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Bombay High Court
The Surat City Municipality vs Chhabildas Dharamchand on 12 August, 1914
Equivalent citations: (1914) 16 BOMLR 749
Author: K Basil Scott
Bench: B Soott, Kt., Davar


JUDGMENT

Basil Scott, Kt., C.J.

1. This is an appeal by the Surat City Municipality against the decree of a District Judge, varying the decree of the first Court and holding that the plaintiff was entitled only to a sum of Rs. 23-13-0 in respect of moneys paid by him under protest to release certain property which was distrained by the Municipality in respect of arrears of taxes for a portion of the house in his possession. The money was recoverable by the plaintiff as having been paid under protest if he was able to show that the distress was not in accordance with law.

2. Now the power of the Municipality to levy distress upon the moveable property of a person from whom a tax is claimable depends upon the provisions of Chapter VIII of the District Municipal Act (Bom. Act III of 1901). It provides that: ” When any amount, which is claimable as an amount on account of any tax which is now imposed in any municipal district, shall have become due, the Municipality shall, with the least practicable delay, cause to be presented to the person liable for the payment thereof, a bill for the sum claimed as due, and every such bill shall specify the period for which and the property in respect of which the sum is claimed, and shall also give notice of the liability incurred in default of payment, and of the time within which an appeal may be preferred as hereinafter provided against such claim; ” and Clause (3) of Section 82 provides that : ” if the sum for which any bill has been presented as aforesaid is not paid within fifteen days from the presentation thereof, the Municipality may cause to be served upon the person liable a notice of demand;” and under Section 83 ” if the person liable for payment does not, within fifteen days from the service of the notice of demand, pay or show cause why he should rot pay or prefer an appeal, such sum may be levied under a warrant by distress.” Therefore, the notice of demand upon which the right of distress is besed depends upon the the previous presentation of a bill com-piying with the statutory provisions set out in Section 82, Clause (2).

3. It is not disputed that, in this case the bill did not fulfil all the statutory requirements in that it did not state the time within within an appeal might be preferred under Section 86 of the Act. The procedure followed, therefore, was not a legal procedure. The whole right of distress depends upon the observance of the statutory formalities, it being a right conferred by the statute only upon those conditions. We, therefore, agree with the first Court in this respect, and without deciding the other questions which have been raised as to whether the amount of tax was claimable under the new Act of 1901, or whether any portion of the claim was barred by the law of Limitation, we can dispose of the- appeal upon the ground that the distress was illegal for the reasons above stated. We therefore hold that the decree appealed against was right. We have been asked to give relief to the respondent upon a cross-objection that certain costs in the way of proof of documents which have been incurred are not sufficiently covered by the order for costs in proportion to the sum awarded; but we have no materials which justify us in altering the order of the lower Court as to costs. We confirm the decree of the lower appellate Court and dismiss the appeal and the cross-objections respectively with costs.


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