ISHWARLAL GULABDAS v. SURAT MUNICIPAL CORPORATION — 1973 DIGILAW 126 (GUJ)

M. P. THAKKAR, J. ( 1 ) THIS common judgment will dispose of a group of five appeals arising out of suits instituted by different rate-payers in the city of Surat against the Surat Municipal Corporation with the end in view to challenge the legality and validity of municipal tax levied by the then Borough Municipality of Surat (subsequently the Borough Municipality was converted into a Municipal Corporation ). Both the lower Courts have recorded a concurrent finding that the imposition of tax is legal and that there is no substance in the challenge made by the rate-payers. The rate-payers have preferred five second appeals under sec. 100 of the Code of Civil Procedure. Most of the contentions are common. In two matters namely Second Appeal No. 715/69 and Second Appeal No. 109 there is an additional point involved. As the appeals were disposed of by a common judgment by the District Court and as the matters involve common questions of facts and law it would be convenient to dispose them of by a common judgment. ( 2 ) THE learned counsel for the appellant-plaintiff has urged two submissions which require to be considered in somewhat greater detail. The first point urged by counsel is that the lower Courts have arrived at an erroneous conclusion that the defendant-Municipality had duly observed the preliminary procedure enjoined by sec. 75 of the Boroughs Act (in regard to assessment for 1964-65) and sec. 101 of the Gujarat Municipalities Act (for the assessment year 1965-66) on account of a wrong approach. ( 3 ) THE plaintiff knocked at the door of the Court on a general allegation that the Municipality had not followed the proper procedure required to be followed by the relevant provisions of the Act. He did not specify which particular step had not been taken. No particulars were given in the plaint or at any stage thereafter. It would have been better if the Municipality had made an application calling upon the plaintiffs to furnish further and bettor particulars. Be that as it may the parties went to trial on the basis of this vague general allegation that appropriate procedure was not followed. It was not the case of any of the plaintiffs that there was any particular specified defect or lacuna in the procedure followed by the Municipality. Be that as it may the parties went to trial on the basis of this vague general allegation that appropriate procedure was not followed. It was not the case of any of the plaintiffs that there was any particular specified defect or lacuna in the procedure followed by the Municipality. They did not give any particulars in the pleadings or at the trial. Even so the Municipal authorities produced the entire record and established that all the necessary steps enjoined by sec. 75 of the Boroughs Act (and sec. 101 of the Gujarat Municipalities Act which is in pari materia) were followed during the ralevant period. . . . . . . . . . . . . . . . Now it has been clearly established by the documentary evidence produced by the defendant-Municipality that public notices inviting objections to the imposition of the tax had been duly published as required by sec. 78 of the Boroughs Act (the corresponding section of the Municipalities Act is sec. 101 ). It is also established that the Government had approved the rules published by the Municipality. The sanctioned rules were published by the Government on February 27 1965 A notice under sec. 87 was published giving information as regards the preparation of the assessment list. The grievance of the learned counsel for the appellants-plaintiffs is that the defendant-Municipality should have produced and proved the resolution passed at the general meeting for selecting one of the taxes specified in sec. 73 of the Municipal Act. Now it has been established that rules under sec. 53 (j) had been framed pursuant to the resolution and sanction had been accorded to it by the Government. It is also proved that objections had been invited and all the necessary steps had been taken. Since it was not specifically challenged and put in issue pointedly that the resolution contemplated by sec. 73 selecting the tax had been passed by the Municipality that particular resolution was not produced. The argument of counsel for the appellant is that it is the duty of the defendant-Municipality and the burden rests entirely on it to establish that all the necessary steps had been taken. It is no doubt true that it is for the Municipality to show that proper procedure was followed but even so the question has to be examined in the back-drop of the pleadings and the contentions. It is no doubt true that it is for the Municipality to show that proper procedure was followed but even so the question has to be examined in the back-drop of the pleadings and the contentions. It cannot be divorced from the nature of the pleadings. And it is an admitted position that the plaintiffs never pleaded in the plaint that no such resolution had been passed. The attention of the parties was not focussed on this aspect at all. Again it is not necessary for proving the resolution that the minutes of the meeting should be placed on record. It can also be proved by circumstantial evidence. The very fact that objections were invited the rules were framed rules were sent to the Government and sanction was accorded to levy the tax shows that the resolution was passed. It must be realised that a civil action is not a game of hide and seek between the parties. It is not a game of chess where parties try to checkmate each other by their wiles and guiles. It is not an arena to lay booby traps for trapping each other. The Courts entertain the disputes between the parties with a view to objectively and impartially resolve the real lis between them. If therefore a plaintiff complains that a particular thing was not done he has to clearly say so and call upon the other side to prove it. It is not fair of him not to specify the alleged defect or lacuna. It is not sufficient for him to make a mere allegation that the procedure was not followed and rest content by pointing out some unwary slip committed by the other side. It was open to the plaintiffs at any stage to make an application to the Court to call upon the defendant-Municipality to produce this resolution. The plaintiffs never did so. It is not as if they were lying in ambush to attack the defendant by sneaking an opportunity to do so. They had come to the Court complaining that a public body had not levied a tax in the proper manner without stating what they meant by saying that the appropriate procedure had not been followed. Be it realised that it is no longer possible to uphold the proposition that taxation is an obnoxious thing and an evil measure. They had come to the Court complaining that a public body had not levied a tax in the proper manner without stating what they meant by saying that the appropriate procedure had not been followed. Be it realised that it is no longer possible to uphold the proposition that taxation is an obnoxious thing and an evil measure. Taxation by a Municipality is imposed on those who can bear the burden in order that the health and well-being of the citizens is maintained and the citizens can live in sanitary conditions. Civil amenities and sanitary conditions are equally essential for those who are required to pay taxes as for the society at large. It is not as if these amenities are meant solely for those who are not obliged to pay the taxes. When there is scarcity of rain for instance the citizens look to the Municipality for providing them with the amenity of drinking water at the cost of lacs of rupees (as it happened in the case of Bhavnagar which had no drinking water in its water reservoir on account of draught and the Municipality provided a special long distance pipeline at the cost of lacs of rupees ). When there are floods or epidemic again the citizens look to the Municipality for maintaining sanitary conditions. It is thanks to these measures that the affluent sections are able to live in health safety and comfort as also to maintain their sang-froid. An industrialist cannot make money if there is an epidemic and the workers flee from the city. So also a lawyer a doctor a professor or a merchant will be without his client patient student or customer. Nor will the epidemic extend special immunity to him or his family members. It is therefore not possible to view taxation as an evil measure and to feel trigger-happy or feel virtuous in striking down an impost. More so when it is challenged on trivial and technical grounds and when reliance is sought to be placed on the failure to produce a resolution which the Municipality was never required to produce and in regard to which no specific grievance was made by the plaintiffs at any stage. The lower Courts were right in reaching the conclusion that the Municipality had established by voluminous documentary evidence that all the necessary steps had been taken. The lower Courts were right in reaching the conclusion that the Municipality had established by voluminous documentary evidence that all the necessary steps had been taken. I am unable to detect any infirmity in the approach made by the lower Courts. There is no substance in the contention. It must therefore be rejected. ( 4 ) THE next submission the last one is based in regard to the authentication of the assessment lists for the years 1964-65 and 1965-66. It is contended by the learned counsel for the appellants-plaintiffs that this controversy (projected in point No. (7) framed by the lower appellate Court) centres round the authentication of the assessment lists from the standpoint of sec. 81 (4) of the Boroughs Act corresponding to sec. 108 (4) of the Gujarat Municipalities Act which is in pari materia. The argument has two facets. First that the defendant-Municipality ought to have entrusted the work of disposing of the objections either to the standing committee or some other committee as contemplated by sec. 81 (1) (2) and (3 ). The work should not have been entrusted (such is the argument) to four committees as has been done in the present case. The second facet of the argument is that the authentication should have been made by the Chairman of the Standing Committee and not by two members of the committees to which the work was entrusted. ( 5 ) IN order to understand the content of the argument a few facts require to be stated. By a resolution Ex. 65 dated April 29 1964 the defendant-Municipality appointed four Appeal Committees for disposing of the objections lodged by property holders against the draft assessment list prepared by the Municipality. The work relating to the disposal of the objections was distributed amongst these four Committees ward-wise. The objections lodged by the property holders had to be investigated a hearing had to be afforded to the objectors and their objections had to be disposed of in accordance with law by the Committee concerned before authenticating it. And the investigation hearing disposal of objections and authentication had to be completed within the official year. The objections lodged by the property holders had to be investigated a hearing had to be afforded to the objectors and their objections had to be disposed of in accordance with law by the Committee concerned before authenticating it. And the investigation hearing disposal of objections and authentication had to be completed within the official year. If it was not done within the official year the assessment list would have been rendered invalid as laid down in The Borough Municipality of Amalner v. The Pratap Spinning Weaving and Manufacturing Company Limited 54 B. L. R. 451 and The Municipal Corporation of the City of Ahmedabad v. Jhaveri Keshavlal Lallubhai 6 G. L. R. 228. The Municipal Authorities were therefore faced with the problem of disposing of the objections after following proper procedure and after affording reasonable opportunity to the objectors before the deadline at the peril of the assessment list being rendered invalid. Now having regard to the amount of work involved in a large city like Surat it would not have been possible to complete it before the deadline if only one Committee was entrusted with this work. They therefore appointed four Committees to do this work. The argument of the learned counsel for the appellant is that this is contrary to law in the sense that it is not in conformity with sec. 81 of the Boroughs Act and sec. 101 of the Gujarat Municipalities Act. Sub-sec. (3) and subsec. (4) of sec. 81 require to be quoted in order to understand the essence of the argument. They read as under :- (3) The standing committee after allowing the applicant an opportunity of being heard in person or by agent shall (a) investigate and dispose of the objections (b) cause the result thereof to be noted in the book kept under sub-sec. (2) and (c) cause any amendment necessary in accordance with such result to be made in the assessment-list:- Provided that before any such amendment is made the reasons therefore shall be recorded in the book kept under sub-sec. (3):- Provided further that powers and duties of the standing committee under this sub-section may be transferred to any other committee appointed by the municipality or with the permission of the Commissioner to any officer or pensioner of the Government. (4) When all objections made under this section have been disposed of and all amendments required by sub-sec. (3):- Provided further that powers and duties of the standing committee under this sub-section may be transferred to any other committee appointed by the municipality or with the permission of the Commissioner to any officer or pensioner of the Government. (4) When all objections made under this section have been disposed of and all amendments required by sub-sec. (3) have been made in the assessment-list the said list shall be authenticated by the signatures of the chairman and atleast one other member of the standing committee or if the standing committees powers and functions under sub-sec. (3) have been transferred to any other committee or to an officer or pensioner of the Government by the signatures of not less than two members of such committee or of the officer or pensioner aforesaid; the person or persons so authenticating the list shall certify that no valid objection has been made to the valuation and assessment contained in the list except in the cases in which amendments have been made therein. (Emphasis added ). It is argued that on a true reading of sec. 81 (3) and (4) (and the analogous provisions of sec. 101 (3) and (4) contained in the Gujarat Municipalities Act) the Legislature appears to have contemplated entrustment of this work to any other committee meaning thereby one particular committee. It could not have been entrusted so runs the argument to four committees as has been done by the Municipality. Now in my opinion there are two good answers to this argument. First that the singular would include the plural and that any other committee would also mean any other committees. Second that even if the provision is construed as having contemplated the entrustment of the work to one particular committee that does not appear to be the essence of the matter. In other words it is difficult to comprehend what particular objective was to be gained by insisting on the work being completed by only one committee instead of by more than one committee. Even if therefore the provision is construed as suggested by the counsel for the plaintiff it cannot be considered to be of the essence of the matter that the objections should be disposed of only by one particular committee and not by more committees appointed in this behalf. Even if therefore the provision is construed as suggested by the counsel for the plaintiff it cannot be considered to be of the essence of the matter that the objections should be disposed of only by one particular committee and not by more committees appointed in this behalf. To put it differently the reference to one committee must be construed as being directory and not mandatory. The essence of the matter was investigation of the objections affording appropriate hearing and disposing of the objections in accordance with law. It was not the essence of the matter whether it was done by one committee or more committee. Therefore even if the contention were to be upheld it would not help the plaintiffs for there was substantial compliance with the procedure enacted in secs. 81 (3) and 81 In order to render the assessment list invalid it will have to be shown that something which was the essence of the matter was not complied with or that some essential condition was not conformed to. Just as a judgment cannot be struck down on the ground that it contains grammatical mistakes or spelling mistakes the assessment list cannot be struck down merely on the ground that four committees disposed of the objections instead of one committee so long as the objections have been disposed of in accordance with law after affording reasonable opportunity to the other side. In any view of the matter therefore there is no substance in this point. The view taken by the lower Courts must therefore be confirmed. ( 6 ) THE same point was argued in a somewhat different manner and from a different angle. It was contended that the authentication should have been made under the signature of the chairman and two members of the committee. In the present case authentication has been made by two members of the committee. The chairman has not made his signature in token of authentication. Now there is nothing in sub-sec. (4) which requires that authentication should be made under the signature of the chairman when the work is entrusted to a committee other than the standing committee. On analysing sub-sec. (4) it becomes clear that three possible situations are contemplated by the Legislature. First where the standing committee itself disposes of the objections. Now there is nothing in sub-sec. (4) which requires that authentication should be made under the signature of the chairman when the work is entrusted to a committee other than the standing committee. On analysing sub-sec. (4) it becomes clear that three possible situations are contemplated by the Legislature. First where the standing committee itself disposes of the objections. In that case the authentication has to be done by the chairman of the standing committee and one other member of the standing Committee. To quote the relevant part of sub-sec. (4) :-WHEN all objections made under this section have been disposed of and all amendments required by sub-sec (3) have been made in the assessment-list the said list shall be authenticated by the signatures of the chairman and at least one other member of the standing committeethe second situation contemplated is where the matter is entrusted to some other committee. In that case it has been provided that the authentication has to be made by two members of such committee. The relevant part of the provision may be quoted in this context. It runs as under:-OR if the standing committees powers and functions under sub-sec. (3) have been transferred to any other committee or to an officer or pensioner of the Government by the signatures of not less than two members of such committee. The third situation is as regards work which is entrusted to an officer or pensioner. We are not concerned with any such situation. On a plain reading of sub-sec. (4) it is thus clear that there is no substance in this contention. ( 7 ) THE last submission of the learned counsel for the appellantplaintiff is that the authentication could not have done by two members of the committee unless the powers in this behalf were delegated under sub-sec. (3 ). Now there is no substance in this contention either. Subsec. (3) of sec. 81 provides that the work relating to investigation and disposal of the objections should be done by the standing committee and duties can be entrusted to any other committee. The requirement regarding transferring or delegation of the powers contemplated by proviso to sub-sec. (3) relates to the investigation of the objections and to the disposal of such objections. It does not relate to authentication. The requirement regarding transferring or delegation of the powers contemplated by proviso to sub-sec. (3) relates to the investigation of the objections and to the disposal of such objections. It does not relate to authentication. So far as the authentication is concerned the provision itself provides the inbuilt machinery and enacts that the authentication has to be made by two members of such committee when the work is transferred to such a committee. There is no question of delegation involved under the circumstances. The source of the power is to be found in sub-sec. (4) itself and in the power conferred by the Legislature by virtue of this provision. For the source of the power it is not necessary to turn to sub-sec. (3) at all. There is therefore no question of any delegation under subsec. (3 ). Counsel for the appellant-plaintiff has called my attention to The Municipal Corporation of the City of Ahmedabad v. Jhaveri Keshavlal Lallubhai 6 G. L. R. 228 and has contended that there are certain observations therein which support his submission. Reliance is placed on the following passage at pages 257 and 258 :-THAT leaves out the last contention urged by Mr. J. C. Bhatt and that is that even if the Commissioner was entitled to investigate and dispose of objections under sec. 81 (8) and to authenticate the assessment list under sec. 81 (4) the Commissioner had not authenticated the assessment lists for the official years 1947-48 to 1951 and the assessment lists for those official years were authenticated by the aforesaid six appellate officer who had no authority to do so. Now when. we turn to the orders of delegation which are Exs. 151/9 and 151/12 we find that the only powers delegated by the Commissioner under sec. 69 (1) of the Corporations Act to the aforesaid six appellate officers were the powers under sub-secs (2) and (3) of sec. 81. The power to authenticate the assessment lists which is the power under sub-sec. (4) of sec. 81 was not delegated by the Commissioner to the aforesaid six appellate officers and a fortiori they were not entitled to authenticate the assessment lists. Mr. G. N. Desai made a valiant attempt to support the authentication of the assessment lists made by the aforesaid six appellate officers on the ground that the delegation of the powers under sub-secs. (2) and (3) of sec. Mr. G. N. Desai made a valiant attempt to support the authentication of the assessment lists made by the aforesaid six appellate officers on the ground that the delegation of the powers under sub-secs. (2) and (3) of sec. 81 carried with it also the delegation of the power under sub-sec. (4) of sec. 81. But this contention was obviously futile. Sub-sec. (4) of sec. 81 provides for authentication of the assessment list and the authenticating authority has also to certify that no valid objection has been made to the valuation and assessment contained in the assessment list except in the cases in which amendments have been made in it. Sub-sec. (6) of see. 81 invests the authentication of the assessment list with a special authority in that the entries in the authenticated list are declared to be conclusive evidence of the valuation or annual letting value of the properties to which such entries refer as also of the amount of rate leviable on such properties. The authentication is therefore no idel formality which has no consequence and which can therefore be omitted to be carried out without any invalidating consequence. The authentication of the assessment list has important consequences and is a matter of substance and the aforesaid six appellate officers were not entitled to authenticate the assessment lists in question unless powers to do was so delegated to them by the Commissioners The power to authenticate under sub-sec. (4) of sec. 81 was admittedly not delegated by the Commissioner to the aforesaid six appellate officers and the authentication of the assessment lists was therefore bad. In my opinion the argument is untenable and ill-founded. The question as to whether or not the delegation was necessary when the work of investigation of objections and disposing them of was transferred to a sub-committee was never before the High Court. Interpretation of sec 81 and 81 (4) from this standpoint was not the subject-matter of arguments before the High Court. Whether or not sub-sec. (4) itself provided the source of power for an authentication was never argued in that case for no occasion arose to do so. In that case the question arose in a different context. Before the assessment year was over the Boroughs Act ceased to apply since the Municipality was converted into a Corporation and the Bombay Provincial Municipal Corporations Act of 1949 came to apply. In that case the question arose in a different context. Before the assessment year was over the Boroughs Act ceased to apply since the Municipality was converted into a Corporation and the Bombay Provincial Municipal Corporations Act of 1949 came to apply. As the Borough Municipality ceased to exist the standing committee and the committee entrusted with the work of investigating the objections and disposing them of also disappeared. This work had therefore to be done by the Commissioner under the transitional provisions. The Commissioner himself did not do so. He delegated his powers to some other officersthe delegation was made in the context of sec. 81 (3) only. It was not made in the context of sec. 81 (4) presumably due to inadvertence. And the observations made by the High Court are in the aforesaid setting. They have no relevance or bearing on the questions raised before me. In my opinion there is nothing in this decision which buttresses the proposition canvassed by counsel. 11 No other point is argued. The appeals must therefore fail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . All the five appeals fail and are dismissed with costs throughout. ( 8 ) THE learned counsel for the appellant-plaintiff orally applies for certificate of fitness to enable him to prefer an appeal to a Division Bench under clause 15 of the Letters Patent. The matters do not raise a question which can be considered fit for such appeal. Certificate is therefore refused. Appeal dismissed. Leave to L. P. A. refused. .