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Y.S. Parihar Vs. Chintaman Madhavsa Kha Tri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 1400 of 1956, and 108 and 109 of 1957
Judge
Reported in(1959)61BOMLR403
ActsBombay District Municipal Act, 1901 - Sections 154 (3)
AppellantY.S. Parihar
RespondentChintaman Madhavsa Kha Tri
Appellant AdvocateR.B. Kotwal, Adv.
Respondent AdvocateG.N. Vaidya, Adv.
Excerpt:
.....the condition precedent is illegal and invalid and ultra vires its powers'.it is the view of the learned judge which is challenged by mr. upon a careful consideration of the provisions of sub-section (3) of section 154, we are satisfied that the legislation has not intended to lay down that there can be no publication apart from or irrespective of a by-law which is referred to in the sub-section. 'shall be deemed to have been sufficiently given or served'.these words would clearly show that the legislature did not intend to lay down that the framing of a by-law and compliance with the provisions of the said by-law were the only ways in which sufficient publication could be given to the notice and the rules. in this connection, we can do no better than refer to a decision of the privy..........evidence the learned judge should give his finding whether there was sufficient publication of the rules, notices etc., by the defendant municipality. consistently with the finding which he might record on this point he should decide whether the levy of the tax from the plaintiff was a lawful levy or not. (4) the learned advocate mr. vaidya appearing for the plaintiff-opponent has invited our attention to clause (b) of s. 60 which says: 'when such resolution has been passed, the municipality shall publish the form of rules so prepared with a notice in the form of schedule a prefixed thereto.' if we turn to schedule a, it speaks of a notice to all inhabitants. from this mr. vaidya argues that a notice to all the inhabitants cannot be given unless there is a by-law framed by the.....
Judgment:

Vyas, J.

(1) These three revisional applications raise a common question of law, for the understanding of which it is necessary to state the facts of only one of the applicantions, namely, civil Revision Application No. 1400 of 2956. This application arised out of a judgment and decree passed by the learned joint Civil Judge, J. D., at Erandol, in Civil Suit No.42 of 1956. The plaintiff who is the opponent in this application filed this suit for recoveriung the amount of Rs. 100/- from the defendant Municipality of Dharangaon, the present applicant, upon the contention that the Municipality had recovered the said amount irom him illegally by way of octroi on yarn brought by him within the municipal limits during the period 25th March 1953 to 21st July 1955. The palintiff contended that the Municipality did not conform to the procedure required by law to be followed before the imposition of a tax. His case was that there was no sufficient publication of the rules and notice in the matter of the levy of this tax, and this had resulted in the loss of an opportunity to him to make a representation against the levy of the tax. The Municipality resisted the suit and contended that the levy of the tax was according to law, that the necessary procedure was followed before the imposition of the tax and further that the plaintiffs suit was barred by limitation. The learned Judge framed an issue whether the tax levied upon the plaintiff and the recovery thereof made from the plaintiff were legal and valid. The learned Judge framed another issue also, viz., whether the suit was barred by limitation. On the first issue the learned Judge held that the tax was not iegally levied and upon the second issue, he came to the conclusion that so far as the amount of Rs. 97-12-3 out of the amount of Rs. 100/- was concerned, the suit was not barred by limitation; but that it was barred only in respect of a small amount of Rs. 2 and odd. Consistently with the view which the learned Judge took on the point of the legality of the levy of the tax, he passed a decree directing that the defendant Municipality of Dharangaon do pay to the palintiff an amount of Rs. 97-12-3 together with future interest thereon at 4 per cent per annum from the date of the suit till the date of realisation. It is from this decree that the Civil Revision Application No. 1400 of 1956 is filed by the Dharangaon Municipality.

(2) It would be convenient at this stage to set out the provisions of the Bombay District Municipal Act, 1901, relating to the levy of a tax. It may be noted that the tax in this case was levied under the provisions of section 59, sub-section (1), clause (b) sub-clause (iv). Sub-clause (iv) provides that subject to any general or special orders which the State Government may make in this particular behalf, any Municipality may impose an octroi on animals or goods, or both, brought within its octroi limits for consumption, use or sale therein. Then there is section 60. Clause (a) of section 60 provides that a Municipality before imposing a tax shall by a resolution passed at a general meeting select for the purpose one or other of the taxes specified in section 59 and shall prepare rules for the purposes of clause (I) of section 46 prescribing the tax selected. Then, there is clause (b) of section 60 which provides that when a resolution as required by clause (a) has been passed and rules prepared, the municipality shall publish the form of rules with a notice in the form of Schedule A. Then there is clause (c) of section 60 which provides for objections to the tax by the inhabitants of the Municipal District concerned. It would be convenient to set out the text of clause (c) which says:

Any inhabitant of the municipal district objecting to the imposition of the said tax, or to the amount or rate proposed or to the class of persons or property to be made liable thereto, or to any exemptions proposed may within one month from the publication of the said notice send his objections in writing to the Municipality, the Municipality shall take all such objections into consideration, or shall authorise a committee to consider the same and report thereon, and, unless they decide to abandon the proposed tax in accordance with such objections, shall submit the same with their opinion thereon, and any modifications proposed in accordance therewith, together with the notice and rules aforesaid, in the case of a City Municipality to the State Government and in the case of any other Municipality to the Commissioner'.

Section 61 says that the State Government or the Commissioner as the case may be may either refuse tosanction the rules submitted or may return them to the Municipality for further consideration. This section says that the Government or the Commissioner may sanction the rules either without modification or subject to such modifications as are considered necessary. Section 62 refers to the publication of the rules after the sanction thereof and also to the publication of the notice. Now, on the point of publication, the relevant section is section 154, sub-section (3), Sub-section (3) provides:

'Every notice which this Act requires or empowers a Municipality to give or to serve either a public notice, or generally, or by provisions which do not expressly require notice to be given to individuals therein specified, shall be deemed to have been sufficiently given or served if a copy thereof is put up in such conspicuous part of the municipal office during such period and in such other public building and places, or is published in such local papers or in such other manner, as the Municipality in by-laws in this behalf prescribes.'

While dealing with the point of publication, the learned Judge has observed in the course of his judgment that it is the duty of a Municipality to frame a by-law describing the particulars about the publication of notices and that the notices which are published according to a by-law so framed are the only valid publications. He has then pointed out that in this case admittedly the Municipality has not framed a by-law as required by sub-sections (3) of section 154 of the Bombay District Act. As the defendant Municipality has not framed such a by-law, the learned Judge has held that the publication of rules and notices by it has not been in accordance with law. The learned Judge has summed up the position thus:

'If the Municipality has not made a valid and effective publication of the rules and the notice according to law, then it has failed to observe a condition precedent to the levying of a tax and hence any tax imposed by the Municipality without observing the condition precedent is illegal and invalid and ultra vires its powers'.

It is the view of the learned Judge which is challenged by Mr. Kotwal, the learned Advocate of the applicant Municipality in this revisional application.

(43) It would appear that a similar point arose in second appeal No. 121 of 1953 (Bom), wherein Mr. Justice Dixit took the view that section 154, sub-section (3) required a Municipality to frame a by-law and that it was open to the Municipality to publish notices in any other way. With great resopect, by Mr. Justice Dixit, if we turn to the Language of sub-section (3) of section 154, it would appear that the Legislature has not made it incumbent upon a Municipality to frame a by-law. All that the Legislature has laid down by enacting the sub-section is that if a presumption regarding publication has to be drawn, certain conditions must be fulfilled, viz., that a by-law must be framed prescribing a certain procedure in the matter of publication. In other words the framing of a by-law is a condition precedent to the drawing of a presumption. If in a given case no by-law is framed by the Municipality in this behalf, no presumption such as is referred to in sub-section (3) of section 154 would be permissible; or if a by-law is framed by a Municipality but the provisions thereof are not complied with, even then no presumption such as the one which is referred to in sub-section (3) of section 154 would be permissible. Sub-section (3)does not say that even if there is other evidence regarding publication, such evidence would not be sufficient, in the absence of a by-law, to justify the conclusion that there was sufficient publication. The language of sub-section (3) of section 154 is not mandatory regarding the framing of a by-law. It is mandatory only in respect of a presumption to be drawn in case a by-law has been framed. Upon a careful consideration of the provisions of sub-section (3) of section 154, we are satisfied that the Legislation has not intended to lay down that there can be no publication apart from or irrespective of a by-law which is referred to in the sub-section. The sub-section speaks only of a presumption as I have said, and it is unnecessary to point out that presumption is not the only kind of proof. The sub-section does not debar other kinds of proof on the point of publication In this connection, the important words in the sub-section are: 'shall be deemed to have been sufficiently given or served'. These words would clearly show that the Legislature did not intend to lay down that the framing of a by-law and compliance with the provisions of the said by-law were the only ways in which sufficient publication could be given to the notice and the rules. It is clear that the Legislature intended that even if no by-laws was framed by the Municipality, it was still open to the Municipality to prove sufficient publication in other ways. When something is deemed to have been done, it means that in fact it may not have been done or it is not done. In this connection, we can do no better than refer to a decision of the Privy Council in the case of Commissioner of Income-tax v. Bombay Trust Corporation Ltd., . Their Lordships observed in that case:

'Now when a person is 'deemed to some thing, the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were. It follows, that although the High Court was perfectly right in holding that if s. 42 stood alone, 'agent' in that section would mean an agent in actual receipt of the profits or gains which were to be assessed, they failed to appreciate that s. 43 puts the person who comes within its term artificially into the position of the agent and of assess under s. 42.'

It is clear, therefore, that the words 'every notice which this Act requires or empowers a Municipality to give or to serve........shall be deemed to have been sufficiently given or served' mean that although in reality there might not have been sufficient publication of the notice, sufficient publication would nevertheless be presumed in case the Municipality had framed a by-law and the provisions of the said by-law had been complied with. Now, in this case, there is no dispute that no by-law was framed by the Municipality. No question, therefore, arises of compliance with the provisions of the by-law. But Mr. Kotwal contends, and for the reasons stated above we are of the view that the contention is right, that merely because no by-law was framed by the Municipality, it would not preclude the Municipality in other ways. Now, if we turn to the plaint, we find a clear recital made therein by the plaintiff that no sufficient publication was given to the rulese and notices. It is no doubt true that this averment made by the plaintiff in his plaint was denied by the defendant Municipality in the written statement. It is to be noted however that it is often-times difficult to prove a negative. The plaintiff's case being that there was no sufficient publication made by the Municipality in respect of the rules and notices in the matter of levy taxes, all that the plaintiff could do in his plaint was to deny the fact of sufficient publication. The manner in which the alleged publication was made by the Municipality was within the special knowledge of the Municipality. Therefore, it would not be sufficient in this case for the Municipality merely to deny the averment made by the plaintiff regarding absence of a sufficient publication. It would be necessary for the Municipality to show how the publication was made. The plaintiff, by denying the alleged sufficient publication in the plaint, put the defendant to the proof of publication and it is impossible to accept Mr. Kotval's contention that simply because the Municipality denied the plaintiff's averment in its written statement, we should take it that there was sufficient publication. When we are dealing with a fiscal statute which requires a subject to pay certain taxes, it is necessary that the provisions of the law should be strictly construed. It is perfectly clear from the provisions of Ss. 60, 61 and 62 that there should be sufficient publication of the notices, so that the persons concerned might have an adequate opportunity to make representations either to the State Government or to the Commissioner protesting against the levy of taxes. These are important provisions of law and it is necessary that they must be strictly complied with. In these circumstances, we have left it necessary to remand the case to the Court below with the issue 'Whether it is proved by the defendant Municipality that there was sufficient publication of the rules and the notices?' The learned Judge should give opportunity to both the parties to lead such evidence as they may wish to and upon a consideration of that evidence the learned Judge should give his finding whether there was sufficient publication of the rules, notices etc., by the defendant Municipality. Consistently with the finding which he might record on this point he should decide whether the levy of the tax from the plaintiff was a lawful levy or not.

(4) The learned Advocate Mr. Vaidya appearing for the plaintiff-opponent has invited our attention to clause (b) of S. 60 which says: 'When such resolution has been passed, the Municipality shall publish the form of rules so prepared with a notice in the form of Schedule A prefixed thereto.' If we turn to Schedule A, it speaks of a notice to all inhabitants. From this Mr. Vaidya argues that a notice to all the inhabitants cannot be given unless there is a by-law framed by the Municipality and unless the provisions of that by-law are complied with. We have considered this submission of Mr. Vaidya, but we have felt ourselves unable to accept it. If we turn to sub-section (2) of S. 48, this is what it lays down:

'Every Municipality shall, before making any by-law under this section, publish in such manner as shall, in their opinion be sufficient, for the information of the persons likely to be affected thereby, a draft of the proposed by-law, together with a notice specifying a date etc., etc.'

It is clear that under sub-section (2) of S. 48 also, information is to be conveyed to all the persons likely to be affected by the by-law concerned and yet the Legislature has left it to the discretion of the Municipality to adopt such mode as may appear best and sufficient in their opinion to give information of the by-law to the persons likely to be affected thereby. It is clear, therefore, that for the purpose of sub-section (3) of S. 154, the framing of a by-law and observing the provisions of the said by-law could not have been intended by the Legislature to be the only way in which all the inhabitants could be given sufficient notice. It is important to bear in mind that sub-sections (1) and (2) of S. 154 prescribe the mode of service of the notice. That is not the case with sub-section (3) of S. 154. Sub-section (3), as I have said above, refers only to a presumption, and presumption is a rule of evidence. The scope, therefore, of sub-section (3) of S. 154 is entirely different from the scope of sub-sections (1) and (2). For these reasons, we are unable to accept Mr. Vaidyas's contention that unless there is a by-law and unless there is compliance with the provisions of the said by-law, there could be no sufficient publication of the notice.

(5) The second point, which is the point of limitation in this case, in other words the point whether the plaintif's suit is barred by the provisions of S. 167 of Act would depend upon whether the levy of the tax was a lawful levy or not. If upon the evidence led before the learned Judge by the parties, the learned Judge comes to the conclusion that there was no sufficient publication of the rules, notices etc. by the defendant Municipality with the result that the plaintiff did not have sufficient opportunity to make a representation agains the proposed tax to the State Government or the Commissioner, the Municipality could hardly be deemed to have purported to act in pursuance of the provisions of the law. If the Municipality did not purport to act in accordance with the provisions of the law, it is obvious that the provisions of S. 167 would not be attracted. The learned Judge, to whom we are remanding the case, would no doubt examine this position and would decide the question of limitation also.

(6) The result is that we set aside the judgment and decree passed by the learned Civil Judge in this case remand the case to the learned Judge for decision of issue suggested by us and for disposal according to law. Costs costs in the cause.

(7) The Civil Revision Applications Nos. 108 and 109 of 1957 would be governed by this judgment.

(8) Order accordingly.


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