JUDGMENT
R.K. Abichandani, J.
1. The controversy in this appeal revolves around the question whether the suit survey numbers of the respondent No. 1 are situate within or outside the limits of the Morvi Municipality, the appellant.
2. Respondent No. 1, original plaintiff, filed a suit for a declaration that the premises of the respondent No. 1 – Mills, bearing Survey Nos. 160/1, 161, 161/1, 162/2, 163/1, 163/2 and 164/1, described in paragraph 4 of the plaint, are not situate within Morvi Municipal and octroi limits and that the Morvi Municipality is not entitled to recover octroi duty, consolidated property tax, education cess, licence fees or other taxes, fees, etc., from the respondent No. 1-plaintiff. It was further prayed that a decree for refund of Rupees 5,25,112.05 be passed in favour of the respondent No. 1-plaintiff and against the appellant- Municipality. A permanent injunction was sought against the Municipality from recovering any octroi duty and other taxes.
3. Respondent No. 1-Plaintiff is a Public Limited Company. The case of the respondent No. 1 is that it is having its registered office at: Vegetable Factory Road, Mahendranagar, Morvi Taluka. Respondent No. 1 purchased these lands and made constructions thereon for its business of running a spinning mill. According to the respondent No. 1, the appellant-Municipality was established for the first time after independence and the limits of the said Municipality were declared under Sections 4(1), 4(2) and 5 of the Bombay District Municipal Act, 1901, by a Notification of the Saurashtra Government, bearing No. 106, dated 28th February, 1952, declaring the limits of the Morvi Municipality. The Survey Numbers belonging to respondent No. 1, which, according to it, were in the Mahendranagar Village, were not carved out under the provisions of the Bombay Land Revenue Code for being included within the limits of the Morvi Municipality. It is the case of the respondent No. 1 in the plaint that it had paid octroi and other taxes to the Municipality under a mistake of law, though the Municipality was not legally entitled to recover these amounts. The claim for refund is confined to the amounts, which were paid to the Municipality during the three years preceding the date of filing of the suit, which is quantified at Rs. 5,24,812.05 ps. It is contended that even the Mahendranagar Panchayat, the respondent No. 2, who was original defendant No. 2, was collecting taxes from respondent No. 1. It is contended that there cannot be double taxation for the same property or the goods, by two different local authorities. Suit notice was given by respondent No. 1 to the Municipality on 8th June, 1990 for the refund of the aforesaid amount.
4. Respondent No. 2, Mahendranagar Gram Panchayat, supported respondent No. 1-plaintiff, by contending, in its written statement, that the suit Survey Numbers fell within the limits of the Mahendranagar Gram Panchayat, and that there was never any proceeding undertaken for excluding the said Survey Numbers from the Panchayat Limits. According to the Panchayat, it was entitled to recover the tax, education cess, etc., in respect of these Survey Numbers.
5. In its written statement, the appellant-Municipality contended that the Registered Office of the respondent No. 1-Company was in Morvi. It was contended that the suit lands were within the limits of the Morvi Municipality ever since the times of Morvi State. The Morvi Municipality was in existence even prior to independence and even after the merger of the Morvi State in the State of Saurashtra, the Municipality had its own control over its territory. It was contended that a Development Plan was prepared in the year 1971 in respect of the area falling within the limits of Morvi Municipality and the suit survey numbers were shown in that plan within the Municipal limits of Morvi. It was further contended that the octroi rules, which were sanctioned by the Government, tallied with the limits indicated in the Notification, dated 28th February, 1952, which reflected the limits of the Morvi Municipality. The limits, which were indicated in the Notification of 1952, were shown in the Development Plan as the Municipal limits. In context of the situation of the City Survey Numbers, it was contended that the limit of the Municipality extended till the end of Vegetable Factory, which was beyond the suit land. It was further contended that the respondent No. 1-Com-pany had paid the Municipal tax without any demur for a period of over 25 years. It was also stated that street lights and other facilities were provided in respect of the properties of the respondent No. 1, which were within the municipal limits. Respondent No. 1 had also taken advantage of exemption of payment of octroi granted by the Municipality. Such exemption was granted for a period of 5 years on an application made by the respondent No. 1-Company, by a Resolution passed by the General Board of the Municipality.
6. The trial Court framed issues at Exhibit 45 and came to a finding that the Survey Numbers listed in paragraph 4 of the plaint of the respondent No. 1 were not within the local limits of the Morvi Municipality and that respondent No. 1 had proved that it had paid octroi, consolidated property taxes, education cess, etc., to the Municipality under a mistake of fact and law. It was held that the appellant-Municipality was not legally en-titled to recover octroi duty and other taxes from respondent No. 1 and that respondent No. 1 was entitled to get the refund of taxes, amounting to Rs. 5,24,812.05 Ps. In the process, it was also held that the respondent No. 2-Pancnayat was legally entitled to impose and recover taxes from the respondent No. 1-Company. On the above findings, the trial court granted the declaration prayed for, issued a permanent injunction against the Municipality and ordered the refund of the aforesaid amount, with interest at the rate of 6% per annum from the date of the suit till realisation and costs.
7. In coming to its conclusions, the trial court was impressed by the fact that the disputed survey numbers were shown in the village record of Mahendranagar village and that there were instances of imposing taxes by the Mahendranagar Panchayat. It was further impressed by the fact that no orders were made under Section 9 of the Gujarat Panchayats Act, 1961 for excluding the suit Survey Numbers from the village limits for their inclusion in the Municipality. The trial court, while comparing the Notification dated 28-2-1952, Exhibit 77, with the Development Plan of the Morvi Municipality, Exhibit 277, found that the limits shown in the Development Plan, Exhibit 277, extended even beyond the 14 points, which were shown in the Notification, Exhibit 77. From this, it concluded that it cannot be said that the limits shown in the Development Plan were according to the Notification, Exhibit 77. It was held that the Development Plan, Exhibit 277, was not useful to the Municipality to show that the disputed survey numbers were within its limits. Relying upon the map of village Mahendranagar, produced at Exhibit 245, the trial court held that there was no doubt that all the suit survey numbers were within the limits of village Mahendranagar. As regards payment of municipal taxes by the respondent No. 1, it was held that the mere fact that taxes were paid over a period of time did not prove that the premises of the respondent No, 1-Company were within the Municipal limits of Morvi. As regards the facilities, which were provided by the Municipality, it was observed that if the Municipality had voluntarily provided such facilities, that fact would not create any right in favour of the Municipality to impose and recover taxes in respect of the said area.
8. It was contended before us by the learned Advocate Mr. N. D. Nanavati, appearing for the appellant, that there was ample evidence on record to indicate that the suit Survey Numbers fell within the limits of Morvi Municipality. For this purpose, he took us through the evidence on record, including oral evidence, and placed reliance on the Notification Exhibit 77, dated 28-2-1952, the Development Plan, at Exhibit 277, correspondence, Exhibits 278, 279 and 280 and other material on record. He submitted that the findings arrived at by the trial court were not borne out from the evidence on record, which clearly pointed out to the fact that the suit survey numbers were within the Municipality.
9. The learned Advocate General, appearing for respondent No. 1-Company, supported the findings arrived at by the trial court and submitted that merely from the Development Plan, Exhibit 277, one cannot jump to the conclusion that the suit survey numbers were within the Municipal limits of Morvi. He further argued that there was no exclusion of any area from the Mahendranagar Village Panchayat, which process was necessary to be adopted even under the provisions of the Saurashtra Ordinance of 1949, relating to Panchayats. Referring to the provisions of Section 9 of the Gujarat Panchayats Act, 1961, and relying upon a decision of this Court, in Special Civil Application No. 1582 of 1969, decided on 12th March, 1970, he submitted that even though there was no provision similar to Section 9 of, the Gujarat Panchayats Act, 1961, existing at the relevant time, this Court should hold that in absence of any express exclusion of the suit survey numbers from Mahendranagar Village, they could not have been included within the Municipal limits of Morvi.
10. Mr. Vakharia, appearing for the respondent No. 2-Mahendranagar Pan-chayat, attempted to show from the maps that the suit’survey numbers were not within the Municipal limits of Morvi, but were within the limits of village Mahendranagar. In the process, however, he was candid enough to admit that it was difficult to reconcile certain points, particularly items Nos. 3 and 4, shown in the earlier Notification of 1944, which is at Exhibit 282, within the limits of Morvi Municipality.
11. Respondent No. 1 had examined Vijaykumar Harshadray Munshi, at Exhibit 244, and the appellant had examined Ashvin-kumar Rasikbhai Sanghvi, at Exhibit 269. A common factor, which emerges from the pleadings and the evidence of these two witnesses as well as the other record of the case, is that a Notification was issued on 28th February, 1952, at Exhibit 77, which indicated the limits of the Morvi Municipality, by describing 14 points therein. Admittedly, that Notification has never been challenged by any one. The Notification, Exhibit 77, shows that it was issued to fix the limits of Morvi City Municipality. It refers to the Bombay District Municipal Act, 1901, as having been adopted by the Saurashtra State and, more particularly, to the provisions of Sections 4(1) and 4(2) and Section 5 of that Act and recites that in exercise of the powers conferred by those provisions and after publication of the proclamation under Section 8 thereof, on 25-10-1951, and since there were no objections received against that proclamation, the Government was pleased to fix the limits of Morvi City Municipality, as indicated in Schedule I, as the permanent limits of the Municipality. We are concerned with item No. 6 in the Schedule, which refers to “Timbadi ni Sadak”, i.e. Timbadi Road. In the schedule, it is stated that there was already demarcation done in respect of all other points, except points Nos. 3, 6, 7 and 8 and as regards Timbadi road, it is specifically stated that the limit would extend till the end of Vegetable Processing Factory on Timbadi Road. It will be noticed from the provisions of Section 7 of the Bomaby District Municipal Act, 1901 that any local area which comprises of a city, town or station, or two or more neighbouring cities, towns and stations with or without any village, suburb, or land adjoining thereto, or a village or suburb or two or more neighbouring villages and suburbs, could be declared a permanent municipal district. Section 8 of the said Act requires that not less than two months before the publication of any notification, declaring -any local area a permanent municipal district, or altering the limits of any such District, or declaring that any local area shall cease to be a municipal district, the State Government shall cause to be published in the official gazette in English and in at least one of local newspapers, if any, in the language of the district in which such local area is situate, and to be posted up in conspicuous spots in the said local area in the language of the said District, a proclamation announcing that it is proposed to constitute such local area a municipal district, or to alter the limits of the municipal district in a certain manner. Thus, the Notification, Exhibit 77, was duly issued after issuing proclamation as required by Section 8 as recited therein and the effect of the Notification was to fix the municipal limits of the said Municipality. The provisions of Section 5 of the Saurashtra Ordinance of 1949, on which reliance was sought to be placed by the learned Advocate General, provided that the jurisdiction of the Panchayat would extend to the limits of the village and that the Government was empowered to make changes therein or to combine or amalgamate one or more villages for the purpose of bringing them within the jurisdiction of the Panchayat. It wilt, thus, be seen that the Government was empowered under the provisions of the Bombay District Municipal Act, 1901 to fix the limits of a Municipality and for that purpose, to include the local areas, within municipal limits, after issuing the necessary proclamation and under the provisions of Section 5 of the Saurashtra Ordinance, it was empowered to change the limits of a village. Therefore, if the Notification issued on 28-2-1952, fixing the limits of the Morvi Municipality had the effect of including within those limits any local areas, which were earlier within the limits of a village, it was fully empowered to do so. It will also be noticed that the Saurashtra Ordinance did not provide for any procedure for effecting change in the limits of a village, while the Bombay District Municipal Act, 1901 clearly provided, by Section 8, the procedure, by which the limits of a Municipality were to be fixed. As reflected from the Notification, Exhibit 77 itself, that procedure prescribed by Section 8 was followed, in this case. This had the obvious effect of increasing the limits of the Morvi Municipality as per Exhibit 77 and correspondingly excluding the area, which may earlier be falling within the Mahendranagar Village Panchayat. No different conclusion can be drawn by reference to the provisions of the Gujarat Panchayats Act, 1961, particularly Section9, on which reliance was sought to be placed on behalf of respondent No. 1, because those provisions were not in existence at the relevant time. For this reason, the decision of the Division Bench of this Court in Special Civil Application No. 1582 of 1969, rendered on 12th March, 1970 in the context of provisions of Section 9(2) of the Gujarat Panchayats Act, 1961 cannot be of any assistance to the respondent No. 1.
12. Admittedly, map Exhibit 277 is a development plan of Morvi Municipality. As deposed to by the appellant’s witness Ashvin-kumar Rasikbhai Sanghvi, Exhibit 269, a Resolution was passed, on 27th September, 1965, by the Municipality for preparing a Development Plan. The said development plan was duly advertised as per Exhibit 271 and objections were invited by notification issued by the Panchayat and Health Department of the Government dated 1-3-1960 published in the gazette as per Exhibit 272. A notice was also published in this connection by the Municipality, as per Exhibit 273. There were no objections received against the proposed development plan, which came to be sanctioned by the Resolution dated 7-12-1969, passed by the Municipality at Exhibit 274. The development plan was published in the gazette under the order of the Government, in its Panchayat and Health Department, on 16-7-1971. The fact, that the development plan was duly prepared, sanctioned and published, clearly emerges from the deposition of this witness. It will be noticed from the provisions of Section 7 of the Bombay Town Planning Act, 1954 that a development plan shall generally indicate the manner in which the development and improvement of the entire area within the jurisdiction of the local authority are required to be carried out and regulated. There is no dispute about the fact that the municipal limits are indicated in the development plan, Exhibit 277. It transpires from the Development Plan, Exhibit 277, that the suit survey numbers fell within the municipal limits indicated therein. The plaintiffs witness, Vijaykumar H. Munshi, when shown this Development Plan, has, in paragraph 42 of this deposition, admitted that the suit survey numbers were shown within the municipal limits in the said plan. Though this witness has stated that he had no knowledge about the. Development Plan, the fact that the Development Plan map, Exhibit 277, showed suit survey numbers within the municipal limits, was admitted by him. The Development Plan, which was prepared in accordance with the statutory provisions, indicates the area within the jurisdiction of the local authority. Various Zones, including the industrial Zone, are shown there. The suit survey numbers are shown in the Industrial Zone, which is shown within the municipal limits. The Development Plan was sanctioned by the Government in accordance with the provisions of Section 10 of the Bombay Town Planning Act, 1954 and, therefore, was issued under the authority of the State. It will be noticed that the validity of the Development Plan has not been challenged in the suit. Under Section 83 of the Evidence Act, it is provided that the Court shall presume that the maps or plans, purporting to be made by the authority of the Central Government or any State Government, were so made and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate. Apart from the presumption under Section 83, which has not been rebutted, there is evidence on record to show that this development plan was duly prepared and that it showed the municipal limit as were indicated in the Notification, Exhibit 77, dated 28-2-1952. As pointed out hereinabove, the witness of the appellant has deposed to the fact that this Development Plan was duly published and sanctioned by the Government. It will be seen from a copy of the Notification dated 16th July, 1971, which is at Exhibit 275, that the Government of Gujarat, in exercise of the powers conferred under Subsection (1) of Section 10 of the Bombay Town Planning Act, finally sanctioned the said Development Plan, and the regulations thereto for the City of Morvi, subject to the modifications. The date on which the final development plan was to come into force was specified as 1-9-1971. It appears that, on 13th September, 1974, a letter Exhibit 278, was addressed by the Chief Officer of the Morvi Municipality to the Chief Town Planner and Consulting Engineer to the Government of Gujarat in connection with the Morvi Municipal limits, in which it was stated that the municipal limits of the Morvi Municipality were first prescribed by the Govenrment of Saurashtra, under a Resolution No. LSG No; 106, dated 28th February, 1952. It was pointed out that the Development Plan of Morvi City was prepared and subsequently sanctioned by the Government, by Resolution dated 16th July, 1971. It was then stated that, in the map of the Development Plan, the present limits of Morvi Municipality was shown and it was shown as per the description given in Resolution No. 106 dated 28-2-1952. The Chief Town Planner of the Government was requested to confirm that the present limit shown in the map was according to the Notification dated 28-2-1952 of the Saurashtra State. By his reply dated 11th/13th December, 1974, Exhibit 279, the Chief Town Planner of the Gujarai State informed the Chief Officer of the Morvi Municipality that the Municipal limits shown in the Development Plan were as per the Government Notification No. 106, dated 28th February, 1952. The Government, in their Panchayat and Health Department, by letter dated 13th June, 1975, at Exhibit 280, wrote to the President of the Morvi Municipality that what was stated by the Chief Town Planner, in his letter dated 13th December, 1974, as regards the limits of the Morvi Municipality, was correct. From this correspondence, it is abundantly established that the limits of the Morvi Municipality shown in the map of the Development Plan, Exhibit 277, were the same as were fixed under the Notification, Exhibit 77, issued on 28-2-1952, by the State of Saurashtra. It, therefore, emerges from the above documentary evidence that the suit survey numbers were within the municipal limits of Morvi. From the evidence on record, it also appears that the suit survey numbers have been shown in the Voters’ List of the Municipality, at Exhibit-124. The address of the respondent No. 1 has been shown in Ward No. 11 of the Municipality and the names of certain persons are given with, the address of the respondent No. 1 shown, therein. This is an important piece of evidence to indicate that the suit survey numbers of the respondent No. 1 were within the Municipal limits of Morvi. The witness of the respondent No. 1, Vijaykumar H. Munshi, in paragraph 36 of his deposition, has admitted the fact that the address of the respondent No. 1, Arunodaya Mills, was shown in the Voters’ List, Exhibit 124, at entries Nos. 726 to 736 and 737 and 738. In paragraph 30 of his deposition, the said witness, admitted that in the letter-heads of the respondent No. 1, Exhibits 104, 106, 108 and 110, the office address of the respondent No. 1 was shown at Morvi, though he volunteered to state that in the new letter heads, it was shown at Mahendranagar. In paragraph 31 of his deposition, the said witness admitted the fact that while going on Timbadi Road, the factory of the respondent No. 1 came first on the right side and thereafter, proceeding further, the Vegetable Proceess Factory came on the left side of that road. It was admitted by this witness that the respondent No. 1 paid municipal taxes right from its inception and that the Municipality had provided facilities of water supply, electricity and roads to the respondent No. 1. The fact that these essential services were rendered by the Municipality to the respondent No. 1 has also been deposed to by the witness of the appellant Ashvinkumar Rasik-bhai Sanghvi. He has also stated that the respondent No. 1 was paying taxes for all these years. It has also come on record that the respondent No. 1 had made application for obtaining exemption from payment of octroi to the Municipality and was granted that exemption. Even the permission for construction of the premises from the respondent No. 1 was obtained by the Municipality. The oral and documentary evidence on record, therefore, clearly establish that the suit survey numbers were within the limits of Morvi Municipality and that Morvi Municipality had, legitimately, collected the Municipal taxes from the respondent No. 1. It would follow that Mahendranagar Village Panchayat was not entitled to collect any taxes from the respondent No. 1.
13. Reliance sought to be placed on the map of village Mahendranagar, Exhibit 245 by the trial court and on behalf of the respondents, was wholly misconceived, because the said map, admittedly, was of the year 1932. In the said map of Mahendranagar Village, the points, which, admittedly, appeared within the Municipal limits of Morvi in the earlier Notification of 1944 at Exhibit 282 (items 3 and 4) are also seen. It is, therefore, obvious that the map, Exhibit 245, of Mahendranagar Village can be of no guidance for ascertaining the fact whether the suit survey numbers fell within the limits of Mahendranagar Village. The fact that Mahendranagar Panchayat collected some taxes from the respondent No. 1 would not, in any manner, outwiegh the importance of fixation of limits of Morivi Municipality under the statutory provisions of the Bombay District Municipal Act, 1901, as reflected from the Notification, Exhibit 77, dated 28-2-1952, and of the Development Plan, Exhibit 277.
14. In our opinion, therefore, the trial court has committed an error in giving the aforesaid findings. The judgment and decree of the trial court are, therefore, hereby set aside and while allowing this Appeal, the suit of the respondent No. 1 is ordered to be dismissed, with costs all throughout.