ADMINISTRATOR BHIWANI MUNICIPALITY BHIWANI Vs. PRABHUDAYAL HIMMATSINGHKA

JUDGEMENT

(1.) This judgment disposes of Regular Second Appeals Nos. 1536 and 1709 of 1978 since a common question of law based on identical facts arise for consideration.

(2.) These regular second appeals are directed against the judgment and decree of the first appellate Court whereby the suit of the respondent (hereinafter referred to as the plaintiff) for recovery of Rs. 15886.87 was decreed and the defendant was also permanently restrained from charging enhanced rate of surcharge on octroi duty from 50% to 75%.

(3.) The plaintiffs filed a suit for declaration to the effect that the surcharge on the octroi duty levied in June, 1972 by the defendant is ultra vires, null and void. The defendant passed a resolution dated 30/12/1970 proposing levy tax (increase of surcharge on octroi duty from 50% to 75%.) Notice as required by S.62(2) of the Punjab Municipal Act, 1911 (in short the Act) proposing levy in surcharge on octroi duty was published on 29/01/1971. Objections to the proposed increase in the rate of surcharge on octroi duty could be filed by any inhabitant, objecting to the proposed tax, within 30 days from the publication of the said notice. The limitation of 30 days as contemplated by sub-sec.(2) of S.3 of the Act expired on 28/02/1971. It is undisputed that 28/02/1971 was Sunday and the office of the defendant-Committee was closed on that date and that the objections were filed on 1/03/1971. In view of S.10 of the General Clauses Act, 1897, the objections have to be considered as having been filed intime, because the office of the defendant-Committee was closed on 28/02/1971 on account of Sunday, and reopened on March l, 1971. The objections were primarily rejected by the Committee on the ground that these were filed after 30 days of the notice. The proposal for enhancement of surcharge on octroi duty was sent to the Haryana Government. The proposal was accepted by the Haryana Government vide notification No. 2147-3C(I)-72 / 9699 dated 4/04/1972. the defendant was authorised to levy enhanced rate of surcharge on octroi duty w.e.f. 1/06/1972. In pursuance to the notification dated 4/04/1972, the defendant realised Rs.15,886.97 from the plaintiffs being the enhanced surcharge on octroi duty. The validity of the Haryana Government notification dated 4/04/1972 was challenged in the suit on the ground that it was void and ineffective for the reason that the objection filed by the plaintiffs were not considered and were summarily rejected as brought after the expiry of 30 days; whereas, as a matter of fact the same were filed within the prescribed limitation of 30 days.