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The Secretary of State for India Vs. Major J.E. Hughes - Court Judgment

LegalCrystal Citation
SubjectOther Taxes;Limitation
CourtMumbai
Decided On
Case NumberFirst Appeals Nos. 32 and 41 of 1913
Judge
Reported in(1914)16BOMLR121
AppellantThe Secretary of State for India
RespondentMajor J.E. Hughes
DispositionAppeal dismissed
Excerpt:
.....fixed by the regulation as not less than fifteen days- want of sufficient notice-cantonment magistrate-levy of assessment illegal-jurisdiction- civil. court-payment of assessment under protest- payment by cheque-payment is effective only when the cheque is cashed- limitation runs from the date the cheque is cashed-limitation act (ix of 1908). article 64.;the western india turf club to poona wag taxed at rs. 201 per year up to 1908 upon an estimated gross letting value of the race-course property at rs. 5038. a notice was served upon them, on the 8th october 1908, by the cantonment magistrate, loom, that the said property was, under the poona cantonment taxation regulations, valued at rs. 2,46,000, and rated at rs. 9840 per annum. the notice further required that if any complaint..........of the city of bombay municipal act of 1872 and 1878. according to such adaptation the cantonment magistrate took the place of the municipal commissioner, and the cantonment committee took the place of the court of petty session, for the purpose of hearing appeals against rates. the regulations with which we are concerned in this appeal are regulations 1, 2, 7, 8, 10, 13, 15 and 42. regulation 1 provides that ' the estimated gross annual rent at which the houses, buildings and lands liable to property rates might reasonably be expected to let from year to year shall, for the purposes of the-said 1'rates, be held and deemed to be the annual value of such houses, buildings and lands.' regulation 2 provides that ' the rates shall be leviable from the actual occupier if he hold the house,.....
Judgment:

Basil Scott, Kt., C.J.

1. This suit was instituted by the plaintiff to recover payment of the amount of taxes levied by the Cantonment authorities at Poona, -which the plaintiffs paid under protest on the ground that the assessment was illegal. The learned District Judge, by whom the case was heard, disposed of it in favour of the plaintiffs, and this appeal has been preferred by Government on two grounds, first, that the Court had no jurisdiction to entertain the suit and, secondly, that in respect of a portion of the money claimed the suit is barred by the provisions of Article 62 of the Limitation Act.

2. The argument on the question of jurisdiction amounted to this. According to the assessment rules certain authorities have been constituted for the assessment of taxes, and their assessment is final, except in so far as any question may arise as to the legality of their action having regard to the jurisdiction conferred upon them by the assessment rules, and it was contended that the assessment of the tax complained of by the plaintiffs was a pure question of fact and not off law, and that, therefore, no question arose for the decision of a Court of law, on the analogy, I presume, of applications in revision to the High Court under Section 115 of the Code of Civil Procedure. The contention that the assessment of the tax raises a pure question Secretary of fact was based upon a passage from the judgment of Lord Halsbury in the Mersey Docks and Harbour Board v. Birkenhead Assessment Committee [1901] A.C. 175 but if that judgment is read as a whole it does not as we shall have occasion to show later on, support the appellant's contention.

3. The rules affecting the taxation for Cantonment purposes of occupiers in Poona were framed by the Government of Bombay under the powers conferred by Section 22 of the Cantonments Act of 1880, powers which have been continued substantially in the same words through various Cantonment Acts up to the present time. Under those enactments it is provided that the local Government may, by notification in the official Gazette, impose in any cantonment, which is not included in the Municipality, any tax which, under any enactment in force at the date of the notification, can be imposed in any Municipality within the territories administered by such Government and that when any tax is leviable in a cantonment in pursuance of such notification the local Government may by notification apply or adapt to the cantonment the provisions of any enactment or rules in force at the date of the notification in any Municipality within the territories aforesaid relating to the assessment, collection or recovery of any tax, and refund or revision of, or exemption from any such tax.

4. In intended execution of the powers conferred by Section 22 of the Cantonments Act of 1880, Poona Cantonment Taxation Regulations were notified in the year 1881, which purported to adapt the taxation provisions of the City of Bombay Municipal Act of 1872 and 1878. According to such adaptation the Cantonment Magistrate took the place of the Municipal Commissioner, and the Cantonment Committee took the place of the Court of Petty Session, for the purpose of hearing appeals against rates. The regulations with which we are concerned in this appeal are Regulations 1, 2, 7, 8, 10, 13, 15 and 42. Regulation 1 provides that ' the estimated gross annual rent at which the houses, buildings and lands liable to property rates might reasonably be expected to let from year to year shall, for the purposes of the-said 1'rates, be held and deemed to be the annual value of such houses, buildings and lands.' Regulation 2 provides that ' the rates shall be leviable from the actual occupier if he hold the house, building or land immediately from Government'.

5. By Government Notification of the 17th of September 1891, a general property rate of four per cent, per annum of the annual value of houses, buildings and lands liable to property rate was imposed on the Cantonment of Poona, and the plaintiffs as occupiers of the Race Course in the Cantonment which they held immediately from Government were liable for the rate.

6. Until the year 1908, the plaintiffs had been called upon to pay a tax of Rs. 201, assessed upon an estimated gross letting value of the Race Course property of Rs. 5,038. On the 8th of October 1908, they received the following notice from the Cantonment Magistrate :-' Under Poona Cantonment Taxation Regulations the Cantonment Magistrate hereby gives notice to the Secretary, Western India Turf Club with regard to the property indicated in the margin that he has revised the valuation of the said property-and assessed the rate at Rs. 9,840 per annum on an annual income of Rs. 2,46,000, and that any complaints against such valuation must be made to the Cantonment Magistrate in writing and received at this office within three days from the service of this notice.' This, therefore, was a case falling under Regulation 10 under which the rates might be increased that Regulation provides that ' notice of the amendment shall be given to the person interested and the date fixed for the hearing of complaints which shall be made and heard in the manner prescribed in Section 8 for complaints concerning original rates in the assessment book.' Regulation 8 provides that 'all complaints against valuations shall be made to the Cantonment Magistrate by application in writing left at his office three days before the day fixed in the public notice for revising the valuations and rates,' the public notice being the notice provided for by Regulation 7 which must prescribe a day, not being less than fifteen days from the publication of notice, when the Magistrate will proceed to revise the valuations and rates. It is, therefore, apparent that the Cantonment Magistrate in notifying that any complaints against the increased rate must be made within three days from the service of his notice of the 8th of October 1908 was disregarding the express provisions of the Regulations.

7. It is contended, however, that such disregard of the Regulations is of no importance under Regulation 42, provided the directions in the Regulations have been in substance and effect complied with, and that, if that is so, the action of the Cantonment Magistrate cannot be quashed or set aside in any Court. It appears to us that the Regulations have not been in substance or effect complied with. The plaintiffs are called upon within three days to show cause why the rate imposed upon them should not be raised from Rs. 201 to Rs. 9,840. Such a serious demand was a matter requiring very attentive consideration and reasonable time was not given to the plaintiffs to take any advice upon the subject. On that ground alone, therefore, we think that the action of the Cantonment Magistrate was not warranted by the Regulations. An appeal was preferred from his assessment to the Cantonment Committee under Regulation 13. The Cantonment Committee only have jurisdiction to hear an appeal against a rate provided it is charged under the provisions of the foregoing Regulations. The appeal to that Committee resulted in a curt Resolution as follows :-'Resolved that the appeal of the Turf Club be rejected,' and the request for reasons for this resolution was met by a further Resolution as follows :-' Resolved that the Solicitors to the Turf Club be informed that the Committee consider that they are not bound to record their reasons for rejecting an appeal.' The Turf Club then appealed to the Governor in Council, but they were informed that under the Regulations the Governor in Council had no power to interfere with the decision of the Cantonment Committee, which according to the provisions of Regulation 15 was to be final. It is not surprising under the circumstances that the plaintiffs paid their tax under protest, and have filed this suit for the recovery of the same as money had and received for their use.

8. Up to this point we have dealt with the objection to the action of Cantonment authorities on the ground of procedure and, for the reasons stated, we think that the objection is well founded, that the Cantonment Magistrate did not charge a rate under the provisions of the Regulations, an appeal with reference to which could be heard and determined by the Cantonment Committee.

9. But there is a more serious objection than that caused by the procedure laid down in the Regulations. It is this: that the Cantonment Magistrate has wholly disregarded the basis upon which the rate is to be assessed. He has assessed a rate upon the gross income of the plaintiffs, which would not even be a basis for the levy of income-tax. Even if the plaintiffs' net profits, which average about Rs. 30,000 year, had been taken as the basis of valuation, it is clear, for the reasons stated by the District Judge, that no hypothetical tenant could be expected to offer such a sum as rent for the property in question, for as the District Judge points out 'if the of State plaintiffs were to let the Race Course and buildings for more than about Rs. 30,000 a year, it is obvious that their tenant would conduct business at a loss,' and if they were to let it for that sum only he would make no profit. It would, there-fore, not be reasonable to expect that he would offer such a rent. It appears to us that the judgment of Lord Halsbury in Mersey Docks and Harbour Board v. Birkenhead Assessment Committee, already referred to, so far from being any authority in favour of the contention of the appellants is a direct authority for the proposition that where a taxing authority is called upon to assess the tax based upon annual letting value he does very wrong indeed if he rates as if he were dealing with the question for the income-tax. The Cantonment Magistrate has, as stated by the District Judge,' not calculated the tax on the annual value, but on some strange and novel method of his own. The law does not justify his action at all. It was outside the law, and he has assumed powers which the law has not given to him. The enhancement of the tax was, therefore, ultra vires, and not a legitimate method of arriving at a fair letting value of the house.' It is, therefore, clear upon the authority of Kasandasv. Ankleshwar Municipality I.L.R. (1901) 26 Bom. L.R. 882 that the case is one in which the jurisdiction of the civil Courts is not ousted. The money has been claimed and received from the plaintiffs without the shadow of a right, and the plaintiffs having paid under protest are entitled to recover the money, unless their claim is barred by limitation. It is only contended that their claim is barred in respect of the first payment made by them for one half year, being the sum of Rs. 4,819-3-10. A cheque for that sum was given to the Cantonment Magistrate by the Turf Club on the 28th November 1908, but it was not cashed by him and on the 5th of May 1909, he wrote saying that he had made a mistake in the figure which should be Rs. 4,671, and that the cheque drawn on the 28th November would be returned on payment of the sum of Rs. 4,671. The first cheque was, however, cashed on the 27th of May 1909. This suit was instituted on the 28th March 1912, more than three years after the delivery of the cheque, but less than three years after the cashing of the sarne. We are of opinion that limitation runs, not from the date of the delivery of the cheque, but from the date of the receipt of the money by the payee, and that, therefore, Article 62 is no bar to the plaintiffs' claim in respect of this payment. The appeal, therefore, must be dismissed.

10. We would add for the consideration of the Government an observation on a question which it has not been necessary to decide having regard to the success of the plaintiffs upon the points raised by them. It is this, whether the Cantonment Taxation Regulations can be regarded as an adaptation of the provisions of the taxation sections of the City of Bombay Municipal Act of 1872 and 1878 in respect of appeals from rates. Those sections allowed an appeal to the Court of Petty Session, that is to the Presidency Magistrate, a judicial tribunal, whereas Regulation 13 of the Poona Regulations gives the appeal to the Cantonment Committee, which is a lay body, one of the most important members of which is the Cantonment Magistrate, from whom the appeal is preferred.

11. The plaintiffs must have their costs of this appeal and of the next appeal which fails with the failure of this appeal.


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