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The Corporation of Madras by Its Commissioner Vs. C. Kuppuswamy - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtChennai High Court
Decided On
Reported in(1976)1MLJ280
AppellantThe Corporation of Madras by Its Commissioner
RespondentC. Kuppuswamy
Excerpt:
.....that the same cannot be termed as illegal or unjustified. the reason as to why cr.p.c. does not make a distinction between an acquittal on benefit of doubt and an honourable acquittal, is to ensure that no person shall be tried for a second time for the same offence for which he is tried and convicted or acquitted once. what is provided under section 300(1) of cr.p.c. is only a reassurance of the constitutional right guaranteed under article 20(2). the principle behind this prescription under section 300 of cr.p.c. is to avoid double jeopardy to a person. if the code recognizes such a distinction, it may make inroads into this concept of double jeopardy. but the concept of double jeopardy, to some extent, is allergic to service law. in many cases the supreme court has made it clear -..........c.j.1. we agree with mudaliyar, j., that the commissioner of the corporation did not possess the power to make the order which he did on 26th may, 1972 directing recovery from the respondent, a tax collector of a sum of rs. 9,580.48, which represented his share of the property tax which he neglected, according to the commissioner, to collect in spite of instruction and indeed allowed the same to become time barred. a memorandum dated 12th october, 1971 was served on the respondent which mentioned the still remaining arrears of tax and the fact that they became time-barred, and called upon him to furnish his report within three days. as he failed to comply with this requirement, on 30th december, 1971, the following charges were framed, by the revenue officer:1. that they have (another.....
Judgment:

K. Veeraswami, C.J.

1. We agree with Mudaliyar, J., that the Commissioner of the Corporation did not possess the power to make the order which he did on 26th May, 1972 directing recovery from the respondent, a tax collector of a sum of Rs. 9,580.48, which represented his share of the property tax which he neglected, according to the Commissioner, to collect in spite of instruction and indeed allowed the same to become time barred. A memorandum dated 12th October, 1971 was served on the respondent which mentioned the still remaining arrears of tax and the fact that they became time-barred, and called upon him to furnish his report within three days. As he failed to comply with this requirement, on 30th December, 1971, the following charges were framed, by the Revenue Officer:

1. That they have (another also was involved) failed to carry out the instruction contained in the, circular and memo, cited;

2. That due to their utter neglect, inordinate delay has been caused and a huge amount of Rs. 23,183.56 is still outstanding as time-barred arrears for 1/68-69.

An explanation was asked for to be submitted within three days and since this Was not done and further time was refused, came the impugned order. It said that a sum of Rs. 14,370.71 was still outstanding in the arrears demand register not covered by any action, and proceeded:

It is therefore ordered that the total amount of Rs. 14,370.71...is recovered from the assessor and tax collector in the ratio of 1:2 (i.e.,) share of Rs. 4,790.23 from Thiru P.S. Balasubramaniam, assessor, and 2/3rd share of Rs. 9,580.48 from Thiru C. Kuppuswamy, tax collector at Rs. 50 per month from their salary for May, 1972 payable on 1st June, 1972 and onwards till the entire-amount is recovered.

Mudaliyar, J., quashed this order on the ground that the Commissioner did not have the power to make the order. In the appeal before us, counsel relied on Sections 86 and 91 of the Madras City Municipal Corporation Act, 1919. Section 86--relates to conditions of service of Corporation establishment. Save as otherwise provided in the Act, discipline of a Class III employee will be regulated by by-laws made by the council under Section 349. That section undoubtedly vests power in the council to make bye-laws in respect of all matters expressly required or allowed by the Act to be provided by by-law. Though no specific power to frame by-law in respect of discipline of employees has been set out in Section 349, it may well be said that the general power in Sub-section (1) of that section will enable the council to cover the matter by a by-law. Unfortunately this has not been done so far; no by-law has been framed. When legislative provision vests power in a public authority land directs that it should be exercised in a particular manner prescribed, in this case through by-laws, the power cannot be exercised in any other way unless the particular instance falls within the opening words of Section 86(1). Our attention has not been invited to anything showing that the matter of discipline and its conduct has been provided for elsewhere in the Act. The only other section to which our attention has been invited is Section 91. That again only vests in the Commissioner powers of supervision and control over the establishment, and even this is controlled by by-laws and regulations for the time being in force and subject to the other provisions of the Act as well as the rules framed thereunder. Here again, this power will not avail the Commissioner to make the order because it is related to the duties of the Corporation establishment and not discipline which is specifically found in Section 86. Though in the situation rather unfortunate, one cannot escape from it, to wit, there is no power for the Commissioner to impose the punishment which he has done. That will suffice to sustain the order of Mudaliyar, J.

2. On that view, it is not necessary to examine whether the order of the Commissioner will be vitiated on any other ground, as for instance, for want of adequate application of his mind to what precisely was the guilt of the respondent, because non-collect ion of arrears may be due to either the negligence of the respondent, if there was any, or in spite of his diligence, default on the part of the asses-see and so on. The Commissioner does not appear to have addressed himself to this question nor given a finding that there was any laches on the respondent beyond failure to make reports about the arrears. In any case, we are not on that question. The appeal is dismissed with costs. Counsel's fee Rs. 100.


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