SHIDRAO NARAYANRAO GUMASTE PATIL Vs. MUNICIPALITY OF ATHNI

JUDGEMENT

(1.) THIS is a second appeal from a decision of the learned Assistant Judge of Belgaum. The plaintiff, the Municipality of Athni, instituted this action against the defendant, who is an owner of certain properties situated within the municipal district, to recover arrears of house-tax and general sanitary cess due from him for a period extending over twelve years before the suit and also interest on those arrears. The defendant contended inter alia that the claim was barred by limitation, The trial Court thought that the claim to the general sanitary cess was so barred, but allowed the claim to the house-tax and passed a decree for the said tax in the amount, of Rs. 332 with interest thereon. It directed that the tax should be recovered by sale of the properties described in the plaint belonging to the defendant. Against that decree both parties appealed. The plaintiff appealed against the rejection of the claim to the general sanitary cess, while the defendant appealed against the decree against him. The learned Assistant Judge in first appeal disallowed the claim to interest but allowed the claim of the Municipality to the house-tax and general sanitary cess holding that it was not barred by limitation. Against that decree the defendant has appealed.

(2.) MR. Jahagirdar for the appellant in view of the written statement has not questioned the legality of the imposition. But he maintains that the claim of the Municipality being for money payable by the defendant, is governed by Article 62 of the Indian Limitation Act, 1908, and not by Article 132 of that Act which has been applied by the lower appellate Court. The learned Assistant Judge thought that Article 132 applied as the sums claimed were a first charge on the properties in respect of which they were levied. In his opinion, both the house-tax and the general sanitary cess were taxes imposed in the form of a rate on lands or buildings or on both within the meaning of Section 87 of the Bombay District Municipal Act (Bom. III of 1901), which regulates the recovery of taxes by the Municipality and therefore by virtue of the rules of the Municipality were a first charge upon the building or land, in respect of which the taxes were levied.

(3.) THE claim with regard to the levy of the general sanitary cess is not so easy to determine. Section 59 of the Bombay District Municipal Act gives the Municipality the right to impose certain taxes indicated therein. Those are so far as their enumeration is material:- (i) a rate on buildings or lands or both, situate within the municipal district; (vi) a special sanitary cess upon private latrines, premises or compounds cleansed by municipal agency, after notice given as hereinafter required; (vii) a general sanitary cess for the construction or maintenance, or both construction and maintenance, of public latrines, and for the removal and disposal of refuse.