MUNICIPAL COMMITTEE/COUNCIL Vs. MEGHRAJ PHOJRAJ BAGHRECHA

JUDGEMENT

(1.) THIS order will also govern the disposal of Civil Revisions Nos. 427, 634, 635, 636, 637, 702, 703, 704 and 705, all of 1964.

(2.) THESE ten revision petitions by the Municipal Council, Balaghat, are directed against decisions of the Court of Small Causes, Balaghat, giving to the plaintiff-opponent in each case a decree against the Municipal Council for the refund of the amount of terminal tax realized by the Council from each of the plaintiffs in circumstances to be presently stated. By a notification issued on 7th March 1935 under Section 66 (1) (o) of the Central Provinces and Berar Municipalities Act, 1922, the Municipal Committee of Balaghat imposed terminal tax on import and export of goods by rail or roads within its limits at rates mentioned in the schedule appended to the notification. On 6th December 1960 another notification was issued by Government under Sub-sections (5) and (7) of Section 67 of the Act amending the notification issued on 7th March 1935 so as to impose a terminal tax for the first time on certain goods and enhance the rate of tax on taxable articles included in the schedule appended to the notification of 7th March 1935. In 1961 the Municipal Committee authorized the railway authorities to recover terminal tax on goods imported or exported by rail, and accordingly the railway authorities recovered terminal tax from the plaintiffs. The notification dated 6th December 1960, in so far as it imposed terminal tax on certain goods for the first time and enhanced the rates of tax on articles included in the schedule appended to the notification dated 7th March 1935, was declared to be illegal and quashed by this court in a petition under Article 226 of the Constitution in Radhakishan v. State of m. P. , Misc. Petn. No. 59 of 1962, D/- 9-4-1962 (Madh Pra) filed by one radhakishan. Relying on its earlier decision in Bhikamchand v. Municipal committee, Chhota Chhindwara, 1961 M. P. LJ 937 it was held by a Division Bench of this Court in Radhakishan's Case, Misc. Petn. No. 59 of 1962, D/-9-4-1962 (Madh Pra) that the terminal tax imposed by the Municipal Committee 1960 was a fresh imposition which the Committee was not competent to do by reason of item no. 89 of List I of the Seventh Schedule and the imposition was not saved under article 277; that the notification dated 6th December 1960 superseding the previous imposition of terminal tax imposed a new tax and was not one merely continuing the levy of the terminal tax which was lawfully levied at the commencement of the Constitution; and that, therefore, the imposition of terminal tax on certain goods for the first time and enhancement of the rate on other goods was altogether ultra vires the powers of the Municipal Committee and, therefore, illegal. Consequent to the quashing of the notification dated 6th December 1960 each of the plaintiff-non-applicants filed suits giving rise to these petitions for the refund of the amount of terminal tax which had been recovered from him and the imposition of which, according to this Court's decision in Radhakishan's Case Misc. Petn. No. 59 of 1962, D/-9-4-1962 (Madh Pra) was ultra vires and illegal.

(3.) THERE was no dispute in any suit about the amount realized by way of terminal tax from any of the plaintiffs. The Municipal Council contested the suits mainly on two grounds, namely, that they were not maintainable in view of Section 85 (2) of the C. P. and Berar Municipalities Act, 1922, and Section 133 (2) of the Madhya pra. Municipalities Act, 1961; and that the suits not having been filed within six months of the date of the accrual by time under Section 48 (2) of the Act of 1922 as well as under Section 319 (2) of the Act of 1961. Both these pleas were negatived by the learned Judge of the Court of Small Cause who, relying on mesuram Kishunpershad v. Municipal Committee, Jubbulpore, ILR (1948) Nag 766 : (AIR 1949 Nag 270 and Municipal Committee, Karanja v. New East India press Co. Ltd. Bombay ILR (1948) Nag 971: (AIR 1949 Nag 215), held that the suits, being for the recovery of terminal tax which the Municipal Council had no authority whatsoever to impose, were maintainable and that neither Section 48 (2)of the Act of 1922 nor Section 319 (2) of the Act of 1961 was applicable; and that the suits had been filed within the period of limitation prescribed by the Indian limitation Act. Accordingly, the learned judge gave to the non-applicant a decree for the recovery of the amount claimed by in his suit.