CHAIRMAN, MUNICIPAL COUNCIL Vs. NYAPATHI SUBBA RAO

JUDGEMENT

(1.) The petitioner is the Municipal Council, Rajahmundry, by its Chairman and the respondent is said to be a gentleman who is a large land-owner and who also does considerable money- lending business. He sued the Municipal Council for refund of payment of profession tax for the periods 1926 to 1930.

(2.) Before us, the only point for decision, which goes to the root of the whole matter, is this. It is contended by the earned Counsel for the Municipality that this suit does not lie because the payments sought to be recovered were voluntary payments and such voluntary payments being in the nature of a gift cannot be recovered. The following history of this case is relevant. With regard to the two half-years 1926-1927, the respondent filed appeals before the appellate authority which were disposed of on the 18 January, 1928, summarily. He apparently being dissatisfied with those decisions continued to pay this tax from that time until 1930 and filed this suit in July, 1930. No protest accompanied the payments, but the learned Judge has found on the facts that the payments were made under protest and ordinarily in a revision petition even under Section 25 of the Provincial Small Cause Courts Act we should not go behind any questions of fact. But this is a matter of some importance and on the face of the judgment it is perfectly clear to us that these payments were voluntary in the sense that word is understood in a matter of this sort and that so far from showing that they were made under protest the very circumstances set out by the learned Judge emphasise that they were voluntary payments. It is quite clear that the respondent preferred the procedure provided by the Act by way of appeal and however dissatisfied with the result he thought fit to go on making payments for four years until he was inspired with the idea of filing this suit four years after, in 1930. He has relied on the fact that the notice states that in default of payment, his property will be distrained. The whole question of what is and is not a voluntary payment has been exhaustively considered by Pandalai, J., in the case of The Municipal Council, Tuticorin V/s. Ralli Brothers (1933) 67 M.L.J. 566 at 569 to 573. I desire to record my complete agreement with that part of his judgment dealing with that particular topic where it will be seen that the principal cases are considered. One decision should be specially referred to and that is Maskell V/s. Horner (1915) 3 K.B. 106 where the Court of Appeal reversing the decision of Rowlat, J., dealt with the question of voluntary payments. Dealing with the question of compulsion Lord Reading, C. J:, at page 118 says: If a person pays money, which he is not bound to pay, under the compulsion of urgent and pressing necessity or of seizure, actual or threatened, of his goods he can recover it as money had and received.

(3.) It will be observed that the compulsion is of urgent and pressing necessity or of seizure, actual or threatened. As to what is actual or threatened seizure, Cave, J., in the case of Slater V/s. Mayor, etc., of Burnley (1888) 59 L.T. 636 at 639, points out that threatened seizure does not apply to the conventional threat contained in the ordinary notices of demand because, as he says: If that were so, no payment of rent to a landlord would be a voluntary payment.