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Bombay High Court
The Municipality Of The City Of … vs Mohanlal Lilachand And Ors. And … on 2 September, 1884
Equivalent citations: (1885) ILR 9 Bom 51
Author: C Sargent
Bench: C Sargent, Kemball


JUDGMENT

Charles Sargent, C.J.

1. The Subordinate Judge was right in our opinion in holding that the provision contained in Clause 2 of Section 21 of the Municipal Act for forwarding the opinion, of the Municipality on the objections of the inhabitants to the Governor in Council is an essential part of the machinery provided by that section for the legal imposition of a tax. Had the object been solely to give the Municipality an opportunity of answering those objections,, we should expect to find a simple direction to, forward the objections with such comments on them as the Municipality might think proper. Clause 2, however, expressly requires the Municipality to take the objections into consideration and to report their opinion thereon; and it is plain that such an opinion might, either by the weakness of the arguments advanced in its support or by the disclosure of the fact that there was considerable divergence of opinion in the Municipality itself, lead the Governor in Council to the conclusion that the objections of the inhabitants to the proposed tax were not “insufficient.”

2. In the present case it is perhaps not too much to assume- from what subsequently occurred on the 5th July when there were 15 members of the Municipality against the objections and 13 in their support, that the possibility of such divergence of opinion in the Municipality, had they considered the objections before they were forwarded to the Commissioner to whom the powers of the Governor in Council had been delegated by Section 99, would have been realized.

3. As to what was done by the Municipality and the Commissioner subsequently to the levying the octroi duty in question from the plaintiffs, it might have the effect of giving validity to the tax in the future, but it could not cure the defect in the duty as it existed at the time when it was levied from the plaintiffs.

4. We must, therefore, confirm the decree of the Subordinate Judge, with costs on defendants.


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