{"id":4124,"date":"1978-10-25T00:00:00","date_gmt":"1978-10-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/firm-surajmal-banshidhar-etc-vs-the-municipal-board-ganganagar-on-25-october-1978"},"modified":"2017-07-30T14:48:58","modified_gmt":"2017-07-30T09:18:58","slug":"firm-surajmal-banshidhar-etc-vs-the-municipal-board-ganganagar-on-25-october-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/firm-surajmal-banshidhar-etc-vs-the-municipal-board-ganganagar-on-25-october-1978","title":{"rendered":"Firm Surajmal Banshidhar, Etc vs The Municipal Board, Ganganagar on 25 October, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Firm Surajmal Banshidhar, Etc vs The Municipal Board, Ganganagar on 25 October, 1978<\/div>\n
Equivalent citations: 1979 AIR 246, \t\t 1979 SCR (2) 169<\/div>\n
Author: P Shingal<\/div>\n
Bench: Shingal, P.N.<\/div>\n
           PETITIONER:\nFIRM SURAJMAL BANSHIDHAR, ETC.\n\n\tVs.\n\nRESPONDENT:\nTHE MUNICIPAL BOARD, GANGANAGAR\n\nDATE OF JUDGMENT25\/10\/1978\n\nBENCH:\nSHINGAL, P.N.\nBENCH:\nSHINGAL, P.N.\nCHANDRACHUD, Y.V. ((CJ)\nUNTWALIA, N.L.\n\nCITATION:\n 1979 AIR  246\t\t  1979 SCR  (2) 169\n 1979 SCC  (1) 303\n\n\nACT:\n     Rajasthan Town  Municipalities Act 1951-Section 179(2)-\nScope of Section if authorises levy of terminal tax.\n     Words and\tPhrases \"for  anything done or purporting to\nbe done\" meaning of .\n     Section 179(1)  of the  Rajasthan\tTown  Municipalities\nAct, 1951  provides that no suit shall be instituted against\nany municipal  board \"for anything done or. purporting to be\ndone\" under  the Act except in accordance with the procedure\nlaid down  therein. The period of limitation for institution\nof a  suit against  the municipality was six months from the\naccrual of cause of action under. sub-s. (2).\n\n\n\nHEADNOTE:\n     The respondent  Board realised  terminal tax  on  goods\nexperted by the appellants. In suits filed by the appellants\nfor refund  of the amounts which they claimed were collected\nwithout authority  of law, the respondent Board pleaded that\nthe levy was in accordance with law and that the suits where\nbarred by  limitation. The trial court decreed the suits and\non appeal  the District\t Judge affirmed\t the  trial  Court's\ndecrees. In  second appeal the High Court held that the levy\nwas illegal. The High Court, however, allowed the appeals in\nrespect of  those amounts  which were  found  to  be  within\nlimitation under  s. 179(2)  of the  Act and  dismissed\t the\nothers.\n     On the  question whether the levy could be said to be a\nthing done or purported to be done under the Act.\n     Allowing the appeal,\n^\n     HELD: The\tsuits did  not fall within the purview of s.\n179 of the Act and were not barred by limitation. [172 D]\n     1. (a)  It is well established that if levy of a tax is\nprohibited by an Act and is not in pursuance of it, it could\nnot be\tsaid to\t be purported to be done in pursuance of the\nexecution or intended execution of the Act. [172 B]\n     Poona City\t Municipal Corporation\tv. Dattatraya Nagesh\nDeodhar,<\/a> [1964] 8 S.C.R. 178 followed.\n     (b) The  terminal tax could not be imposed under any of\nThe provisions\tof the\tAct. The  High Court  was  right  in\nholding that  the amounts ` paid by the appellants by way of\nterminal tax were recoverable by the suits. [173 F-G 174 Al\n     2. The Bikaner State Municipal Act, 1923 (which was the\npredecessor of\tthe present  Act)  authorised  the  levy  of\nterminal tax  and the Board accordingly levied the tax until\nJanuary 26, 1950. With the coming into force\n12-SCI\/78\n170\nof  the\t  Constitution,\t by   virtue  of  art.\t277  it\t was\npermissible for\t the Board  to continue to levy the terminal\ntax until  provision to\t the contrary was made by Parliament\nby law.\t But with  effect from December 22, 1951 the Bikaner\nAct was repealed and the present Act was brought into force.\nthe repeal,  however, did  not affect  the validity of those\ntaxes which  had already  been imposed\tand which  could  be\n\"deemed`' to  have been\t imposed  under\t the  Act.  But\t the\nprovisions of  the Act\tthe clear  that the  terminal tax in\nquestion could\tnot be\timposed thereunder.  The levy  could\nnot, therefore,\t be saved by cl. (b) of the proviso to s. 2.\non the other hand it is clear that the State Legislature had\ndecided to  discontinue the  levy by  excluding it  from the\npurview of  the saving clauses. The further levy of the tax,\ntherefore, became  illegal and\tit was\tnot  permissible  to\ncontinue it  any longer under Art. 277 which merely gave the\nauthority concerned  the option to continue to levy if it so\ndesired. [173A, F-G]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 372-382
\nof 1969.\n<\/p>\n
     Appeals by\t Special Leave\tfrom the  Judgment and order
\ndated 10-10-1968  of the Rajasthan High Court in C.S.A. Nos.
\n18 and 29, 27, 28. 30-35 of 1960 and 54 and 58 of 1961.\n<\/p>\n
     S. N. Jain and S. K. Jain for the Appellants.
\n     B. P. Maheshwari and Suresh Sethi for the Respondent.
\n     The Judgment af the Court was delivered by
\n     SHINGHAL, J.,-These  appeals by special leave arise out
\nof a  common judgment  of the  Rajasthan  High\tCourt  dated
\nOctober 10, 1968, by which the suits which were filed by the
\npresent\t appellants  were  dismissed  in  pursuance  of\t the
\nearlier judgment  of the  same court dated November 9, 1964,
\non the\tground that  they were governed by section 179(2) of
\nthe Rajasthan  Town Municipalities  Act,  1951,\t hereinafter
\nreferred to as the Act, and were barred by limitation.\n<\/p>\n
     The facts\tgiving rise to the appeals were different in
\ndetails, but  they were\t examined in  the  High\t Court\twith
\nreference to  the common questions of law which arose in all
\nof them\t and formed  the basis\tof  that  Court’s,  decision
\nagainst the  plaintiffs. We  have heard\t these as  companion
\nappeals, and will decide them by a common judgment.\n<\/p>\n
     It is  not necessary  to give the detailed facts of all
\nthe cases  as it  will be  enough to refer to the suit which
\nwas filed  by M\/s  Surajmal Banshidhar\tand the developments
\nconnected with it, in order to appreciate the controversy.\n<\/p>\n
     The  plaintiff   firm  referred  to  above\t carried  on
\nbusiness in “pakka arat” and exported goods of various kinds
\nfrom Ganganagar.  The Municipal\t Board of Ganganagar realist
\n“export duty”, by way of ter-\n<\/p>\n
171<\/span><\/p>\n
minal tax,  on the  exported goods.  The plaintiff therefore
\nraised a  suit on  October 19, 1957, challenging the Board’s
\nright to  “impose or  to reales”  any export duty during the
\nperiod June  5, 1954  to March\t10 1957,  amounting  to\t Rs.
\n10,729\/-. It  however confined\tthe suit  to the recovery of
\nRs. 10,000\/- alongwith interest and gave up the balance. The
\nBoard denied  the claim in the suit and pleaded, inter alia,
\nthat the levy of the terminal tax was in accordance with the
\nlaw and\t the suit  was barred by limitation. The trial court
\nrejected the  defence and  decreed the\tsuit, and its decree
\nwas upheld  by the District Judge on appeal. Similar decrees
\nwere passed  in the  other suits, for various sums of money.
\nThe Board  took the  matter to\tthe  High  Court  in  second
\nappeals. The appeals were heard by a Single Judge who, while
\ndeciding that  the suits  were governed by section 179(2) of
\nthe Act,  referred the\tquestion on the legality of the levy
\nto a  larger Bench. A Full Bench of the High Court held that
\nthe levy of the terminal tax was illegal, and sent the cases
\nback to\t the Single  Judge who\tallowed the appeals only for
\nthose amounts which were found to be within limitation under
\nsection 179(2) of the Act and dismissed the other suits. The
\nplaintiffs obtained  special leave  and have come up to this
\nCourt in these circumstances.\n<\/p>\n
     The question  which arises for consideration is whether
\nthe suits  fall within\tthe purview of section 179(2) of the
\nAct. The  first two  subsection of section 179 which bear on
\nthe controversy read as follows,-\n<\/p>\n
\t  “179. Limitation of suits, etc. -(1) No suit shall
\n     be instituted  against any\t municipal board, president,
\n     member, officer, servant or any person acting under the
\n     direction of  such municipal  board, chairman,  member,
\n     officer or\t servant for  anything done or purporting to
\n     be done  under this  Act, until  the expiration  of two
\n     months next  after notice in writing, stating the cause
\n     of action, the name and place of abode of the intending
\n     plaintiff and  the relief which he claims, has been, in
\n     the case of a municipal board, delivered or left at its
\n     office, and, in case of a chairman, member, officer, or
\n     servant, or  person as  aforesaid, delivered  to him or
\n     left at  his office  or usual  place of  abode; and the
\n     plaint shall  contain a  statement that such notice has
\n     been so delivered or left.\n<\/p><\/blockquote>\n
\t  (2) Every such suit shall, unless it is a suit for
\n     the recovery of immovable property or for a declaration
\n     of title  thereto, be dismissed if it is not instituted
\n     within six\t months after  the accrual  of\tthe  alleged
\n     cause of action.”<\/p><\/blockquote>\n
     The question  therefore is\t whether the illegal levy of
\nterminal tax  (assuming that  it was  illegal as held by the
\nHigh Court) could be said to
\n172<\/span>
\nbe a  thing “done or purporting to be done” under the Act. A
\nsimilar question  arose for  the consideration of this Court
\nill Poona  City Municipal  Corporation v.  Dattatraya Nagesh
\nDeodhar<\/a>(l) with\t reference to  the provision  in section 127
\n(4) of\tthe Bombay  Provincial\tMunicipal  Corporation\tAct,
\n1949, and  it was  held that  if  the  levy  of\t a  tax\t was
\nprohibited by  the Act concerned and was not in pursuance of
\nit, it\t‘could not  be said  to be  ‘purported to be done in
\npursuance of  execution or in tended execution of the Act’.”
\nIt was\tobserved that what was plainly prohibited by the Act
\ncould not  be  “claimed\t to  be\t purported  to\tbe  done  in
\npursuance  or\tintended  execution  of\t the  Act.”  It\t was
\ntherefore held\tthat the suit was outside the purview of the
\nsection 127(4)\tand was\t not barred by limitation. We are in
\nrespectful  agreement\twith  that  view,  and\twe  have  no
\nhesitation in  holding, in the circumstances of the pre sent
\ncases, which  are governed by a provision similar to section
\n127(4) or the Poona City Municipal Corporation Act, that the
\nsuits did  not fall within the purview of section 179 of the
\nAct and\t were not  barred by limitation. It may be mentioned
\nthat it has not been argued before us, and is nobody’s case,
\nthat the  suits would  be barred  by limitation even if they
\ndid not\t fall within  the purview  of section  179(2) of the
\nAct. The  decision of  the High Court to the contrary is not
\ncorrect and will have to be set aside.\n<\/p>\n
     It has however been argued on behalf of the respondents
\nthat the  High Court  erred in taking the view that the levy
\nof the\tterminal tax was illegal, and our attention has been
\ninvited to  the relevant provisions of the law including the
\nBikaner State  Municipal  Act,\t1923,  article\t277  of\t the
\nConstitution and section 2 of the Act.\n<\/p>\n
     It is  not in  controversy before\tus that\t the Bikaner
\nState Municipal\t Act, 1923,  authorised the levy of terminal
\ntax and\t such a\t tax was  levied by the Ganganagar Municipal
\nBoard under the authority of that law upto January 26, 1950,
\nwhen the  Constitution came  into force.  On and  from\tthat
\ndate, the power to levy export duty vested in the Parliament
\nbut article 277 saved that and some other taxes as follows,-\n<\/p>\n
\t  “277. Any  taxes, duties,  cesses or\tfees  which,
\n     immediately   before    the   commencement\t   of\tthis
\n     Constitution,  were  being\t law  fully  levied  by\t the
\n     Government of any State or by any municipality or other
\n     local authority  or body for the purposes of the State,
\n     municipality, district  or other  local area  may,\t not
\n     withstanding that\tthose taxes,  duties, cesses or fees
\n     are mentioned  in the Union list, continue to be levied
\n     and to  be applied to the same purposes until provision
\n     to the contrary is made by Parliament by law.’
\n     (1) [1964] 8 S.C.R. 178.\n<\/p><\/blockquote>\n
173<\/span><\/p>\n
it was\ttherefore permissible  for the\tMunicipal  Board  to
\ncontinue to  levy A  the terminal tax until provision to the
\ncontrary was  made by  Parliament by law. But it so happened
\nthat the  Bikaner Municipal  Act, 1923\twas repealed and the
\nAct was\t brought into  force with  effect from\tDecember 22,
\n1951. Section  2(b) of\tthe Act, which dealt with the repeal
\nof the Bikaner Act and the saving of some of its provisions,
\nexpressly provided that on the coming into force of the Act,
\nthe laws  and enactments  specified in the First Schedule of
\nthe Act\t shall be  repealed in\tso far as they relate to the
\nTown Municipalities  covered by\t the Act.  So as the Bikaner
\nState  Municipal  Act,\t1923,  was  included  in  the  first
\nSchedule, it  was repealed  by the aforesaid section 2. That
\nsection however\t contained a proviso, clause (b) whereof was
\nto the following effect,-\n<\/p>\n
     “(b) all town municipalities constituted under the said
\n     laws or  enactments, and  members appointed or elected,
\n     committees established,  limits defined,  appointments,
\n     rules, orders  and\t bye-laws  made,  notifications\t and
\n     notices issued,  taxes imposed, contracts entered into,
\n     and suits\tand other  proceedings instituted, under the
\n     said laws or enactments or under and laws or enactments
\n     thereby repealed  shall, so far as may be and so far as
\n     they relate  to town  municipalities be  deemed, unless
\n     the  Government   directs\totherwise,   to\t have\tbeen
\n     respectively constituted, appointed, elected, establish
\n     ed” defined,  made, issued,  imposed, entered  into and
\n     instituted under this Act.”<\/p><\/blockquote>\n
     The repeal\t did not  therefore affect  the validity  of
\nthose taxes  which had\talready been imposed and which could
\nbe “deemed” to have been imposed under the Act, unless there
\nwas a  direction to the contrary by the State Government. It
\nis quite  clear from  the provisions  af the  Act, and is in
\nfact not  disputed before  us,\tthat  the  terminal  tax  in
\nquestion could not be imposed under any of the provisions of
\nthe Act.  Its, levy  could not\ttherefore be saved by clause\n<\/p>\n
(b) of\tthe proviso  to section (2) of the Act. On the other
\nhand, it  could be  said with  justification that  the State
\nLegislature had decided to discontinue the levy by excluding
\nit from\t the purview  of the saving clause. The further levy
\nof  the\t  tax  therefore  became  illegal  and\tit  was\t not
\npermissible to\tcontinue it  any longer\t under\tarticle\t 277
\nwhich merely  gave the\tauthority concerned  the  option  to
\ncontinue the levy if it so desired.\n<\/p>\n
     So as  the levy of the tax after December 22, 1951, was
\nillegal, there\tis nothing  wrong with the view taken by the
\nHigh Court that the amounts
\n174<\/span>
\npaid  by   the\tplaintiffs  by\tway  of\t terminal  tax\twere
\nrecoverable by\tthe suits  which have  given rise  to  these
\nappeals, and  there is\tno force  in  the  argument  to\t the
\ncontrary.\n<\/p>\n
     The appeals  are allowed with costs, the decrees of the
\nHigh Court  are set  aside and\tthose of the lower appellate
\ncourt restored.\n<\/p>\n
P.B.R.\t\t\t\t\t    Appeals allowed.\n175<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Firm Surajmal Banshidhar, Etc vs The Municipal Board, Ganganagar on 25 October, 1978 Equivalent citations: 1979 AIR 246, 1979 SCR (2) 169 Author: P Shingal Bench: Shingal, P.N. PETITIONER: FIRM SURAJMAL BANSHIDHAR, ETC. Vs. RESPONDENT: THE MUNICIPAL BOARD, GANGANAGAR DATE OF JUDGMENT25\/10\/1978 BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. CHANDRACHUD, Y.V. ((CJ) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-4124","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nFirm Surajmal Banshidhar, Etc vs The Municipal Board, Ganganagar on 25 October, 1978 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/firm-surajmal-banshidhar-etc-vs-the-municipal-board-ganganagar-on-25-october-1978\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Firm Surajmal Banshidhar, Etc vs The Municipal Board, Ganganagar on 25 October, 1978 - 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