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The Secretary of State for India Vs. the Municipal Corporation of Bombay (No. 1) - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 32 of 1934 and Suit No. 405 of 1931
Judge
Reported in(1935)37BOMLR499; 158Ind.Cas.824
AppellantThe Secretary of State for India
RespondentThe Municipal Corporation of Bombay (No. 1)
DispositionAppeal dismissed
Excerpt:
.....v, c. 61; 6 & 7 geo. v; c. 37), section 84 - laws affecting prerogative of the crown made by local legislature-validity of-city of bombay municipal act (bom. hi of 1888), section 212-municipal fates not paid-charge on government lands-section not ultra vires the bombay legislature-construction of statute-marginal note to a section.;the combined effect of section 84 of the government of india act, 1915, (5 & 6 geo. v, c. 61), arid section 2 of the government of india (amendment) act, 1916, (6 & 7 geo. v, c, 37), is to validate, not only future acts, but also the past acts of the local legislature; i.e. acts passed even prior to 1915, which affect the prerogative of the crown. consequently, the city of bombay municipal act of 1888, in so far as it affects the prerogative of..........section 212 means what it says, i. e. that the tax is. to be a first charge upon the building or land liable to tax. it is then said that even if that is so, the crown is not bound, because the crown is not named expressly in the section. that, no doubt, is true, but the question is. whether the crown is not referred to by necessary implication. in my opinion, it is. the scheme of the act is to levy taxes in respect of land and buildings,, and then to impose a liability to pay the tax on persons having certain interests in the land and buildings, with the ultimate remedy, if the tax is not paid, of a charge under section 212 on the land or buildings. if we once hold that land of government is subject to the tax, it seems to me that we should not be giving proper effect to the remedies.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal by the Secretary of State for India in 'Council against a decision of Mr. Justice Davar, and the question raised is whether lands in the City of Bombay belonging to Government are liable to a charge for property tax arising under Section 212 of the City of Bombay Municipal Act, 1888. The facts are not in dispute. The land in question was let on lease, and the liability for tax arose during the currency of the lease, and that liability was not discharged by the lessee. The lease has now been terminated, :and possession of the land has been recovered by Government, and the question is whether the unpaid tax for which the lessee was primarily liable is a charge upon the land in the hands of Government under the Act.

2. The first contention of the Advocate General is that if the City of Bombay Municipal Act purports to impose a charge upon land of the Crown, it is, to that extent, ultra vires, because in the year 1888 the local Legislature had no power to legislate in derogation of the prerogative of the Crown, and in support of his argument he refers to various old Acts. There is first the Act 3 & 4 Will. IV, c. 85, Section 43, which, in conferring power to legislate upon the Governor-General in Council, except matters which shall in any way affect any prerogative of the Crown. The Government of India Act, 1883, 16 & 17 Vic. c, 95, Section 26, contains a saving provision that no law or regulation made by the Governor-General in Council shall be invalid by reason only that the same affects any prerogative of the Crown, but. that saving -provision does not extend to the Act of any local Legislature. A similar provision is to be found in Section 24 of the Indian Councils Act, 1861. There is, therefore, undoubtedly force in the contention of the Advocate General that in the year 1888 the local Legislature had no power to affect the prerogative of the Crown. But the question is whether that position has not been altered by recent legislation. Section 84 of the Government of India Act, 1915, pro-f vides that:-

A law made by any authority in British India shall not be deemed invalid solely on account of any one or more of the following reasons :-(a) in the case of I- a law made by the Governor-General in Legislative Council, because it affects the ) prerogative of the Crown.

3. Then comes the amending Act of 1916, which provides in Section 2 (2) that in; Section 84 of the Act of 1915, after the words 'Governor-General in Legislative Council' shall be inserted the words 'or a local Legislature', and Sub-section (3) of that section provides :

This section shall apply to and shall validate laws made as well before as after the commencement of this Act.

If the provisions of Section 84 of the 1915 Act only extend to future legislation,, then, no doubt, Sub-section (3) of Section 2 of the amending Act would not carry the matter much further, because the amending Act only puts the Acts of a local Legislature on the same footing as Acts of the Governor-General in Legislative-Council, and the only effect of Sub-section (3) would be to cover the period between the two Acts. But at any rate Sub-section (3) shows that the Legislature was not averse to passing legislation of a retrospective character in this connection. The real question, therefore, is whether Section 84 of the Act of 1915 applies only to future-legislation, or is a validating section applying to past, as well as future, legislation. If the section is of the latter character, it is clear that the ordinary rule of construction by which Acts are construed in a prospective, rather than in a retrospective, sense, if the words so permit, has no application. Now the-position of the section is of some consequence. It comes at the end of Part VI of the Act, which is entitled 'Indian Legislation', and the power of the Governor General to legislate so as to affect the prerogative of the Crown is. not inserted amongst his general legislative powers conferred by Section 65. That rather suggests that the section was intended to do more than merely deal' with the power of future legislation. Then the marginal note to the section is strongly in favour of the view that it was intended to validate past Acts. The marginal note is, 'Removal of doubts as to validity of certain Indian-laws.' The Legislature can hardly have intended to remove doubts which might arise under Acts which had not yet come into existence. Marginal' notes can, as it has been said, be looked at in order to see the general trend of the section, and here I think the marginal note is certainly of consequence when we have to consider whether the general trend of the section is to validate past Acts or to deal only with future Acts. The actual words of the-section also favour the view that it extends to past legislation, because the opening words are, 'A law made' and not 'laws to be made'. There-are other sub-sections (b) and (c) besides sub-s, (a), which I have already-read, and they may have some bearing on the construction of the section. Sub-section (6) provides that a law made by any authority in British India shall not be invalid because the requisite proportion of members not holding office under the Crown in India was not complete at the date of its introduction into the Council or its enactment That no doubt has reference to the provisions of Sub-section (3) of Section 63, but it may also cover cases arising under corresponding provisions in earlier Acts, particularly the Act of 1861, Section 33 of which was substantially in the same terms as the sub-section in question. Then sub-s, (c) deals with the case of laws made by local Legislatures relating to the powers of Magistrates over European British subjects. We have not been referred to any existing local law to which that sub-section is directed, but I apprehend that it is probably directed to existing local laws-it may be laws in other provinces-certainly from the phraseology of the sub-section I should assume that it is directed to some existing local laws, and not merely to possible future local laws. Taking the language of the section as a whole, its position in the Act, and the marginal note, I feel no doubt that this section taken in conjunction with the amending Act has the effect of validating not only future Acts of legislative authorities in India, but also past Acts. That being so, I think that it is not open to us to hold that the Bombay Municipal Act of 1888 is invalid merely by reason of the fact that it affects the prerogative of the Crown, and no other ground of invalidity is suggested.

4. The next question to consider is, whether on the terms of the Act lands of the Crown fall within Section 212. The Advocate General relies on the general canon of construction that the Crown is not bound by Acts of Parliament unless named expressly or by necessary implication, a canon of construction which this Court applied in favour of the Crown to a different part of this very Act in the case of Hiranand Kirpalani v. Secretary of State : AIR1934Bom379 . In that case, however, we were dealing with the portion of the Act relating to streets, by which we held the Crown was not bound. In the case of the sections relating to taxation it is not disputed that the Crown is bound except where exempted from payment. Property taxes are imposed by Section 140 on buildings .and lands in the City. Section 143 provides that the general tax, which is part of the property taxes, shall be levied in respect of all buildings and lands in the City except (as far as relevant) 'buildings and lands vesting in Her Majesty used solely for public purposes and not used or intended to be -used for purposes of profit or in the corporation, in respect of which the said tax, if levied, would, under the provisions hereinafter contained, be primarily leviable from the Secretary of State for India in Council or the Corporation, respectively.' So that it was clearly contemplated there that, in cases not excepted, buildings and lands vested in the Crown were liable to the tax. Then Section 146, which deals with the liability of persons to pay the tax, provides that property taxes shall be leviable primarily from the actual occupier of the premises upon which the said taxes are assessed, if such occupier holds the said premises immediately from Government or from the corporation or from a fazendar. Otherwise the property taxes are primarily leviable, if the premises are let, from the lessor, and if the premises are sub-let, from the superior 'lessor. In the present case the property having been let, and held immediately from Government, the primary liability is no doubt on the lessee. Section 203 gives a right of distress for recovery of the tax, and Section 209 imposes a secondary liability on the actual occupier when default is made by the person liable and that person is not the occupier, Then comes the relevant Section 212, which provides that-

Property taxes due under this Act in respect of any building or land shall subject to the prior payment of the land revenue, if any, due to Government thereupon, be a first charge upon the said building or land and upon goods and chattels if any, found within or upon such building of land and belonging to the person liable, for such taxes.

It is suggested by the Advocate General that the charge under that section, is only imposed upon the interest in the land of the person liable to pay the tax. But, in my opinion, that construction is quite impossible. The tax is-charged in terms upon the building or land, and not upon any particular interest therein, and if it were held that the charge only extends to the interest of the person liable to pay, difficulties would arise, particularly in cases in which the property had been sub-let, where the superior lessor would be liable under Section 146, and possibly the occupier, under Section 209, but the owner of a beneficial head-lease would not be liable, and his interest would escape the charge under Section 212. I have no doubt that Section 212 means what it says, i. e. that the tax is. to be a first charge upon the building or land liable to tax. It is then said that even if that is so, the Crown is not bound, because the Crown is not named expressly in the section. That, no doubt, is true, but the question is. whether the Crown is not referred to by necessary implication. In my opinion, it is. The scheme of the Act is to levy taxes in respect of land and buildings,, and then to impose a liability to pay the tax on persons having certain interests in the land and buildings, with the ultimate remedy, if the tax is not paid, of a charge under Section 212 on the land or buildings. If we once hold that land of Government is subject to the tax, it seems to me that we should not be giving proper effect to the remedies given for recovery of the tax, if we were to hold that land of Government is excluded from the charge-under Section 212. We should then be treating Government land as liable to the tax, but the Corporation as having no ultimate remedy against that land. In my opinion, the Crown is bound by necessary implication in respect of the charge which arises under Section 212, that section being an integral part of the general scheme of the Act imposing taxation on land in Bombay including: Government land. I think, therefore, the judgment appealed from was right, and the appeal must be dismissed with costs, with the variation that the provisions about costs and interest in the judgment should be struck out.

Rangnekar, J.

5. I agree. The first question raised by the appellant is that Section 212 of the Bombay Act III of 1888 is ultra vires the local Legislature inasmuch as it affects the prerogative of the Crown. In Hiranand Kirpalani v. Secretary of State : AIR1934Bom379 the same question was incidentally raised before us in the-course of discussion. I then expressed an opinion that there was force in. the contention that the Act is ultra vires the local Legislature. The question, was not then fully argued and we had not the advantage of hearing the other side as it was not material for our decision in that case. Having now had the-benefit of a fuller argument, I am clear in my mind that the question must be. answered against the Crown.

6. It is well established by authorities that the Crown cannot be bound by a statute except with its consent. It is clear that up to 1853 no authority in, British India had any power to enact a law which would affect the prerogative of the Crown. Then came the Act of 1853, Section 26 of which provided that no law enacted by the Governor-General in Legislative Council shall be invalid by reason of its affecting the Crown, provided the previous sanction of the Crown was obtained. The local Legislature was, however, denied, the saving provision. This Act was followed by the Act of 1861. Section 24 of that Act contained a similar saving provision as in the Act of 1853, except that previous sanction of the Crown was not necessary. Section 42 defined the extent of the power of the Governor of a Presidency in Council to make laws and regulations, but there was no power in him to make any laws affecting the prerogative of the Crown. There is force, therefore, in the Advocate General's contention that what may be called a Provincial Legislature had no authority in 1888, when the City of Bombay Municipal Act was passed, to enact any laws affecting the prerogative of the Crown. The Act of 1861 was followed by that of 1915, which is entitled the Government of India Act, 1915. Section 84 of that Act clearly provided that any law made by any authority in British India shall not be deemed invalid solely on account of

(a) in the case of a law made by the Governor-General in Legislative Council, because it affects the prerogative of the Crown.

This also does not seem to extend the powers of a provincial legislative authority to make laws affecting the Crown. This Act, however, was followed by the amending Act of 1916, Section 2 (2) of which provides that after the words ' Governor-General in Legislative Council' the words ' or a local legislature ' should be inserted, and the rival contentions in this case are based upon the construction and effect of these two statutes. On the one hand it is argued that the Act of 1915 is not retrospective but applies to future legislation only, on the other, that Section 84 is merely a validating section and validated laws-already enacted by a local Legislature. The real question in this appeal i$ which of these contentions is correct.

7. It seems to me plain from the language of the section itself, apart from its position in the Act, that it is a validating section, and this view is further supported by the marginal note to the section as also the sub-heading of the chapter in which that section is placed. It seems to me to be difficult to take any other view, having regard to the language of the section, which, if it was. intended to cover future legislation only, is not expressed in the same affirmative manner, as for instance, Sections 65 and 80A of the same Act, which conferred upon the Governor-General in Legislative Council and the local Legislature respectively the power to enact future laws for their respective territories. Then the question is what is the effect of the amending Act of 1916 In my opinion, the effect is to validate the laws already made by a local Legislature in the past to the same extent as in the case of laws made by the Governor-General in Legislative Council. In other words the amending Act puts the local Legislature on the same footing as what may be called the Imperial Legislature in this respect.

8. It is contended, however, that Sub-section (3) of Section 2 of the amending Act shows that the intention was to validate laws made by a local legislature after 1915 and thereafter. Sub-section (3) is in these terms ;

This section shall apply to arid shall validate laws made as well before as after the commencement of this Act.

But if Section 84 of the Act has a retrospective operation, then it must follow that the amending Act has it too. In, my opinion this sub-section was clearly enacted ex majore cautela, and that is clear from the fact that it refers not only to laws made before the commencement of the amending Act, but even after the commencement of the amending Act. If Section 84 applied only to Acts which were to be made after 1915, it clearly was not necessary to provide in the Sub-section (3) of the amending Act that that amendment would validate laws made after the commencement of the Act, that is after 1916, and, I think, therefore, there is no force in the contention that the whole intention of the Legislature was to make Section 84 as also Section 2 (2) of the amending Act of 1916 applicable to the laws which any authority in British India might make in the future. I am, therefore, clearly of opinion that the Act of 1888 was intra vires.

9. The next question is whether the Crown is bound by the provisions of Section 212. The principle is well established that no Act of Parliament would bind the Crown unless the Crown is named therein expressly or by necessary implication. The Crown is not named expressly in Section 212. But it is impossible to hold that the Crown is not bound by this section as a result of necessary implication, having regard to the scheme of the Act and the other sections in this particular chapter, which deals with the question of taxation. This question has been dealt with in the judgment which has been delivered by my Lord the Chief Justice, and as I entirely agree with it, I do not think it necessary to go into any detailed discussion on this question.

10. The whole scheme of the Chapter under the heading 'Municipal Taxation ' is to impose the tax on all lands and buildings in the City. Then follow the provisions as to persons primarily liable to pay the tax and as to certain persons otherwise liable. Then there is a provision as to recovery of the tax by distress. It is clear that the lands and buildings vesting in the Crown are not exempted except in regard to some specifically mentioned in Clause (6) of Section 143(7). Then comes the provision in Section 212 at the end of the chapter which imposes a first charge on all lands and buildings in respect of the tax assessed on them. Upon the plain language of the section, I am unable to accept the contention that it refers to the interest of the person liable to pay the tax on the lands and buildings. This being the scheme, in my opinion, the Crown is named in the section by necessary implication.

11. I agree, therefore, that the appeal must be dismissed with costs, with the variation that the words about costs and interest should be struck out in the judgment.


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