1. The question of law in this second appeal is whether a Municipality can recover arrears of unpaid taxes by distress warrants when its remedy to recover them by suit is barred. The plaintiff-respondent, who is a house-holder and tax-payer residing in the Surat Municipality, was liable to pay certain taxes and in due course received bills and notices of demand under Section 104 of the Bombay Municipal Boroughs Act. The taxes were not paid, and though the Municipality might have taken action under Section 105 by issuing distress warrants, it did not do so but carried forward the arrears of taxes from year to year. Ultimately action was taken under Section 105, distress warrants were issued, and the plaintiff paid the taxes under protest. Subsequently she filed a suit for refund of the taxes levied by distress alleging that the Municipality had no right to recover them in that way because at the time the distress was levied, a suit to recover these arrears of taxes would have been time-barred. The facts are given in full detail in the judgments of the lower Courts, and for the purpose of deciding the point of law they need not be set out more fully.
2. The trial Court decided that the Municipality, when acting under Section 105, was bound by the law of limitation and was not entitled to take advantage of that Section at a time when a suit under Section 203 of the Act would have been time-barred. The Municipality was, therefore, ordered to refund such proportion of the taxes which were the subject-matter of the suit as the Court held not to have been in time. The District Court confirmed the decree of the trial Court.
3. The only question we have to decide is whether Section 105 of the Act is subject to any, and if so, what period of limitation. If we hold that the Section is subject to limitation and that the action taken was time-barred, the decrees of the lower Courts are correct If on the other hand, as contended on behalf of the appellant, the Surat Municipal Borough, the powers of the Municipality under Section 105 are not subject to limitation, the plaintiff's suit will have to be dismissed.
4. The point depends mainly on the construction of Section s 104 and 105 of the Act, though Section 203 also has to be looked at. These Section s are as follows, so far as material to the case:-
104. (i) When any amount,
(a) which by or under any provisions of this Act, is declared to be recoverable in the manner provided by this chapter, or
(b) which, not being leviable under Sub-section (1) of Section 98 or payable on demand on account of an octroi or a toll, is claimable as an amount or instalment on account of any other tax which now is imposed or hereafter may be imposed in any Municipal Borough,
shall have become due, 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,
(2) Every such bill shall specify the period for which, and the property, occupation or thing in respect of which, the sum is claimed, and shall also give notice of the liability incurred in default of payment and of the time within which an appeal may be preferred as hereinafter provided against such claim.
(3) If the sum for which any bill has been presented as aforesaid is not paid at the municipal office or to a person authorized 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 bill has been presented, a notice of demand in the form of Schedule V, or to the like effect.
105. (1) If the person on whom a notice of demand has been served under Section 104, Sub-section (3), does not, within fifteen days from the service of such notice, either-
(a) pay the sum demanded in the notice, or
(b) show cause to the satisfaction of the Chief Officer, why he should not pay the same, or
(c) prefer an appeal in accordance with the provisions of Section 110 against the demand,
such sum with all costs of the recovery be levied under a warrant signed by the Chief Officer in consultation with the President in the form of Schedule VI or to the like effect, by distress and sale of the movable property or the attachment and sale of the immovable property of the defaulter: provided that where any measures precautionary or otherwise, have been taken in respect of any such property for the recovery of any sum claimed by the Provincial Government, any proceedings under this chapter in respect of such property shall abate'.'
203. In lieu of any process of recovery allowed by or under this Act or in case of failure to realise by such process the whole or any part of any amount recoverable under the provisions of Chapter VIII, or of any compensation, expenses, charges or damages payable under this Act, it shall be lawful for a Municipality to sue in any Court of competent jurisdiction the person liable to pay the same.
5. The learned trial Judge took the view that the wording of these three Section s when read together implies that the distress procedure is to be adopted if at all, immediately or within a reasonable time and at the latest before the time limited for a suit under Section 203. He relied on the fact that a period of fifteen days only is allowed to the assessee for objecting to the contents of the bill and that when a notice of demand is issued, the objections to that have to be filed within fifteen days. He thought that the general effect of the language of the Section s was that recoveries by warrants are to be made as early as possible, and he also thought that the language of Section 203 indicated that if recovery by distress is to be made at all, it must precede the suit in point of time. He relied particularly on the words 'in case of failure to>| realise by such process the whole or any part of any amount recoverable under the provisions of Chapter VIII.'
6. The District Judge took a similar view of the matter, and he also appears: to have been of opinion that as the action taken by the Municipality had enabled them to evade limitation which would have barred a suit, it ought to-be inferred that such procedure was contrary to the intention of the Legislature.
7. The learned advocate who appears for the appellant Municipality has argued that Section 203 is entirely independent of Section s 104 and 105, the operation of which cannot be limited by the terms of Section 203. He points out that Section 105 does not prescribe any period of limitation and that whereas Section 104 pro-vides, that the bill must be issued promptly and with the least practicable delay, there is no such limitation in Section 105 as regards the issue of a distress warrant. Section 203, he urges, merely provides an alternative remedy and cannot be said to control s. '105. The learned Counsel for the respondent has in effect adopted the reasoning of the trial Court. He relies on the language of Section s 104 and 105 as showing that distress is intended to be a summary remedy to be exercised in a reasonable time, and he argues that the language of Section 203 justifies the inference that if the remedy by suit is barred, that by distress is also barred.
8. In our opinion the appeal should succeed. On the construction of Section s 104, 105 and 203 we can find no justification for the finding of the lower Courts that the levy of taxes by distress can only be made within the period limited for a suit. Section 104 provides that as soon as any tax becomes due, the Chief Officer shall, with the least practicable delay, cause a bill for the sum due to be presented. If the sum claimed is not paid within fifteen days, the Chief Officer may cause a notice of demand to be served. It is not alleged that there was any delay in the presentation of the bills in this case. No time is prescribed within which a notice of demand must be sent. Then it is provided in Section 105 that if the person on whom a notice of demand has been served does not either pay or show cause or prefer an appeal within fifteen days from the service of the notice, the sum in question may be levied under a warrant. It is not stated that this warrant is to be issued within fifteen days, or with the least practicable delay, or within a reasonable time or anything of the sort. The power given is quite general and unrestricted, and the reasoning which has found favour with the Courts below requires the insertion of words in the Section which find no place there. It may be that the Legislature may have contemplated that the distress procedure should be taken promptly and within a reasonable time, but it has not said so. It is not open to the Courts, in our opinion, to infer that Section 105 is subject to any period of limitation or to say that the provisions of this Section are inapplicable if the period for bringing a suit under Section 203 has expired.
9. Under Section 203 a suit may be brought, within the period of limitation of course, in case of failure to realise the municipal taxes by the summary process. If recourse is had to a suit in those circumstances, it is quite true that the distress proceedings must have been taken within the period of limitation for the suit, since otherwise the suit would be barred. But the argument for the respondent takes no account of the words at the beginning of the Section which show that recovery by suit is an alternative procedure which may be resorted to in cases where the distress procedure has not been or could not be availed of. If there are two methods of procedure open to the Municipality, one by distress under Section 105 and the other by suit under Section 203, it is, in our opinion, impossible to say that because one of these alternative methods is subject to limitation, the other must also be so subject. We think that if it had been intended that the procedure under Section 105 should be subject to any limitation, the legislature would have said so. In any case, it is not for the Courts to give effect to an intention which has not been expressed.
10. The learned Counsel for the respondent said that if the issue of distress warrants is delayed for years on end, the property may change hands and difficulties may arise in view of Section 112, in which it is provided that sums due on account of property taxes are a first charge upon buildings and lands. Difficulties of the sort might arise even if a period of limitation had been fixed in Section 105. In the present case it does not appear that any difficulty of that kind has arisen, and we do not see that this point has any material bearing on the construction of the relevant Section s of the Act.
11. We hold, therefore, that the lower Courts have wrongly directed a partial refund of taxes to the plaintiff whose suit should have been, in our opinion, wholly dismissed.
12. We allow the appeal and dismiss the plaintiff's suit with costs throughout
Second Appeal No. 686 of 1937
1. Second Appeal No. 686 is a companion appeal arising from a suit brought by the husband of the respondent in Second Appeal No. 685. He also brought a suit for refund of taxes which was partly decreed by the lower Courts. Precisely the same question of law arises in that case and in the ordinary way both cases would have been disposed of in the same judgment. We are informed, however, that the respondent in that case died on December 11, 1939. His heirs have not been brought on record. An affidavit has been put in to that effect. The learned advocate for the appellant says that he has no knowledge of the fact stated in the affidavit. If the respondent did die as stated and there is no satisfactory explanation of the failure to bring the heirs on record, this appeal would abate. Before passing final orders, however, we think that the appellant should have a reasonable opportunity of making enquiries. We direct that the appeal should' stand over for a fortnight.
2. July 22. The learned advocate for the appellant now puts in an application for setting aside the abatement after excuse of the delay. It appears that the respondent died on December 11, 1939, and this application, which was filed on July 18, 1940, is beyond time by four months and eleven days. The learned advocate who appears is unable to suggest any satisfactory ground for excusing the delay, and we therefore think it unnecessary to issue a rule. The appeal having abated, the result is that in this case the order of the lower Court must stand. Under the circumstances we make no order as to costs.