SURAT BOROUGH MUNICIPALITY Vs. SARIFA KARUNNISSA BEGAM SAHEB AND SAYED MUSTAFA SAYSD SAKKAF EDROOS SAHEB

JUDGEMENT

(1.) THE question of law in this second appeal is whether a Municipality can recover arrears of unpaid taxes by distress warrants when its remedy to recover them by suit is barred. THE plaintiff-respondent, who is a house-holder and tax-payer residing in the Surat Municipality, was liable to pay certain taxes and in due course received bills and notices of demand under Section 104 of the Bombay Municipal Boroughs Act. THE taxes were not paid, and though the Municipality might have taken action under Section 105 by issuing distress warrants, it did not do so but carried forward the arrears of taxes from year to year. Ultimately action was taken under Section 105, distress warrants were issued, and the plaintiff paid the taxes under protest. Subsequently she filed a suit for refund of the taxes levied by distress alleging that the Municipality had no right to recover them in that way because at the time the distress was levied, a suit to recover these arrears of taxes would have been time-barred. THE facts are given in full detail in the judgments of the lower Courts, and for the purpose of deciding the point of law they need not be set out more fully.

(2.) THE trial Court decided that the Municipality, when acting under Section 105, was bound by the law of limitation and was not entitled to take advantage of that Section at a time when a suit under Section 203 of the Act would have been time-barred. THE Municipality was, therefore, ordered to refund such proportion of the taxes which were the subject-matter of the suit as the Court held not to have been in time. THE District Court confirmed the decree of the trial Court.

(3.) THE learned trial Judge took the view that the wording of these three Section s when read together implies that the distress procedure is to be adopted if at all, immediately or within a reasonable time and at the latest before the time limited for a suit under Section 203. He relied on the fact that a period of fifteen days only is allowed to the assessee for objecting to the contents of the bill and that when a notice of demand is issued, the objections to that have to be filed within fifteen days. He thought that the general effect of the language of the Section s was that recoveries by warrants are to be made as early as possible, and he also thought that the language of Section 203 indicated that if recovery by distress is to be made at all, it must precede the suit in point of time. He relied particularly on the words "in case of failure to>| realise by such process the whole or any part of any amount recoverable under the provisions of Chapter VIII."