Tharoo Mal Vs. Puran Chand Pandey
& Ors [1977] INSC 222 (29 November 1977)
BEG, M. HAMEEDULLAH (CJ) BEG, M. HAMEEDULLAH
(CJ) BHAGWATI, P.N.
CITATION: 1978 AIR 306 1978 SCC (1) 102
CITATOR INFO:
RF 1987 SC1802 (12)
ACT:
U.P. Municipalities Act, 1916, s. 132(1)
vis-a-vis Limitation Act, s. 28--Section 132(4), whether confined to objections
considered by Municipal Board--Section 135(3), scope.
HEADNOTE:
The Municipal Board of Pilibhit passed a
resolution under the Municipalities Act, imposing a theatre tax of Rs. 25/- per
show. The resolution was duty published on 16-5-1972 and objections were
invited, but since no objections were received within the time prescribed u/s.
132(1) of the Act, preliminary proposals were framed and submitted to the
prescribed authority, the Commissioner of Rohilkhand Division. The proposals
were returned to the Board for reconsideration on the ground that the proposed
rate of the theatre tax appeared to be too high, and on 28-8-1972 the Board
reduced the rate to Rs. 15/- per show, though the publication of the resolution
reducing the rates was dispensed with under the proviso to s. 132(2). On 16-9-
1972, the petitioner and some other owners of cinema houses, sent their
objections to the initial resolution, but as these objections had not been
presented for consideration when the two resolutions were passed, the Board
refrained from submitting them with the modified proposals to the prescribed
authority u/s. 132(4) of the Act. The modified proposals were sanctioned on
31-10-1972 and were duly converted into rules, published in the Gazette dated
14-4- 1973. The appellant move(] the High Court, but failed.
Dismissing the appeal the Court,
HELD : (i) There is a distinction between the
period given for objections u/s. 132(1) of the U.P. Municipalities Act, and the
period of limitation prescribed for proceedings before a court or a
quasi-judicial authority which on the expiry of the period, confers some rights
upon parties not proceeded against, so that the expiry of the prescribed time
bars claims against them. the procedure under s. 132(1) is legislative and not
quasi-judicial and if the objector does not file his objections within a
fortnight, he may lose his right to object, but his objections will not be
invalidated.
it is not like s. 28 of the Limitation Act
operating to extinguish any legal right. [256E, G, H, 257A] Niranjan Lal
Bhargava v. State of U.P. 1969 A.L.J. 295, referred to (2)Section 132(4) covers
any objections whatsoever, whether made within a fortnight or beyond a fortnight,
provided they are sent in before the matter is submitted to the prescribed
authority. In fact, there is no statutory bar against the prescribed authority
itself considering the objections which may be filed before it if the interests
of justice so require. [259B-C] (3)The effect of the proviso to s. 132(2) added
in 1964, is that by dispensing with even the publication of the modified
proposals, no such right of the appellant is violated as could be considered a
condition precedent to the validity of the proceedings. Nevertheless, if patent
injustice has resulted from an irregularity, in the imposition of a tax, s.
135(3) may not cure the irregularity. [259G-H, 260A] Buland Sugar v. Municipal
Board [1965] 1 SCR 970, distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1201 of 1977.
Appeal by Special Leave from the Judgment and
Order dated 1- 12-76 of the High Court of Allahabad at Allahabad in Civil Misc.
Writ No. 3090/93.
255 Y. S. Chitale and K. J. John for the
Appellant.
Yogeshwar Prasad, Rani Arora and Meera Bali
for the Respondents.
The Judgment of the court wits delivered by
BEG, C. J.-The appellant before us by grant of special leave under Article 136
of the Constitution is a partner in a firm carrying on the business of running
a cinema house called "Jai Tames" in the town of Pilibhit in Uttar
Pradesh. The municipal Board of Pilibhit passed a resolution on 11th of April,
1971, imposing a theatre tax of Rs. 25/- per show under section 128(1)(iii-a)
read with sections 296 and 299 of the Municipalities Act (hereinafter referred
to as the Act). The resolution was duly published in a Hindi newspaper on 16
May, 1972, as required by section 94(3) read with section 131(1)(a) of the Act.
The preliminary proposals for imposition of a tax were framed under section 131
of the Act which reads as follows:
"131. Framing of preliminary proposals
(1) Where a board desires to impose a tax, it shall, by special resolution,
frame proposals specifying (a) the tax, being one of the taxes described in sub-section
(1) of section 128, which it desires to impose;
(b) the persons or class of persons to be
made liable, and the description of property or other taxable thing or
circumstances in respect of which they are to be made liable, except where and
in so far as any such class or description is already sufficiently defined
under clause (a) or by this Act;
(c) the amount or rate leviable from each
such person or class of persons;
(d) any other matter referred to in section
153, which the State Government requires by rule to be specified.
(2) The board shall also prepare a draft of
the rules which it desires the State Government to make in respect of the
matters, referred to in section 153.
(3)The board shall, thereupon publish in the
manner prescribed in section 94 the proposals framed under subsection (1) and
the draft rules framed under sub-section (2) along with a notice in the form
set forth in Schedule III." Section 132 of the Act then lays down
"132. Procedure subsequent to framing proposals (1)Any inhabitant of the
municipality may, within a fortnight from the publication of the said notice,
submit to 256 the board an objection in writing to all or any of the pro-
posals framed under the preceding section, and the board shall take any
objection so submitted into consideration and pass orders thereon by special
resolution.
(2)If the board decides to modify its
proposals or any of them, it shall publish modified proposals and (if
necessary) revised draft rules 'along with a notice indicating that the
proposals and rules (if any) are in modification of pro- posals and rules
previously published for objection :
Provided that no such publication shall be
necessary where the modification is confined to reduction in the amount or rate
of the tax originally proposed.
(3)Any objections which may be received to
the modified proposals shall be dealt with in the manner prescribed in
sub-section (1).
(4)When the board has finally settled its
proposals, it shall submit them along with the objection (if any) made in
connection therewith to the prescribed authority." It is evident from
section 132(1) of the Act that the time given to the residents within the
municipal limits to file their objections is a fortnight from the publication
of the resolution, as required by section 94(1) of the Act.
Apparently, a fortnight is considered a
reasonable time so that objections may be 'submitted for consideration to the
Municipal Board. As was pointed out by one of us (Beg, C.J.) in Niranjan Lai
Bhargava v. State of U.P.,(1) with regard to almost identically framed
provisions of sections 199 to 203 of the U.P Nagar Mahapalika Adhiniyam, 1959,
the procedure for the imposition of the tax is legislative and not
quasi-judicial. Hence, there seems to us nothing to prevent the Municipal Board
from considering any objections which may have been filed even after a
fortnight, a period which may, at the most, be construed as a reasonable limit
from the publication of the notification after which the persons deemed to be
notified could not reasonably complain of want of opportunity to object. The
right to object, however, seems to be given at the stage of proposals of the
tax only as a concession to requirements of fairness even though the procedure
is legislative and not quasi-judicial.
There seems to us to be a distinction between
the period given for filing objections of the kind with which we are concerned
here and the period of limitation prescribed for proceedings before a Court or
a quasi-judicial authority, which, on the expiry of the period, confers some
rights upon parties not proceeded against so that the expiry of the prescribed
time bars claims against them. The procedure being legislative here, the
objector could not complain that he did not have an opportunity to object if he
did not file his objections within a fortnight. This is all that sections 131
and 132 seem to do so far as (1) 1969 A.L.J. 295.
257 the rights of the objectors are
concerned. They do not seem to us to invalidate his objections although he may
lose his right to object. There is nothing here like section 28 of the
Limitation Act operating to extinguish any legal rights.
In the case before us, the appellant did not
put forward any objections to the proposals. The proposals were submitted to
the Prescribed Authority, the Commissioner of Rohilkhand Division, under
section 132 (4) of the Act. It appears that the Commissioner of Rohilkhand
Division returned the proposals for reconsideration on the ground that the
proposed rate of the theatre tax appeared to be too high.
On the 28th of August, 1972, the Municipal
Board reduced the rate to Rs. 151- per show but did not publish its resolution
reducing the rate,.
The reduced rate of theatre tax was. not
published as the proviso to section 132(2), added by the U.P. Act No. 27 of
1964, dispenses with the need to publish the reduced rate of tax. Nevertheless,
it still gives persons who object, if any do so at all, the right to have the
objections dealt with in the manner prescribed in section 132(1). The only
manner in which they can be "dealt with" under section 132(1) is that
these objections have to be considered by the Board before passing its
resolution. If, however, the objections are received when the Board has, after
waiting for a fortnight, duly passed a final special Board as they were not
before it to be considered at all when it passed its resolution. If the
proposals, as initially framed, had been accepted by the Prescribed Authority
no further opportunity for objecting before the resolution imposing the tax
could have arisen.
The petitioner and some other owners of
cinema houses woke up rather late. On 16 September, 1972, they sent in their
objections to the imposition of such tax. By that time, the Board had also
reconsidered its initial resolution, as a result of such advice as was given by
the Prescribed Authority to the Board, and reduced the theatre tax to Rs. 151-
per show. Again, the objections could not have been considered even if they
were to be deemed to be objections to the reduced rate of Rs. 151- per show
because they were not there at all for consideration before the Board when it
passed its special resolution reducing the rate on 28 August, 1972. No doubt,
its modified proposal of Rs. 151- per show was not published. But, this was not
done because the Board, quite rightly, considered itself protested by the clear
provisions of the proviso to section 132(2) of the Act.
On 18 September, 1972, although the revised
proposal to tax cinema shows at the rate of Rs. 151- per show was sent by the
Municipal Board to the Prescribed Authority, yet, it did not forward the
objections of the petitioner to the Prescribed Authority. Perhaps it did not
forward these objections because they could not be taken into account by the
Board itself either before or at the time of framing the modified proposal of
Rs. 15/- per show as they were not there at all. The Prescribed Authority
sanctioned the modified proposal on 31 October, 1972, without taking into
account the objections of the appellant as 258 they were not before it. But,
the draft rules were published on 18 November, 1972, and objections invited to
them within 30 days. Objections to the draft rules were filed on 15 December,
1972, and the rules were sanctioned under section 134 of the Act after
considering these objections. The tax was imposed with effect from16 April,
1973, after a gazette notification on 14 April, 1973.
It is difficult to understand why, when the
appellant appliedfor copies of the Municipal Board resolution, the copies were
refused. A delegation of the cinema owners went to the Commissioner on 3 May,
1973, and was told that the Commissioner had not received any of the objections
from the Municipal Board before sanctioning the modified tax.
Apparently, the Municipal Board took the view
that they were irrelevant when it did not consider them. It. however, seems to
have overlooked the fact that the Prescribed Authority may have taken a
different view.
On the facts stated above, Mr. Y. S. Chitale,
appearing for the appellant, has advanced two ingenious arguments :
firstly, he contends that the objections,
being there before the revised proposal was sent to the Prescribed Authority on
18 September, 1972, ought to have been forwarded to the Prescribed Authority
for consideration because they had to be "dealt with", in the manner
prescribed in section 132 (1) ; and secondly, that, in any case, when the
proposal was sent, the Board was bound to forward to the Prescribed Authority any
objections it had in its possession and could not withhold them. It was urged
that this part of the duty was certainly not carried out by the Board.
As regards the first contention, we find it
difficult to permit the appellant to advance it here for the first time. It is
not found in his writ petition. It was not advanced in that form before the
High Court. It is not even found in the special leave petition in this
particular form.
However, even if we were to allow this
question to be argued, we find that the objections filed by the petitioner on
16 September, 1972, were really objections to the original proposal and not to
the modified proposal at all.
Section 132(3) gives a right only to actual
objectors to the modified proposals to have their objections dealt with under
section 132(1) of the Act. This necessarily means that the objections should be
at least before the Board when it passes the resolution on modified proposals.
After all, that section 132(1) indicates about the manner in which the
objections are be dealt with is that they should be considered before the
passing of the special resolution.
Now, if the objections are not there at all
when the initial special resolution is passed or even when the modified
proposals were passed, it is impossible for the Board to deal with them in the
manner prescribed by section 132(1) of the Act. Since the duty to send
objections could arise only subsequent to the procedure prescribed by section
132(1) of the Act the contention that the objections should have been sent to
the Prescribed Authority to be considered because of any mandatory duty
resulting from the provisions of section 132(1) and (3) of the Act must fail.
It may be mentioned that we are not 259 concerned here with the validity of any
of the provisions on the ground of their reasonableness or otherwise No, such
question has been argued before us. We have, therefore, to proceed on the
assumption that the provisions of the Act are valid.
So far as section 132(4) is concerned, it may
be possible to so interpret the provisions as to confine objections to be sent
to the Prescribed Authority to only those which the Board took into
consideration. Nevertheless, when we examine the wide language in which section
132(4) is couched conferring a right to object, without any restriction, we
find it difficult to exclude the right of the petitioner to have his objections
sent to the Prescribed Authority.
Apparently, section 132(4) covers any
objections whatsoever, whether made within a fortnight or beyond a fortnight,
provided they are sent in before the matter is submitted to the Prescribed
Authority. Indeed, we find no statutory bar against the Prescribed Authority
itself considering the objections which may be filed before it if the interests
of justice go require. But, the question which arises before us is whether the
non-observance by the Board of a duty to send the appellant's objections to the
Prescribed Authority, assuming it is there, would invalidate the imposition of
the modified tax. This, we think, would depend upon whether we interpret
provisions of section 132(4) as mandatory or as directory so far as submission
of objections, not submitted within sufficient time so as to be considered by
the Board, are concerned.
As we have already observed, no provision of
the Act has been Challenged. Section 1 35 (3) of the Act reads as follows :
.lm15 " 135. Imposition of tax.-
(1)........................
(2)......................................
(3) A notification of the imposition of a tax
under subsection (2) shall be conclusive proof that the tax has been imposed in
accordance with the provisions of this Act.
" It is true that, if there is such a
gross breach of the rules that the proposal sanctioned could not be deemed to
be "imposition of a tax" at all, section 135(3) may not bar the
consideration of such basic infirmity in the proceedings which make them no
proceedings at all in the eyes of the law. This is the most that can be said on
the strength of Buland Sugar v. Municipal Board,(1) which is strongly relied
upon by Mr. Chitale.
Mr. Yogeshwar Prasad, appearing on behalf of the
Municipal Board however, pointed out that the Buland Sugar case was decided
before the proviso to section 132(2) was added in 1964. It does appear to us
that the effect of the proviso is that, by dispensing with even the publication
of the modified proposals, no such right of the appellant is violated as could
be considered a condition precedent to the validity of the proceedings.
Nevertheless, if the petitioner could have made out a case of such injustice
due to some irregularity (1) [1965](1)S.C.R.970.
4- 1114SCI/77 260 that we should deem the
imposition of the tax to be vitiated by the non-consideration of a vital
matter, we could have taken the view that section 135(3) will not bar
consideration of a vital infirmity, in as much patent injustice has resulted
from it, in the imposition of a tax.
If it could be argued that there is no
imposition of the tax at all as contemplated by law, section 135(3) may not
have cured the irregularity. But, no such infirmity has been pointed out to US.
The result is that, whatever irregularity there may be in not forwarding the
objections of the appellant to the Prescribed Authority, as the Board should
have done under section 132(4) of the Act, the irregularity seems to be cured
by an application of the provisions of section 135(3) of the Act as the
Government had notified the imposition of the tax.
It may perhaps also be pointed out that, if
the incidence of a tax is unfair, a representation can be made to the
Government under section 137 of the Act even after the imposition. Therefore,
if there is any gross injustice, which the petitioner has not been able to make
out before us he can still approach the Government for relief in case he can
make out a case for relief under section 137 of the Act.
For the reasons Oven above, we uphold the
judgment of the Allahabad High Court and dismiss the appeal. However, in the
circumstances of the case, the parties will bear their own costs.
M.R.
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