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Palitana Nagarpalika Vs. Arisa Bhuwan JaIn Dharmashala - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtGujarat High Court
Decided On
Case NumberSecond Appeal Nos. 259 to 266 of 1974
Judge
Reported inAIR1979Guj140; (1979)GLR24
ActsGujarat Municipalities Act, 1964 - Sections 103, 114 and 279(2); Bombay General Clauses Act, 1904 - Sections 7; Bombay District Municipal Act, 1901
AppellantPalitana Nagarpalika
RespondentArisa Bhuwan JaIn Dharmashala
Appellant Advocate C.T. Daru and; H.P. Sompura, Advs.
Respondent Advocate J.C. Mehta,; R.J. Mehta and; A.P. Ravani, Advs.
Cases ReferredGhelabhai v. State of Orissa
Excerpt:
municipal tax - notice - sections 103, 114 and 279 of gujarat municipalities act, 1964, section 7 of bombay general clauses act, 1904 and bombay district municipal act, 1901 - administrator passed resolution to make rules and levy house tax - before rules could be published act of 1901 came to be repealed by act of 1963 which came into force on 01.01.1965 - respondents challenged levy of house tax - question as to when liability to tax payers in respect of tax would arise - liability to pay tax arise from date specified in notice under section 103 - whether notices can be said to be notices specifying such dates from which tax would be imposed - municipality clarified that taxes were levied as per new rules with effect from 01.07.1967 - appeal allowed - status quo maintained during.....this bunch of second appeals arises from the following civil appeals decided by the learned assistant judge of bhavnagar, which appeals in the bhavnagar district court in their turn had arisen respectively from the civil suits decided by the learned civil judge (j. d.) palitana as mentioned below:-s. a no. district court appeal civil suit259/74 142/72 78/69260/74 158/72 78/69 261/74 143/72 91/69 262/74 160/72 91/69 263/74 144/72 92/69264/74 161/72 92/69 265/74 145/72 93/69 266/74 159/72 93/69 2. all these appeals, however, are being disposed of by this common judgment firstly because the questions of law involved are common and secondly because the learned counsel appearing for the contending parties are agreeable on this common treatment.3. the appellant in all these appeals is the.....
Judgment:

This bunch of second appeals arises from the following civil appeals decided by the learned Assistant Judge of Bhavnagar, which appeals in the Bhavnagar District Court in their turn had arisen respectively from the civil suits decided by the learned Civil Judge (J. D.) Palitana as mentioned below:-

S. A No. District Court Appeal Civil Suit259/74 142/72 78/69260/74 158/72 78/69 261/74 143/72 91/69 262/74 160/72 91/69 263/74 144/72 92/69264/74 161/72 92/69 265/74 145/72 93/69 266/74 159/72 93/69

2. All these appeals, however, are being disposed of by this common judgment firstly because the questions of law involved are common and secondly because the learned counsel appearing for the contending parties are agreeable on this common treatment.

3. The appellant in all these appeals is the Palitana Nagarpalika, a municipality deemed to be constituted under the Gujarat Municipalities Act, 1963, hereinafter referred to as the Municipal Act, 19,63 for brevity's sake. This municipality is the original defendant in all the above suits whereas there are different plaintiffs in all those suits. All these plaintiffs are the trustees or managers of different Dharmashalas or Sarais situated in the holy place of Palitana, which is the famous place of pilgrimage for persons following Jainism. All these sarais are put up by philanthropic people with a view to provide shelter to the visiting pilgrims and these properties are registered as Public trust properties under the provisions of the Bombay Public Trust Act, The municipality, which is the appellant in all these appeals had first made attempts to levy the house tax on all these sarais managed by these trustees and other buildings situated within the municipal limits of Palitana. That attempt was made by framing some rules that were brought into effect from 1-7-57, but no taxes were actually levied. The said municipality, however, came to be superseded by the Government and an Administrator was appointed to run the municipal affairs. This administration went on from 16-12-60 till 25-9-67. During the period, all the powers, functions and duties of the municipality rested with the Administrator. The Administrator had passed a re solution an 4-3-64, Ex. 78, under the provisions of Section 60A of the Bombay District Municipal Act, 1901 which was then applied to the Saurashtra region with necessary modifications. The procedure undergone by the Administrator is set out by the learned appellate Judge in paragraph 14 of his judgment and I do not propose to burden this judgment by reiterating those various stages under taken by the Administrator. In short, the Administrator had passed the resolution to make rules and levy house tax. invited the objections, considered them and then had approved the rules and submitted the same to the competent authority for their sanction. Ex. 83 are those rules as sanctioned by the Government with certain modifications. Then the Administrator passed the resolution, ex. 84 on 18-12-64 to apply those Rules to the Municipal limits with effect from 1-4-1965. He also resolved under Section 62 of the District Municipal Act that these Rules should be published along with details of the sanction as required under the said S. 62.

4. It so happened that before the Rules could be published, the District Municipal Act 1901 came to be repealed by the Municipal Act, 1963, which admittedly came into force on 1-1-1965. The adnit9strator, therefore, issued the notice, Ex. 85 on 12-2-1965 under Section 103 of the Municipal Act, 1963. As much of the controversy raged in these appeals is veering round this Ex. 85, I propose to reproduce the same as duly translated by me:

'Public Notice (Under Section 103 of the Gujarat Municipalities Act, 1963).

Hereby the citizens within the limits of the Palitana Municipality and all concerned are informed that Palitana Municipality's Taxes on Lands and Buildings Rules have been sanctioned by the Development Commissioner of the Gujarat under his Order No. DCG/MU 1264 dated 8-4-1964 under Proviso A to S. 46 of the District Municipal Act. The said sanctioned Rules are resolved to be brought into force within the municipal limits with effect from 1-4-1965 as per the Municipality's Resolution No. 54/64 dated 18-12-1964.

For the information of the public the said sanctioned Rules are hereby published and the Rules are available for, inspection at the places of the publication of this notice as well as at the office of the Municipality on all days except holidays. All should take a notice of it.

Municipal Office, Sd/- Administrator,

Palitana,

12-1-65.

Palitana Municipality,

Palitana. '

5. Because the citizens, it appears, had raised some protests or because of some other reason, the fresh Rules had come to be framed in the year 1967 and afresh notice similarly worded was published in the year 1967 on 9th May. It is Ex. 94 on the common record.

6. The respective plaintiff challenged the levy of this house tax on a number of grounds, but as far as the courts below are concerned, they accepted the challenge on two grounds. The first ground that weighed with the courts below is that mandatory requirement of Section 103 of the Municipal Act, 1963 was not complied with in so far as no date was specified in the above-mentioned notice, Ex. 85 or Ex. 94, the date from which the tax as prescribed by the Rules was to be imposed, The second ground that was pressed into service was that the sanction of the Rules by the Government and earlier procedural stages were under the District Municipal Act, 1901, but on account of the repeal of the said Act, all those stages and steps had been rendered non-consequential with the result that the notices in question, Exs, 85 and94, could not publish the non-existing Rules. On behalf of the respondents, the original plaintiffs, an additional ground was pressed into service before me in support of their plea under Order 41 R. 22 of the Civil Procedure Code. It was very vehemently contended on behalf of the respondents plffs. that the Rules in question framed on both the occasions, namely in the year 1964-65and then in the year 1967 were illegal in so far as they did not make any provision for remissions which were compulsory by virtue of the requirement of Section 114 of the Municipal Act, 1963. I propose to examine these various grounds one by one.

7. The first ground pertains to the interpretation of the notice in question, namely the notice, Ex. 85, translated above and the similar notice, Ex. 94, dated 9-5-1967. Section 103 of the Municipal Act, 19163 is quoted below:-

'103. Rules sanctioned under S. 102 with the modifications, if any, subject to which the sanction is given shall be published by the municipality in the municipal borough, together with a notice reciting the sanction and the date and serial number thereof; and the tax as prescribed by the Rules so published shall, from a date which shall be specified in such notice and which shall not be less than one month from the date of publication of such notice, be imposed accordingly ...........'

It is obvious that Section 103 deals with two requirements. Under the first part of above-quoted S. 103, Rules as sanctioned by the Govt. with the modifications, if any, are to be published by the municipality in the municipal Borough accompanied by a notice reciting the sanction and the date and the serial number thereof. The impugned notices Ex. 85 and. Ex. 94 certainly comply with the requirement of this first part. The second part then deals with the specification of the date from which the tax as prescribed by the Rules so published are to be imposed and such specification is to be made in the notice under which the Rules are published under the first part of S. 103. The plaintiffs contended that the mention of the date, namely, 1-4-1965 In Ex. 85 and mention of 1-7-1967 in Ex. 94, is the specification of the date only for the purpose of informing the people that the Rules would come into force from those respective dates. As against this submission made on behalf of the various plaintiffs, it was urged on behalf of the Municipality that under the first part, Rules are not required to be brought into force. They are only to be notified for the general public information and that the only occasion to specify the date is for the purpose of informing the people that the tax would be imposed according to the Rules from those dates. Had these notices been specific in stating that the tax will be imposed from those specified dates, there would have been no difficulty. However, the fact remains that the words as they are do not speak of the dates from which the tax shall be imposed, but ex fade the notices mention that the Rules will be coming into force from those respective dates. If what has been canvassed by the municipality is upheld, it is obvious that the suits as far as that particular ground is concerned would fail. If what has been urged on behalf of the respondents is accepted, it is obvious that the appeals will be liable to be dismissed.

8. Before I go to the consideration of the two divergent views, I propose to examine some authorities, which were pressed on behalf of the plaintiffs and which were accepted by the learned appellate Judge in particular. The first is the case of the Supreme Court in the case of Municipality of Anand v. State of Bombay, AIR 1962 SC 988. In that case the question was about the meaning of the word 'impose' as occurring in section 59 (1) of the Bombay Municipal Act, 1901. The Supreme Court stated that the word meant the actual levy of the tax after authority to levy it had been acquired by rules duly made and sanctioned. The point in controversy was regarding the Government's power even to direct the municipality not to levy tax despite the framing of the rules and compliance with other requirements. On behalf of the municipality, the contention was that once the rules were sanctioned by the Government and they were duly published and pursuant thereto the taxes were decided to be imposed, the Government would become functus officio. This particular argument advanced on behalf of the municipality was negatived by the Supreme Court in very clear terms and it is in this context that the word 'impose' as occurring in Section 59 (1) of that Act was interpreted to mean actual levy of tax as distinct from the power to levy tax. This authority in my view does not directly lend any help to the plaintiffs.

9. The second authority which obviously helps the plaintiffs is the judgment of the Rajasthan High Court in the case of Manak Chand v. The Municipal Council Jaipur, AIR 1951 Raj 139. In that Division Bench judgment, it has been specifically stated that the date of coming into force of the rules and the date of coming into operation of the liability to pay the tax are distinct dates, but as it appears from the factual aspect, the President himself had undertaken this job, and fixed up the date, which as a matter of fact, was within the competence of the General Board. Nevertheless, it has to be admitted that the point that is canvassed by Mr. Mehta for the respondents was considered by the Division Bench of the Rajasthan High Court and the interpretation that has been sought to be placed before me by Mr. Mehta finds its approved place there.

10. The municipal taxation being always a vexed question, cases under the District Municipal Act and the Municipal Act, 1963 are often occurring in courts of law and even in the Gujarat High Court, the cases under the Municipal Act, 1963 , itself have come up. The first Is the case of Saurashtra Iron Foundry and Steel Works Pvt. Ltd. v. Bhavnagar Nagarpalika, 11 Guj LR 351: (AIR 1970 Guj 53). It is a Division Bench judgment of this High Court and in paragraph 6 of this judgment various stages essential for the levy of the tax are set out. The eighth requirement Is the publication of the sanctioned rules together with a notice reciting the sanction, the date and serial number thereof and also specifying the date from which the tax shall be imposed. The authority, however, does not help the plaintiffs directly because it reiterates the text of Section 103 of the Municipal Act. 1963.

11. Another case pressed into service on behalf of the plaintiffs is the case of the Municipal Corpn, of the City of Ahmedabad v. Jhaveri Keshavlal Lallubhai (1955) 6 Guj LR 228. It was a case that arose under the Bombay Municipal Boroughs Act and the rules made thereunder. The first question that arose for consideration was as to when would the liability of the ratepayers in respect of tax would arise. The three questions were posed:

(1) Does it arise on the commencement of the financial year by force of the Rule without anything having been done by the municipality?

(2) Does it arise on the preparation of the assessment list? And

(3) Does it arise on the authentication of the assessment list?

Examining the scheme of Imposition of taxes and considering the observations In the above-mentioned case of Municipality of Anand (AIR 1962 SC 988), (Supra) the Division Bench of this High Court, speaking through Shri P. N. Bhagwati, J., as he then was, held that no liability could be attached to, the rate-payer on the passing of the rule or on the commencing of the official year by mere force of that rule without any step having been taken by the municipality,

12. On behalf of the plaintiffs, It was very vehemently contended that all taxing statutes must be construed very strictly. The proposition is too well entrenched to be called in question. The question however is: what is meant by the taxing statute? Does it mean not only the enabling provision, but also the procedural provision? The question has been set at rest by the Supreme Court in this connection by its judgment in the case of Murarilal Mahabir Prasad v. B. R. Vad, AIR 1976 SC 313. The opinion of the two Judges of the Supreme Court, Chandrachud, J. as he then was, and Sarkaria, J. is as follows*:-

The true implication of the principle that a taxing statute must be construed strictly (viz. the subject is not to be taxed unless the charging provision clearly imposes the obligation is often misunderstood and the principle Is unjustifiably extended beyond the legitimate field of its operation. It does not apply where the court is concerned with the provision which prescribes the machinery for the computation of tax and not with a charging provision of the Sales Tax Acts. In the latter case, the rule is that that construction should be preferred which makes the machinery workable.

13. It is no longer in controversy before me that the liability to pay taxes arises from the date specified in a notice under Sec 103 of the Municipal Act, 1963. Both the sides are not in divergence on this point before me. The question as set out by me is whether the notices, Exs. 85 and 94, can be said, to be the notices specifying such dates from which the tax would be imposed.

14. As said by me above, there Is no divergence between the contending parties that the liability to pay tax arises from the date specified as the date for imposing the tax. The controversy is confined to the Interpretation of the above-mentioned notices, Exs 85 and 94. That is the moot question before me.

15. Even a casual glance at S. 103 of the Municipal Act, 1963 is sufficient to convince one that no date is required to be specified for the Rules to come Into force, They become statutory rules on the sanction being given, but if the municipality wants to exploit that power conferred by the Act and then by the Rules, it has to apprise the persons likely to be prejudiced thereby of the fact that such rules are there duly made by the municipality and duly sanctioned by the concerned authority. The Rules cannot be said to be coming into force from a date to be specified. They become rules and competent for all purposes the day they are sanctioned by the Government. In order to push them further towards the actual realisation of the tax, a procedural aspect or to put in the words of the Supreme Court, an aspect of machinery, is to be resorted to. A procedural step is to be taken under the first part of section 103 about informing the people, who were already informed earlier about the municipality's intention to make the rules, that the rules are in effect made and duly sanctioned by the competent authority. Even if they are to be brought in to force, they come into force from the date of publication of notice of those rules. It is, therefore, evident that no date is required to be mentioned as the date on which the rules will come into force. To this extent, Mr. Daru, who argued for the appellant municipality, was right. Mr. Mehta for the respondents, however, urged that even it this mentioning of the date of coming into force of the rules is not the requirement of law, it could at best be said to be a redundant superfluity on the part of the municipality, but he submitted that it could not be extended to mean that what was intended to be communicated to the citizens was that as per those rules, tax liability would accrue or would be imposed from that particular date. I do not agree. The rules to a common man when add to be coming into force or operation from a particular date would convey only one meaning that they must be ready to feel the impact of those rules from a particular date. Mr. Mehta was right in saying that this notice is meant for the common people, but it is to be remembered that they are the common people in urban areas and not in back ward rural areas. It is a notice to the people, who were earlier apprised of the municipality's intention that house tax as one of the taxes is to be imposed. It is a notice to those people, who were also told of the draft rules. It is a notice to those people, who had been called upon to have their say one way or the other regarding the constitution of those rules. It is the notice to those people who were expected to know the law, namely, Section 103 of the Municipal Act, 1963. The only conceivable idea behind telling the people that the rules will come into, force from a particular date would be the intention to tell them that the taxes will be imposed under the rules from those respective dates. To me it appears that the lower court and the lower appellate court had wrongly been carried away by the alleged strict Interpretation of this procedural or machinery aspect of the law and that is why they stuck to the letters of Section 103 and ignored the substantial compliance part, which is the only thing to be in listed upon when the procedural part of such taxing statute is to be examined. Had the learned appellate Judge been conscious of the legal position as enunciated by the Supreme Court in the case of Murarilal (AIR 1976 SC 313) (supra) he perhaps would not have taken too rigid an attitude unto that part.

16. Mr. Mehta's one argument in this connection, however, requires to be examined. He states that the conduct of the municipality should be examined before an inference is drawn one way or the other about the Intention behind fixing the date of the notices, Exs. 85 and 94. As said above, I have taken the attending circumstances into account. He, however, urged that this very municipality had in the year 1957 published duly sanctioned rules, but had rested there even though it was notified then that from 1-5-1957 those rules would apply. Why this inaction on the part of the municipality was there is difficult to be assessed because at that time there were peoples' representatives at the helm of affairs of the municipal administration. The resolution passed by the administration shows that those rules were invalid and illegal and hence the undergoing fresh exercise Perhaps because of this notion on the part of those persons-m-charge of the municipal administration, the further steps of preparing the assessment list, inviting objections and levying of the house tax might not have been taken. The earlier inaction of the year 1957 cannot be a relevant circumstance for deciding the import of the notices Exs. 85 and 94. On the contrary, the subsequent steps taken by the Administrator in the year 1965 in preparing the assessment lists and calling for the taxes with effect from 1-4-1965, which was sought to be challenged in these suits, amply bear out that the Administrator intended to treat 1-4-1965 in Ex. 85 and 1-767 In Ex. 94 as the dates communicated to the people from which their liability to pay the house tax would arise. In the facts and circumstances of the case, therefore, the dates mentioned in Exs. 85 and 94 are to be interpreted as the dates on which the tax was to be imposed and not the dates on which the rules were to come into force. Even at the cost of repetition I would say that no dates are required to be specified for the purpose of bringing the rules Into force. They become rules in force from the day they receive sanction. The municipality becomes equipped to levy the tax by virtue of the taxing provision, passing of the resolution selecting the tax, then preparing the draft rules, notifying them for objections, considering them, finalising the rules, transmitting them to the Government and then sanction by the Government or the competent authority to those rules. The rules come into force for all other purposes. (except for the purpose of demanding tax) from the day they receive sanction from the competent authority. They can 'be said to be rules in -force, but not full-fledged in one sense of the term. They cannot be said to be dead letters because if they are followed by a public notice under See. 103 and the intimation to the public that from a particular day the tax liability will accrue, they are fully competent rules.

17. The result is that the first contention, that found favour with the lower courts does not stand in good stead to the plaintiffs.

18. This brings me to the second ground regarding the entire procedure followed under the Bombay District: Municipal Act as having been obliterated on the advent of the new Act with effect from 1-1-65. As said by me above the lower appellate court was impressed by this pies put forward on behalf of the plaintiffs. It is a truism to state, that whenever a repealing statute is enacted and a new statute dealing with the same subject matter is brought into being, the saving clause is provided for. In Section 279 of the Municipal Act, 1963, there to such a clause with details to be found in sub-section (2) thereof. The mid clause (2) in relevant part reads as follows:-

'Notwithstanding the repeal of the said Acts ....xxxx (b). (vi) any appointment, notification, notice, tax, fee, order, scheme, licence, permission, rule, bye-law, or form made, issued, imposed, or granted in respect of the said boroughs or districts and in force immediately before the date of the commencement of this Act shall in so, far as they are not inconsistent with the provisions of this Act be deemed to have been made, issued imposed or granted under this Act in respect of the borough and shall continue in force until it is superseded or modified by any appointment, notification, notice, tax, fee,order, scheme, licence, permission, rule bye- law or form made, issued, imposed or granted under this Act.

xxx xxx xxx

(ix) all proceedings pending before the old Municipalities shall be deemed to have been instituted and to be pending before the new municipalities and shall be heard and disposed by the said municipalities under this Act.' I have already held above that the rules were in force a little prior to 1-4-65. Even if it is held that the said rules cannot able said to be in force because of the want of publication under section 103, clause

(ix) is there to protect such a step. Under the said clause, - all proceedings pending before the old municipalities are to be deemed as having been instituted and pending before the new municipalities. The meeting of a municipality is a proceeding of the municipality. An enquiry against the charges of corruption against its servant also is a proceeding but Mr. Mehta submitted that the word 'Instituted' occurring in clause above, shows that such proceedings must be the proceedings that have been brought into existence at the instance of a third party. He drew a line of distinction between 'initiation.... and 'Institution'. According to him, if me proceeding are before the municipality at the instance of a third party, the proceeding can be Said to be instituted, but if the municipality itself starts Mine chapter on some topic, It will be Initiation of the proceedings. To my mind, this is a difference without any distinction. in common Parlance it can well be said that the third party has initiated the proceedings before the municipality. Similarly it ran be said that the municipality has instituted some proceedings before It when the municipality, starts its plan to levy some tax and goes ahead with various steps stage by stage in order to reach culmination. In my view, therefore. clause 9 would govern such a situation.

19. Even if the various clauses enumerated in sub-section (2) of Section 279 cannot be pressed into service on behalf of the municipality, Section 7 of the Bombay General Clauses Act will come to the succour of the municipality. The said Section 7 reads as under -

'7. Where this Act, or any Bombay Act (or Gujarat Act) made after the commencement of this Act, repeats

any enactment hither to made or hereafter to be made than unless a different intention appears the repeal shall not :--

(a) x x x x x

(b)affect the previous operation of any enactment so repealed or any thing done or suffered thereunder .

xxxxxxx '

Under clause (b) any thing duly done under the repealed Act shall not be obliterated, but it shall remain as a live entity. Mr. Mehta, however, in this connection urged that section 7 of the Bombay General Clause Act, was subject to a very important condition and the condition is that Section 7 will be operative 'Unless a different intention appears' It cannot be gain said that if in there pealing Act, there is positive indication displayed to the effect that things done under the old Act shall be treated as non est, there will be no saving of the things done under the old Act, The question is : Is there any thing in the repealing Act from which we can say that a different intention is manifested According to Mr.Mehta the enumeration of various saved items in section 279. (2) itself is a proof of a contrary intention of the Legislature. However, it is no so by way of abundant caution and despite there being on the statute on Act like the Bombay General Clauses Act, the Legislature, as the recent trend discloses, made specific provisions for, certain things to be saved in those saving provisions in the repealing Act of necessity, is intended not to be saved. From a positive set of circumstances of Punjab, this is sort of negative conclusion cannot be drawn. If any authority on this proposition is needed, We can advert to the case of the Supreme Court in the case of state of Punjab v. Mohar Singh Pratap Singh A I R 1955 SC 84. As held by the Supreme Court there whenever there is a repeal of an enactment , the consequences laid down in Section 6 of General Clauses Act will follow unless, as the section itself says a different intention appears . In the case of a simple repeal there is scarcely only for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the court would undoubtedly have to look to the provisions of the new Act,. but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whetherthe new Act expressly keeps alive old rights and liabilities, but whether if manifests an intention to destroy them . The court cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses, Act is ruled out when there in repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention in compatible with or contrary to, the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material.'

20. Some authorities like the one in the case of Chakko bhai Ghelabhai v. State of Orissa AIR 1956 Orissa 7 were relied upon on behalf of the respondents. No doubt, above is a judgment of the Division Bench of the Orissa High Court and, therefore of considerable persuasive value, but it cannot have any sway in view of the categorical exposition of the law by the Supreme Court. To me it appears crystal clear that enumeration of various items saved is not in any way suggestive of the legislature's intention to make that list exhaustive. It cannot be so from the very nature of things also when a new and comprehensive municipal legislation substitutes an earlier similar piece of legislation because of the new needs and requirements felt with the passage of time and development of the society. By no stretch of imagination, could it be said that the Legislature even by remote implication wanted to suggest that all such elaborate procedural steps should be totally obliterated or wiped at and the body should be made to start their cumbersome procedural steps de novo. This is repugnant to the commonsense also. I therefore hold that the lower appellate court was an error in holding that the earlier stages of the procedural steps towards imposing house tax had disappeared from the scene altogether making the subsequent publication of the rules and fixing the date from which the tax will be imposed (as I have interpreted) as idle and barren exercise on the part of the municipality.

21. This brings me to the third contention, which was raised by Mr. Mehta for the respondents, in exercise of the respondents' right under Order 41 Rule 22 of the Civil Procedure Code. it cannot be gainsaid that a successful respondent is at liberty to sustain the judgment even by pressing into service the points which were decided against him by the courts below. The question is about the Offending rules, both of the year 1964-65 and of the year 1967, were conspicuously silent about the provisions for remissions. Mr. Mehta urged that See. 114 of the Municipal Act, 1963 makes it obligatory for the municipality to give remission in the house tax In respect of the premises that have remained vacant and unproductive of rent throughout the year or portion of the year. It cannot be gainsaid that there is inescapable duty of the municipality to grant remissions as provided for in Section 114 of the Act Even under Section 271 (L) it is one of the duties of the municipality while framing the rules to make provision for the exemptions and remissions, in taxes. Admittedly on both the occasion no such Provision was made. The question, however is: can this omission render the entire body of rules as ineffective and, therefore, inoperative? As noted above, Section 114 itself enjoins Upon the executive Committee of the municipality to deal with prayers for remissions and refund up to not more than half of the amount Of tax Whether rules are there or not, remission would follow as a matter of course by virtue of the mandate of Section 114 of the Act. If the Rules are not there, the municipality would be liable to pay the Maximum provided for. It is obvious that it cannot discriminate and grant say 1/l0th of the amount byway of refund to one party, It is to another and 1/2 to a third party. it is there fore, obvious that under Section 114 of the act and in the absence of any rules laying down the norms of refund, the executive committee would be bound to refund half of the amount of tax, that is the maximum provided for in section 114 of the Act. For want of any such provision, the entire body of rules can not be jettisoned overboard, both lock stock and barrel.

22. Lastly Mr. Mehta for the original plaintiffs urged that in the year 1967 the tax was imposed as interpreted by me above with effect from 1-7-67 and that the taxes on the beds of those rules would be levied only for the three remaining quarters, of that year 1967-68.' Mr. Mehta complained that despite this clean-cut legal provision made in the 'Proviso appended to Section 103 of the Municipal Act, 1963, the appellant municipality had claimed tax for the whole of the year 1967-68. It the municipality had done so, that levy, if based on the rules as newly introduced In the year 1967 would obviously be bad. Mr. Mehta had invited my attention to ex. 235 and particularly Rule 8 thereof. No doubt, Rule 8 speaks of the four quarters, but these rules were not for that particular year 1967-68, but they were expected to roll from year to year. On behalf of the municipality, it was clarified that the taxes were levied as per the new rules with effect from 1-7-67 and for the quarter from 1-4-67 to 30-6-67,the tax was levied on the basis of the rules that where in vogue prior thereto. in this view of the matter, no relief could be granted to the plaintiffs in that regard.

23. The lad comes the question of costs. It is very clear from what has been stated above that the then Administrator-in-charge of the municipal after had contributed considerably towards bringing up of this litigation. Had he been more careful in drafting the notices, exs. 85 and 94, Perhaps the plaintiffs would not have been encouraged to go to the court of law. In this view of the matter, I order that parties should be left to bear their own costs throughout, though the plaintiffs' suits would be dismissed by me by allowing all these appeals.

24. The result is that all these appeals an allowed. The respective suits filed by the plaintiffs are dismissed Parties shall bear their own costs throughout.

25. The status quo maintained during the pendency of the appeals shall continue to be operative up to 30-9-78 to enable the respondents plaintiffs to have their further recourse in accordance with law, if they are so advised. The agreement between the parties that was there at the time of confirmation of the application for stay by this court also will be operative till that day. This was conceded to by Mr. Mehta. for the plaintiffs - respondents.

26. Appeals allowed.


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