THE PUDUKOTTAI MUNICIPALITY REPRESENTED BY ITS COMMISSIONER Vs. PALANIAPPA TALKIES REPRESENTED BY ITS PARTNERS AND PROPRIETORS

JUDGEMENT

(1.) The question that calls for consideration in this second appeal is whether pending the disposal of an appeal statutorily provided for in the Madras District Municipalities Act (Madras Act V of 1920) which had been filed against an assessment, the Assessee could file a civil suit impeaching the assessment and claim refund of the tax paid. The right to challenge the assessment in a civil Court where the provisions of the Act have not in substance and effect been complied with is not questioned before me. It is not disputed that where no appeal as provided for under the statute had been preferred, the assessment could be challenged in a civil Court on the ground of non -compliance in substance and effect of the provisions of the Act. The learned Counsel would, however, submit that if the levy of the tax was within the framework of the statute and in substantial compliance with the provisions thereof, the civil Court would have no jurisdiction to go into the question whether the levy is excessive or not. The point raised in the second appeal is that as the Assessee had chosen to prefer an appeal pending disposal of it, any suit impugning the assessment would be premature.

(2.) The facts that have led up to this second appeal may be briefly stated. The Plaintiffs are the partners of Palaniappa Talkies and the Defendant municipality assessed them to profession tax at Rs. 100 per half year for the two half years in 1958 -59 and for the first half year of 1959 -60 ending with 30th September 1959. Appeals were preferred against the assessments and the Taxation Appeal Committee of the municipal council disposed of the assessment appeals for the two half years of the year 1958 -59 reducing the tax to Rs. 50 per half year. The appeal in respect of the first half year of 1959 -60 was not disposed of and while the same was pending, the Plaintiffs instituted the suit out of which the present second appeal arises contending that the levy of the tax for the three half years in question was arbitrary and illegal and the provisions of the Madras District Municipalities Act and the rules framed thereunder were not followed while making the assessment. Refund of the taxes paid was claimed. The Courts below have concurrently held that the action of the municipality in making the levy was capricious and arbitrary without due compliance of the provisions of the District Municipalities Act and the rules framed thereunder. In the absence of any basis to justify the levy, it was held illegal and ultra vires.

(3.) Sri A. Alagiriswami appearing for the municipality does not, as he cannot in the second appeal, question the finding that the levy was capricious and arbitrary and without reference to the provisions of the Act and the rules framed thereunder. Learned Counsel, therefore, does not before me impugned the decree of the Courts below in so far as it relates to the assessment for the two half years of 1958 -59. But the learned Counsel though not in a position to attack the decree in favour of the Plaintiff for the first half year of 1959 -60 otherwise, contends that the suit itself was not maintainable in respect of this half year. The contention as put forward amounts to a plea that the Plaintiffs had no cause of action in respect of this half year at the time when the suit was instituted. The relevant provisions of the District Municipalities Act (Act V of 1920) for the purpose of this contention may be set out. Sec. 354 of the Act runs thus: