NAGAR MAHAPALIKA KANPUR Vs. SHRI RAM MAHADEO PRASAD

JUDGEMENT

(1.) THE Municipal Board, Kanpur, had been levying, from before coming into force of the Constitution, terminal tax upon the import or export of certain commodities, at specified rates. From 1st Jan., 1960, the Municipal Board was replaced by the Nagar Mahapalika, Kanpur. By a notification dt. 15th Jan., 1960, published in the U. P. Gazette dt. 16th Jan., 1960, the Nagar Mahapalika enhanced the reter of terminal tax. On 18th May, 1970, the respondent filed a writ petition in this Court challenging the notification enhancing the rates of terminal tax on the ground that after the coming into force of the Constitution it was no longer permissible for the Nagar Mahapalika to impose terminal tax, as under the Constitution the jurisdiction to levy this tax had been given to the Union of Indian. The writ petition was allowed by Gulati, J. on 11th Oct., 1971. The operative part of his judgment reads thus :-

(2.) THEREAFTER the respondent applied to the Nagar Mahapalika for a refund of the excess amount paid by it. The Nagar Mahapalika refunded a sum of Rs. 67,500.23, but declined to refund the balance of Rs. 2,50,000/-, admittedly paid by the respondent in excess in pursuance of the impugned notification. The reason given by the Nagar Mahapalika for declining to refund the balance amount was that the recovery of this amount was barred by limitation. The respondent then moved an application for taking proceedings for contempt against the Nagar Mahapalika. during the course of these proceedings the respondent was advised to file an application for review of the judgment of Gulati, J. dt. 11th Oct., 1971, and it did so. After hearing the parties, Gulati, J. by order dt. 9th Oct., 1974, allowed the review application holding that no question of limitation really arose in the case and even if it arose, no part of the claim for refund was barred by time. He, accordingly, deleted the following words from his judgment dt. 11th Oct., 1971 :- "Subject to such objections as regards limitation as may be open to it under the law."- Against this order of review the Nagar Mahapalika has filed this appeal.

(3.) IN the counter-affidavit filed by the Nagar Mahapalika in the writ petition it was stated in paragraph 7 :-