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The Municipal Board Vs. Dr. Radha Ballabh Pathak - Court Judgment

LegalCrystal Citation
Subject Other Taxes; Civil
CourtAllahabad
Decided On
Reported inAIR1949All301
AppellantThe Municipal Board
RespondentDr. Radha Ballabh Pathak
Excerpt:
.....case that relief (b) was absolutely dependent upon relief (a) because, if the suit succeeded in respect of relief (a), relief (b) followed automatically and if the suit failed in respect of relief (a), relief (b) could never have been granted. , which section alone was the subject-matter for their lordships' consideration in bhagchand's case .4. even if the first clause of section 326 were to be held applicable to the present case, i am again satisfied that this is a case to which the proviso to that section applies. the proviso dispenses with the notice in a case where the suit is one for injunction only-the present suit being, of such a nature-the object of which would be defeated by the giving of the notice of the postponement of the commencement of the suit or' proceeding. in the..........for india in council in support of his contention that the present suit should be taken to be a suit in respect of something done in the past and not in respect of the threatened future action. he has, in particular, relied upon the following passage:to argue, as the appellants did, that the plaintiffs had a right urgently calling for a remedy, while section 80 is mere procedure, is fallacious, for section 80 imposes a statutory and unqualified obligation upon the court. so, too, the contention that the 'act purporting to be done by the collector in his official capacity, in respect of which 'the suit was begun, was his threatened enforcement of payment is also fallacious, since the illegality, if any, is in the order for recovery of the tax. if that was valid, there was nothing to be.....
Judgment:

Seth, J.

1. This is a defendant's appeal. The defendant happens to be the Municipal Hoard, Mathura. The suit was instituted by the respondent, Radha Ballabh Pathak, for an injunction to restrain the appellant Board from 'making any distress of the plaintiff for the recovery of the amount of Rs. 334-10-3 the alleged water tax...for the period 1st July 1939 to 31st March 1943.' The tax claimed was in respect of a building known as Old Police Outpost. It belongs to the Government. It was let to the plaintiff-respondent who, after making certain temporary alterations, further sublet it to a number of sub-tenants. During the period for which the tax is claimed, the plaintiff-respondent was not in occupation of the building. He was not the owner because the Government was the owner. He was not the occupier because the sub-tenants were occupying the building. Therefore, he was neither the owner nor the occupier during the period in question. The suit was de-creed by the Court of first instance and the decree of that Court was confirmed by the lower appellate Court. Aggrieved by the decision of the lower appellate Court, the defendant Board has come in second appeal to this Court.

2. The first contention raised on behalf of the Board is that the plaintiff-respondent is liable to pay this tax. It is admitted that the decision of this question depends upon the interpretation to be placed upon the provisions of Section 149, U.P. Municipalities Act (II [2] of 1916). It is rightly conceded by the learned Counsel, for the appellant that Section 149 (1) does not apply to the case and that Section 149 (2) governs it. His contention is that it is either section 149 (2) (a) or (c) which is the relevant provision and according to which the plaintiff respondent is liable for the payment of this tax. I am unable to accept this contention, because it is plain to me that it is Section 149 (2) (b) which governs the case. According to this, when a property is sub-let, the tax is recoverable from the 'superior lessor.' I understand that the expression 'superior lessor' has been used in contradistinction to the expression 'sub-lessor.' Whenever a property is sublet, there is a superior lessor, there is his {lessee and the lessee himself becomes a sub-lessor with regard to the sub-lessee. It is impossible to describe the sub-lessor as a superior lessor and to describe the original lessor as somebody else. Learned Counsel for the appellant has tried to reason out from the various provisions of this section that the intention of the legislature was that in a case like this the tax should be payable by the sub-lessor. There remains no scope for logic when the language of the statute is plain. Whatever may have been the wisdom that guided the legislature in enacting a provision like this it is not for the Court to make surmises about it. A Court has got to administer a statute as it stands. Reading Section 149 in its plain and grammatical sense, I have not the least doubt that in a case where a property has been sublet, it is not the sub-lessor who is liable to pay the taxes. There is, thus, no force in the first contention advanced on behalf of the appellant.

3. The next contention put forward is that the suit was barred by the provisions of Section 326, Municipalities Act. Section 326 of the Act re-quires that

no suit shall be instituted against a board or against a member, officer or servant of a board, in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has been, in the case of a board, left at its office, and, in the case of a member, officer or servant, delivered to him or left at his office or place of abode....

There is an exception provided at the end of the section which states that nothing in Sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding. The argument on behalf of the appellant proceeded upon the assumption that it was the proviso alone that needed consideration and that, if the case did not fall within the proviso, a notice was necessary1, and no notice having been admittedly served, the suit should be held to be barred by the provisions of Sub-section (1) of Section 326. As I read Sub-section (1) of the section, it appears to me that it does not apply at all to the present case. A notice is needed only with regard to suits instituted in respect of an act done or purporting to have been done. The sub-section does not contemplate a case in which a suit is instituted in respect of an act] which is threatened to be done in future. It seems to me that the present suit is in respect of an act which is threatened to be done in future. Mr. Pathak has argued with great force that the suit is not in respect of any act which is intended to be done in future, but that the suit is in respect of an act already done namely, the threat given of realising the tax from the plaintiff. A threat given in the past may be an occasion for the institution of the suit; it may be an element required to be proved by the plaintiff before he can 'be entitled to get the relief claimed; it may even be a part of the cause of action for the suit, but it is not that in respect of which the suit has been brought. Section 326, U. P, Municipalities Act, is a restrictive provision of law and, while no Court would be justified in ignoring or setting at sought a restrictive provision of law, it is a well-recognised canon of construction that restrictive provisions should be given very restricted interpretation and should not be either liberally construed or extended through the medium of interpretation. Mr. Pathak has relied upon a decision of their Lordships of the Privy Council in Bhagchand Dagdusa Gujrathi v. Secretary of State for India in Council in support of his contention that the present suit should be taken to be a suit in respect of something done in the past and not in respect of the threatened future action. He has, in particular, relied upon the following passage:

To argue, as the appellants did, that the plaintiffs had a right urgently calling for a remedy, while Section 80 is mere procedure, is fallacious, for Section 80 imposes a statutory and unqualified obligation upon the Court. So, too, the contention that the 'act purporting to be done by the Collector in his official capacity, in respect of which 'the suit was begun, was his threatened enforcement of payment is also fallacious, since the illegality, if any, is in the order for recovery of the tax. If that was valid, there was nothing to be restrained.

In Bhagchand's case their Lordships of the Privy Council were dealing with Section 80, Civil P.C., and not with Section 326, U.P. Municipalities Act. In the first place, it has to be noticed that there is a difference in the language of the two sections on the material point for, whereas Section 80, Civil P.C., speaks of 'any act purporting to be done', Section 326 speaks of 'in respect of an act done or purporting to have been done'. It is obvious that, whilst Section 80 speaks of something in the present tense, Section 326 speaks of something done in the past tense or in the present perfect. In the second place, it would appear from the facts of Bhagchand's case that the relief claimed in that suit was, (a) a declaration that certain official notices and orders were ultra vires and invalid, and, (b) an injunction permanently restraining all executive action thereunder. ,It could very well be said, therefore, in that case that relief (b) was absolutely dependent upon relief (a) because, if the suit Succeeded in respect of relief (a), relief (b) followed automatically and if the suit failed in respect of relief (a), relief (b) could never have been granted. Therefore, the main relief sought in the case was a declaration in respect of certain thing done in the past. It is no doubt true that the obiter dicta of their Lordships of the Privy Council are entitled to the greatest respect and should generally be followed. At the same time, it is true that the observations of their Lordships are to be read in the contest in which they occur and, reading the observations of their Lordships in Bhagchand's case in the context in which they occur, I am unable to say that they have any bearing so far as the interpretation of Section 326, U.P. Municipalities Act is concerned, which materially differs in this particular respect, in its language from Section 80, Civil P.C., which section alone was the subject-matter for their Lordships' consideration in Bhagchand's case .

4. Even if the first clause of Section 326 were to be held applicable to the present case, I am again satisfied that this is a case to which the proviso to that section applies. The object of the suit is not so much to prevent the Board from realising the amount of the tax from the plaintiff as to prevent a distress of his property. The plaintiff has not prayed that an injunction be granted against the Board restraining it from recovering the tax from the plaintiff. The only injunction claimed is that the Board should not resort to distress of the property of the plaintiff for the purpose of recovering the tax. The proviso dispenses with the notice in a case where the suit is one for injunction only-the present suit being, of such a nature-the object of which would be defeated by the giving of the notice of the postponement of the commencement of the suit or' proceeding. In the present case, it is obvious that the object of the suit, being to prevent a distress of the property, would have been defeated by the giving of the notice. Learned Counsel for the appellant has contended that if the tax had been realised, the plaintiff would have recovered back the amount from the Board. That may be so, but the great humiliation that is caused and also the inconvenience that is caused by the distress of property is something, which could not have been avoided if the plain-tiff had waited for the expiry of two months after giving the notice and if the Municipal Board had not been so accommodative as not to start with the distress during the period of the notice.

5. It has lastly been contended that the suit is barred by Section 56 (1), Specific Relief Act. Section 56 describes cases where an injunction cannot be granted and Clause (1) provides as follows:

When equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust.

Injunctions are generally a matter in the discretion of the Court, but Section 56 imposes an absolute bar to the granting of an injunction in cases mentioned in that section. The matter no longer rests in the discretion and option of the Court, but if a case comes within the four corners of Section 56, a Court is simply helpless and simply cannot grant the injunction, even though it may think that it is just or equitable that an injunction should be granted. Therefore, in considering whether Section 56 (i) applies, one has not got to consider the question whether it is a fit and a proper case where an injunction should be granted, or refused. What one has to consider is whether the case comes under the absolute bar imposed by that section. The key to the interpretation of Section 66 (i) lies in the following few words 'when equally efficacious relief can certainly be obtained.' It will be useful, (while considering the language of Section 56 (i) to compare it with the language of Section 21 (a) of the Act which provides that a contract for the non- performance of which compensation in money is an adequate relief cannot be specifically enforced. A comparison of the language of the two provisions would indicate that, whereas Section 21 (a) talks of an adequate relief, Section 56 (i) talks of an equally efficacious relief. Now, in a case such as the present one, a person, who is threatened by an illegal recovery of taxes, may wait till such time as the money is realised from him in the hope that he will obtain adequate relief by means of a suit for damages or by means of a suit for the refund of the amount illegally realised. But can it be said that it would be an equally efficacious relief? An equally efficacious relief would be a relief which would put him in the same position in which he would have been if ho had not asked for a relief for injunction. Chunilal Thakordas Modi v. Surat City Municipality 27 Bom. 403 a case relied on by Mr. Pathak is an illustration of a case where an equally efficacious relief was possible because, instead of instituting a sure for restraining the board from making the recovery the plaintiff could obtain the same relief by means of an appeal under Section 86 of the Bombay Act. If it were possible in the present case also to prevent the board from making the distress by resorting to some remedy other than a suit for injunction, it could be said that an equally efficacious relief could be obtained otherwise than by means of a suit for injunction. That not being the position, I am not prepared to hold that an equally efficacious relief was other-wise possible and that, therefore, the suit is barred under Section 56 (i), Specific Relief Act. To hold that a relief by way of refund of the money illegally recovered by attachment and sale of the plaintiff's property is an equally efficacious relief is to delete the word 'equally' from the section for which no justification exists. It would also be tantamount to ignoring the difference between an 'adequate relief' and an 'equally efficacious relief'. I am supported in this vied by a decision of a Full Bench of the Lahore High Court in Municipal Committee, Montgomery v. Sant Singh A.I.R. (27) 1940 Lah. 377.

6. Mr. Pathak for the appellant has attacked the correctness of the decision of the Full Bench of the Lahore High Court on the ground that it is not in accord with the decision of their Lordships of the Privy Council in Bhagchand's case already mentioned above. He has read to me the last paragraph of their Lordships' judgment and has argued that in effect their Lordships were interpreting Section 56, Specific Belief Act, in that paragraph. I am unable to agree with this contention. The observations of their Lordships in that paragraph seem to be intended only to repel the contention put forward on behalf of the appellant in that case that some great in-justice would be done if a very strict interpretation were put upon Section 80, Civil P.C. Their Lordships say in reply to that contention that no such injustice would be done and that any supposed oppression involved in the strict interpretation of Section 80 could be avoided by the payment of the tax and its recovery back. But this can possibly have no bearing upon the interpretation of Section 56, Clause (i), Specific Relief Act.

7. For the reasons indicated above, I am of the opinion that there is no force in this appeal which is dismissed with costs. Leave for Letters Patent appeal is refused.


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