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Hingoli Municipal Council Vs. Ramkumar Ramchandra Chaudhari - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 121 of 1976
Judge
Reported in1985(1)BomCR78
ActsMaharashtra Municipalities Act, 1965 - Sections 10(1), 105(1), 112 and 304
AppellantHingoli Municipal Council
RespondentRamkumar Ramchandra Chaudhari
Appellant AdvocateP.S. Palnitkar, Adv.
Respondent AdvocateS.C. Bora, Adv.
DispositionAppeal dismissed
Excerpt:
.....computing the period of seven months from 27-11-1973 the suit filed on 10th june, 1974, is perfectly within the period of limitation and hence, i reject this contention raised by shri palnitkar and therefore, the appeal deserves to be dismissed......feeling aggrieved, defendant has preferred this appeal.6. two points are raised before me by shri palnitkar, appearing for the defendant-appellant. one is about the legality of the recovery and second is about the limitation.7. i shall consider the first submission made by him. according to shri palnitkar, even if the resolution, dated 5-4-1970 is struck down the earlier resolution dated 26-11-1969 still prevails. it may be stated here itself that on 26-11-1969 the hingoli municipal council imposed tax on performances and shows at the rate of rs. 0/- per show. there is hardly any force in this submission of shri palnitkar. it is an undisputed fact that by regulation the government fixed the minimum and maximum rates of tax at rs. 4/- and rs. 5/-, respectively, and it was open to.....
Judgment:

D.B. Deshpande, J.

1. This is defendants appeal against the judgement and decree passed by the learned Civil Judge (Senior Division), Parbhani, against the defendant in Special Civil Suit No. 27/1974 and it arises out of the following facts:---

Defendant is Hingoli Municipal Council. By a Municipal Resolution No. 328, dated 5-4-1970 the Municipal Council fixed the tax on performances and shows at the rate of Rs. 4.50 paise per show. This was in pursuance of the Government Resolution, dated 26-11-1969 fixing the minimum of such tax at Rs. 4/- and fixing the maximum of such tax at Rs. 5/- per show and this was to be in force from 1st April, 1970. So by virtue of the Resolution, dated 26-11-1969 only the minimum and maximum rates were fixed and the tax was not fixed and this tax was fixed by the Municipal Resolution dated 5-4-1970.

2. Plaintiff-respondent challenged this resolution in the Court of Civil Judge (Junior Division), Hingoli in Regular Civil Suit No. 107/70. It was the contention of the plaintiff-respondent that this resolution was invalid. The Municipal Council opposed the suit and contended that the resolution was perfectly valid. The trial Court dismissed that suit. The present plaintiff-respondent went in appeal to the District Court and it was Civil Appeal No. 100/72. The learned District Judge, Parbhani, allowed this appeal on 27-11-1973 and declared that the resolution dated 5-4- 1970, fixing the tax at Rs. 4.50 per show was invalid. The defendant-appellant suffered this decision and did not prefer any second appeal.

3. During the pendency of these proceedings the defendant appellant recovered from the plaintiff Rs. 8,495/- on 12th March, 1973 and Rs. 2,745/- on 30th March, 1973, from the plaintiff by way of show tax. Hence, in pursuance of the decision in Civil Appeal No. 100/72 which only for declaration and injunction the plaintiff files the present Special Civil Suit No. 27/1974 for recovery of Rs. 11,240/- plus interest. Before filing of this suit plaintiff served the defendant with a notice in pursuance of section 304 of the Maharashtra Municipalities Act, (hereinafter it is referred to as the ''M.M. Act'').

4. This suit was resisted by the defendant-appellant and it contended, first of all, that the earlier decision of the District Judge does not operate as res judicata and that the recovery is not illegal. It contended that the plaintiff is not entitled to the refund of this tax. It contended that it is entitled to recover the tax at the rate of Rs. 5/- per show from 1st April, 1970. According to the Municipal Council there was no necessity of a fresh resolution.

5. Issues were framed and both sides led evidence. After considering the evidence on record, the learned trial Judge held that the recovery is illegal and the judgment in Civil Appeal No. 100/72 operated a bar against the contention of defendant. He held that the plaintiff was not entitled to the claim of interest at the rate of 15 per cent. He held further that the defendant was not entitled to recover the tax at the rate of Rs. 5/- per show from 1st April, 1970, and that the defendant is not entitled to adjust the recoveries accordingly. Consequently, he passed a decree in favour of plaintiff only for Rs. 11,240/- with proportionate costs and with future interest on this amount at 6 per cent per annum from the date of the suit till satisfaction. Feeling aggrieved, defendant has preferred this appeal.

6. Two points are raised before me by Shri Palnitkar, appearing for the defendant-appellant. One is about the legality of the recovery and second is about the limitation.

7. I shall consider the first submission made by him. According to Shri Palnitkar, even if the resolution, dated 5-4-1970 is struck down the earlier resolution dated 26-11-1969 still prevails. It may be stated here itself that on 26-11-1969 the Hingoli Municipal Council imposed tax on performances and shows at the rate of Rs. 0/- per show. There is hardly any force in this submission of Shri Palnitkar. It is an undisputed fact that by regulation the Government fixed the minimum and maximum rates of tax at Rs. 4/- and Rs. 5/-, respectively, and it was open to the Municipal Council to fix the rate of tax within the range of these amounts by passing a resolution and when the Government laid down by rule that the tax should be minimum at Rs. 4/- and maximum at Rs. 5/- per show it must be said that the earlier resolution passed by the Municipal Council does not remain valid and it becomes absolutes, and therefore, I do not find any force in this argument.

8. The next question is about limitation. It is true that the question of limitation was not raised in the trial Court. Shri Palnitkar, for the appellant, stated that he was pleading the bar of limitation on the fact as they are disclosed by the pleadings of the parties and that no additional evidence was at all required for deciding the question of limitation. Now, it is a settled principle of law that if a point of law which is raised in appeal for the first time does not require ant additional evidence; and it can be disposed of on the material on record, it should be allowed to be raised in appeal even for the first time. Hence I allow Shri Palnitkar to raise the question of limitation in this appeal. Shri Palnitkar is right so far as his contention that this recovery is in pursuance of execution or intended execution of the Maharashtra Municipalities Act, 1965, is concerned. Shri S.C. Bora, appearing for the plaintiff-appellant, tried to feebly oppose this proposition but I do not find any force in his submission. Although the resolution, dated 5-4-1970, is struck-down, this is a recovery which is being done for the purpose of this Act and for the execution of this Act or for the intended execution of the provisions of the M. M. Act, 1965 and hence, it cannot be again said that this is a recovery in pursuance of the provisions of the M. M. Act, 1965. Now, in this context we have to turn to sub-section (1) of section 304 of the M. M. Act and sub-section (1) runs as follows :---

''(1) No suit shall lie against a Council or against any committee constituted under this Act, or against any officer or servant of a Council in respect of any act done in pursuance or execution of intended execution of this Act, or in respect of any alleged neglect or default in the execution of this Act.

(a) Unless it is commenced within six months next after the accrual of the cause of action; and

(b) Until the expiration of one month after notice in writing has been, in the case of a Council or its committee, delivered or left at the Municipal Office and, in the case of an officer or servant of a Council, delivered to him or left at his office or place of abode; and all such notices shall state with reasonable particularity the causes of action and the name and place of abode of the intending plaintiff and of his Advocate, pleader or agent if any, for the purposes of the suit.''

Shri Palnitkar, therefore, urged that the cause of action arose to the plaintiff on 12th March, 1973, when Rs. 8,495/- were recovered first and on 30th March, 1973, when Rs. 2,745/- were recovered on the second occasion. The period of limitation is of six months from the date of cause of action. To this there was rejoinder by Shri S.C. Bora who contended that the cause of action arose to the plaintiff on 27th November, 1973, when in appeal, the District Judge, Parbhani, struck down the Resolution, dated 5-4-1970, fixing the tax at Rs. 4.50 paise per show. This proposition was contested by Shri Palnitkar but I do not find any force in his contest. Till 27-11-1973 the recovery was perfectly valid and it became invalid only on the date on which the District Judge held the resolution to be invalid and hence, it must be said that the cause of action arose to the plaintiff on 27-11-1973 when the District Judge declared the Resolution, dated 5-4-1970 as invalid. Till then the recovery was perfectly right and now, section 304 of the M.M. Act fixes the period of limitation of six months from the date of cause of action and one month's notice is required to be given to the Municipal Council and thus, the total period of limitation comes to seven months and computing the period of seven months from 27-11-1973 the suit filed on 10th June, 1974, is perfectly within the period of limitation and hence, I reject this contention raised by Shri Palnitkar and therefore, the appeal deserves to be dismissed.

9. In the result, the appeal is dismissed with no order as to costs.


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