Municipal Council vs Shriram Saw Mill
2006 Latest Caselaw 1086 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. Municipal Council, Achalpur has filed present petition with request to treat it as Petition in representative capacity in 74 Appeals which are preferred against it by various Occupiers or Allottees of plots in its Bazaar with further direction to all Appellants to deposit entire amount demanded by notices by it as precondition to proceed with the Appeals. Prayer is also made to quash and set aside ex-parte interim stay order dated 4/6/2003 passed by learned J.M.F.C. Achalpur in Appeal No. 54/2002 and other similar Appeals. All these Appeals are filed under Section 169 read with Section 171 of Maharashtra Municipal Council, Nagar Panchayat and Industrial Townships Act, 1965 (hereinafter mentioned as Municipal Act). Considering the nature of controversy, I have heard parties at length at the stage of admission itself. Rule is thus made returnable forthwith.

2. Municipal Council is local authority constituted under the provisions of Municipal Act to look after municipal administration of Achalpur town as per notification under Sub-Article (2) of Article 243Q of Constitution of India. Respondent before this Court is a proprietary concern doing business as Saw Mill and Timber Trading. Petitioner has in its jurisdiction area commonly known as "Lakud Bazaar" (Timber Market) and a plot ad measuring " 8' X 20' " is given on lease by it to Respondent and also other 29 similarly situated commercial establishments. These plots are allotted about 15 to 20 years back. It was charging Rs. 220/-only per year as rent from each allottee and considering the price hikes and establishment expenditure, it decided to have redetermination of said rent. Accordingly it approached to Deputy Director of Town Planning, Amravati and also to Collector, Amravati for that purpose and said authorities then re-determined the rent at the date of Rs. 120/-only per sq m. (i.e. square meter). Collector not only revised the rent but also demanded 50% of the income which petitioner would be getting on account of said hike which works at Rs 6,11,229/ per year. Accordingly said office has made total demand of Rs. 22,45,960/ i.e. Twenty two Lakhs Forty five Thousand Nine Hundred Sixty only for the years 2000 to 2003. Municipal Council states that accordingly it deposited amount of Rs 5 Lakhs with Collector and issued demand notices to all occupiers including respondent to collect rent at new rate.

3. Aggrieved by those bills/demand notices, present respondent and others then filed Appeals under Section 169 read with Section 171 of Municipal Act before Judicial Magistrate, First Class, Achalpur and appeal of present respondent has been registered as Municipal Appeal No. 54/2002. The learned Magistrate issued notice on 27/9/2002 and Petitioner immediately raised the preliminary objection about maintainability pointing out that as required by Section 170, respondent has not deposited full amount of demand notice before preferring Appeal. Respondent by his reply opposed said objection and contended that till appeal is set down for final hearing said amount need not be deposited. In the meanwhile, Petitioner issued notice dated 2/6/2003 calling upon all occupiers including present respondent to pay the arrears of rent within 24 hours or else it would be constrained to take coercive steps including that of forcible dispossession. Respondent and other occupiers then moved application in pending appeal to seek restraining orders and on 4/6/2003 Magistrate granted the same ex parte. On 18/6/2003 petitioner filed application for its vacation but said application is not decided till today and hence, making said grievance and arrears as mentioned above, Municipal Council has filed present writ petition only against one respondent but in representative capacity.

4. I have heard Advocate A.B.Patil for Petitioner, Advocate J.B.Kasat for respondent, Advocate A.K. De for intervener and Advocate A.S. Chandurkar who sought leave to address the court because of issue involved. Permission was accordingly given to him with consent of all Counsel.

5. Advocate A.B.Patil for Petitioner has contended that the Appeal filed by respondent could not have been entertained unless and until all conditions mentioned in Section 170 of Municipal Act were satisfied. He states that the amount as demanded in the bill ought to have been deposited before filing of appeal by Respondent and as that has not been done, his Appeal is liable to be dismissed at the threshold. It is further contended that preliminary objection raised by Petitioner has not been decided so far and exparte interim relief given to Respondent is operating since last more than 3 years and efforts of Municipal Council to have it vacated have failed so far. He argues that in the process public interest is made to suffer and hence, prayers as made should be granted.

6. Advocate J.B.Kasat for Respondent and Advocate A.K. De for intervener have advanced substantially same arguments. It is their stand that the Municipal Appeal is not entertained till it is set down for final hearing and they have placed reliance upon various judgments to support their contention. Judgment of learned Single Judge of this Court reported at 1969 Mh.L.J. 766 between Municipal Council, Wardha v. Zilla Parishad, Wardha and subsequent judgment of learned Single Judge in case of Thane Municipal Council v. Thane Cooperative Housing Society Ltd. reported at 1977 Mh.L.J. 9, are relied upon by them in support. Support is also taken from judgment of Hon'ble Apex Court in case of Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr. reported at for this proposition. In the alternate, it is also argued by them that all Appeals are now at the stage of final hearing and hence, respondent or intervener is bound to deposit the amount as demanded.

7. Advocate A.S. Chandurkar (as amicus curie) has pointed out judgment of Hon'ble Apex Court in case of State of Haryana v. Maruti Udyog Ltd and Ors. reported at and Govind Parmeswar Niar v. Municipal Corporation of Greater Bombay and Ors. to point out that the word "entertain" used in Section 170 of Municipal Act needs to be interpreted in the context in which it is used.

8. Advocate A.B. Patil for Petitioner has contended that the earlier judgment of Hon'ble Apex Court in case of Laxmiratan Engineering Works Ltd v. Assistant Commissioner (Judicial Court) I, Sales Tax-I, Kanpur reported at considers and interprets provision which is materially different. However, according to him as all Appeals are now for final hearing the amount needs to be deposited. He argues that no interim relief could have been given to present respondent as the amount of rent as demanded in bill was not deposited by him.

9. It will be proper here to reproduce relevant sections of Municipal Act with Section 170 around which the controversy revolves:

Section 170. Procedure in appeal. --No appeal under the last present in section shall be entertained unless:

(a) the appeal:

(i) under such Section (1) or under Clause (b) of Sub-section (2) of Section 169 is brought within 30 days next after the presentation of the bill complained of;

(ii) under Clause (a) of Sub-section (2) of Section 169, to the Property Tax Appeal Committee is brought within 30 days next after the presentation of the bill complained of, and

(iii) under the provisions of Sub-section (2) of Section 169, to the Judicial Magistrate against the decision of the Property Tax Appeal Committee is, brought within 30 days next after the decision of that Committee;

Provided that, in cases where the person to whom the notices of demand or bills have been served after the 1st Apr 1995, and who have not been able to file appeals against such claim for taxes made in the bills to the Property Tax Appeal Committee within the time limit specified, may file appeals to the Property Tax Appeal Committee within 90 days next after the coming into force of the Maharashtra Municipal Council Nagar Panchayats and Industrial Townships (Amendment) Act, 1996 (21 of 1996).

(b) an application in writing stating the grounds on which the claim of the Council is disputed has been made to the Council in the case of tax on buildings or lands or both within the time fixed in the notice given under Sections 119 or 123 of the assessment or alteration thereof, according to which the bill is prepared; and

(c) (i) the appellant under Sub-section (1) of Section 169 has paid in the Municipal office the full amount included in the bill; and

(ii) the appellant under Sub-section (2) of Section 169 has paid in the Municipal office:

(A) the full amount of tax as paid by him for the last preceding assessment year:

(B) in respect of new properties being assessed for the first time, 30% of the amount of tax claimed in the bill by the Council:

Section 170 when it was considered by two learned Single Judges of this Court in 1969 and 1977 respectively read as under:

170. No appeal under the last preceding section shall be entertained unless --

(a) the appeal is brought within 15 days next after the presentation of the bill complained of, and

(b) (not relevant)

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

Thus there is no material difference insofar as the issue involved here in is concerned in earlier Section 170 and present Section 170.

10. In Municipal Council, Wardha v. Zilla Parishad, Wardha (supra) the argument of Municipal Council was that the amount was required to be deposited before filing of appeal. This court has in paragraph 10 of report found that provisions of C.P. & Berar Municipalities Act were more liberal than Section 170. It was left to the discretion of Magistrate hearing appeal whether to insist upon the recovery of tax before the decision was given. This court has noticed --

Under the present Act, that discretion is clearly taken away. However, when this is being done, it would be necessary to examine the intention and purpose of these provisions and the extent of change that was really sought to be made. A right of appeal is a substantive right. If two constructions are possible regarding the provisions of filing appeals, the one which is more favorable to assessee should be accepted than the one which is more favorable to the Department or the taxing authority. Was it really intended that not only the appeal should be presented within 15 days but the amount of the bill should also be deposited in the Municipal office within the same period? On the face of it, it appears to me that a strict view of Clause (c) of Section 170 of the Maharashtra Municipalities Act, 1965 will require a assessee to deposit the amount of the bill in the Municipal office and and not no other mode of payment. If in a given case, the municipal office or the staff in municipal office were to put off receiving the amount under one pretext or the other and defer the receipt of tax beyond 15 days, could it be said that right of appeal is lost? The right of appeal being a substantive right shall not be made to depend upon the whim and will of taxing authority. The use of the expression "depositing the tax in the municipal office" runs counter to the concept of requiring the payment to be made within the period prescribed for the bringing of appeal. Then again, on placed reading of the opening clause of Section 170, what is laid down in Section 170 are the conditions for entertaining the appeal which is contemplated by Section 169. When is an appeal entertained? This expression has been considered in relation to various statutes and some cases have been cited before me in that behalf. I will presently refer to them. It appears plain to me that expression "entertained" you then Section 170 is in its normal diction meaning "to deal with or admit to consideration". Unless the rules of procedure of the Court provide for a preliminary hearing and summary dismissal of an appeal, the matter is admitted to consideration or is dealt with only when it is set down for final hearing after notice to other side. Under the provisions of Section 170 of the Maharashtra Municipalities Act, no rules are yet made and none were brought to my notice. I will, therefore assume that appeal presented under Section 169 is automatically admitted and notices are issued to the other side for taking the appealing to consideration, that is, for entertaining the appeal. When that stage is reached and the parties are being heard, the Magistrate entertains the appeal. It would be enough if the assessee deposits the amount to the Municipal office before that date. Since depositing the amount in the Municipal office is necessary and since the office of Municipality could defeat the attempt to deposit the amount, it would be appropriate to hold that deposit could be made before the appeal is actually entertained by the Magistrate. If the appellant finds difficulty in the matter of deposit, he could take the Magistrate's order directing the respondent Municipality to accept the deposit. He could satisfy the condition in Clause (c) of Section 170 with the assistance of the Court and thereafter the matter could be heard on merits and disposed off. This is the view taken by learned Sessions Judge and the Municipality is questioning the correctness of this approach."

In this judgment only in paragraph 11 interpretation by Hon'ble Apex Court upon provision of Section 30(1) of Income Tax Act which contained the proviso Provided that no appeal shall lie against an order under Sub-section (1) of Section 46 unless the tax has been paid." are considered and it is noticed that "The Supreme Court accept the proposition that payment of tax within the period of limitation is necessary. However, it is not necessary that both the acts must be simultaneous or that the tax ought to be paid first and then the appeal presented. An appeal presented on the 10th day after the date of the order would not by itself be bad in the tax is paid within the remaining 20 days provided for the filing of the appeal, and evidence of payment is made available. The appeal memo though presented earlier would be deemed to have been presented on the date of payment. If the payment, however is not made at all within the time prescribed, there would be no valid presentation of the appeal. This construction is made by the Supreme Court on the footing that section contemplates that "no appeal shall lie". The expression "no appeal shall lie" is very much different from the expression "no appeal shall be entertained

The Learned Single Judge has in paragraph 12 then drawn support from interpretation of word "entertained" by Hon'ble Apex Court in M/s Laxmiratan Engineering Works Ltd v. Assistant Commissioner (Judicial Court) I, Sales Tax-I, Kanpur (supra) holding that it is nearer to the facts of case before it.

11. In Thane Municipal Council v. Thane Cooperative Housing Society Ltd, (supra) another learned Single Judge of this Court has taken same view after relying upon the judgment of Hon'ble Apex Court in M/s Laxmiratan Engineering Works Ltd (supra) in paragraph 8. It is observed that -

In the present case, indication that the words "entertained" is not equivalent to the word "file" can be obtained from the section itself. The section opens with the words "No appeal shall be entertained" while in Sub Clause (a) the words used are "the appeal is brought within 15 days next after presentation of the bill complained of". Therefore, the word "entertained" means something more other than "brought". There cannot be any dispute that the word "brought" means filing of the appeal. There is, therefore no doubt that word "entertained" does not mean only filing of appeal applicant. That being so, it cannot be said that appeal could not be filed without first depositing the amount as contended by Shri Rege.

12. Judgment of Hon'ble Apex Court in case of Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr. (supra) considers language of Section 170 of Delhi Municipal Corporation Act, 1957. Said section reads:

170. Conditions of right to appeal --No appeal shall be heard or determined under Section 169 unless-

(a) the appeal is, in the case of a property tax, brought within thirty days next after the date of authentication of the assessment list under Section 124 (exclusive of the time requisite for obtaining a copy of the relevant entries therein) or, as the case may be, within thirty days of the date on which an amendment is finally made under Section 126, and, in the case of any other tax, within thirty days next after the date of the receipt of the notice of assessment or of alteration of assessment or, if no notice has been given, within thirty days after the date of the presentation of the first bill or, as the case may be, the first notice of demand in respect thereof:

Provided that an appeal may be admitted after the expiration of the period prescribed therefor by this section if the appellant satisfies the court that he had sufficient cause for not preferring the appeal within that period:

(b) the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation." After pointing out its earlier judgment in case of M/s Laxmiratan Engineering Works Ltd (supra) in paragraph 42, in paragraph 44 the Hon'ble Apex Court observes:

44. It seems to us the words of Section 170(b) are capable of a broader interpretation. A perusal of Section 170 shows that the section uses three different expressions "heard or determined", "brought" and "admitted" in relation to an appeal and some significance is to be attached to the use of the expression "heard and determined". In like situations, other statutes such as the one considered by this Court in Lakshmi Rattan Engineering Works Ltd. v. Assistant Commr. of Sales Tax and those contained in certain other enactments like the Bombay and Calcutta Municipal Acts specifically prohibit the very entertainment of the appeal if the tax is not paid. When the DMC Act has carefully avoided the use of that word, we must give full effect to the differential wording. Also, the absence of a language in Cl. (b) of the proviso similar to that in Cl. (a) which indicates that an appeal filed beyond the period of limitation will not stand admitted unless the delay is condoned also warrants an inference that the payment of disputed tax is not a condition precedent to the entertainment or admission of the appeal. In the present statutory context, it sounds plausible to say that such an appeal can be admitted or entertained but only cannot be heard or disposed of without re-deposit of the disputed tax. Such an interpretation will provide some much needed relief from the harshness of the provision. These are not days in which the calculation of the property tax is simple and uncomplicated the determination of the annual value of the property, except when based on the actual rent received from the property, involves various subjective factors and, not unoften, there is a wide gulf between the tax admitted to be due and the tax demanded. Sometimes, to compel the assessee to pay up the demanded tax for several years in succession might very well cripple him altogether. This apart, an assessee may not be able to deposit the tax while filing the appeal but may be able to pay it up within a short time, or at any rate, before the appeal comes on for hearing in the normal course. There is no reason to construe the provision so rigidly as to disable him from doing this. Again, when an appeal comes on for hearing, the appellate judge, in appropriate cases, where he feels there is some great hardship or injustice involved, may be inclined to adjourn the appeal for some time to enable the assessee to pay up the tax. Though it will not be expedient or proper to encourage adjournment of an appeal, where it is ripe for hearing otherwise, only on this ground and as a matter of course, an interpretation which leaves some room for the exercise of a judicial discretion in this regard, where the equities of the case deserve it, may not be inappropriate. The appellate judge's incidental and ancillary powers should not be curtailed except to the extent specifically precluded by the statute. We see nothing wrong in interpreting the provision as permitting the appellate authority to adjourn the hearing of the appeal thus giving time to the assessee to pay the tax or even specifically granting time or installments to enable the assessee to deposit the disputed 'tax where the case merits it, so long as it does not unduly interfere with the appellate Court's calendar of hearings. His powers, however, should stop short of staying the recovery of the tax till the disposal of the appeal. We say this because it is one thing for the judge to adjourn the hearing leaving it to the assessee to pay up the tax before the adjourned date or permitting the assessee to pay up the tax, if he can, in accordance with his directions before the appeal is heard. In doing so, he does not and cannot injunct the department from recovering the tax, if they wish to do so. He is only giving a chance to the assessee to pay up the tax if he wants the 'appeal to he heard. It is, however, a totally different thing for the judge to stay the recovery till the disposal of the appeal; that would result in modifying the language of the proviso to read: "no appeal shall be disposed of until the tax is paid". Short of this, however, there is no reason to restrict the powers unduly; all he has to do is to ensure that the entire tax in dispute is paid up by the time the appeal is actually heard on its merits. We would, therefore, read Cl. (b) of Section 170 only as a bar to the hearing of the appeal and its disposal on merits and not as a bar to the entertainment of the appeal itself.

Thus, here Hon'ble Apex Court has interpreted the words looking to the scheme of entire section and because of the use of words "heard or determined" in opening part or "admitted" in proviso to Sub Clause (a), the requirement of deposit has been postponed to hearing of appeal on merits and not to bar its entertainment. The Hon'ble Apex Court has used word "entertainment of the appeal itself" as equivalent to "admission of appeal" i.e. stage that the threshold of initiation or filing of appeal itself. The portion extracted above clearly shows contextual interpretation.

13. Govind Parmeswar Niar v. Municipal Corporation of Greater Bombay and Ors. again shows that the Hon'ble Apex Court has in view of different expressions like "filed" or "brought" or "entertained" and "heard and decided" upheld the judgment of this High Court which observed that these three expressions necessarily referred to three different stages and the word "entertained. refers to the stage when the appeal's first taken up for consideration. In paragraph 4 it is a observed by Hon'ble Apex Court that said stage is much after the appearance of parties, filing of the written statement and completion of other preliminaries. "It is the stage when, thereafter, the Judge for the first time gives directions to the parties."

14. Hon'ble Apex Court in State of Haryana v. Maruti Udyog Ltd and Ors. (supra) considers Section 39 of Haryana General Sales Tax Act, 1973 and the issue as under:

7. Section 39 of the Act confers a right of appeal upon the assessee against any original order including an order under Section 40 passed under the Act and the Rules made thereunder. Sub-section (5) thereof provides:

No appeal shall be entertained unless it is filed within sixty days from the date of the order appealed against and the appellate authority is satisfied, that the amount of tax assessed and the penalty and interest, if any, recoverable from the persons has been paid:

Provided that the said authority, if satisfied that the person is unable to pay the whole of the amount of tax assessed, or the penalty imposed, or the interest due, he may, if the amount of tax and interest admitted by the appellant, to be due has been paid, for reasons to be recorded in writing, entertain the appeal and may stay the recovery of the balance amount subject to the furnishing of a bank guarantee or adequate security in the prescribed manner to the satisfaction of the appellate authority:

Provided further that in the case of an appeal against any order which has to be communicated by the appropriate authority to the appellant, the period of sixty days shall commence from the date of receipt of the copy of the order by the appellant and in the case of an appeal against any other order made under this Act, the time spent in obtaining the certified copy of the order shall be excluded in computing the period of sixty days.

There cannot be any dispute that right of appeal is the creature of the statute and has to be exercised within the limits and according to the procedure provided by law. It is filed for invoking the powers of the superior Court to redress the error of Court below, if any. No right of appeal can be conferred except by express words. An appeal, for its maintainability, must have a clear authority of law. Sub-section (5) of Section 39 of the Act vests a discretion in the appellate authority to entertain the appeal if it is filed within sixty days and the amount of tax assessed along with penalty and interest, if any, recoverable from the persons has been paid. The aforesaid restriction is subject to the proviso conferring discretion upon the appellate authority to dispense with the deposit of the amount only on proof of the fact that the appellant was unable to pay the amount. Before deciding the appeal, the appellate authority affords an opportunity to the party concerned to either pay the amount or make out a case for the stay in terms of proviso to Sub-section (5) of Section 39 of the Act. Once the conditions specified under Sub-section (5) of Section 39 are complied with, the appeal is born for being disposed of on merits after hearing both the sides. 8. Interpreting the word "entertain" in relation to the filing of an appeal, as is also the mandate of Sub-section (5) of Section 39 of the Act this Court in Lakshmiratan Engineering Works Ltd. v. Asstt. Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur AIR 1968 SC 488 observed (Paras 7 and 10):

To begin with it must be noticed that the proviso merely requires that the appeal shall not be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. A question thus arises what is the meaning of the word 'entertained'in the context? Does it mean that no appeal shall be received or filed or does it mean that no appeal shall be admitted or heard and disposed of unless satisfactory proof is available? The dictionary meaning of the word 'entertain' was brought to our notice by the parties, and both sides agreed that it means either "to deal with or admit to consideration." We are also of the same opinion. The question, therefore, is at what stage can the appeal be said to be entertained for the purpose of the application of the proviso? Is it 'entertained' when it is filed or is it 'entertained' when it is admitted and the date is fixed for hearing or is it finally 'entertained' when it is heard and disposed of? Numerous cases exist in the law re-ports in which the word 'entertained'or similar cognate expressions have been interpreted by the Courts. Some of them from the Allahabad High Court itself have been brought to our notice and we shall deal with them in due course. For the present, we must say that if the Legislature intended that the word 'file'or 'receive'was to be used, there was no difficulty in using those words. In some of the statutes which were brought to our notice such.... Under Order 41, Rule 1 of the Code of Civil Procedure it is stated that a memorandum shall not be filed or presented unless it is accompanied etc. in Section 17 of the Small Cause Courts Act, the expression is 'at the time of presenting the application'.In Section 6 of the Court-fees Act, the words are 'file'or 'shall be received'.It would appear from this that the Legislature was not at a loss for words if it had wanted to express itself in such forceful manner as is now suggested by counsel for the State. It has used the word 'entertain' and it must be accepted that it has used it advisedly. The word has come in for examination in some of the cases of the Allahabad High Court and we shall now refer to them.

In our opinion these cases have taken a correct view of the word 'entertain' which according to dictionary also means 'admit to consideration'. It would, therefore, appear that the direction to the Court in the proviso to Section 9 is that the Court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the Court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai, C. J.) holds that the words "accompanied by" showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making 'an appeal' the equivalent to the memorandum of appeal is not sound. Even under Order 41 of the Code of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things. In Wharton'sLaw Lexicon, the word 'appeal'is defined as 'the judicial examination of the decision by a higher Court of the decision of an inferior Court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax.

15. Judgment of Hon'ble Apex Court in Lakshmiratan Engineering Works Ltd (supra), is already discussed in State of Haryana v. Maruti Udyog Ltd and Ors. (supra), in para mentioned above. The provision considered i.e. Section 9 of U.P. Sales Tax Act, 1948 which gives the power of appeal read:

(i) Any dealer objecting to an order allowing or refusing an application for exemption certificate under Clause (b) of Sub-section (1) of Section 4 or to an order refusing an application under Section 30 or to an order imposing a penalty under Section 15-A or to an assessment made under Sections 7, 7-A, 7-B, 18 or 21, may within 30 days from the date of service of the copy of the order or notice of assessment as the case may be, appeal to such authority as may be prescribed; Provided that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due, or of such installments thereof as may have become payable:

* * * * * *

Hon'ble Apex Court further observed:

Under Section 24 of the Act power has been conferred upon the State Government to make rules to carry out the purposes of the Act and in particular, to provide for all matters expressly required or allowed by this Act to be prescribed. Under Sub-section (4) of that section, it is provided that all rules made under the section shall be published in the Gazette and upon such publication, shall have effect immediately as if enacted in the Act and under the 5th Sub-section, it is further provided that all rules made under the Act shall be laid for fourteen days before the Legislature as soon as possible after they are made and shall be subject to such modifications as the Legislature may make during the session in which they are so laid. In exercise of this power, the State Government has framed the U. P. Sales-tax Rules 1948. Rules 66 and 67 of these rules bear among others, upon appeals. Sub-Rule (1) of Rule 66 provides for the content of the appeal by stating what the memorandum of appeal shall specify in relation to the name and address of the appellant etc. We are not concerned with it. Sub-rule (2) then states that "the memorandum of appeal shall be accompanied by... a challan showing deposit in the Treasury of the tax admitted by the appellant to be due of such installments thereof as might have become payable". Rule 67 lays down how the appeals have to be presented. Sub-rule (1) provides that the memorandum of appeal shall be presented by the appellant or its lawyer or duly authorised agent to the Assistant Commissioner, (Judicial) or may be sent by registered post addressed to the Assistant Commissioner, (Judicial). Sub-rule (2) provides that if the memorandum of appeal is in order the Assistant Commissioner. (Judicial) shall admit it and on admission, the Reader of the Assistant Commissioner (Judicial) shall endorse thereon the date of its presentation and shall register it in a book to be known as Register of Appeals. The third sub-rule says that if the memorandum of appeal is not in order, it may be rejected or returned after the necessary endorsement on its back about its presentation and return to the applicant for correction and re-presentation within the time to be fixed by the Assistant Commissioner (Judicial) or be amended then and there. Lastly Sub-rule (4) provides that admission of an appeal, the Assistant Commissioner (Judicial) Shall fix a date for hearing of the appeal and may send for the record, if necessary.

16. Thus, it appears that word "entertained" may not have same meaning in all enactments. Lakshmiratan Engineering Works Ltd (supra), clearly considers position in which appeal is required to be filed within 30 days and the word "entertained" appears in proviso and hence, it does not qualify "making of appeal" which is provided for in substantive part thereof. The proviso does not say that appeal shall not be entertained, if it is not made within 30 days. In State of Haryana v. Maruti Udyog Ltd and Ors. (supra), though the language is identical with Section 170 of Municipal Act, the proviso thereto gives power to appellate authority to waive the requirement of deposit. Observations of Hon'ble Apex Court in both these rulings clearly show that the appeal is entertained when it is first considered by the appellate forum. From Govind Parmeswar Niar v. Municipal Corporation of Greater Bombay and Ors. (supra), it appears that it is the stage when appellate authority first issues any directions to the parties in the appeal. It also appears that after all parties in the appeal are served , the stage of entertaining the appeal is reached. None of the judgments contemplate entertainment of appeal as its final hearing. No rules framed under Municipalities Act governing these appeals before Magistrate are brought to notice of this Court. The Maharashtra Municipal Councils (Property Tax Tribunals Procedure) Rules, 1993 deal with procedure in Appeal before Tribunals constituted under Section 169(2) of Municipal Act. Rule 9 of these rules deals with procedure for presentation of appeal and it does not prescribe any pre-deposit. These 1993 rules are then superseded by the Maharashtra Municipal Councils and Nagar Panchayats (Property Tax Appeal Committee) Rules, 1995 and Rule 5 which deals with presentation of appeal to the Committee under Sub-section (2) of Section 169 vide its Sub rule (4) (b) requires a receipt showing payment of full amount of tax as per previous assessment to accompany appeal. These Rules however do not consider the procedure to be followed if appeal is in relation to demand other than taxes as in present case. Rules made by this High Court under Article 227 relating to appeals under Section 169 are pointed out by Petitioner. As per rule 4 the petition of appeal is required to be accompanied by original receipt showing that amount claimed by Municipal Council is deposited in Municipal Office. Rule 5 obliges Magistrate to call upon appellant to fulfill the requirement of Rule 3 or rule 4 within such time not exceeding one-month and in default, Magistrate may dismiss the appeal for failure to prosecute. Rules 6 contemplates issuance of notice to Municipal Council only thereafter. Thus, as per scheme of these rules, Magistrate cannot call upon Municipal Council to appear unless and until the amount of demand is shown to have been deposited with Municipal Council by producing original receipt before him. Form-B appended to these Rules in which the appeal is to be preferred again shows that it contains a declaration that the amount claimed by Municipal Council has been or has not been deposited by appellant in the office of Municipal Council. It further shows that original receipt issued by Municipal Council is one of the accompaniments of such appeal. There is no challenge to these provisions or Rules in present matter. However in the facts of present case, Petitioner municipal council has appeared before Magistrate and filed its objection on 19/4/2003 itself. It is therefore clear that in any case on said date the Appeal has reached the stage of hearing or consideration. Hence, thereafter Magistrate could not have proceeded further to deal with the Appeal as the amount of demand was not deposited and hence requirement of Section 170(c)(ii) was not satisfied. After 19/4/2003 Magistrate did not possess jurisdiction to entertain the appeal itself in view of this non-compliance. It is therefore clear that the Magistrate could not have granted any interim relief in said appeal on 4/6/2003. No interim orders could have been passed in an appeal which was not entertained.

17. Appellants in all 74 appeals before Magistrate who are mentioned in Annexure -I, with this writ petition are not party respondents before this Court. The present Writ Petition therefore cannot be treated as writ petition in representative capacity. However order of interim relief dated 4/6/2003 granted in appeal No. 54/2002 filed by present respondent is found to be unsustainable. Same is accordingly quashed and set aside. Looking to the fact that question of public revenue is involved in the matter, the Magistrate is directed to hear and decide all appeals immediately. Rule is made absolute accordingly. Costs of appeal are quantified at Rs 5000/-only and Respondent to pay the same to Petitioner within one-month from today.