Y S PARIHAR Vs. CHINTAMAN MADHAVSA KHA TRI

JUDGEMENT

(1.) These three revisional applications raise a common question of law, for the understanding of which it is necessary to state the facts of only one of the applicantions, namely, civil Revision Application No. 1400 of 2956. This application arised out of a judgment and decree passed by the learned joint Civil Judge, J. D., at Erandol, in Civil Suit No.42 of 1956. The plaintiff who is the opponent in this application filed this suit for recoveriung the amount of Rs. 100/- from the defendant Municipality of Dharangaon, the present applicant, upon the contention that the Municipality had recovered the said amount irom him illegally by way of octroi on yarn brought by him within the municipal limits during the period 25th March 1953 to 21st July 1955. The palintiff contended that the Municipality did not conform to the procedure required by law to be followed before the imposition of a tax. His case was that there was no sufficient publication of the rules and notice in the matter of the levy of this tax, and this had resulted in the loss of an opportunity to him to make a representation against the levy of the tax. The Municipality resisted the suit and contended that the levy of the tax was according to law, that the necessary procedure was followed before the imposition of the tax and further that the plaintiffs suit was barred by limitation. The learned Judge framed an issue whether the tax levied upon the plaintiff and the recovery thereof made from the plaintiff were legal and valid. The learned Judge framed another issue also, viz., whether the suit was barred by limitation. On the first issue the learned Judge held that the tax was not iegally levied and upon the second issue, he came to the conclusion that so far as the amount of Rs. 97-12-3 out of the amount of Rs. 100/- was concerned, the suit was not barred by limitation; but that it was barred only in respect of a small amount of Rs. 2 and odd. Consistently with the view which the learned Judge took on the point of the legality of the levy of the tax, he passed a decree directing that the defendant Municipality of Dharangaon do pay to the palintiff an amount of Rs. 97-12-3 together with future interest thereon at 4 per cent per annum from the date of the suit till the date of realisation. It is from this decree that the Civil Revision Application No. 1400 of 1956 is filed by the Dharangaon Municipality.

(2.) It would be convenient at this stage to set out the provisions of the Bombay District Municipal Act, 1901, relating to the levy of a tax. It may be noted that the tax in this case was levied under the provisions of section 59, sub-section (1), clause (b) sub-clause (iv). Sub-clause (iv) provides that subject to any general or special orders which the State Government may make in this particular behalf, any Municipality may impose an octroi on animals or goods, or both, brought within its octroi limits for consumption, use or sale therein. Then there is section 60. Clause (a) of section 60 provides that a Municipality before imposing a tax shall by a resolution passed at a general meeting select for the purpose one or other of the taxes specified in section 59 and shall prepare rules for the purposes of clause (I) of section 46 prescribing the tax selected. Then, there is clause (b) of section 60 which provides that when a resolution as required by clause (a) has been passed and rules prepared, the municipality shall publish the form of rules with a notice in the form of Schedule A. Then there is clause (c) of section 60 which provides for objections to the tax by the inhabitants of the Municipal District concerned. It would be convenient to set out the text of clause (c) which says: Any inhabitant of the municipal district objecting to the imposition of the said tax, or to the amount or rate proposed or to the class of persons or property to be made liable thereto, or to any exemptions proposed may within one month from the publication of the said notice send his objections in writing to the Municipality, the Municipality shall take all such objections into consideration, or shall authorise a committee to consider the same and report thereon, and, unless they decide to abandon the proposed tax in accordance with such objections, shall submit the same with their opinion thereon, and any modifications proposed in accordance therewith, together with the notice and rules aforesaid, in the case of a City Municipality to the State Government and in the case of any other Municipality to the Commissioner". Section 61 says that the State Government or the Commissioner as the case may be may either refuse tosanction the rules submitted or may return them to the Municipality for further consideration. This section says that the Government or the Commissioner may sanction the rules either without modification or subject to such modifications as are considered necessary. Section 62 refers to the publication of the rules after the sanction thereof and also to the publication of the notice. Now, on the point of publication, the relevant section is section 154, sub-section (3), Sub-section (3) provides:

(3.) It would appear that a similar point arose in second appeal No. 121 of 1953 (Bom), wherein Mr. Justice Dixit took the view that section 154, sub-section (3) required a Municipality to frame a by-law and that it was open to the Municipality to publish notices in any other way. With great resopect, by Mr. Justice Dixit, if we turn to the Language of sub-section (3) of section 154, it would appear that the Legislature has not made it incumbent upon a Municipality to frame a by-law. All that the Legislature has laid down by enacting the sub-section is that if a presumption regarding publication has to be drawn, certain conditions must be fulfilled, viz., that a by-law must be framed prescribing a certain procedure in the matter of publication. In other words the framing of a by-law is a condition precedent to the drawing of a presumption. If in a given case no by-law is framed by the Municipality in this behalf, no presumption such as is referred to in sub-section (3) of section 154 would be permissible; or if a by-law is framed by a Municipality but the provisions thereof are not complied with, even then no presumption such as the one which is referred to in sub-section (3) of section 154 would be permissible. Sub-section (3)does not say that even if there is other evidence regarding publication, such evidence would not be sufficient, in the absence of a by-law, to justify the conclusion that there was sufficient publication. The language of sub-section (3) of section 154 is not mandatory regarding the framing of a by-law. It is mandatory only in respect of a presumption to be drawn in case a by-law has been framed. Upon a careful consideration of the provisions of sub-section (3) of section 154, we are satisfied that the Legislation has not intended to lay down that there can be no publication apart from or irrespective of a by-law which is referred to in the sub-section. The sub-section speaks only of a presumption as I have said, and it is unnecessary to point out that presumption is not the only kind of proof. The sub-section does not debar other kinds of proof on the point of publication In this connection, the important words in the sub-section are: "shall be deemed to have been sufficiently given or served". These words would clearly show that the Legislature did not intend to lay down that the framing of a by-law and compliance with the provisions of the said by-law were the only ways in which sufficient publication could be given to the notice and the rules. It is clear that the Legislature intended that even if no by-laws was framed by the Municipality, it was still open to the Municipality to prove sufficient publication in other ways. When something is deemed to have been done, it means that in fact it may not have been done or it is not done. In this connection, we can do no better than refer to a decision of the Privy Council in the case of Commissioner of Income-tax v. Bombay Trust Corporation Ltd., 57 Ind App 49: (AIR 1930 PC 54). Their Lordships observed in that case: