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Small Town Committee Of Budhlada v. F. Bhuria Mal Parmeshwahi Das
Court Opinion Summary
Factual and Procedural Background
This opinion concerns two appeals brought by the Small Town Committee, Budhalada, against Firm Bhuria Mal-Parmeshri Das and against Sawani Ram. In 1934 both respondents obtained sanction for building chabutras over a public drain in a public street, on the condition that no structure above the chabutras would be constructed and there would be no permanent interference with the public street. Later in 1934 reports were made that chhappars (additional structures) had been constructed. In March 1935 the Committee resolved that the chhappars should be removed or penalties paid. Before 1941 notices were issued to the Firm and to Sawani Ram to pay fees under section 41(1)(e) of the Punjab Small Towns Act — Rs. 26 for the Firm and Rs. 45 for Sawani Ram. A suit was instituted challenging the levy on the ground that no Commissioner’s sanction under section 41(2) had been obtained; the High Court (Bhandari J.) upheld the decree of the Lower Court in Begular Second Appeal No. 760 of 1943, finding that there had been no previous sanction though sanction was obtained later. Fresh resolutions and fresh notices were passed and issued in 1945 (including a resolution dated 18 July 1945 directing Lala Milkhi Ram to get Rs. 26 deposited by the Firm). When the amounts were not deposited, demolition notices were issued. On 12 December 1946 separate suits were filed by the Firm and by Sawani Ram seeking declaration and injunction that the Committee was not entitled to levy the fee; the Committee pleaded that the notices were proper and that the Commissioner’s sanction had been received. At trial the principal issue was whether the Committee’s resolution imposing the fee or rent was illegal and void. The subordinate courts found there was no proof of Commissioner’s approval and held for the plaintiffs; the Committee appealed and later brought two second appeals to this Court.
Legal Issues Presented
- Whether the appeals are maintainable in this Court after the area of Budhalada became part of PEPSU under the Provinces and States (Absorption of Enclaves) Order, 1950 (i.e., whether a properly instituted appeal can be continued despite the territorial change).
- Whether the resolution of the Small Town Committee imposing a fee or rent for the construction/occupation of the chabutra and chhappar (under section 41(1)(e) of the Punjab Small Towns Act) is illegal and void for want of prior approval of the Commissioner as required by section 41(2).
Arguments of the Parties
Appellant (Small Town Committee, Budhalada)
- Preliminary objection (argued by Mr. Faqir Chand Mital): the appeals are not maintainable because Budhalada had become part of PEPSU after the appeals were filed, invoking section 8 of the Provinces and States (Absorption of Enclaves) Order, 1950.
- On the merits (argued by Mr. Chiranjiva Lal Aggarwal): (1) the onus of proving illegality was on the plaintiffs and they failed to discharge it; and (2) there existed a judgment of the Lahore High Court on the file which purportedly showed that the Commissioner had given approval to the fees demanded.
Respondents (Firm Bhuria Mal-Parmeshri Das and Sawani Ram / Plaintiffs below)
- Contended that the notices and levies were illegal and ultra vires because the Committee had not obtained the prior approval of the Commissioner for the rates of fees as required by section 41(2) of the Punjab Small Towns Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nikka Singh v. The State, Criminal Appeal No. 36 of 1950 (6 D.L.R. Simla 228) | That an appeal pending in this Court could be decided even though the area from which the appeal arose had been merged into PEPSU. | The Court relied on this authority to support its conclusion that a duly instituted appeal is not defeated by the subsequent territorial absorption and therefore overruled the preliminary objection to maintainability. |
| Venugopala Reddiar v. Krishnaswami Reddiar alias Raja Chidambara Reddiar (A.I.R. 1943 F.C. 24) | The principle that the right to continue a duly instituted suit is in the nature of a vested right and cannot be taken away except by clear indication to that effect. | The Court invoked this decision to reinforce the view that a vested right to continue proceedings cannot be extinguished by the territorial change absent clear statutory intention; this supported jurisdiction to hear the pending appeals. |
| Colonial Sugar Refining Co. v. Irving (1905 A.C. 369) | Authority dealing with appeals in the context of changing jurisdictions (relied upon in support of continuity of appeals). | Referred to as supporting precedent concerning how appeals are treated where jurisdictional/territorial changes occur; used as part of the chain of authorities supporting continuation of the appeals. |
| Marsh v. Higgins (82 R.R. 436) | A statement that strong and distinct words are necessary to defeat a vested right to continue an action once properly commenced. | Quoted by the Court to underline the principle that a vested procedural right (to continue proceedings) will not be defeated except by clear statutory language. |
| Begular Second Appeal No. 760 of 1943 (High Court, Bhandari J.) | Prior adjudication between related parties that the imposition of a similar levy had been held invalid for want of Commissioner’s approval; found that there was no previous sanction though sanction was obtained later. | The Court noted this earlier judgment on the file but held that the earlier judgment’s reference to Commissioner’s sanction could not itself prove the factum of sanction in the present proceedings nor that the Commissioner had sanctioned the specific amounts demanded. |
Court's Reasoning and Analysis
Jurisdiction / Maintainability:
- The Court first considered whether the appeals could be continued after Budhalada's territory was absorbed into PEPSU under section 8 of the Provinces and States (Absorption of Enclaves) Order, 1950. The Court held that a right of appeal, once properly instituted, is a vested right and cannot be taken away except by clear legislative intention.
- The Court relied on precedents (Nikka Singh; Venugopala Reddiar; Colonial Sugar Refining; Marsh v. Higgins) to conclude there was no clear statutory intention in section 8 to terminate pending appeals, and therefore the preliminary objection on maintainability was overruled.
Merits — Application of section 41(1)(e) and (2) of the Punjab Small Towns Act:
- The Court quoted section 41(1)(e) (permitting a committee to charge fees for the temporary or permanent occupation of any portion of a public street) and section 41(2) (requiring the rates of fees to be approved by the Commissioner).
- The material on record contained no proof that the Commissioner had approved the specific rates demanded from the plaintiffs (Rs. 26 and Rs. 45 respectively).
- Addressing the appellant's first contention (onus of proof): although the formal issue placed the onus on the plaintiffs to prove illegality, the Court recognized the practical rule that where evidence is entirely in the defendant’s possession the Court cannot decide on an abstract onus principle; moreover the defendant/Committee had effectively accepted it needed to produce evidence of sanction. Resolutions placed on the record did not show awareness that Commissioner approval was required nor did their wording satisfy the statutory requirement.
- Addressing the appellant's second contention (existence of a High Court judgment showing sanction): the Court held that a reference in the earlier High Court judgment to sanction did not itself prove the Commissioner’s sanction in fact, and there was nothing showing the Commissioner had sanctioned the specific amounts demanded.
- The appellant sought to place additional evidence (the Commissioner’s sanction) on record at this stage; the Court refused the request because the document had not been sought in the trial court or in the first appellate court (the proper forum for questions of fact), and the Court expressed doubt whether a Court of law, as opposed to a Court of fact, could take such additional evidence at this late stage.
- On these bases the Court concluded that the resolutions and notices were not proper and that the subordinate courts had rightly held the levies invalid for want of proof of Commissioner’s approval.
Holding and Implications
APPEALS DISMISSED.
Holding (core ruling): The Court dismissed the two second appeals brought by the Small Town Committee, Budhalada, upholding the findings of the subordinate courts that the Committee had not proved the Commissioner’s approval required by section 41(2) and that the resolutions and notices imposing the fees were not proper.
Implications:
- Direct effect on the parties: The decrees and judgments of the Courts below that invalidated the Committee’s levies for want of proof of the Commissioner’s sanction are affirmed; the Committee's appeals are dismissed with costs.
- Procedural consequence: The Court denied the Committee leave to file additional evidence of sanction at this stage because it had not been produced in the trial court or in the first appellate court.
- Broader precedent: The Court applied established authorities about continuity of pending appeals after territorial absorption, but the opinion does not purport to establish a novel legal doctrine beyond applying those rulings; the decision affirms that proof of the Commissioner’s approval is a factual precondition to a valid levy under section 41(1)(e) read with section 41(2).
Kapur, J.:— This judgment will dispose of two appeals which have been brought by the Small Town Committee, Budhalada, against Firm Bhuria Mal-Parmeshri Das in the one case and Sawani Ram in the other, in both of which the point in controversy is the same.
2. In 1934 sanction was obtained by Firm Bburia Mal-Parmeshri Das and by Sawani Ram for the building of chabutras over a public drain in a public street. This sanction was subject to a condition that no structure above the chabutras would be constructed and there would be no permanent interference with the public street, whatever that may mean. In December 1934 a report was made to the Smal Town Committee that chhappars had been constructed both by Firm Bhuria Mal-Parmeshri Das and by Sawani Ram. In March 1935 there was a resolution to the effect that either the chhappars should be removed or these persons should pay penalties. I am informed that penalties were paid though counsel for the Committee does not accept this position. Before 1941 notices were given to Firm Bhuria Mal-Parmeshri Das and to Sawani Ram to pay fees under section 41(1)(e) of the Punjab Small Towns Act, the former being called upon to pay Rs. 26 and the latter Rs. 45. In the same year a suit was brought for restraining the Committee from levying these fees. It appears that this suit was by and on behalf of a large number of persons. It was alleged that the levy was illegal on the ground that there was no proper sanction of the Commissioner as required under section 41(2) of the Act. This matter came up to the High Court, and in the High Court Bhandari J. upheld the decree of the Lower Court, as a result of which the suit was decreed, and the finding was that there was no previous sanction but the sanction had been obtained later. This was Begular Second Appeal No. 760 of 1943. Fresh resolutions were passed and fresh notices were given. One resolution dated the 18th July, 1945 was in the following terms:—
“Lala Milkhi Ram should get Bhuria Mal-Parmeshri Das to deposit Rs. 26 as yearly rent and should then report.”
3. As the money was not deposited another resolution was passed that twenty-one days' notice be given to Firm Bhuria Mal-Parmeshri Das for getting the chhappars which had been constructed by them to be demolished. On the 2nd October, 1945 a notice was given calling upon the Firm Bhuria Mal-Parmeshri Das to demolish the chhappar and as this was not done, on the 2nd November, 1945 a six hours' notice was given. Similar resolutions were passed and notices given to Sawani Ram with this difference that the amount demanded from him was Rs. 45.
4. On the 12th December, 1946 two suits were filed against the Small Town Committee, Budhalada, one by Firm Bhuria Mal-Parmeshri Das and the other by Sawani Ram for declaration and injunction to the effect that the Small Town Committee was not entitled to levy a fee for the building of the chhappars, the allegation being that the notices were illegal and ultra vires. The Small Town Committee pleaded that the notices were proper and that the resolutions had been passed after proper sanction of the Commissioner had been neceived. The parties went to trial and one of the main issues which was raised was—
5. Whether the resolution of the defendant imposing a fee or rent for the construction of the chabutra and chhappar is illegal and void?
6. Although the form of this issue shows that the onus to prove the illegality of the resolutions and the notices was on the plaintiffs the case was tried as if it was for the defendant Committee to prove the legality of the resolutions and the notices.
7. Reliance was placed on section 41(1)(e) of the Act. The trial Court held—
“There is nothing to show that such an approval has been obtained. The former suit between the parties regarding the imposition of a similar levy was decreed by the High Court and the imposition and demand were held invalid for want of approval of the Commissioner. There is no evidence to show that such an approval has been obtained now.”
8. The Committee took an appeal to the Senior Subordinate Judge who in a somewhat unsatisfactory judgment upheld the findings of the learned Subordinate Judge. No objection was taken in the grounds of appeal or in the arguments that the onus was on the plaintiffs to show the illegality. On the other band, ground No. 3 of the grounds of appeal in the Court of the Senior Subordinate Judge seems to show that the position was accepted that the onus was on the defendant rather than on the plaintiffs. In these circumstances the learned Senior Subordinate Judge held that as there was no sanction proved in support of the resolution of 1945 the Committee could not legally levy the tax. Two second appeals have been brought to this Court in both these cases.
9. By way of preliminary objection Mr. Faqir Chand Mital submitted that the appeals are not maintainable by this Court because after the appeals were filed the area of Budhlada became a part and parcel of the territory of PEPSU and therefore the appeals cannot be heard by this Court. He has referred to section 8 of the Provinces and States (Absorption of Enclaves) Order, 1950, which is as follows:—
“8. All laws in force in an enclave immediately before the appointed day shall, as from that day, cease to be in force in that enclave, and all laws in force in the absorbing unit shall, as from that day, extend to, and be in force in that enclave:
Provided that anything done or any action taken under the laws in force in the enclave before the appointed day shall be deemed to have been done or taken under the corresponding law extended to, and in force in, that enclave as from the appointed day.”
10. The question that I have to decide is as to whether an appeal which was instituted in this Court can be continued or it comes to an end because of the area of Budhladha having gone into PEPSU. The matter is not res integra. In Nikka Singh v. The State, Criminal Appeal No. 36 of 1950, which is reported in a publication 6 D.L.R Simla 228, it was held that an appeal which was pending in a murder case could be decided by this Court although the area from which the appeal had come had been merged into PEPSU In another case which I decided sitting alone I followed the rule laid down in Nikka Singh's case . 6 D.L.R Simla 228. and held that an appeal from Kasauli which had since gone into PEPSU could be heard and decided by this Court. I gave leave to appeal but I do not know as to what has been decided in that case. In Venugopala Reddiar v. Krishnaswami Reddiar alias Raja Chidambara Reddiar . A.I.R 1943 F.C 24. it was held that “a right to continue a duly instituted suit is in the nature of a vested right and it cannot be taken away except by a clear indication of intention to that effect. In the absence of such a clear indication in the Constitution Act, a British Indian Court continues to have jurisdiction to proceed with trial of a suit already pending before it even with respect to properties situated in Burma.” There a suit had been instituted in 1932 in a British Indian Court with respect to properties situated in British India and in Burma. The question was whether the suit in regard to properties in Burma could be continued after Burma had been separated in 1937. Reliance was there placed on Colonial Sugar Refining Co. v. Irving . 1905 A.C 369. which was a case which dealt with appeals. In Marsh v. Higgins . 82 R.R 436. Wilde, C.J, observed—
“It must have been well known to both branches of the Legislature that strong and distinct words would be necessary to defeat a vested light to continue an action which has been well commenced.”
11. The right of appeal is a right vested in a litigant, and once that appeal has been properly filed in a proper Court the right to continue it cannot be taken away except by a clear indication of intention to that effect, and in section 8 of the Order there is nothing which shows such an intention. Following the rulings that I have quoted above I am of the opinion that this Court has jurisdiction to continue to hear the appeal which was properly instituted in this Court. I would therefore overrule this preliminary objection.
12. The question then arises as to whether in this particular case any ground has been made out for interference with the judgments and decrees of the Courts below. Section 41(1)(e) and (2) of the Punjab Small Towns Act is as follows:—
“41. (1) A committee may charge fees for—
(a) ****
(b) ****
(c) ****
(d) ****
(e) the temporary or permanent occupation of any portion of a public street;
(2) The rates of the fees to be charged must in each case be approved by the Commissioner.”
13. In terms of this section the Committee could have passed a resolution charging fees from the particular persons provided the rates of the fees which were charged had received the approval of the Commissioner. In this particular case there is no proof on the record that the Commissioner gave any approval to the amount of fees which had been demanded from the plaintiffs. Mr. Chiranjiva Lal Aggarwal for the appellant has put forward two arguments—
(1) that the onus was on the plaintiffs and they have failed to discharge it; and
(2) that there was a judgment of the High Court on the file which showed that the Commissioner had given his approval to the fees which were demanded.
14. With regard to the first argument, no doubt, the form of the issue shows that it was for the plaintiffs to prove the illegality of the resolution. But cases of the kind where evidence is entirely in the hands of the defendant cannot be decided on an abstract principle of onus of proof. A defendant cannot succeed merely on the ground that evidence has not been produced when the evidence is solely in his possession. But apart from that in this particular case the defendant seems to have accepted that it was for it to produce evidence on the record showing the legality of the resolutions which had been passed by it. Even the resolutions which have been placed on the record do not show that the Committee was conscious of the fact that sanction of the Commissioner was required in regard to the rates, nor are the wordings of the resolution sufficient to show that the Committee did pass a resolution as required by section 41(1)(e) of the Act. All that they said was that Milkhi Ram should get Rs. 26 deposited by Firm Bhuria Mal-Parmeshri Das, which is hardly a proper form of resolution. But I attach no importance to the wording of the resolution when deciding this question of legality of the notice. I am therefore of the opinion that the resolutions and notices were not proper and the Courts below have rightly come to that conclusion.
15. With regard to the second argument that there is a judgment of the Lahore High Court which shows that sanction of the Commissioner had been obtained, I have only to say this that although there is a reference to the sanction of the Commissioner this judgment cannot prove the factum of sanction, and what is more there is nothing to show that the Commissioner had sanctioned the amount of fees which were demanded from the plaintiffs.
16. Mr. Chiranjiva Lal Aggarwal then prayed that he should be allowed to put on the record additional evidence, that is, the sanction of the Commissioner. This document was not sought to be placed on the record in the trial Court and no such request was made to the first appellate Court which is the proper Court dealing with questions of fact. I am therefore unable to allow Mr. Chiranjiva Lal to file these documents at this stage, nor do L feel that there is any such lacuna as will entitle me to take the evidence at this stage, and it is doubtful whether a Court of law as opposed to a Court of fact can take additional evidence. I am therefore of the opinion that appeals must fail and I would dismiss them with costs throughout.
17. Appeals dismissed.
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