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Joshi Kalidas Sevakram Vs. the Dakor Town Municipality - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom399
AppellantJoshi Kalidas Sevakram
RespondentThe Dakor Town Municipality
Excerpt:
.....there fore, establish their plea that the suit was brought too late, even assuming that the present action fell within section 86, as to which the authorities are very conflicting, although they might well have pleaded that the proper notice required by section 86 had not been given them. as to the latter contention, section 21 doubtless gives an inhabitant an opportunity of objecting to the tax, and having that objection disposed of by the governor in council, whose approval is indeed required in all cases before the tax can be entered in the rules, as provided by section 14, clause 2. but such a provision (even if it be not thought to be confined to deciding as to the wisdom and advisability of imposing the tax) is quite consistent with the well-established jurisdiction of the..........there fore, establish their plea that the suit was brought too late, even assuming that the present action fell within section 86, as to which the authorities are very conflicting, although they might well have pleaded that the proper notice required by section 86 had not been given them.2. passing to the merits, the question to be determined is, whether the house-tax was legally imposed. the principal ground of objection is that notice of the meeting of 18th march, 1880, was not served on three of the commissioners who were absent at the time from dakor, and that no notice, mentioning the business to be transacted, was posted up at the kacheri, as required by section 11, clause 1. it is not in dispute that the above irregularities were committed in convening the meeting of the.....
Judgment:

Charles Sargent, Kt., C.J.

1. The questions referred to the Court a rise out of a plaint filed by a house holder of the town of Dakor, seeking to, recover from the municipality of that town the sum of Rs. 2, Which he alleges to have been levied from him in payment of a house-tax illegally imposed on the inhabitants. The first question is-whether the plaint is barred by Section 86, Act VI of 1873, under which Act the tax was imposed and levied. That section provides that no action shall be brought against the municipality for anything done, or intended to be done, under the Act, until the expiration of one month after a notice in writing stating with reasonable particularity the cause of action; and every such action shall be commenced within three months next after the passing of the final order by the municipality or officer having power to pass such order, and not afterwards. It appears that the plaintiff, on receiving a bill from the secretary of the municipality demanding payment of Rs. 2 in respect of the house-tax in question, sent a notice to the municipality on the 25th January, 1881, stating that the house-tax was illegal, and that if the Rs. 2 were levied from him, he would sue the municipality for a refund, but it was not until the 3rd June, 1881, that he was compelled to pay the Rs. 2. No subsequent notice was sent. The present suit was filed on the 6th January, 1882. Now, the above dates show that when the notice of the 25th January, 1881, was sent by the plaintiff, he had no cause of action against the municipality for anything done and that, there fore, no notice, such as is contemplated by Section 86, was ever sent by the plaintiff, and that, consequently, there could be no final order on such notice from which the three months would run within which the present suit should have been brought. Nor is there anything in the case to show that it was agreed between the parties that the notice of 25th January, 1881, and the letter of the vice-president in February, 1881, directing the secretary to enforce payment of the bills, should be treated as a notice and final order for the purposes of Section 86. The defendants cannot, there fore, establish their plea that the suit was brought too late, even assuming that the present action fell within Section 86, as to which the authorities are very conflicting, although they might well have pleaded that the proper notice required by Section 86 had not been given them.

2. Passing to the merits, the question to be determined is, whether the house-tax was legally imposed. The principal ground of objection is that notice of the meeting of 18th March, 1880, was not served on three of the commissioners who were absent at the time from Dakor, and that no notice, mentioning the business to be transacted, was posted up at the Kacheri, as required by Section 11, Clause 1. It is not in dispute that the above irregularities were committed in convening the meeting of the 18th March, 1880, but it was contended that the provisions of that section were only directory, and that the non-observance of them did not invalidate the tax, and that, in any case, the tax could not be impeached after it had been sanctioned by Government. As to the latter contention, Section 21 doubtless gives an inhabitant an opportunity of objecting to the tax, and having that objection disposed of by the Governor in Council, whose approval is indeed required in all cases before the tax can be entered in the rules, as provided by Section 14, Clause 2. But such a provision (even if it be not thought to be confined to deciding as to the wisdom and advisability of imposing the tax) is quite consistent with the well-established jurisdiction of the Civil Court to decide as to the validity of any fresh tax or impost, and affords no sufficient ground for supposing that the intention of the Legislature was to take away that jurisdiction.

3. In Attorney General v. Southampton 17 Sim. 6 the Court held that the power given to the poor law commissioners, by statute, to determine the propriety of the application of the poor rates, did not prevent the Court of Chancery from issuing an injunction to restrain their misapplication; and so in Shaftesbury v. Russell 1. B. & C. 666 it was held that an Act, which provided that any question arising upon a distress should be determined by a commissioner of taxes, would not there by take away the jurisdiction of the superior Court to try an action of illegal distress. Passing to the question whether the provisions of Section 11 are directory or obligatory, we cannot do better than refer to the remarks of Lord Penzance in Howard v. Bodington L.R. 2 P.D. 210; 'There may be many provisions in Acts of Parliament, which, although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject-matter to which they refer, as that the Legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the Court would take an opposite view, and would feel that they are matters which must be strictly obeyed; other wise the whole proceedings that subsequently follow must come to an end. Now, the question is, to which category does the provision in question in this case belong?'

4. Now, in the present case, the Act provides a certain machinery by Section 21 by which a legal tax can be imposed on the community; and as Mr. Justice Holloway remarks in Leman v. Damodaraya I.L.R. 1 Mad. 162: 'There is no provision for taking at all other wise than by the prescribing of the machinery.' It follows, there fore, that such machinery must be applied, at any rate in all its essential particulars; and can any one doubt that notice to all the members of the local public body, in whom the power of taking the community is vested, of the meeting at which such power is intended to be exercised, as provided by Section 11, Clause 1, is, a material part of such machinery, and a condition precedent to the validity of the tax. In other words, no legal resolution was come to on the 18th March, 1880, by the commissioners, which, on receiving the sanction of the Governor in Council, would, by Section 11, Clause 8, acquire the force of law. 'Whether sanctioned or not by the Government, it retained its inherent defect.

5. Scadding v. Lorant 13 Q.B. 687 where the Queen's Bench quashed a poor rate is a good illustration of the strictness with which the Court requires the machinery provided by the Act to be complied with. It was said, indeed, that although such a provision as to notice might, under ordinary circumstances, be material, it ought not to be so regarded in the Act of 1873, which gives power, by Section 10, to the president and vice-president to over rule the majority of the commissioners. This was not done on the present occasion; but in any case it would be impossible, we think, to hold that such power could be legally exercised until the provisions of the Act had been complied with for determining the wishes, of the majority. However, two of the absent commissioners were present at the special meeting on the 2nd April, and took no objection to the resolution. But the business to be transacted at that meeting was not the question whether a tax should be imposed, but the classification of houses, and the fixing the amount of rate, in execution of the resolution come to at the previous meeting. We must, there fore, hold that the tax was illegally imposed, and that the plaintiff's suit was not barred. Defendants to pay plaintiff his costs of this reference.


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