KALU KARIM Vs. CITY MUNICIPALITY OF BROACH

JUDGEMENT

(1.) The short question before us is the right of the defendant Municipality to levy a terminal tax on fruits brought into their area. The plaintiffs contend that the necessary requirements of the Bombay District Municipal Act 1901 have not been complied with, and that therefore the levying of this tax is ultra vires. The trial Judge decided in their favour, and granted a declaration and an injunction accordingly. On appeal the lower appellate Court reversed that decision and dismissed the suit.

(2.) Before us issues 1, 2 and 3 in lower appellate Court are not contested. That is to say, the Municipality no longer contends that the suit is barred by limitation, or that no proper notice was given prior to the suit. On the other hand, the appellants do not contend that fruits are vegetables within the meaning of the Terminal Tax Rules.

(3.) We are, therefore, left with the bare point of law raised by issue 4 as to whether the requirements of the Act were complied with before this tax on fruits was imposed. The question turns on item 20 to the new Schedule E, for which the Municipality asked in March 1923 for Government sanction under the Act. That item relates to "miscellaneous articles" except those exempted under Rule 3 of the Rules and By-Laws of the Municipality. By the Government Resolution of April 18, 1923, Schedule E was in effect approved, subject to the deletion of item No. 20 from the Schedule. That resulted in "fruits" being deleted from the proposed taxation. The Municipality on May 28, recorded this Government Resolution, and resolved that the payment of the new tax in question be enforced from July 1, 1923, after due notice. Accordingly on May 29, 1923, a public notice, Exhibit 35, was published in accordance with Section 62 of the Act that the tax would be received as from July 1, 1923, and setting out the items in question omitting item No. 20. Under Section 612 of the Act a month's notice had to be given, and that is no doubt one reason why July 1 was chosen, Section 62 also enacts that the tax as from the specified date is to be imposed and the proceeds applied by the Municipality.