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Shidrao Narayanrao Gumaste Patil Vs. the Municipality of Athni - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 122 of 1940
Judge
Reported inAIR1943Bom21; (1942)44BOMLR849
AppellantShidrao Narayanrao Gumaste Patil
RespondentThe Municipality of Athni
DispositionAppeal dismissed
Excerpt:
.....for twelve years before suit--whether claim time-barred--general sanitary cess--imposition of such cess in form of rale on building or land whether permissible--whether claim to such cess governed by article 132--maxim--expressio unius est exclusio alterius.;a claim to recover arrears of house-tax, which is a rate on buildings, as also a claim to recover arrears of general sanitary cess, if made a tax imposed in the form of a rate on buildings, both being under section 87 of the bombay district municipal act, 1901, are first charges on buildings in respect of which they are levied, and are governed by article 132 of the indian limitation act, 1908.;bandra municipality v. vanechand (1933) 35 bom. l.r. 599, distinguished.;the rule expressio unius est exclusio alterius has to be applied..........his opinion, both the house-tax and the general sanitary cess were taxes imposed in the form of a rate on lands or buildings or on both within the meaning of section 87 of the bombay district municipal act (bom. iii of 1901), which regulates the recovery of taxes by the municipality and therefore by virtue of the rules of the municipality were a first charge upon the building or land, in respect of which the taxes were levied.3. the question with regard to the claim for house-tax presents no difficulty, for, it is conceded before me that it is a rate on lands or buildings or on both and therefore under section 87 of the bombay district municipal act the sums due on account of the house-tax is a first charge upon the building or land in respect of which it is leviable. section 87.....
Judgment:

Wassoodew, J.

1. This is a second appeal from a decision of the learned Assistant Judge of Belgaum. The plaintiff, the Municipality of Athni, instituted this action against the defendant, who is an owner of certain properties situated within the municipal district, to recover arrears of house-tax and general sanitary cess due from him for a period extending over twelve years before the suit and also interest on those arrears. The defendant contended inter alia that the claim was barred by limitation, The trial Court thought that the claim to the general sanitary cess was so barred, but allowed the claim to the house-tax and passed a decree for the said tax in the amount, of Rs. 332 with interest thereon. It directed that the tax should be recovered by sale of the properties described in the plaint belonging to the defendant. Against that decree both parties appealed. The plaintiff appealed against the rejection of the claim to the general sanitary cess, while the defendant appealed against the decree against him. The learned Assistant Judge in first appeal disallowed the claim to interest but allowed the claim of the Municipality to the house-tax and general sanitary cess holding that it was not barred by limitation. Against that decree the defendant has appealed.

2. Mr. Jahagirdar for the appellant in view of the written statement has not questioned the legality of the imposition. But he maintains that the claim of the Municipality being for money payable by the defendant, is governed by Article 62 of the Indian Limitation Act, 1908, and not by Article 132 of that Act which has been applied by the lower appellate Court. The learned Assistant Judge thought that Article 132 applied as the sums claimed were a first charge on the properties in respect of which they were levied. In his opinion, both the house-tax and the general sanitary cess were taxes imposed in the form of a rate on lands or buildings or on both within the meaning of Section 87 of the Bombay District Municipal Act (Bom. III of 1901), which regulates the recovery of taxes by the Municipality and therefore by virtue of the rules of the Municipality were a first charge upon the building or land, in respect of which the taxes were levied.

3. The question with regard to the claim for house-tax presents no difficulty, for, it is conceded before me that it is a rate on lands or buildings or on both and therefore under Section 87 of the Bombay District Municipal Act the sums due on account of the house-tax is a first charge upon the building or land in respect of which it is leviable. Section 87 provides as follows:--

All sums due on account of any tax imposed in the form of a rate on lands or buildings or on both, mentioned in Section 68, shall ... be a first charge upon the building or land, in respect of which such tax is leviable. ...

4. Mr. Jahagirdar contends that even if house-tax is a rate on lands or buildings Article 132 of the Indian Limitation Act will not apply, because, he says, that that article applies to a claim to enforce payment of money which is by agreement of parties charged upon immoveable property. There is no such qualification in the article itself and under Section 100 of the Transfer of Property Act a 'charge' is not restricted to a charge created by the agreement of parties. That section applies also to charges arising by the operation of law. The charge relating to a sum of money due on account of house-tax is such a charge by reason of the Municipal Rules and Section 87 of the Bombay District Municipal Act. Therefore the claim to the house-tax is clearly in time being instituted within twelve years when it became recoverable.

5. The claim with regard to the levy of the general sanitary cess is not so easy to determine. Section 59 of the Bombay District Municipal Act gives the Municipality the right to impose certain taxes indicated therein. Those are so far as their enumeration is material:--

(i) a rate on buildings or lands or both, situate within the municipal district;

(vi) a special sanitary cess upon private latrines, premises or compounds cleansed by municipal agency, after notice given as hereinafter required;

(vii) a general sanitary cess for the construction or maintenance, or both construction and maintenance, of public latrines, and for the removal and disposal of refuse.

6. Under Section 60 of the Act before imposing a tax the Municipality has to observe certain preliminary procedure. It has under Clause (a) (i) to select for the purpose one or other of the taxes specified in Section 59; and under Clause (ii) to prepare rules for the purposes of Clause (i) of Section 46 prescribing the tax selected ; and to specify according to Clause (iv) the amount for which, or the rate at which, it is desired to make the class or classes of persons or of property, or of both, liable.

7. The Municipality has made its choice by selecting the tax described in Section 59(vii) namely 'the general sanitary cess' and under the powers conferred on it by Sub-clause (iv) of Clause (a) of Section 60 it has fixed the amount for or the rate at which the class of property of the tax-payer is liable. It has also prescribed rules under Sub-clause (ii) in accordance with Clause (i) of Section 46. That rule is in Schedule E to Rule 232 of the Athni Municipality Rules. Serial No. 4 of the Schedule deals with the general sanitary cess. The class of property made liable is stated in column 3 as follows:--'All buildings and houses'. Then follows in column 4 the amount for and the rate at which such class of property is made liable and it provides that 'houses which are assessed at house-tax of Rs. 3 or more are liable to pay a tax of Re. 1-8-0 per annum (see column 5) and houses assessed at less than Rs. 3, half the amount of house-tax'. Apparently according to that rule the amount of the tax is to be computed according to the annual rental or rate at which the building is assessed. That is the basis for fixing the tax. Prima facie therefore the tax assumes the form of a rate on building within Section 87 of the Act.

8. Mr. Jahagirdar contends that the imposition of this tax is not a rate on building, and that Section 87 applies only to house-tax or in other words tax mentioned in Section 59(a) (i), that is, 'a rate on buildings or lands or both, situate within the municipal district' and not to any other tax in whatever form it may be imposed. That is his first line of argument. The legislature in dealing with the first class of taxes in Section 59 has described it as 'a rate on buildings or lands '. Section 63 which deals with assessment of liability for rates says:--

(1) When a rate on buildings or lands or both is imposed, the Municipality shall cause an assessment-list of all buildings, or lands, or buildings and lands in the municipal district to be prepared containing [several particulars].

9. It evidently deals with the first class of taxes, namely, 'the rate on buildings or lands'. But the language of Section 68, to which reference is made in Section 87, recognizes a distinction between 'a rate on buildings or lands' and 'a tax imposed in the form of a rate on lands or buildings or on both'. Section 68 says:--

Every tax imposed in the form of a rate on buildings or lands or on both, shall be leviable primarily from the actual occupier of the property upon which the said taxes are assessed, if he is the owner of the buildings or land, etc.

10. The phraseology in Section 87 follows Section 68 for it says: 'All sums due on account of any tax imposed in the form of a rate on lands or buildings or on both'. Mr. Jahagirdar contends that both Sections 68 and 87 are intended to deal with the tax specified in Section 59(a) (i) that is, a rate or tax on buildings or lands and therefore may well apply to house-tax alone. It is difficult to agree with that view, for the language is intended to cover any other tax which is imposed in the form of a rate on buildings or lands. I was referred to the case of Bandra Municipality v. Vanechand : AIR1933Bom353 for the view that the general sanitary cess cannot be made a charge on property. That case was decided by reference to certain provisions of the Bombay Municipal Boroughs Act (Bom. XVIII of 1925) and the rules of the Bandra Municipality. Here we are not dealing with the Bombay Municipal Boroughs Act. Although Section 73 of that Act is in pan materia with Section 59 of the Bombay District Municipal Act, we do not know in what form the rules were framed by the Bandra Municipality. I do not think in the view I take of the Bombay District Municipal Act and the rules of the Athni Municipality that that decision would be an authority governing the present case. The question as to the legality of the imposition was' never directly raised in the lower Courts. If the imposition is legal, then undoubtedly under Section 87 of the Bombay District Municipal Act it would be a first charge on the building or land and therefore Article 132 of the Indian Limitation Act would apply.

11. In my opinion, the form in which the tax is imposed is legal. As I have said, Section 60 of the Bombay District Municipal Act gives the power to the Municipality to frame rules specifying the amount for which, or the rate at which, it is desired to make the classes of property referred to in Clause (iii) liable. Clause (iii) of that section confers the power on the Municipality to make rules specifying the class or classes of persons or of property, or of both, which the Municipality desires to make liable. The Municipality having made its selection of the tax under Section 60(a) (i), it has to say under Clause (iv) at what rate it shall be recovered, and for that purpose it can specify the manner in which that rate can be fixed or lay down the basis for computing the amount of the tax. In so doing the Municipality may say that the rate shall take the form of a rate assessed on buildings. Prima facie a rule of that kind is therefore within its powers.

12. But it is pointed out that wherever the legislature contemplated that the Municipality after selecting a tax specified in Section 59 should have the power to impose that tax in the form of a rate assessed on buildings or lands, it has conferred that power expressly, and that having omitted to do so in the case of the 'general sanitary cess' it must be deemed to have denied such power to the Municipality. In support of that view I was referred to Section 59(6) (viii) which says as follows: --

a water-rate or water-rates, for water supplied by the. Municipality, which may be imposed in the form of a rate assessed on buildings and lands,...

13. Similarly Clause (c) of the proviso to that section says:--

the Municipality in lieu of imposing separately any two or more of the taxes described in Clauses (i), (vii), (viii) and (ix) may impose a consolidated tax assessed as a rate on buildings or lands, or both situate within the municipal district.

14. The rule expressio unius est exclusio alterius has to be applied with great caution, for it is not of universal application and it cannot be applied unless the statute by its language shows that all things different in genus and description from those which are enumerated are intended to be excluded. The above clauses are in my opinion merely enumerative. When the Act gives general powers to the Municipality to fix) the amount or rate at which it desires to make the class or classes of persons or property liable, it is not proper to suggest that, because some specific instances are enumerated wherein it is said that the Municipality can impose rates upon certain basis, such enumeration has the effect of limiting the Municipality's choice of the bases upon which the taxes can be levied. The powers conferred on the Municipality by Section 60(a) (iv) are in my opinion sufficiently wide to permit it to impose the general sanitary cess in the form of a rate on building or land, and there is no inconsistency in the rules framed by the Municipality. Therefore I do not think that the levy is ultra vires of the Municipality. Consequently the tax selected being in the form of a rate assessed on buildings or lands or on both, is a first charge on the building under Section 87 of the Act, and therefore the claim of the Municipality to recover the arrears of that tax for twelve years is within time under Article 132 of the Indian Limitation Act.

15. Consequently this appeal fails and will be dismissed with costs. It is said that as the tax is recoverable from the property in respect of which it is levied, the decree should have directed the sales of the different properties of the plaintiff in respect of which the various sums are due. That is correct and the decree shall be amended accordingly. In other respects it is maintained.


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