The District Local Board vs Kutuballi Nurjibhai Bohari

Vyas, J.—This revisional application, which is filed by the District Local Board of West Khandesh, raises a point of law and the point is this : If a person pays the tax under the Bombay Local Boards Act without a notice of demand being issued against him under the Act, is an appeal by him u/s 113 of the Act competent?

The District Local Board of West Khandesh, which I shall hereafter refer to as the Local Board, is a statutory body constituted under the Bombay Local Boards Act, 1923. It is the case of the Local Board that it is entitled under the Act and the rules framed thereunder to levy a tax styled ''professional tax'' upon persons residing or carrying on business within a defined local area. The Local Board contends that the opponent Kutuballi Nurjibhai Bohari is a resident of Ranala, which is within the "local area" under the jurisdiction of the Local Board. That being so, says the Local Board, it is entitled to levy a professional tax upon the opponent. On April 29, 1953, the Local Board levied a professional tax upon the opponent and issued bills to him in that connection for the years 1950r51 and 1951-52. Upon receipt of those bills the opponent made an application to the Local Board on May 5, 1953, through the Junior Profession Tax Inspector, Shahada, intimating to them that he was not liable to pay the tax that was levied upon, him as he was not doing his grocery business at Ranala, but was carrying it on at Shahada within the municipal limits. This application was rejected by the President of the Local Board on September 30, 1953. Thereafter, on October 13, 1953, the Junior Profession Tax Inspector, Shahada, intimated to the opponent that as his application dated May 5, 1953, had been rejected by the President of the Local Board, he was liable to pay the tax that was levied upon him for the years 1950-51 and 1951-52. It may be noted that along with the letter dated October 13, 1953, which the Junior Profession Tax Inspector wrote to the opponent, he sent to the opponent a bill dated August 1, 1953, in respect of the professional tax for the year 1953. Upon receiving the above-mentioned letter dated October 13, 1953, from the Junior Profession Tax Inspector, the opponent wrote a letter through his pleader to the President of the Local Board, wherein he contended that he was not liable to pay the tax levied upon him as his place of business was at Shahada within the municipal limits and he prayed that the levy should be withdrawn. On November 10, 1953, the President of the Local Board informed the opponent that as he was a resident of Ranala, a place situated within the local area of the Local Board, his case was covered by the Professional Tax Rules, Rule No. 3(b)(b), and that accordingly the recovery of the tax could not be withheld. Thereupon, the opponent paid the amount of Rs. 150 to the Local Board on November 19, 1953.

It would appear that thereafter, without waiting for the issue of a notice of demand by the Local Board upon the opponent, the opponent made an appeal to the Civil Judge and Judicial Magistrate, First Class, at Shahada, against the levy of the professional tax from him by the bills dated April 29, 1953. In that appeal, the opponent contended before the Court that as the place of his permanent residence was not situated in the local area of the Local Board, he was not liable to pay the professional tax imposed upon him by the said Local Board. During the course of that appeal, the Local Board contended that the appeal was not tenable u/s 113(b) of the Bombay Local Boards Act, 1923, as there had not been issued any notice of demand upon the opponent by the Local Board. It was also contended by the Local Board that as the appeal was not filed within fifteen days of the service of the bills dated April 29, 1953, upon the opponent, it was barred by limitation. It was upon these two grounds that the opponent''s appeal which was made by him before the Judicial Magistrate, First Class, Shahada, was resisted by the Local Board.

The learned Magistrate came to the conclusion that although no notice of demand had been issued by the Local Board upon the opponent, an appeal u/s 113 of the Act was competent. He further held that the Local Board had no jurisdiction to levy the tax upon the opponent. Accordingly he allowed the appeal of the opponent in respect of the bills for the years 1950-51 and 1951-52 and directed the Local Board to refund the amount of Rs. 100 to the opponent, the said amount being the amount relating to the bills for the years 1950-51 and 1951-52.

From this order of the Magistrate, the Local Board filed a Criminal Revision Application, No. 20 of 1955, in the Court of the Additional Sessions Judge, West Khandesh, at Dhulia. The learned Judge held that an appeal u/s 113 of the Bombay Local Boards Act, which was made by the opponent, was not tenable as the Local Board had not issued a notice of demand upon him. All the same, the learned Judge rejected the revisional application of the Local Board upon the, ground that the Bombay Local Boards Act did not provide for a revisional application from an appellate decision of a Magistrate u/s 113 of the Act.

From this decision of the learned Additional Sessions Judge, West Khandesh, the Local Board approached the High Court by way of an application under Articles 226 and 227 of the Constitution of India. That application was heard by a Division Bench of this Court consisting of the learned Chief Justice and Mr. Justice Dixit. It was Special Civil Application No. 2526 of 1955. The learned Chief Justice and Mr. Justice Dixit upheld the view taken by the learned Additional Sessions Judge, West Khandesh, and held that under the Bombay Local Boards Act no criminal revision application lay from an order passed in appeal u/s 113. While passing this order the High Court directed that the Local Board might file a Civil Revision Application, wherein they might challenge the order made by the learned Judicial Magistrate, First Class, Shahada, in the appeal decided by him u/s 113 of the Act. It is in these circumstances that the present Civil Revision Application No. 1822 of 1955 has been filed by the Local Board.

Now, the point which falls to be determined in this revisional application is whether an appeal u/s 113 of the Bombay Local Boards Act is competent, without there being in the first instance a notice of demand issued by the Local Board against the person concerned. The language of Section 113 is clear. There is no ambiguity about it. The section provides:

Appeals against any notice of demand issued under Sub-section (3) of Section 104 may be made to any Judicial Magistrate or Bench of such Magistrates by whom under the directions of the Sessions Judge such class of cases is to be tried. But no such appeal shall be heard and determined unless-

(a) the appeal is brought within fifteen days next after service of the notice of demand complained of;

(b)an application in writing, stating the ground on which the claim of the district local board is disputed, has been made to the district local board as follows, that is to say:

(i) in the case of a rate on buildings or lands, within a time to be notified in the notice given of the assessment or alteration thereof, according to which the bill is prepared, and

(ii) in the case of any other claim for which a bill has been presented under Sub-section (1) of Section 104, within fifteen days next after the presentation of such bill, and

(c) the amount claimed from the appellant has been deposited by him in the local board office.

The opening words of the section, namely, "Appeals against any notice of demand issued under Sub-section (3) of Section 104 may be made" would show that before a Judicial Magistrate or a Bench of Judicial Magistrates can exercise jurisdiction under the section, there ought to be in existence a notice of demand issued by the Local Board under Sub-section (3) of Section 104 of the Act. Then again, the words "No such appeal shall be heard and determined" would also show that the jurisdiction to proceed with the hearing of the appeal made u/s 113 of the Act does not vest in the Judicial Magistrate unless a notice of demand has in the first instance been issued against the person concerned by the Local Board. The words "such appeal" in the expression "No such appeal shall be heard and determined" are important. They refer to an appeal against a notice of demand issued under Sub-section (3) of Section 104. It is, therefore, clear that as no notice of demand had been issued against the opponent by the petitioner Local Board, the Magistrate who decided the appeal of the opponent had no jurisdiction to hear and determine that appeal.

Accordingly this application is allowed and the order passed by the learned Civil Judge and Judicial Magistrate, First Class, Shahada, in the appeal made by the opponent u/s 113 of the Bombay Local Boards Act is reversed. We direct each party to bear its costs throughout.