Decided on February 14,1972

Madhavlal N. Pittie Appellant


G.N. Vaidya, J. - (1.) The petitioner in this petition under article 227 of the Constitution of India, is challenging the order dated January 14, 1969, passed by the Additional Chief Judge of the Court of Small Causes at Bombay, dismissing the petitioner's appeal under section 217 of the Bombay Municipal Corporation Act, 1888, on the sole ground that the appeal was filed against the Municipal Corporation for Greater Bombay and not against the Municipal Commissioner.
(2.) In connection with the question of the party respondent in an appeal before the Chief Judge of the Small Cause Court under section 217 of the Act the following provisions in the Act are relevant. Under sections 139 and 140 property taxes are directed to be imposed on buildings and lands. Under clauses (b) and (c) of section 140 the basis for taxes is rate-able value of buildings and lands. Persons primarily liable to pay the taxes are indicated in section 146. Sections 154 to 168 relate to procedure for assessing rate-able value and ascertaining the tax payable in respect of the buildings and lands. The Commissioner is directed in the first instance to prepare assessment book containing entries indicated in section 156. Under section 163 the assessee-person responsible to pay taxes is authorised to file a complaint against the rate-able value entered in the assessment book by the Commissioner and under section 165 he is the authority prescribed to investigate and dispose of the complaint after giving opportunity to show cause and a hearing to the complainant. The result of the decision of the Commissioner must then be entered in the assessment book which can be amended under section 167 by the Commissioner. Under section 217 right of appeal is created in favour of the affected assessee in respect of the Commissioner's decisions under sections 163 and 165. Chief Judge of the Small Causes Court at Bombay is the prescribed appellate authority.
(3.) The above provisions indicate that the lis or the subject matter of the appeal is the rate-able value of the building of an assessee. The two parties to the lis are the debtor assessee on the one hand and the creditor or the claimant the Municipal Corporation of Greater Bombay on the other. The Commissioner is the prescribed authority whose decisions would be under challenge in the appeal. He would not have interest of any kind in the subject matter or the lis in the appeal. A tribunal prescribed to make decisions can never be a party respondent in an appeal against its decisions though sometimes it may be joined pro forma. The Additional Chief Judge was therefore not justified to make contrary findings and dismiss the appeal of the petitioner on the ground that the Municipal Corporation was not the correct respondent and that the appeal should have been instituted against the Commissioner.;

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