POTHURU SWAMY BABU Vs. UNION BOARD

JUDGEMENT

(1.) The appellant sued the Respondent, the Union Board of Narasannapet, for refund of Rs. 118-8-0 and interest thereon being the amount of house tax for 1924-25 illegally collected from him on 1 May, 1925. The suit was brought on 6 May, 1926. To the defences on the merits it is needless to refer as it has been held by both the Courts below and is no longer questioned that the levy was illegal as an essential notice was not published. The only point for decision is whether the suit was barred by limitation being brought more than six months after the date of the cause of action as provided by Section 225 of the Local Boards Act, 1920, as it stood before the amendment of 1930. The learned District Judge as held the suit barred and the plaintiff appeals.

(2.) The appellant mainly relies on Lakshmanan Chetti V/s. The Union Board of Devakottai , where Madhavan Nair, J. held in February, 1931, that the above section is applicable only to suits for compensation and damages; and also that a suit for a declaration that a Union Board is not entitled to levy profession tax and for recovery of the tax illegally collected is not a suit for compensation or damages and does not require notice under the section. Although this decision was not on limitation but on notice the reasoning would equally apply to limitation under the section. As against this there is the decision of the late Chief Justice and Madhavan Nair, J. in Municipal Council, Dindigul V/s. Bombay Co. (1928) I.L.R. 52 Mad. 207 : 56 M.L.J. 525 in April, 1928, where, in holding that a suit for company's tax illegally levied by the Dindigul Municipality is not governed by the six months period prescribed by Section 350 of the District Municipalities Act (V of 1920) corresponding to Section 225 of the Local Boards Act (XIV of 1920), both the learned Judges expressly founded themselves on the words "suit for damages or compensation" in Section 350 of the former Act but for which the decision would have been otherwise. The Chief Justice observed that he was quite prepared to concede that if an action for money had and received sounds either in tort or implied contract in this country, it would be within the words of Section 350 of Act V of 1920 and that the Plaintiff company would be time-barred; because either form of such an action would obviously be a suit for damages or compensation within the meaning of the section. He added that he was prepared to think that if the draftsman had not added the qualification "for damages or compensation," in that case the arrears claimed could not be recovered. Madhavan Nair, J. discussing the effect to be given to the words "suit for damages or compensation" in Section 350 said that the corresponding Section 260(1) of the old District Municipalities Act (IV of 1884) corresponding to Section 156 of the Local Boards Act (V of 1884) used the words no "action shall be brought" thus bringing within its scope all descriptions of actions as under the English Law. He added that in view of the express language "suit for damages or compensation" used in the Indian enactment it was no use discussing whether the suit before them sounded in contract or tort. It thus seems by parity of reasoning that according to the then view of both learned Judges in Municipal Council, Dindigul V/s. Bombay Co. (1928) I.L.R. 52 Mad. 207 : 56 M.L.J. 525 the language of Section 225 of the Local Boards Act, 1920, which is similar in generality of application to all suits to Section 156 of the Local Boards Act of 1&84 and in that respect differs from the language of Section 350 of the District Municipalities Act of 1920 is not to be confined to suits for compensation and damages and that this limit was placed in Section 350 of the District Municipalities Act, 1920, only on account of the express words above mentioned.

(3.) But in the later case, Lakshmanan Chetti V/s. The Union Board, Devakottai , Madhavan Nair, J. held that even without any words in the section which limit Section 225 to suits for compensation and damages, it is to be limited as if these words were there and understood as in the earlier case. For this he relied on earlier decisions on the corresponding provisions of the Local Boards Act and District Municipalities Act of 1884, Syed Ameer Sahib V/s. Venkatarama (1892) I.L.R. 16 Mad. 296 , President of the Taluk Board, Sivaganga V/s. Narayanan (1892) I.L.R. 16 Mad. 317 : 3 M.L.J. 12 , Srinivasa V/s. Rathnasabapathi (1892) I.L.R. 16 Mad. 474 : 3 M.L.J. 124 and Govinda Pillai V/s. The Taluk Board, Kumbakonam (1908) I.L.R. 16 Mad. 474 : 3 M.L.J. 124. Having so limited the section by words which are not found there and which were considered the deciding factor in Municipal Council, Dindigul V/s. Bombay Co. (1928) I.L.R. 52 Mad. 207 : 56 M.L.J. 525 he thereupon applied to the Local Boards Act the doctrine enunciated in that case with respect to District Municipalities that in India a suit for money had and received is not one for compensation or damages but for an equitable remedy binding on the conscience of the defendant ex acquo et bono and therefore is not governed by Section 225 of the Local Boards Act. In Civil Revision Petition No. 1147 of 19285a in August, 1932, Sundaram Chetty, J. followed Lakshmanan Chelti V/s. The Union Board, Devakottai and held that a suit for recovery of profession tax illegally levied is not governed by the six months limitation provided in Section 225 of the Local Boards Act. Both because the earlier case is a decision of a Bench and because the reliance on the difference in language emphasized therein appears to me to be more in accord with rules of statutory construction, I prefer to follow it. The Privy Council have condemned on more than one occasion the practice of construing Indian statutes like the Madras Local Boards Act which are from time to time wholly repealed or re-enacted or extensively amended by the language of those which they replaced or of similar legislation elsewhere in India or England on an assumption that no change in the law was intended and thereby declining to give effect to the words. Henrietta Muir Edwards V/s. The Attorney- General of Canada (1929) 58 M.L.J. 300 (P.C.), Norendra Naih Sircar v. Kamalbasini Dasi (1896) L.R. 2 I.A. 18 : I.L.R. 23 Cal. 563 at 571 : 6 M.L.J. 71 (P.C.) and Ramanandi Kuer V/s. Kalawati Kuer (1927) L.R. 55 I.A. 18 : I.L.R. 7 Pat. 221 at 227 : 54 M.L.J. 71 (P.C.). I shall now refer to the cases.