Commissioner Of B. Municipality v. Bhagwan

Ramaswami, J.:— The plaintiff brought the suit, for a declaration that the assessment of tax made by the defendant, that is the Buxar Municipal Commissioners with respect to his rice and oil mills was illegal and ultra vires. The plaintiff also asked for a permanent injunction restraining the defendant from realising the tax. The plaintiff alleged that the oil mill and the rice mill were situated outside the municipal limits and for that reason the defendant could not legally assess him to personal or latrine tax. The defendant resisted the suit on the grounds that the tax was validly assessed and the suit was barred under section 377 of the Municipal Act. Both the lower courts have rejected the defence case and decreed the suit of the plaintiff.

On behalf of the defendant, who has preferred this appeal, it was maintained in the first place that the lower courts ought to have found on the evidence that the mills in question were situated in Ward No. 7 of the Buxar Municipality. For the appellant reference was made to the Government notification, exhibit E, in which the boundaries of ward no. 7 are specified. It should be observed that the notification is under section 18(2) of the Bihar and Orissa Municipal Act which empowers the local Government to divide the Municipality into wards. No attempt was made on behalf of the appellant to produce the notification made under section 6 constituting the municipality and specifying its limits. Even if exhibit E be assumed to correctly define the municipal limits, it does not assist the case of the appellant to any appreciable extent. In exhibit E the Southern boundary of Ward no. 7 is stated to be.

“a line drawn Trom lock no. 11 of the south-east corner of the railway area, southern boundary of the railway area up to Pandey Patti railway crossing”.

In presence of the learned advocate we endeavoured to locate the southern boundary line on the survey map and thereby discovered that the southern boundary line did not include the plot no. 308 where the mills are situated. In this context it is significant to observe that the defendant did not produce the municipal map in order to indicate over what area the municipal authorities had jurisdiction. The municipal clerk, D.W 1, stated in the evidence that the Vice-Chairman made an inspection of the locality and prepared a sketch map. But this sketch map too was not produced on behalf of the appellant. It is not unreasonable to draw the inference that if the maps had been produced in court, they would not have supported the case of the appellant. In any case, we are not prepared to hold that the lower courts have misconstrued any evidence in deciding the question of fact whether the two mills fell within the municipal limits.

In the next place, it was argued, on behalf of the appellant that the suit was barred by section 377 of the Bihar and Orissa Municipal Act. In my opinion, this contention is untenable. The word ‘act’ used in the section refers to tortious acts and not to any act arising out of a contractual or quasi-contractual basis. In the present case the plaintiff has brought a suit not for damages for a tortious act but for a declaration that the assessment was illegal and for an injunction restraining the defendant from realising the tax. Such a suit is obviously not barred by section 377 of the Act. In Ambika Churn Mozumdar v. Satish Chunder Sen the learned Judges held that the right to obtain a declaration that the plaintiffs were not liable to assessment under, the Bengal Municipal Act would be maintainable even if brought more than three months after the assessment. In Municipality of Faizpur v. Manak Dulab Shet the same view was taken and it was decided that section 48 of Bombay Municipal Act (corresponding to section 377 of Bihar and Orissa Act) did not apply to a suit for specific performance of a contract or for damages for breach thereof.

Lastly, it was urged for the appellant that the case may be remanded and a pleader commissioner may be appointed at his cost to investigate whether the mills are situated within the municipal limits or not. But the prayer is obviously too late and cannot be entertained at this stage.

Upon these grounds, I would affirm the decree of the lower court and dismiss the appeal with costs.

Imam, J.:— I agree.

S.H

Appeal dismissed.