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The Municipal Corporation of Greater Bombay Vs. Hasham Ismail Mamsa - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 78 of 1970
Judge
Reported inAIR1972Bom350; (1972)74BOMLR683; 1972MhLJ941
ActsFees Act, 1870 - Sections 7; Fees (Amendment) Act, 1959 - Sections 6; Bombay Municipal Corporation Act, 1888 - Sections 527; Constitution of India - Articles 14 and 19
AppellantThe Municipal Corporation of Greater Bombay
RespondentHasham Ismail Mamsa
Appellant AdvocateK.K. Singhvai, Adv. i/b., A.M. Desai, Attorneys
Respondent AdvocateR.W. Adik, Adv.
Excerpt:
.....to municipal corporation but corporation overpaid and hence necessary to take accounts -- whether suit a suit for accounts -- applicability of section 6(iv)(a) or 6(iv)(i).;in order that a suit can be held to be a suit for accounts, the allegations in the plaint must indicate that on those allegations a legal liability to render accounts does arise against the defendant. what must be considered is not an allegation here and there in the plaint, but the substance of the plaint read, as a whole.;in a suit against a municipal corporation the plaintiff alleged that the corporation had made demands for property tax from time to time,, that he had made payments from time to time and that he had not only paid the entire property tax due from him but in fact had overpaid the corporation and..........amendment to the plaint would be necessary. the trial court shall allow the plaintiff to amend the plaint suitably. we may mention here that mr. adik has made it clear before us that although it was the plaintiff's contention that the corporation is over - paid to the extent of rs. 5, 511.05, the plaintiff does not want to pursue that claim and desires to restrict his claim to rs. 22,238.81, detailed in exh. f to the plaint. in view of this statement at the bar made by mr. adik for the plaintiff, the city civil court. greater bombay, will have jurisdiction to entertain the suit. the trial court shall direct the plaintiff to pay the necessary court - fee taking into consideration that the suit falls under section 6(iv)(a) of the court - fees act and the subject - matter of the suit is to.....
Judgment:

Chitale, J.

1. This is an appeal against the decision of Vaidya, J. in Appeal from Order No. 405 of 1969 reversing the order of the trial Court holding that the suit in question fell under S. 6(iv)(a) of the Court - fees Act, and it had no jurisdiction to entertain the suit, the valuation of the subject - matter of the suit being over Rs. 25,000/-.

2. In the opinion of Vaidya, J., the suit was essentially a suit for accounts and it fell under S. 6(iv)(I) of the Court - fees Act. The relevant prayers in the prayer clause of the plaint read thus :- (p. 93/p.bk)

(a) That the defendants may be ordered and decreed to render to the plaintiff the account of the aforesaid payments from time to time made to the defendants for property taxes of the plaintiff's said immovable properties and on taking up such account to pay to the plaintiff such amount as may be found due and payable by the defendants to the plaintiff.

(b) That it may be declared that the amount of property taxes for which the said bills are from time to time are served on the plaintiff is paid to the defendants and nothing is due and payable by the plaintiff to the defendants for the property taxes for the period upto 31st March 1968.

(c) That the defendants, their officers, servants and agents be restrained by an order and injunction of this Honorable Court from taking any coercive action for recovery of the property taxes for the period upto 31 st March, 1968 and from attaching or selling the plaintiff's said immoveable properties more particularly described in Exh. A to the plaint'.

Mr. Adik, who appears for the respondent - plaintiff, has taken us through the relevant allegations in the plaint. He referred to paras 5, 7, 10 and 13 of the plaint. It is not necessary to set out in detail the relevant allegations in the plaint, as Justice Vaidya has set out the same judgment. In substance what the plaintiff alleges is that towards the property tax properly due from him he has made payments from time to time and not only the amount due from him to the Bombay Municipal Corporation (hereinafter referred to as the Corporation) by way of property tax is paid, but the Corporation is over - paid. This is made clear by the annexures to the plaint. Exh. F to the plaint sets out the particulars of the amount which the plaintiff claims from the Corporation as due and payable to him, which is Rupees 22,238.81. Exh. G to the plaint is headed 'Summary of the amount due to the plaintiff from the Municipality'. The amount shown under this head is Rupees 5,511.05. It is rather difficult to reconcile the headings of these two exhibits, but it appears from Exh. G to the plaint that, according to the plaintiff, taking all the payments made by the plaintiff to the Corporation into account, he alleges that the Corporation is over - paid to the extent of Rs. 5,511.05. Merely because the plaintiff alleges that he has made payments from time to time, the Corporation is thereby over - paid, hence it is necessary to take accounts, it cannot be said to be a suit for accounts. What must be considered is not an allegation here and there in the plaint, but the substance of the plaint read as a whole. For a suit for accounts, legal liability to render accounts against the defendant must appear on the allegations in the plaint. In the present case all that the plaintiff alleges is that the Corporation made demands for property tax from time to time and he has not only paid the entire property tax due from him, but in fact he has over - paid the Corporation. Considering the nature of the suit, as disclosed by the allegations in the plaint, it is obvious that in law there is no liability on the Bombay Municipal Corporation to render accounts to the plaintiff. The Corporation issued bills from time to time and made demands pursuant to those bills. If it is the case of the plaintiff that he has paid the entire amount due from him by way of property tax and has over - paid the Corporation, it is for the plaintiff to prove the alleged over - payment. We do not think that the allegations in the plaint disclose any legal liability on the Corporation to render accounts to the plaintiffs. It is also important to note that on the allegations in the plaint what the plaintiff seeks to do is to repudiate the liability in respect of the amount claimed from him by the Bombay Municipal Corporation as property tax.

3. The averments in the plaint also indicate that the plaintiff alleges that some of the bills were wrongly issued by the Corporation, as the property tax mentioned in these bills and claimed by the Corporation was not due from him. The plaintiff alleges that he was not liable to pay that tax because some of the sheds were burnt, some licences were cancelled and there were some vacancies, as set out in Exh. F to the plaint. These allegations clearly indicate that the plaintiffs challenges the very validity of such bills and the demands made by the Corporation pursuant to such bills. If so, it is clear that at least in respect of the bills and demands so challenged the plaintiff is disputing by the present suit the liability in respect of the whole amount of such bills and demands. On the allegations in the plaint considered as a whole, we are unable to hold that this is a suit for accounts. Merely because the plaintiff alleges various payments from time to time and consequent over - payment, it cannot be held to be a suit for accounts. There are no allegations in the plaint to indicate any probability of shifting balances on either side, as in the case of mutual open and current account or even a running account between the parties on a specific agreement either express or necessarily implied. Exhibits F and G to the plaint considered with the allegations in the plaint make it abundantly clear that the plaintiff challenges his liability in respect of Rs. 22,238.81 claimed by the Corporation as property tax and in addition seeks to recover from the Corporation Rs. 5511.05 - the amount of alleged over - payment. This by itself takes the valuation of the subject - matter of the suit above Rs. 25,000/-.

4. Justice Vaidya in his judgment observes :-

(pages 22 & 23. p. bk).

'...........In the present case, the plaintiff is not asking for a declaration to obtain adjudication against recovery of money from the plaintiff. He wants a declaration or adjudication that the money is already recovered and the defendants are over paid. It is not the same thing as adjudication against recovery of money. Supposing there was a simple claim where the plaintiff were to say that Rs. 10,000/- were due as taxes and the Municipal Corporation had recovered through error Rs. 11,000/- and hence the plaintiff was entitled to refund of Rs. 1,000/-; such a suit cannot be considered as a suit for declaration to obtain adjudication against recovery of money from the plaintiff. Nevertheless, if what the plaintiff, as stated in the present plaint, claims is a declaration, after taking accounts, it would be necessary to restrain the defendants from recovering the taxes under the 17 notices of demand in respect of the period from April 1950 to March 31, 1968. The prayers (c) and (d) in the plaint are necessarily, therefore, incidental reliefs, which must follow if the plaintiff is entitled to get the reliefs prayed for in prayers (a) and (b) .....................'

With respect, we are unable to agree with the reasoning adopted by Justice Vaidya. In the illustration given in the above - quoted observations it would be a simple suit for recovery of Rs. 1,000/-. Justice Vaidya in his judgment refers to Lakshman v. Babaji ILR (1884) 8 Bom 31, Ishwarappa v. Dhanji ILR 56 Bom 23 : AIR 1932 Bom 111 and Krishnaji Vinayak Belapurkar v. Motilal Magandas Gujarati 31 Bom LR 476 : AIR 1929 Bom 337. We have perused these decisions. All that these decisions lay down is that initially it is for the plaintiff to value the subject - matter of the suit and such valuation initially determines the jurisdiction of the Court. They do not lay down what are the essentials of a suit for accounts. In our opinion, in order that a suit can be held to be a suit for accounts, the allegations in the plaint must indicate that on those allegations a legal liability to render accounts does arise against the defendant. In the present case, the averments in the plaint do not indicate such a liability. In our opinion, the present suit is one challenging the right of the Corporation to recover the amount it demands by way of property tax on the two grounds mentioned above and the suit does fall under Section 6(iv)(a) of the Court - fees Act, as held by the learned trial Judge.

5. Mr. Adik for the plaintiff further submits that in any case the trial Court was wrong in holding that by the present suit the plaintiff seeks to challenge the right of the Corporation to recover Rs. 1,40,778.74.

6. In view of the prayer (c) in the plaint, we are unable to accept the above contention of Mr. Adik. The allegation of over - payment is obviously inconsistent with this contention. Mr. Adik now states before us that the plaintiff desires to confine his claim in the suit to the items mentioned in Exh. F to the plaint. We see no reason why the plaintiff should not be allowed to restrict his claim even at this stage. In order to do that, amendment to the plaint would be necessary. The trial Court shall allow the plaintiff to amend the plaint suitably. We may mention here that Mr. Adik has made it clear before us that although it was the plaintiff's contention that the Corporation is over - paid to the extent of Rs. 5, 511.05, the plaintiff does not want to pursue that claim and desires to restrict his claim to Rs. 22,238.81, detailed in Exh. F to the plaint. In view of this statement at the Bar made by Mr. Adik for the plaintiff, the City Civil Court. Greater Bombay, will have jurisdiction to entertain the suit. The trial Court shall direct the plaintiff to pay the necessary court - fee taking into consideration that the suit falls under Section 6(iv)(a) of the Court - fees Act and the subject - matter of the suit is to be valued at Rs. 22,238.81.

7. In view of what is stated above the trial Court shall reconsider whether injunction as prayed for by the Notice of Motion, out of which this appeal arises, should be granted in respect of the claim in the suit, modified as indicated above.

8. After we dictated the above order Mr. Singhavi for the Corporation points out that the trial Court has recorded the finding, though incidentally, that the suit is barred by limitation in view of S. 527 of the Bombay Municipal Corporation Act. He submits that since the plaintiff has restricted his claim so as to bring the suit within the jurisdiction of the trial Court, the question of limitation can properly be considered. The determination of that question does not require any additional evidence, hence this Court itself can consider that question before directing the trial Court to proceed with the suit. In view of this submission, we adjourn the further hearing of the appeal.

7th October 1970.

9.Mr. Singhavi for the defendant submits that the present suit is obviously barred by limitation in view of S. 527 of the Bombay Municipal Corporation Act (Bombay Act III of 1888) and in case this Court accepts this contention, it would not be necessary to send down the proceedings to the trial Court for disposal of the suit. We have carefully considered this contention, and we find that this is not a case where any further evidence would be necessary in order to decide the question of limitation. We may also mention here that Mr. Adik for the plaintiff did not content that this question of limitation requires any evidence to be led, before it could be decided. Mr. Adik for the plaintiff invites our attention to para 11 of the plaint, which reads thus :

'The plaintiff submits that Section 527 of the Bombay Municipal Act does not apply to the facts of the case inasmuch as the said notices of demand dated 14th March 1968 are ultra vires and illegal and contrary to the provisions of the said Act. The plaintiff in any event submits that Section 527 of the Bombay Municipal Corporation Act is illegal and ultra vires the Constitution of India as it violates the fundamental rights guaranteed to the plaintiff under Arts. 14 and 19(1)(f) of the Constitution of India'.

Mr. Adik for the plaintiff did not press the constitutional point raised in the above paragraph of the plaint and obviously for good reasons. it is obvious that there is no substance in that contention. Merely because a statute not dealing with limitation in general prescribes a special period of limitation different from the one in the Limitation Act, it does not follow that the provision prescribing the special period of limitation violates Art. 14 of the Constitution, much less Art. 19(1)(f) thereof. Mr. Adik, however, submits that Section 527 of the Bombay Municipal Corporation Act does not apply to the facts of this case, because according to the plaintiff the notices of demand served by the Bombay Municipal Corporation on the plaintiff are illegal. In support of this contention reliance is placed on the decision of this Court in Jalgaon Borough Municipality v. Khandesh Spg. and Wvg. Mills Ltd., : AIR1953Bom204 . In our opinion, this decision has no application to the facts of the present case. In that case it was held that the Municipality had no authority to levy the tax in respect of which the suit was filed and it was on that footing that the question whether that suit was within limitation arose before the Court. In the present case considering the allegations in the plaint as a whole, it is abundantly clear that the plaintiff alleges that the notices of demand are illegal because the amounts claimed by the said notices are not in fact due from the plaintiff, since the plaintiff claims exemption in respect of items mentioned in Exh. F to the plaint and with regard to the rest he alleges that he has already paid amounts which amply cover the claim made by the said notices of demand. There is no allegation in the plaint that the Corporation had no authority to levy property tax, all that the plaintiff alleges is that he is entitled to exemption from paying the property tax in respect of items mentioned in Exh. F to the plaint on the grounds mentioned therein. Thus the plaint alleges not absence of authority to levy the tax in question, but wrong levy in respect of the same, ignoring the grounds for exemption claimed by the plaintiff. The plaintiff further alleges that the Corporation has issued notices of demand in respect of the tax which he has already paid. These allegations do not amount to an averment that the levy of the tax is unauthorised. What the plaintiff alleges is that the levy thereof is wrong in view of some of the provisions of the Bombay Municipal Corporation Act. Mr. Adik points out that the plaint alleges that the Corporation was not entitled to recover certain amount of tax levied in respect of certain huts, because according to the plaintiff these huts were at the material time not in existence at all. There is nothing to show that the Corporation admits that at the material time the huts were not in existence. Merely because the plaintiff alleges that the huts were not in existence at the material time the act of the corporation in levying the tax and issuing notices of demand in that respect cannot be said to be unauthorised. Even if the plaintiff succeeds in establishing that the huts did not exist at the material time, it would only mean that the assessment made by the Corporation was wrong, but it does not mean that the Corporation had no authority to levy the particular tax under the statute. Merely because the plaintiff chooses to dispute the existence of the huts at a particular time, the levy of tax for the same and issuing notices to recover that tax cannot be held to be unauthorised acts on the part of the Corporation. Mr. Adik further points out that some amount of tax is disputed because according to the plaintiff there were vacancies. All these allegations raise disputed questions of fact just to show that the assessment of the tax is wrong. On these allegations it cannot be said that there is an allegation that the tax sought to be recovered is illegal in the sense that it is unauthorised, the Corporation having no authority to levy it, apart from the question of wrong assessment thereof. In effect the plaintiff claims exemption in respect of certain items mentioned in Exh. F to the plaint. If the Corporation has the authority to levy and recover property tax - (which is not disputed by the plaintiff) - assessment of such a tax, even if made by wrongly disputing certain facts on which exemption can be claimed, cannot be held to be unauthorised, nor can steps to recover such tax be held to be unauthorised. In view of this, we are unable to accept the plaintiff's contention that the principle laid down by the decision mentioned above : AIR1953Bom204 applies to the facts of the present case. Even on the allegations in the plaint the acts of the Corporation complained of cannot be said to be unauthorised.

10. The relevant dates on the question of limitation are : The notices of demand which are sought to be challenged by the present suit were served on the plaintiff on 14-3-1968 and the present suit was filed on 29-4-1969. If the acts of the Bombay Municipal Corporation complained of in the plaint cannot be held to be unauthorised, it is obvious that Section 527 of the Bombay Municipal Corporation Act applies and the suit is clearly barred by limitation. Accordingly we hold that the present suit is barred by limitation.

11. We may mention here that Mr. Adik for the plaintiff did not content before us that the question of limitation cannot be considered at this stage, particularly in an appeal against the order on a notice of motion for injunction.

12. We may also mention here that Mr. Adik for the plaintiff did not urge before us that the plaintiff is entitled to rely on Section 14 of the Limitation Act, as was done in the trial Court, to show that the suit is within limitation. Mr. Adik conceded that the subject - matter of the earlier suit was different from that of the present suit.

13. In the result we allow the appeal, set aside the order passed by Mr. Justice Vaidya in appeal from Order No. 405 of 1969 and for reasons indicated above we dismiss the plaintiff's suit. The plaintiff shall pay the defendant costs throughout. The plaintiff shall also pay the defendant the costs of the suit in the trial Court. The plaintiff shall pay necessary court - fee on the plaint, as indicated above. If the plaintiff fails to pay the necessary court - fee on the plaint, the trial Court shall take steps to recover the same. Order accordingly.

14. In view of the above order, the trial Court shall only see that the plaint is amended by the plaintiff , as indicated above, and shall recover the necessary court - fee from the plaintiff. Since we have dismissed the suit, nothing more need be done by the trial Court.

15. Order accordingly.


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