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The Municipal Committee, Amritsar Vs. Amar Dass - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 21 of 1952
Judge
Reported inAIR1953P& H99
ActsLimitation Act, 1908 - Schedule - Articles 62 and 96; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantThe Municipal Committee, Amritsar
RespondentAmar Dass
Appellant Advocate J.P. Gandhi and; Prem Datta, Advs.
Respondent Advocate A.N. Grover, Adv.
DispositionRevision allowed
Cases ReferredGorakhpur Electric Supply Co. Ltd. v. Nariman and Co.
Excerpt:
.....under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - nilmoni singh deo',2 cal 393, that the article, when it speaks of a suit for money received by the defendant for the plaintiff's use, points to the well known english action in that form; macferlan',(1760) 2 burr 1005, this form of action lies for money paid by mistake, or upon a consideration, which happens to fail, or for money got through imposition (express or implied) or extortion of..........for money payable three years when the moneyby the defendant to is received,the plaintiff formoney received bythe defendant forthe plaintiff's use. the question to be decided is whether the money which was paid to the defendant-committee by the plaintiff can come within the phrase 'money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use'. the petitioner relies upon several decided cases in all of which article 62 was applied to taxes recovered by or paid to municipal committees when they were not so due. in -- 'the rajputana malwa rly. co-operative stores, ltd. v. ajmer municipal board', 32 all 491, a municipal board in disregard of certain lawful orders levied upon a company certain sums by way of octroi duty over and above what.....
Judgment:
ORDER

Kapur, J.

1. This is a rule obtained by the defendant, Municipal Committee, Amritsar, against a judgment and decree of Mr. Monahar Singh, Small Cause Court Judge, Amritsar, dated 18-10-1951, decreeing the plaintiff's suit for the recovery of Rs. 252/8/-.

2. In the year 1945 the Municipal Committee of Amritsar levied house-tax, but by a notification this house-tax was not recoverable from religious institutions. The Committee recovered a sum of Rs. 344/5/- as house-tax from the plaintiff who is the Mahant of Akhara New Panchayati, Amritsar, for the years 1946-47, 1947-48 and 1943-49. On 10-8-1949 a suit for perpetual injunction was brought by the present plaintiff restraining the Committee from realising any house-tax on Akhara property which was granted on 1-2-1951. The Committee refunded the tax for the year 1948-49 which was Rs. 91/13/-, but they refused to return the balance. The plaintiff thereupon brought a suit for the recovery of this money alleging that this tax was 'ultra vires' and the tax had been illegally recovered from the plaintiff. The suit was defended on the ground of limitation. The learned Judge has held that the suit is within limitation and has applied Article 96, Limitation ACT me municipal committee has come up in revision to this Court.

3. Mr. Grover has submitted that this Court should not interfere as substantial justice has been done and the mere fact that the Court may have taken an erroneous view on me question of limitation would not be any ground for interference by this Court on its revisional side. He has relied upon three judgments of the Lahore High Court. In the first one, -- 'Ghasita v. Sultan', 93 PR 1911, Rattigan J. held that the Chief Court would not interfere, in the exercise of its discretional powers of revision, with an erroneous decision on the question of limitation where substantial justice had been done. The same view was taken by Addfson J. in -- 'Karam Chand-Sant Ram 'v. Daya Nand-Damodar Das', AIR 1928 Lah 51 (2), and by Din Mohammad J. in -- 'Charan Dass v. Ram Rattan', AIR 1935 Lah 137.

4. The question in the present case is not merely of substantial justice but a question of principle is involved as this decision affects the rights of the Municipal Committee in regard to taxes which have already been recovered. I am therefore not inclined to dismiss the petition of the Municipal Committee on the mere ground of substantial justice.

5. The present suit brought on 28-8-1951 and the taxes were collected -- Rs. 166/11/-for the year 1946-47 on 3-2-1947 and Rs. 91/13/- for the year 1947-48 on 16-2-1948. The petitioner Committee relies on Article 62, Limitation Act which is as follows;

62, For money payable Three years When the moneyby the defendant to is received,the plaintiff formoney received bythe defendant forthe plaintiff's use.

The question to be decided is whether the money which was paid to the defendant-Committee by the plaintiff can come within the phrase 'money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use'. The petitioner relies upon several decided cases in all of which Article 62 was applied to taxes recovered by or paid to Municipal Committees when they were not so due. In -- 'The Rajputana Malwa Rly. Co-Operative Stores, Ltd. v. Ajmer Municipal Board', 32 All 491, a Municipal Board in disregard of certain lawful orders levied upon a Company certain sums by way of octroi duty over and above what they were legally entitled to levy. This was held to be a suit for money had and used for the use of the defendant within the meaning of Article 62, Limitation Act.

At page 496 the Court observed;

'The language of Article 62 is borrowed fromthe form of count in vogue in England underthe Common Law Procedure Act of 1852xxx The most comprehensive of the old common law counts wasthat for money received by the defendantfor the use of the plaintiff. This count wasapplicable where a defendant receivedmoney which in justice and equity belongedto the plaintiff under circumstances whichrendered the receipt by the defendant to theuse of the plaintiff. It was a form of suitwhich was adopted when a plaintiff's moneyhad been wrongfully obtained by the defendant as for example, when money wasexacted by extortion, or oppression, or by abuse of legal process, or when overcharges were paid to a carrier to induce him to carry goods or when money was paid by the plaintiff in discharge, of a demand illegally made under colour of an office. It was a form of claim which was applicable when the plaintiff's money had been wrongfully obtained by the defendant, the plaintiff in adopting it waiving the wrong and claiming the money as money received to his use'. See -- 'Morgan v. Palmer', (1824) 2 B & C 729: 26 RR 537 and -- 'Neate v. Harding', (1851) 6 Ex 349.'

6. Reliance was next placed on a judgment of Kania J-, as he then was, in -- 'City Municipality, Bhusawal v. Nussorwanji Hormusji', AIR 1940 Bom 252, where it was held that Article 96 applies when the cause of action is applicable to all citizens is not and cannot itself form the basis of a cause of action. Hence, a suit to recover certain amount of Municipal tax on the ground that it was illegally levied is governed by Article 62 and not by Article 96. It will be noticed that the learned Judge took into consideration the allegations made in the plaint. In the present case no question of mistake was ever raised in the pleadings of the parties. Counsel then relied on a judgment of the Madras High Court in -- 'India Sugars and Refineries Ltd. v. Municipal Council, Hospet', ILR (1943) Mad 521, where it was held by a Division Bench of that Court that Article 62, Limitation Act is intended to apply to all actions for money had and received to the use of a plaintiff whether they be actions which may be deemed strictly to be based on implied contracts or whether they be merely to enforce an equitable claim to the return of the money had and received. It applies therefore to a suit for the recovery of Municipal tax alleged to have been wrongfully levied by a municipality.

7. Another case dealing with the same subject is a Division Bench judgment of the Madras High Court in -- 'The Municipal Council, Dindigul v. Bombay Co. Ltd., Madras', 52 Mad 207, where it was held that a suit by a company for the recovery of a sum wrongfully collected by a municipality under section 92 is essentially an equitable action for 'money had and received' and not a suit for 'damages and compensation'. At p. 213 reference was made to a judgment of the House of Lords in -- 'Sinclair v. Brougham', (1914) AC 398, and to a judgment of Lord Mansfield in --'Moses v. Macferlan', (1760) 2 Burr 1005, and also a judgment of the Privy Council in -- 'John v. Dodwell & Co.', (1918) AC 563, which was a case from Ceylon.

I may here quote from the observations of Mookerjee J. in -- 'Mahomed Wahib v. Mahomed Ameer', 32 Cal 527.

'It seems to me to be clear, as pointed out by Mark by J. in -- 'Raghumoni Audhikary v. Nilmoni Singh Deo', 2 Cal 393, that the Article, when it speaks of a suit for money received by the defendant for the plaintiff's use, points to the well known English action in that form; consequently the Article ought to apply wherever the defendant has received money which in justice and equity belongs to the plaintiff under circumstances which in law render the receipt of it, a receipt by the defendant to the use of the plaintiff. As pointed out by Lord Mansfield C. J., in -- 'Moses v. Macferlan', (1760) 2 Burr 1005, this form of action lies for money paid by mistake, or upon a consideration, which happens to fail, or for money got through imposition (express or implied) or extortion of oppression or an undue advantage taken of the plaintiff's situation contrary to laws made for the protection of persons under those circumstances, in other words, this form of action would be maintainable in cases in which the defendant at the time of receipt, in fact or by presumption or fiction of law receives the money to the use of the plaintiffs; see also Keener on Quasi-Contracts, page 180.'

And again at page 534 the learned Judge observed :

'It is clear therefore that under the English law, a sum received by the defendant is treated as having been received for the plaintiff's use, even though it might have been taken wrongfully, and I am of opinion that the same principle ought to be applied in construing Article 62. This view is in accordance with a series of cases decided by the Courts in this country, to which I shall now refer.'

With these observations I am in respectful agreement.

8. Mr. Grover relied on certain cases which, according to him, take a different view of Article 62. He relies in the first instance on a judgment of this Court in -- 'Amolak Chand v. Mohammad Shall', AIR 1948 EP I. It was held in that case that Article 62 has never been extended to cases in which the original receipt of the money by the defendant could not be deemed to be either in fact or by operation of law as a receipt on behalf of or for the use of the plaintiff, and it had not been applied to cases in which by reason of subsequent events the money which was paid to the defendant for his own use was to be regarded as in law money received by him for the plaintiff's use. I do not see how that principle can apply to the facts of the present case. Here the principle which is applicable is the one laid down by Mookerjee J. in the case referred to above rather the present one.

9. Reference was then made to 'Tofa Lal Das v. Moinuddin Mirza', 4 Pat 448, where it was said that in cases where the relief is based on mistake the period of limitation is to run from the time when the mistake is first discovered. But it was also held that where a Patnidar sues the landlord for return of the money paid in excess of the amount of cesses, the relief being based on mistake, Article 62 was applicable and not Article 96. This case, in my opinion, does not help the plaintiff in any way.

10. Reference was next made to -- 'Gorakhpur Electric Supply Co. Ltd. v. Nariman and Co.', AIR 1948 All 75, where in a different set of circumstances Article 120 was applied.

11. After considering all these cases and the arguments of counsel, I am of the opinion that the learned Small Cause Court Judge had erroneously applied Article 96 to the 'facts of the present case. The Article applicable is 62.

12. I would therefore allow this petition, setaside the decree of the trial Court and dismissthe plaintiff's suit, but in the circumstances ofthis case I direct the parties to bear their owncosts throughout.


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