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Sangali Vasudeva Rao Vs. the Municipal Council Represented by Its Chairman - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1930Mad844; (1930)59MLJ690
AppellantSangali Vasudeva Rao
RespondentThe Municipal Council Represented by Its Chairman
Cases ReferredMetropolitan Meat Industry Board v. Sheedy
Excerpt:
- - the chairman after being satisfied with the revision shall countersign the assessment lists, the total amount of the assessment as revised being written in words and certified to by him. under article 70 of the municipal account code (1) the assessment list shall be submitted to the chairman for scrutiny and approval in case, as here, the assessment list has not been prepared by the chairman himself, and (2) the chairman shall write in words and certify the total amount of the assessment as revised and shall countersign the assessment list after being satisfied with the revision. 5. i am not satisfied that the provisions of the rule have been followed by the chairman in this case. what is important here to notice is that except the signature of the chairman contained in these.....madhavan nair, j.1. this second appeal arises out of a suit instituted by the plaintiff against the municipal council of anantapur and its . chairman for an injunction restraining them from collecting house tax, education tax and water tax; and it raises the question of the validity of the quinquennial revision under the district municipalities act v of 1920, schedule iv, rule 8 of the annual rental value of the lands and buildings within the municipal limits in, the official year 1927-28 and of the increase of the rate of the tax which was changed from 61/4 to71/2 per cent. under section 80 of the act, the district munsif dismissed the suit as against the chairman and granted an injunction as against the council. on appeal by the municipal council the decree of the lower court was set.....
Judgment:

Madhavan Nair, J.

1. This second appeal arises out of a suit instituted by the plaintiff against the Municipal Council of Anantapur and its . Chairman for an injunction restraining them from collecting house tax, education tax and water tax; and it raises the question of the validity of the quinquennial revision under the District Municipalities Act V of 1920, Schedule IV, Rule 8 of the annual rental value of the lands and buildings within the municipal limits in, the official year 1927-28 and of the increase of the rate of the tax which was changed from 61/4 to71/2 per cent. under Section 80 of the Act, The District Munsif dismissed the suit as against the Chairman and granted an injunction as against the Council. On appeal by the Municipal Council the decree of the Lower Court was set aside except as regards the enhancement of the rate of water tax. In this second appeal the plaintiff confines his relief only to the house tax.

2. The facts are briefly these: The plaintiff owns three houses, No. 305 in Ward No. lof the Municipality and Nos. 537 and 896 in Ward No. 2. Under rule 8 of Schedule IV of the District Municipalities Act which authorises the Municipal Chairman once in every five years to completely revise the 'assessment books' proceedings were started in the Municipality of Anantapur in the official year 1927-28 for a revision of the annual value of the lands and buildings. On 23rd July, 1927, the Chairman proposed to the Council that a Committee be appointed to carry out the revision (see Exhibit N), A Committee of three members of the Municipality was accordingly appointed by the Council for that purpose and the revised assessment lists were prepared by that Committee. After wards, two notifications were issued in the District Gazette (Exhibit D in English and Exhibit E in Telugu, dated 5th January, 1928). These were issued under the name of the Chairman and stated that the Municipal Council proposed to revise the assessment's from 1st April, 1928, that revision petitions would be considered if submitted by the 6th February, and that revision lists could be seen in the Municipal Office from 11 a.m. to 5 p.m. daily. This notification was tom-tomed on Sth January, '1928 (see Exhibit V). No revision petitions were as a matter of fact received. On. 28th January, 1928, the Chairman proposed that the rate of property tax now in force be raised to 71/2 per cent. of the rental value and this was passed by the Council (see Exhibit II-A, the minute book). On 5th February, 1928, the notice, Exhibit F, was issued in the District Gazette in the name of the Chairman that the Council proposed to levy house tax at 71/2 per cent. on the annual rental value of each building with effect from 1st April, 1928, and that objections would be considered until 10th March, 1928. This information was also tom-tomed (see Exhibit V-B). No objections were received and the Municipal Council confirmed this rate in its resolution (Exhibit II-B, dated 17th March, 1928). This was published in the immediately next issue of the District Gazette, dated 5th April, 1928 (see Exhibit H) under the signature of the Chairman, dated 19th March, 1928, and was tom-tomed on the same date (see Exhibit V-D). The Gazette notification, Exhibit H, states that the new rates of the house tax at 71/2 per cent. on the annual rental value would come into effect from 1st April, 1928.

3. On the above facts, it is argued that the revision proceedings are invalid, inasmuch as they were carried out not by the Chairman as required under the Act (see rule 8, Schedule IV), but by a, Committee, that even if the delegation of the Chairman's powers to the Committee is valid, the procedure adopted by the Chairman and the Committee in carrying out the revision is vitiated by non-compliance with the statutory requirements, and that the notification calling for objections is invalid as it specified no date for hearing objections. These arguments relate to the validity of the quinquennial revision proceedings relating to the value of the lands and buildings. It is also argued that the enhanced rate of 71/2 per cent. is unenforceable as the notification, Exhibit H, sought to give retrospective effect to the decision of the Municipality to enhance the rate. The respondent besides contesting these points argues that the plaintiff's suit is not maintainable for want of notice under Section 80 of the Code of Civil Procedure.

4. I shall first deal with the question of the validity of the quinquennial revision proceedings. What happened in this case has already been stated. On 23rd January, 1927, the Chairman proposed to the Council that a Committee be appointed to carry out the revision and a Committee of three members was accordingly appointed to carry out the work. The actual assessment list for the two Wards containing entries 'relating' to the plaintiff's three houses, Exhibits A, B and C, were prepared by this Committee. Rule 8 of Schedule IV of the District Municipalities Act states that 'the assessment books shall be completely revised by the Chairman.' Having regard to this rule, it is argued that the Chairman should not have delegated the work of revision to anybody else and he having done so, the revision carried out by the Committee is not a revision in accordance with the Act and the whole proceedings are consequently invalid. I am not sure if this argument is correct. Pushed to its logical conclusion it may lead to absurd results. It is clear that the Chairman is not expected to do by himself all the work in connection with the revision proceedings. Provided he checks and accepts the work done by his employees, the final result will be his work for which he will be responsible. Section 18, Clause (1) and Clause (3) specially of the District Municipalities Act empower the Chairman to a certain extent,, to delegate his executive powers to others. The Municipal Account Code, 1926 (second edition corrected up to 5th September, 1919) Article 70 provides the following procedure for a general revision:'Under Section 66(2) of the Act, the assessment books are to be completely revised by the Chairman at least once in every five years. Such revision should be conducted by the Chairman himself or by one or more Councillors deputed by him to carry out the revision in Wards other than their own. They may be assisted by Assessors if required. . . . As soon as the assessment list for a locality is completed, it shall be submitted to the Chairman for scrutiny and approval unless the list has been prepared by the Chairman himself. The Chairman after being satisfied with the revision shall countersign the assessment lists, the total amount of the assessment as revised being written in words and certified to by him.' Section 66(2) of the old Act under which this rule was framed corresponds to Rule 8, Schedule IV of the present District Municipalities Act. In the Government Edition of the Code, Rule 8, Schedule IV has not been substituted for Section 66(2)(but it is conceded the rule is still in force). Reliance is placed on this rule by the respondent in justification of the procedure adopted by the Chairman in the. present case. In the view that no more delegation than is countenanced by this rule is sought to be justified and having regard to my opinion, which I shall presently state as to whether this rule was complied with by the Chairman, it is not necessary in this case to consider the abstract question whether the duty of preparing the assessment list under Rule 8, Schedule IV can be delegated by the Chairman under the provisions of the District Municipalities Act. Assuming that the Chairman is entitled to carry out the work of revision through the Committee appointed by him or by the Council, the questions arising for consideration are: (1) how far has he in doing so complied with the procedure prescribed in Article 70 of the Municipal Account Code? and (2) how far has the Committee which is only an alias for the Chairman in carrying out the actual work of revision complied with the statutory requirements? The two questions will be discussed separately. Under Article 70 of the Municipal Account Code (1) the assessment list shall be submitted to the Chairman for scrutiny and approval in case, as here, the assessment list has not been prepared by the Chairman himself, and (2) the Chairman shall write in words and certify the total amount of the assessment as revised and shall countersign the assessment list after being satisfied with the revision. On these questions generally considered, the learned District Judge has come to the conclusion that the Chairman has complied with this rule except in one particular, namely, that he did not write in words the total amount of the assessment as revised and certified to it and this omission the learned Judge is apparently of opinion is not a very material defect and does not vitiate the proceedings.

5. I am not satisfied that the provisions of the rule have been followed by the Chairman in this case. I shall not at present refer to what I consider to be' the illegalities committed by the Commissioners in the preparation of the lists. That question, as I have said, I shall discuss separately. The evidence in the case shows how casually and carelessly the work of revision was carried out in this Municipality. The assessment lists were prepared by the sub-committee in December, 1927. When these were sent to the Chairman (i.e., 'the Vice-Chairman in charge' during the proceedings is to be understood as 'Chair-man') it is admitted that many of the columns had not been filled up by the Commissioners. How this omission on their part affects the validity of proceedings will be described later. What is important here to notice is that except the signature of the Chairman contained in these assessment lists, there is nothing in them to show that the Chairman scrutinised and approved their contents and that he was satisfied with the work of revision. As already pointed out, 'the total amount of the assessment as revised' has not been 'written in the words' by him nor has its correctness been certified to by him as specifically required by Article 70. We are asked to infer from the signature of the Chairman appearing in these lists and from the mere signature alone that every condition which is imposed upon him by this Article has been complied with by him. The previous assessment in 1923 was also carried out by a Committee. The present Chairman was a member of that revising committee, and that Committee submitted a report along with the assessment (see Exhibit IV). It is admitted that no such report has been submitted by the Committee in the present case. The usefulness of such a report is obvious. It would naturally elucidate the procedure adopted by the Committee, explain how the figures mentioned in the lists were arrived at, and state generally how the revision was carried out, so as to enable the Chairman when the lists are submitted to him to scrutinise and approve them, so that when the list's finally emerge out from the office with his signature and certificate, it might be truly said that the revision has been carried out by him as required under Rule 8 of Schedule IV. I do not state that the absence of such a report would vitiate the proceedings; I am only pointing out how such a report would be useful to the Chairman and also helpful to the Court when the available evidence is very meagre in dealing with the question whether the Chairman would be presumed to have really scrutinised and approved the lists prepared by his deputies. As I have said, we are asked to draw all the necessary inferences in support of the validity of the assessment lists in this case so far as the Chairman's part in its production is concerned from the mere signatures which appear in the lists. Can we do so is the question? These signatures do not appear at the end of the lists. In the assessment list containing Exhibit A the signature of the Chairman without any date appears at page 14. There are two entries relating, to two assessees at page 15, the last page of that assessment book. There is no signature of the Chairman on that page. The omission is not accounted for. Even if it should be held that we should infer the approval of the Chairman from his signature alone, how can we say that the entire list is approved by him when his signature does not appear on the last page? In the second assessment book relating to entries, Exhibits B and C also, the Chairman's signature appears on the last but one page and below it appears the date, 20-10-27.The last page contains the names of various people and entries in the columns as against those names. There is no signature of the Chairman on this page. The omission like the one in Exhibit A is not accounted for. The date 20-10-27 appearing under the signature in the second assessment book creates some difficulty. According to the evidence of the manager (D.W. 1) 'the revision of taxes was begun and finished in December, 1927.' He distinctly says that Exhibits B and C (i.e., the second book) were prepared in December, 1927. He also says that the revision lists were completed in December, 1927. How is it then that the Chairman's signature is dated 20th October, 1927, and how can we say that he scrutinised and approved on 20th October, 1927, the contents of the lists the preparation of which was completed only in December, 1927. The date appearing under the signature is not stated to have been put there on account of any mistake. The Chairman's evidence on this point is not very illuminating.-He says that the registers were completed by the 20th December last. This is mentioned probably to explain the 20th, that appears in Exhibits B and C. But it is in October and not in December. It is not stated in the evidence that October was written by mistake for December. Exhibit A was completed by the 28th December. I have already pointed out that no date appears under the signature of the Chairman in Exhibit A. I cannot say that from the single circumstance of the Chairman's signature appearing in these lists that the rule invoked by the respondent in support of the procedure adopted has been complied with. The signature alone unaccompanied by the 'writing of the amount of the assessment in words by the Chairman and his certificate of its correctness means absolutely nothing.' It is the writing of the amount of assessment as revised by the Chairman and, his certificate of its correctness that are important; for, these are the requirements the fulfilment of which will presumptively show that the Chairman has 'scrutinised' and 'approved' the lists and is satisfied with the revision: In the absence of the Chairman's statement in writing of the amount of assessment as revised and his certificate, the revision of the assessment can be considered only as a revision by the Committee alone which is not authorised by the Act. As is suggested by the rule itself, these conditions are insisted on by it, apparently only to minimise as far as possible the dangers that are inherent in delegation; for, if the Chairman himself does the work of revision, no such statement or certificate is required from him. In my opinion, the learned Judge has altogether missed the importance of this provision in the rule. It is too much to ask the Court to infer from the mere signature of the Chairman in the absence of his 'statement and certificate' that he has brought his mind to bear upon the work of his deputies, tested it, and thus made their work in a sense his own by approving it. Assuming that the Chairman of the Municipality has every power to delegate his work of revision as he has done in this case, I am satisfied that the assessment lists in this case, in the absence of his statement in writing of the amount of assessment as revised and his certificate of its correctness, cannot be said to be 'revised by the Chairman' within the meaning of Rule 8, Schedule IV, as the procedure prescribed in the Municipal Account Code has not been complied with by him so far as it concerns him. This omission cannot be brushed aside simply as a mere irregularity. In my opinion, Article 70 has not been followed in substance or in fact by the Chairman. These defects which I have pointed out are by themselves enough, I think, to render invalid, under Rule 8, Schedule IV, the revision of the assessment said to have been carried out by the Chairman in this case.

6. However, I shall now proceed to consider the next question, namely, how far the Committee in carrying out the proceedings relating to the revision and in preparing the revised assessment lists has complied with the necessary statutory requirements. At the outset I should point out that in the plaint this is not made a ground of attack against the revision proceedings, but as the point has been dealt with by the Lower Courts and as the issue as pointed out by the learned District Judge is very vague, I shall deal with it. Under Rule 7, Schedule IV of the District Municipalities Act, 'The Chairman shall enter the annual value of all lands and buildings determined by him and the tax payable thereon in assessment books to be kept for the purpose at the Municipal Office,' and the rule then proceeds to state that the assessment books shall record amongst other particulars '(e) the annual value of the area. ...' and '(f) the amount of the tax payable'. It will be observed that these two items (e) and (f) are very important as (e) forms the basis on which the tax is to be levied, and (f) states the amount of tax that would be levied. Rule 8, as already pointed out, authorizes the Chairman to completely revise the assessment books in every particular and if the annual value has been increased as a result of the revision then such increase and the consequent increase in the amount of the tax payable will have to be noted by the Chairman in the assessment books. Rule 9 is as follows:

When assessment books have been for the first time prepared, and whenever they have undergone a general revision, the Chairman shall, before the close of the year in which the said books have been prepared or revised, notify by beat of drum and by a notice published in the District Gazette that on a specified date, not being less than thirty days from the date of the later of such notifications, he will be prepared to consider revision petitions presented to him within the said period of thirty days.

6. This rule calls upon the assessees to put forward their objections. It is clear that to prefer objections the parties should know whether the annual value of the land and the tax payable have been increased. It is argued that the revised assessment lists do not contain the necessary particulars in regard to these matters and that, therefore, the statute has not been complied with and the revision is necessarily invalid. I shall examine how far the facts support this argument.

7. Now, in these two assessment lists containing the entries A, B and C there are various columns for entering figures under different heads. As I have already stated, these lists were completed and put up in the office for the information of the public by the end of December, 1927. It is admitted that figures in columns 16, 17 and 18 were entered into the lists only in March. All the columns should have been filled up in a completed and properly prepared list before its publication-at any rate before the issue of the notice calling for objections. The non-entry of the figures in these columns, I am referring to it only by the way, is another instance to show how unsatisfactorily the revision work was done in this Municipality. What is important to notice is that in the assessment book relating to house No. 305, Exhibit A, columns 13 and 15, under 'Revised assessment' headed respectively 'Annual value' and 'Amount of half-yearly assessment' have not been filled up at all. In column 14 headed 'Annual rental, if rented' appears the figure 60 which figure appears in column 7 headed 'Annual value' under 'Past year's assessment'. These figures appear as follows:

Past Year's Assessment. Revised Assessment.

No. in Assessment Annual Annual Annual Amount of half-Register. value. value. rental, yearly assess-

if ment.rented.

6 7 13 14 15

305 60 60

8. In Exhibit A, how the same amount under past year's assessment under 'annual value' appears as 'annual rental' has not been explained satisfactorily by Mr. Somayya. The vital defect in connection with this assessment list is that the 'annual value' and the 'amount of half-yearly assessment,' columns 13 and 15, have not been filled up at all. It is easy to say that if 10 per cent. is deducted from the annual rental under Section 82, we would get the 'annual value'. Then the annual value under the revised assessment will be less than the annual rental under past year's assessment; but it is not clear that this is the case of the respondent. Further, the work of finding out the annual value by making the necessary deduction should not be left to the assessee. However that may be, the fact remains that 'the annual value,' column 13, has not been filled up and column 15, 'the amount of half-yearly assessment,' has also teen left open. Now Rule 7(Schedule IV of the Act) states in imperative language that the Chairman shall enter the annual value of all lands and buildings determined by him and the tax payable thereon in assessment books to be kept for the purpose at the Municipal Office. And it then states that' the assessment books shall record the following particulars, namely, the annual value of the area and description and the amount of tax payable [Causes (e) and (f)] . No explanation is forthcoming' as to why these columns have not been filled up. The imperative provisions of the statute have not been complied with in this case. It is easy to see how this non-compliance with the provisions of the statute would necessarily prejudice the asses-sees. How can they under Rule 9 take objections to the revised assessment when they are not in a position to know the most necessary things for taking the objection, viz., the amount of half-yearly assessment and the annual value of the land on which the assessment is based. Columns 16, 17 and 18 were at least filled up in March some time later. These columns 13 and 15 were never filled up at all. A violation of the express provision of the statute would necessarily render the proceedings invalid. Coming now to the second assessment book containing the entries, Exhibits B and C, relating to the other two houses of the appellant the 'annual value' column, column 15, is filled up with the figures of Rs. 100 and 60, written in pencil. The same figures appear in ink under column 13 headed 'Gross annual rental.' It appears from the explanation written at page 37 of this book and the evidence that the figures under column 15 were copied in ink in column 13 to guard against possible alterations of the pencil entries in column 15. The Commissioners filled up this column, namely, column 15, which is a very important one from the standpoint of the assessee in pencil and the Manager reproduced these figures in ink in column 13. The unsatisfactory way how the revision work was carried on by the Commissioners is self-evident. But there is no explanation why the important column which would show the proposed assessment was not filled up at the time of the publication of the list or before the issue of the notice. In the case of this assessment book, it is clear that one of the imperative provisions of the statute has not been complied with. In my opinion, this omission to give the necessary information to the assessee in the assessment lists prepared by the Committee is by itself sufficient to render the revision proceedings invalid. The foregoing examination of the assessment lists shows that in their preparation the Committee members have not in some important particulars complied with the necessary statutory requirements. In Baldwin v. Ellis (1929) L.R. 1 K.B. 273 : 98 L.J.K.B. 71 it was held that the omission to state in the nomination paper the name of the parish for which the person nominated was qualified as a Local Government elector was a non-compliance with the requirements of Rule 4 of the Rural District Councillors Election Order of 1898. The following observations appearing in the judgment of Swift, J., in that case may usefully be referred to in this connection:

Mr. Pratt referred to this omission to state the parish of which the person nominated is a Local Government elector as being a mere technicality. I do not agree. A statement of these particulars is required by the Local Government Board's Order, and I cannot think that the omission to state those particulars on a nomination paper is a mere technicality, because unless the parish, for which the person nominated is qualified as a Local Government elector, is named no. one could test whether or not he is qualified.

9. As pointed out in Municipal Council, Cuddapah v. M. & S. M. Ry. Co., Ltd. I.L.R. (1929) M. 779 : 57 M.L.J. 471 'Taxing enactments should be strictly construed and the right to tax should be clearly established. Conditions precedent to the imposition of any tax should be strictly complied with.' In this case, as the condition precedent to the imposition of the revised assessment, i.e., the revision of assessment list, has riot been carried out strictly in accordance with the Act, the revision proceedings as well as the subsequent levy of the tax based on the revised assessment are both invalid.

10. It is also argued that the revision of the assessment is invalid as the notification calling for objections specified no date for hearing the objections as required by the statute. Rule 9 of Schedule IV makes it obligatory on the Chairman to notify a 'specified date' for hearing objections, if any, to the revised assessment. In the notices in the present case it is true that a specific date for hearing objections has not been mentioned. What is mentioned is this: 'Any objections to the above revision or suggestion will be considered if submitted within 6th February, 1928.' The notice is dated 5th January, 1928. Strictly speaking, the mention of a specific date would seem to be necessary, as otherwise the objectors may not know on which date they have to be present to press their objections; but I am not quite sure if the omission to mention the specific date for hearing the objection is such a vital defect as will vitiate the entire proceedings relating to the revision assessment. If objection had been presented-in this case no objections were filed-the Chairman might have rectified the initial error by intimating to the objectors the time when their objections would be heard. Various cases in support of the appellant's contention were brought to my notice: The Krishna Jute and Cotton Mills Co., Ltd., Ellore v. The Municipal Council, Vizianagram : (1925)49MLJ542 The Municipal Council, Rajahmumdry v. Prasadarayudu : AIR1926Mad800 The Municipal Council, Rajahmundry v. Rama Narasimha Rao (1927) 109 I.C. 92 and The Queen v. Chorlton Union (1872) L.R. 8 Q.B.C. 5 etc. But I do not think it is necessary to discuss these cases or to express a definite opinion on this question as I have already held that the revision proceedings are clearly invalid for other reasons.

11. The next point for consideration is whether the enhancement of the property tax by the Municipality to 71/2 per cent. from 1st April, 1928, is legal. It is argued that the rate is unenforceable as the notification levying the rate seeks to give retrospective effect to the decision of the Municipality to enhance the rate. It is not disputed that it is within the power of the Municipality to levy tax which it is competent to levy at a new rate, that is, that it has power to alter the existing rate by increasing it if it decides that such a step is necessary. In the present case, the Chairman proposed that the rate of property tax then in force be raised to 71/2 per cent. The annual value of the land having been increased by the quinquennial revision, this meant a collection of house property tax at 71/2 per cent. on the increased value. The objections to the quinquennial revision I have already dealt with. The present question relates solely to the enforceability of the decision of the Municipality increasing the rate so that if this decision is enforceable, the Municipality can collect house property tax at this new rate on the old annual value of the land, it having been now found that the quinquennial assessment proceedings are invalid. The proposal of the Chairman to increase the rate was accepted by the Council and the Municipality's decision to increase the house tax from the 1st of April, 1928, was notified on 5th February, 1928, and was also tom-tomed in the village (see Exhibit F). As no objections were received, the Council confirmed the new rate in its resolution, Exhibit II-B, dated 17th March, 1928. This was published in the next issue of the District Gazette on 5th April, 1928 (see Exhibit H). This notification says, that the new rate of house tax of 71/2 per cent. would come into effect from 1st April, 1928. It is now argued that since the Gazette announcing the levy of the increased rate is dated 5th April, 1928, and it makes the operation of the new rate to commence from the 1st of April, that is, from an anterior date, retrospective effect is sought to be given to the decision of the Municipality and, therefore, the new rate is unenforceable. This argument, in my opinion, is fallacious as it overlooks the significance of the proceedings prior to Exhibit H. It is not Exhibit H that levies the new rate. The levy of it was decided upon by the Municipality in its resolution, Exhibit II-B, dated 17th March, 1928, as already mentioned, that is, before the 1st of April, 1928, and before Exhibit H. This resolution was preceded by Exhibit F which states that, subject to objections, the new rate will be enforced from 1st April, 1928. It is not by the notification that the new rate was levied. The notification only serves to complete the decision of the Municipality by publishing it. In this connection it is important to notice that the signature of the Chairman in Exhibit H bears the date 19th March, 1928, that is, a date prior to 1st of April, 1928. The decision arrived long time before 1st April, 1928. could not be announced in the Gazette earlier as there was no Gazette before 5th April, 1928, the date of Exhibit H. In this view the argument of the appellant is clearly untenable. The appellant's argument also appears to be untenable having regard to the explanation of Rule 15 of Schedule IV. The explanation is as follows: 'A general enhancement in the rate at which the tax is leviable is no amendment or revision within the meaning of this rule, and shall have effect from the date fixed for the enhancement.' The date fixed for the enhance- ment according to the proceedings I have referred to is the 1st of April, 1928. It could not, therefore, be said that retrospective effect has been given to the decision of the Municipality to enhance the rate to 71/2 per cent. For these reasons, I refuse to hold that the increased rate, that is, 71/2 per cent. of the house property tax, cannot be enforced in this case. Of course, having regard to my decision that the revision proceedings are invalid, it follows that this rate can be levied only on the annual value of the land according to the old assessment.

12. The last question is whether this suit instituted against the Municipality is bad for want of two months' notice under Section 80 of the Code of Civil Procedure. That section states: 'No suit shall be instituted against ... a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been . . . delivered to him or left at his office, stating the cause of action ...' To justify the contention that 'notice of two months' is necessary, it must be shown that the Municipality is a 'public officer' within the meaning of the term as used in Section 80 of the Code of Civil Procedure. According to Section 2, Clause (17) of the Code, 'public officer' means a person falling under any of the descriptions contained in sub-clauses (a) to (h) of that clause. In support of his contention reliance is placed by the respondent's counsel alternatively on clauses (f) and (g). Sub-clause (f) is as follows:

Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience.

Having reference to this clause it is argued that the Municipality is (1) a 'person,' (2) who is an 'officer of the Government,' and (3) 'whose duty it is, as such officer . . . to protect the public health, safety or convenience.' Under the General Clauses Act (X of 1897) 'a person' includes 'any company or association or body of individuals, whether incorporated or not.' Section 6, Clauses (1) and (2) of the District Municipalities Act constitute the Municipal Council by the name of the Municipality as a body corporate with various rights. A Municipal Council, therefore, constituted under the District Municipalities Act can well come within the meaning of the term 'person'. A Cantonment Committee according to the rules under the Cantonment Act (XIII of 1889) was held to be a 'person' in Cecil Gray v. The Cantonment Committee of PoonaI.L.R. (1910) B. 583 The main question is whether the Municipality can be described to be 'an officer of the Government', for it is conceded that if it can be held to be an 'officer of the Government,' the protection of the public health, safety and convenience, having regard to the provisions of Part IV of the Act falls within its duties. The Municipality is constituted by the Governor in Council (see Section 4). It can be abolished also by the Governor in Council. Its constitution is also determined by the Governor in Council and the same authority fixes the term of office of the Municipal Council (see Section 10). Under Section 33, the Municipality has to submit its administration report to the Governor in Council and the Governor in Council has power to suspend, generally stated, the action of the Municipality under Section 36 of the Act. It is argued that the Governor in Council means the Government and that when the Governor in Council can appoint, abolish and control the activities of a Municipality, the Municipality can well be described as an officer of the Government. Having regard to the definitions of the terms 'Government' and 'Local Government' in the General Clauses Act (see Section 2, Clauses (21) and (29) of the General Clauses Act X of 1897),Ss. 46 and 134 of the Government of India Act and Section 31 of the General Clauses Act (X of 1897), the 'Governor in Council' mentioned in Section 4, etc., of the District Municipalities Act is the 'Government' mentioned in Clause (f) of Section 2, Civil Procedure Code. The point needs no elaboration as it is not disputed by the respondent. What is really disputed-and this I think is the substantial point for consideration-is whether the Municipality can be described as an officer of the Government within the meaning of Clause (f) for it is only then the duties of a public officer as required by the definition being complied with that it can be described as 'a public officer' under Section 2, Clause (17), Civil Procedure Code. No decision under the Civil Procedure Code directly bearing on the point has been brought to my notice. But in my opinon the observations of the learned Judges in President, District Board, South Kanara v. Gopalakrishna Bhatta I.L.R. (1923) M. 808 : 45 M.L.J. 125 refute completely the contentions of the respondent on this point. That was not a decision under Section 2, Clause (17), Civil Procedure Code. In that case it was held that the President of a District Board is not an officer of the Government within the meaning of Clauses (1) and (3) of Sch. II of the Provincial Small Cause Courts Act (IX of 1887). The question arose in this way. A suit was brought against the President of the District Board of South Kanara for damages for an amount under Rs. 500. To meet the argument that no second appeal lay against the decision of the lower appellate Court as the amount involved in the suit was below Rs. 500 reliance was placed by the appellant on Articles 1 and 3 of the Provincial Small Cause Courts Act which excepted from the cognizance of the Small Cause Court suits concerning acts or orders purporting to be done by the Governor-General in Council or by a Local Government or by a Member of the Council and suits concerning acts or orders purporting to be done by any other officer of the Government in his official capacity. It was argued that the President of a District Board is an officer of the Government within the meaning of these articles and the suit, therefore, is exempted from the jurisdiction of the Small Cause Court. This argument was not accepted by the learned Judges. This is how they dispose of the point:

13. 'If the President of the District Board is an officer of the Government within the meaning of these articles, this suit would be excepted. But in our judgment he is not. Local Boards and Corporations are what may be called quasi-governing bodies, but by the very scheme of the Acts under which they are created they are not servants of the Government. Their representatives in some cases are nominated but generally elected by the people and they have their official capacity as such and not as officials of the Government. It is true that they are under Government in the sense that under the statute they have to account to the Government, and are under certain disciplinary powers of the Government. The Government has a duty cast upon it to see that these ministerial bodies carry out their functions lawfully. But in our judgment none of the officials of these Municipalities and District Boards are officers of the Government coming within Articles 1 and 3.'

14. These observations may well be applied to the present case. It is true that the Municipality is constituted by the Governor in Council and that it can be abolished by the same authority. It is also true that the Governor in Council can control the activities of the Municipality in yarious ways; but it does not necessarily follow from these considerations that the Municipality is an officer of the Government. The District Municipalities Act does not constitute the Municipality a servant of the Government. The Act confers on the Municipality wide powers which are given to it to be exercised at its own discretion and without consulting the Government. The Municipality can acquire, hold and transfer property, moveable and immoveable, and enter into contracts. It can levy taxes to pro-vide funds to carry on its own administration and the Municipal Fund raised remains its own till it is abolished. Subject to certain restrictions, the Municipality can appoint its own servants; these are not Government servants, but are Municipal servants, i.e., servants of the Municipality. Under these circumstances, I cannot agree with the contention that the Municipality constituted under the District Municipalities Act can be described as a 'public officer' within the meaning of Section 80 of the Code of Civil Procedure. In this connection attention may be drawn to the observations of their Lordships of the Privy Council in Metropolitan Meat Industry Board v. Sheedy (1927) A.C. 899 which dealt with the question whether a debt due to the Board constituted under the Meat Industry Act, 1915, No. 69 (N.S. W.) was a debt due to the Crown so as to enable the Board to claim priority in the liquidation of a debtor company. In deciding the point their Lordships had to consider the question whether the Board constituted under the Act of 1915 are 'servants of the Crown to such an extent as to bring them within the principles of prerogative' according to which the Crown is entitled to payment in priority to all other unsecured creditors of the debtor company. The facts of the case necessary for our purpose are thus stated in the headnote:

The Meat Industry Act, 1915, provided for the maintenance and control of slaughter-houses, cattle sale yards, and meat markets in Sydney and the adjoining district, and established the appellant Board to administer the Act. The members of the Board were to be appointed by the Governor, who had power to veto certain of its actions. The Board had wide powers, which it exercised at its discretion; any power of interference which a Minister of the Crown possessed was not such as to make the acts of administration his acts. Money received by the Board was not paid into the general funds of the State, but to its own fund.

15. In holding that the Board constituted under the Act of 1915 are not servants of the Crown, the learned Judges made the following observations:

They are a body with discretionary powers of their own. Even if a Minister of the Crown has power to interfere with them, there is nothing in the statute which makes the acts of administration his as distinguished from theirs. That they were incorporated does not matter. It is also true that the Governor appoints their members and can veto certain of their actions. But these provisions, even when taken together, do not outweigh the fact that the Act of 1915 confers on the appellant Board wide powers which are given to it to be exercised at its own discretion and without consulting the direct representatives of the Crown. Such are the powers of acquiring land, constructing abattoirs and works, selling cattle and meat, either on its own behalf or on behalf of other persons, and leasing its property. Nor does the Board pay its receipts into the general revenue of the State, and the charges it levies go into its own fund.

16. Having regard to the powers given to the Municipality under the District Municipalities Act some of which I have referred to, I think similar observations may well be made in connection with the Municipality constituted under the District Municipalities Act. As in that case, so in this also, all the provisions dealing with the powers of the Governor in Council already referred to do not outweigh the fact that the District Municipalities Act confers on the Municipality wide powers which can be exercised at its own discretion and without consulting the Governor. For all these reasons, I would hold that the Municipality cannot be described as an officer of the Government under sub-clause. (f), Clause (17) of Section 2, Civil Procedure Code.

17. Sub-clause (g) also of Section 2, Clause (17), which was somewhat faintly relied on by the respondent does not help his contention. Having regard to the powers and duties of the Municipality under the Act, it is obvious that it cannot be described as an officer doing the duties as mentioned in that sub-clause. Sections 117 to 124 of the Act (i.e., general provisions relating to Taxation and Finance) do not show that the Municipality under the Act takes, receives, keeps or expends property on behalf of the Government. The point does not call for further consideration as it was not seriously elaborated by the respondent's learned Counsel. It follows from what I have said that the argument that two months' notice should have been sent to the Municipality under Section 80, Civil Procedure Code, by the appellant before instituting the suit is untenable and must be overruled.

18. In the result the second appeal which is confined to the levy of enhanced rates on house tax alone is allowed partially and an injunction will be issued in favour of the appellant restraining the Municipality from collecting from the appellant house property tax on his two houses in the 2nd Ward on the basis of the revised annual value. The injunction was directed to these two houses as the annual value of the house in Ward No. 1 has not been increased under the revised assessment. The Municipality as a result of my decision will be entitled to collect from the appellant house property tax from these houses at the enhanced rate on the basis of the annual value under the old assessment. In other respects, the Lower Court's decree will stand. Each party will pay and receive proportionate costs in this Court. S.R. Appeal allowed in part.


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