CITY MUNICIPALITY Vs. NUSSERWANJI HORMUSJI MADON

JUDGEMENT

(1.) THIS is a second appeal from the judgment of the District Judge at Jalgaon. The plaintiffs (respondents) filed this suit against the appellant to recover inter alia the sum of Rs. 666-12-0. It appears that the defendant-Municipality had recovered certain taxes. The plaintiffs along with other persons living within the municipal limits of the town paid the taxes. One of the tax-payers then filed a suit and obtained a declaration that the tax levied by the Mur. icipality was illegal. Thereupon the plaintiffs filed this suit to recover the amount on the ground that the tax was illegally levied. In the plaint it was stated that the plaintiffs came to know about the illegality of the said tax on December 1, 1931. In the trial Court issues as to whether the tax was illegal or not were raised. It was also contended by the defendant that this sum of Rs. 666-12-0 which was paid off in 1929 could not be recovered as the claim was time-barred. At the hearing all issues except the question of limitation were given up. Both the lower Courts held that Article 96 of the Indian Limitation Act applied, and as the mistake became known on December 1, 1931, allowed the plaintiffs' claim. In the appeal here it is first contended that under Section 206 of the Bombay Municipal Boroughs Act the act of the Municipality in imposing the tax was one purported to have been done in pursuance of that Act. If so, the claim in respect of that Act should, as provided by Section 206, be made within six months from the date of the act complained of. In support of the contention that not only an act which falls within the Act but one which is purported to be done under the Act is covered by the Section the appellant relied on Parvateppa v. Hubli Municipality (1937) 39 Bom. L. R. 881. In my opinion it is not necessary to decide this point.

(2.) THE contention of the respondents that Article 96 of the Indian Limitation Act applies is unsound. THE claim in the plaint is based on the fact that the levy of the tax was illegal. THE recovery of such payment falls under Article 62 of the Indian Limitation Act. In Suryajirao v. Sidhanath (1925) 27 Bom. L. R. 645 the Court of Wards representing the estate of the minor jahagirdar served a notice on the plaintiffs to pay a higher assessment. Nothing happened for four years. THEreafter the Collector on behalf of the Court of Wards, under Section 153 of the Bombay Land Revenue Code, issued a notice asking the plaintiffs to pay the arrears of increased rent and threatened to forfeit the holdings in case of non-payment. THE plaintiffs paid the amount under protest and brought a suit to recover the amount so paid. It was held that Article 62 of the Indian Limitation Act would govern a case of this type when an illegal demand was made. To the same effect it was held in Secretary of State for India v. Major Hughes (1913) I. L. R. 38 Bom. 293 : s. c. 16 Bom. L. R. 121. In that case taxes were levied by the cantonment authorities and payment was made under protest. When the suit was filed to recover the amount on the ground that the levy was illlegal, Article 62 was held applicable.