MUNICIPAL COUNCIL Vs. NIDAMARTI JALADURGA PRASADARAYUDU

JUDGEMENT

(1.) These revision petitions arise out of two Small Cause suits on the file of the Sub-Court, Rajahmundry, wherein the plaintiff claimed refund of certain taxes from the Municipal Council of Rajahmundry on the ground that they had been illegally levied. The learned Subordinate Judge upheld the plaintiff's claim to a certain extent and dismissed it in respect of other portions of the claim; hence these revision petitions filed by both parties.

(2.) Questions have been raised with reference to three items of taxes: (1) Education tax, (2) profession tax and (3) property tax. As regards education tax the learned Judge held that the levy was unauthorised because an education fund had not been constituted in the first instance as contemplated by Section 32, Elementary Education Act of 1920. The evidence adduced before the lower Court showed that a resolution had been passed by the Municipal Council on 30 October 1922, for the levy of an elementary education tax at the rates specified therein from 1 April 1923 and the Government was requested to accord its sanction. The sanction was duly accorded by G.O. No. 192 dated 3 February 1923. An argument was advanced here on behalf of the Municipal Council that the reference in Section 32 to the constitution" of an elementary education fund merely means the collection of money for that purpose and need not necessarily mean a formal resolution proposing to constitute such a fund. I do not think it is necessary for me to express any opinion on this argument. In the ordinary course I should have been prepared to presume in a matter of this kind that the necessary formalities had been observed before the Government gave its sanction to the proposed levy. The enactment is no doubt a taxing statute but I do not see how a subject can say that he has been prejudiced by the mere omission to pass a formal resolution constituting an education fund because it is the taxing resolution sanctioned by Government that really imposes the liability upon him.

(3.) It has however been brought to my notice by an application filed during the pendency of these C.R. Ps. for the admission of certain documents that a formal resolution constituting an elementary education fund had in fact been passed by the Council on 3 October. The respondent is no doubt justified in taking exception to an application for admission of fresh evidence at this stage but it must be remembered that there have been changes in the personnel of the officers of the Municipality and I see no reason to think that the officer who attended to the conduct of the suit before the lower Court was negligent in making the necessary search. The affidavit filed in support of the application explains how the omission came about and also how the subsequent discovery was made. The plaintiff has filed a counter-affidavit which does not seriously question the truth of the statements made in the affidavit. I am not much pressed by the suggestion that if the documents are now admitted the matter must be sent down to the lower Court for further evidence. It is sufficient for the purpose of the determination of this question to admit the copy of the District Gazette containing the resolution of the Municipal Council dated 3 October. I have little hesitation in admitting it because as I have stated already even otherwise I should have assumed that the correct procedure had been followed in the ordinary course. I do not see that the admission of the District Gazette calls for any fresh evidence either in respect of it or to disprove it. I must therefore set aside the lower Court's decision so far as it has directed refund of the education tax.