PHIROZ FRAMROZE TARAPOREWALLA Vs. MUNICIPAL CORPORATION OF POONA

JUDGEMENT

(1.) This revision application raises a question as to the jurisdiction of the Poona Magistrate to hear an appeal from an order of the Chief Officer, Poona Borough Municipality, with regard to assessment of the property of the petitioners in Poona, after the Bombay Provincial Municipal Corporation Act came into force. The assessment was made by the Chief Officer on 31-12-1949, and the assessee preferred an appeal to the Magistrate on 28-1 1950, and the new Act, (LIX [69] of 1949) came into force on 15-3 1960. Under Section 406 (1) of the now Act, appeals against any rateable value or tax fixed or charged under the Act shall he heard and determined by the Judge, and "the Judge" is defined, for the purpose of Poona, as the Judge of the Small Caused Court. Therefore, the contention is that although the petitioners had preferred their appeal to the Magistrate under the Municipal Boroughs Act, by reason of the new Act coming into force and by reason of Section 403 the Magistrate ceased to have jurisdiction to hear that appeal and the Small Causes Court Judge because a competent appellate tribunal and he alone could hear that appeal against the order of assessment.

(2.) Now, this Act repeals the Municipal Boroughs Act by Section 490, and therefore by virtue of the Bombay General Clauses Act all pending proceedings under the old Act would be saved. When the Municipal Boroughs Act was repealed, the petitioners' appeal was pending before the Magistrate, and under the General Clauses Act that proceeding would not be affected by any provision in the new Act. Mr. Thakore contends that there is a clear intendment in the Act itself which goes to show that the Legislature wanted the pending proceedings to be affected and the Legislature also intended to give a retrospective effect to Section 406 of the Act. My attention is drawn to Section 434 (1) which provides that the Civil Procedure Code shall apply to appeals to the Judge from the orders of the Commissioner, and it is pointed out that under the Act the taxing authority is the Commissioner and not the Chief Officer and appeals from the orders of the Commissioner with regard to assessment are provided, as pointed out, to the Judge, and therefore in those appeals the provisions of the Civil Procedure Code would apply. Under Section 437, the provisions of the Code of Criminal Procedure shall, so far as may be, apply to all inquiries and proceedings under this Act before the Magistrates. Mr. Thakore says that the intention of the Legislature was that appeals should be governed by the Civil Procedure Code, and therefore if this appeal continues before the Magistrate, the provisions of the Criminal Procedure Cods would apply which was not the intention of the Legislature. I fail to see how Section 434 and Section 437 in any way help the contention of the petitioners. Both these sections provide for proceedings which arise under the Act. The proceeding I am considering did not arise under the Act but had arisen under the repealed Act and these were pending when the Act wag repealed, and I see no difficulty as to the application of the law to these proceedings. I do not see what the Criminal Procedure Code has got to do with assessment and rating, and although the Magistrate is constituted an appellate Court, he deals with rating and assessment as a special authority appointed under the Municipal Boroughs Act.

(3.) My attention is then drawn to Appendix IV and Clause 4, Sub-clause (4) of that Appendix, provides :