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The Surat Borough Municipality Vs. Sarifa Karunnissa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 685 of 1937 and S.A. No. 686 of 1937
Judge
Reported inAIR1939Bom494; (1939)41BOMLR1002
AppellantThe Surat Borough Municipality
RespondentSarifa Karunnissa
DispositionAppeal allowed
Excerpt:
.....104, 105 and 203 - taxes due to municipality-part of arrears time-barred-whether municipality can recover time-barred taxes by distress warrants-special powers conferred on municipality under section 105 whether operative notwithstanding bar of suit for limitation-indian limitation act (ix of 1908), section 28-right to moveable property-extinguishment of right.;when once a municipality presents a bill for the recovery of taxes, as required by section 104, sub-section (1), of the bombay municipal boroughs act, 1925, the right to issue a notice of demand and then to recover the amount by a distress warrant, under section 105 of the act, is not lost by lapse of time. section 105 does not prescribe any period of limitation. the powers of the municipality acting under the provisions of..........limitation act, however, extinguishes only the fight to immoveable property if the claim to it is not enforced within the period of limitation, but it does not affect the right to move-able property. it is, therefore, clear that, as the defendant municipality issued the bills in time with the least practicable delay and the recovery was postponed by reason of the applications made by the plaintiffs themselves from time to time, the right of the municipality to recover the amounts of the bills by distress warrants under section 105 of the bombay municipal boroughs act, 1929, is not lost or time-barred. the amounts recovered were really due from the plaintiffs, and, as they have been recovered by the municipality, the plaintiffs have no right to claim a refund of those amounts.3. for.....
Judgment:

Lokur, J.

1. These two second appeals arise out of two companion suits, one filed by the wife and the other by the husband, for a refund of the amounts of municipal taxes said to have been unlawfully recovered by the Surat Borough Municipality under warrants of distress, and paid by them under protest. In appeal No. 685 of 1937, the respondent was sent a bill for Rs. 105-5-8 on August 6, 1934, including Rs. 101-9-8, as arrears from the year 1923. In appeal No. 686 of 1937, the respondent was sent a bill for Rs. 160-14-0 on the same day, including Rs. 150-6-0, for arrears from the-year 1924. Both the respondents made applications to the Municipality protesting against the bills, and as distress warrants were issued against them, they paid the amounts under protest, and filed these suits to recover the amounts which were in excess of the amounts due for six years prior to the bills, on the ground that arrears more than six years old were time-barred, and that the Municipality had no right to recover them by distress warrants. The trial Court held that in the case of the house-tax, which was a charge on the house, the period of limitation was twelve years, and in the case of other taxes the period of limitation was only six years. It further held that those amounts of the taxes, for the recovery of which the claim of the Municipality was time-barred, could not be recovered by distress warrants, and give the plaintiffs in the two suits decrees on that basis. In the suit in appeal No. 686 of 1937, the Municipality was ordered to refund a sum of Rs. 63-12-10' to the plaintiff, while in the suit in appeal No. 685 of 1937 the Municipality was ordered to refund a sum of Rs. 31-11-8 to the plaintiff. Both the decrees were confirmed in appeal by the learned District Judge, and the Municipality has presented these two appeals.

2. The only question to be decided in these appeals is, whether the Municipality had no power to recover the amounts of taxes, which were time-barred under the Indian Limitation Act, by issuing distress warrants Under Section 105 of the Bombay Municipal Boroughs Act, 1925. It is true that a part of the claim of the Municipality would have been time-barred if the Municipality wanted to file a suit to recover it in a civil Court. But the Municipality is given special powers under a. 105 to recover its dues by issuing distress warrants. Section 104, Sub-section (1), of the Act, provides that when any amount, which, by or under any provisions of the Act, is declared to be recoverable under Chapter VIII, or is claimable as an amount or instalment on account of any other tax, becomes due, then the Chief Officer shall, with the least practicable delay, cause to be presented to any person liable for the payment thereof, a bill for the sum claimed as due. Sub-section (2) of Section 104 prescribes the contents of the bill; and Sub-section (3) provides that if the sum for which any bill has been presented as aforesaid is not paid at the Municipal office, or to a person authorised by any rule in that behalf to receive such payments, within fifteen days from the presentation thereof, the Chief Officer may cause to be served upon the person to whom such a bill has been presented, a notice of demand. Section 105, Sub-section (1), of the Act empowers the Municipality to recover the amount by distress and sale of the moveable property or the attachment and sale of the immoveable property of the defaulter on whom a notice of demand has been served and who does not, within fifteen days from the receipt of such notice, either pay the amount demanded in the notice, or show cause to the satisfaction of the Chief Officer why he should not pay the same. Section 105 does not in any way limit the power of the Chief Officer to recover the amounts of the taxes in respect of which bills and notices of demand have been issued Under Section 104, except that before tissuing a warrant he should consult the President. Both the lower Courts seem to think that as Section 203 of the Act enables the Municipality to file a suit to recover such taxes, and as such suits are governed by the provisions of the Indian Limitation Act, it must be presumed that even the remedy by way of distress warrants Under Section 105 is similarly limited. There is no justification for such a view. Section 203 only provides an alternative procedure for the recovery of taxes, as is clear from the marginal note. The section itself says that in lieu of any process of recovery allowed by or under the Act, or in case of failure to realize by such process the whole or any part of any amount recoverable by the Municipality, it shall be lawful for the Municipality to sue in any Court of competent jurisdiction the person liable to pay the same. The reason for providing this alternative remedy is obvious. No distress warrant can be issued Under Section 105 of the Act unless a bill and a notice of demand are served Under Section 104. Sub-section (i) of Section 104 requires that the bill should be presented to the person concerned with the least practicable delay after the amount has become due. If for any reason such bill is not presented, the Chief Officer cannot present a bill after a long delay and pursue the remedies provided by Sections 104 and 105 of the Act. In such cases it will be necessary for the Municipality to have recourse to the alternative remedy of filing a suit in a civil Court as provided by Section 203. Once a bill is presented with 'the least practicable delay' as required by Section 104, Sub-section (i), of the Act, the right to issue a notice of demand land then to recover the amount by a distress warrant Under Section 105 accrues to the Municipality, and that right is not lost by lapse of time. Section 105 does not prescribe any period of limitation, nor does it say, like Section 104, that the distress warrant should be issued with the least practicable delay. The periods of limitation prescribed for filing a suit under the Indian Limitation Act govern the procedure in a Court of law, and the powers of the Municipality acting under the provisions of Sections 104 and 105 are not governed by the Indian Limitation Act. The fact that the remedy of the Municipality to recover the amount by filing a suit in a civil Court is time-barred cannot prevent it from exercising the special powers conferred upon it by the Bombay Municipal Boroughs Act, 1925. The rule of limitation is a rule of procedure, a branch of the adjective law, and does not either create or extinguish rights, except in the case of acquisition of title to immoveable property by prescription Under Section 28 of the Indian Limitation Act. It is only the remedy by way of a suit that is barred, but the right itself continues to exist; and if there is some other remedy by which that right can be enforced, the Indian Limitation Act cannot come in the way. Thus, where the recovery of a debt is barred by lapse of time, the right to the debt is not extinguished, and if the debtor, without being aware of the bar of time pays up, he cannot sue the creditor to refund the money to him on the ground that his claim for recovery of the debt had become time-barred [Shiam Lal Diwan v. Official Liquidator, U.P. Oil Mills Co. I.L.R. (1933) All. 912 On the same principle, although a party has lost his right to file a suit to enforce a stale claim, still his right continues to exist; and if he happens to be a defendant, he can rely upon that right unless it is extinguished by Section 28 of the Indian Limitation Act. This principle is fully discussed in Gopal Bhaurao v. Shree Jagamath Pandit I.L.R. (1935) 59 Bom. 502 Section 28 of the Indian Limitation Act, however, extinguishes only the fight to immoveable property if the claim to it is not enforced within the period of limitation, but it does not affect the right to move-able property. It is, therefore, clear that, as the defendant Municipality issued the bills in time with the least practicable delay and the recovery was postponed by reason of the applications made by the plaintiffs themselves from time to time, the right of the Municipality to recover the amounts of the bills by distress warrants Under Section 105 of the Bombay Municipal Boroughs Act, 1929, is not lost or time-barred. The amounts recovered were really due from the plaintiffs, and, as they have been recovered by the Municipality, the plaintiffs have no right to claim a refund of those amounts.

3. For these reasons I allow the appeals and dismiss both the suits. The respondents in the two appeals shall pay the costs of the appellant throughout and bear their own.


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