crudities arid inequities. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. The Court must defer to legislative judgment in matters relating to social and economic policies and must not interfere, unless the exercise of legislative judgment appears to be palpably arbitrary.

       The intent of Legislature cannot be defeated merely for the reason that it may operate a bit harshly on a small section of peoples where it may be necessary to make such provisions for achieving the desired objective of providing a right of appeal and at the same time prevent unnecessary delay in recovery of tax. If the very provision for an appeal cannot be regarded as any constitutional mandate or requirement of the principles of natural justice, surely the provision for an appeal, even if hedged with conditions does not fall foul of any constitutional guarantees merely because in a given case some hardship might result.

       As Court detects no constitutional infirmity in Section 406(2)(e) of the said Act, there is absolutely no warrant to fault the impugned order which is premised upon the provision contained in Section 406(2)(e) of the said Act.

       Bombay Provincial Municipal Corporation Act, 1949 - Section 406(2)(e) - Taxation Rules, Rules 7, 8 and 15 to 19 - Nature of proceedings under Section 406(2)(e). - Held, in view of Rules 15 to 19 of Taxation Rules, proceedings under Section 406(2)(e) of Act is an appeal and not original proceedings. There is absolutely no warrant to style proceedings under Section 406 of the said Act as ’original or initial proceedings’. The Taxation Rules, including in particular Rules 15 to 19 referred to above, make it absolutely clear that ’original or initial proceedings’ arise when an owner or occupier lodges objection/complaint in response to property tax assessment special notice under Rule 15. Rule 16 provides that the complaint shall set forth briefly but fully the grounds on which the valuation is complained against. Rule 17 then provides that the. Commissioner shall cause all complaints so received to be registered in a book to be kept for this purpose and shall give notice in writing to the complainant of the day, time and place when and where its complaint will be investigated. Rule 18 provides for afford of hearing to the complainant and investigation and the disposal of the complaint in the presence of the complainant, if he shall appear and, if not, in his absence. Upon disposal of the complaint, the result thereof is to be noted in the book of complaints kept under Rule 17 and any necessary amendment is to be made in accordance with such result in the assessment bill. Rule 19(1) provides for authentication of the assessment bill by the Commissioner and Rule 19(2) provides that the assessment book so authenticated by the Commissioner shall be accepted as conclusive evidence of the amount of property tax leviable on each building and land in the ward in the official order to which the book relates.

       Proceedings under Section 406 of the said Act cannot be styled or compared to ’initial or original proceedings’.