Posted On by &filed under High Court, Madras High Court.


Madras High Court
Muhammad Shamsdin Alim Sahib vs Municipal Council Of Tiruvalur on 26 October, 1927
Equivalent citations: AIR 1928 Mad 348
Author: Devadoss


JUDGMENT

Devadoss, J.

1. This is an application to revise the decree of the District Munsif of Tiruvalur dismissing the plaintiff’s suit for a refund of the excess house tax collected from him. The District Munsif dismissed the suit on the ground that it could not be maintained as no proper appeal was filed and even if it was filed it was not properly conducted. The main question in this case is whether notice of the enhanced assessment was served upon the assessee, the petitioner. Before house tax could be collected, notice of the assessment should be given to the assessee and such notice should be properly served in accordance with the provisions of the Act. In this case the petitioner stated that he did not receive any notice of the assessment. What were relied upon by the defendant, the Municipal Council, were two notices Exs. E and F which appear to be notices not of the enhancement but of the usual assessment. The respondent’s vakil is not able to show that notice of the enhanced assessment was served upon the petitioner. The District Munsif ought to have addressed himself to this question first before considering any other question, for if no notice was served upon the petitioner the Municipality’s right to collect tax is taken away and Section 354, Clause 2, is no bar to a suit to recover the amount collected; for it says if the provisions of the Act have been in substance and effect complied with, no suit could be brought to recover any sum of money collected under the authority of the Act, and it follows that where the provisions of the Act have not been complied with, namely service of notice upon the assessee, a suit would lie. I set aside the decree of the District Munsif and direct him to restore the suit to file and dispose of it in the light of the remarks made herein. Costs of this petition will abide the result.


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