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TMI Blog1927 (5) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... he consequent unlawful assemblies and riots there was loss of life and much damage to property. The Muhammadan weavers, who formed the large majority of the male inhabitants of the place, were the chief culprits, though it is not likely that they acted without instigation from other parties. Some persons were punished criminally, but the question remained how the injured parties were to be compensated and how order was to be maintained in future. An inquiry was accordingly hold, and amounts were fixed, by way of compensation to persons who had suffered is the riots. The Government decided to put in force the provisions of the Bombay District Police Act No. 4 of 1890, and orders were duly made for the employment of additional police at the expense of the inhabitants and for payment of compensation for the injuries sustained. Under these orders the Income Tax payers, a small class, and the great body of the weavers were designated as the parties to pay the sums required. No question as to the correctness of these proceedings now arises. 3. Under the Act it was for the Collector to get in the amount of the compensation and for the Municipality of Malegaon to enforce payment of the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and Hindu, who dealt in saris and yarn. 5. A notification, No. 152, dated the 6th June, 1922, was then published in the Bombay Government Gazette. This is the document which, with demand notices issued thereunder, the appellants by their prayer in this suit seek to have declared to be invalid and unlawful. It purports to be made by the Governor in Council and to direct, under Section 25, that the cost of the additional police shall be defrayed wholly by a tax imposed on the Muhammadan Income Tax payers, who are inhabitants of the said town, and by a rate assessed on the property of such other inhabitants as are 6. notified in manner set forth, and under Section 25A that the above cost and the total amount of compensation awarded by the District Magistrate of Nasik should be assessed and recovered, first from payers of Income Tax in certain amounts and installments; and secondly: The balance of the combined charges, after the amount recoverable from persons of Class I has been deducted, shall be recovered on behalf of the Momin adult weavers of Malegaon from both Muhammadan and Hindu shopkeepers of Malegaon dealing in saris and yarn, who shall pay every year up to 31st May 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate's action under Section 25A(1)B is not a judicial proceeding, and there is nothing in the Act which requires that his action in this matter should be taken wholly on his own initiative or without instructions or recommendations from his superiors : cf. Ezra v. The Secretary of State [1903] 30 Cal. 36 at pp. 83 to 85. Even the Commissioner's sanction is only stated to be previous, it is not required to be given once for all. Nothing prevents it from being given from time to time or after consultation, nor is there anything about it which confines it to starting the Magistrate on a course of action, which he is thereafter to pursue independently and alone. 8. There is furthermore nothing in either section to restrict the exercise of this taxing function to one occasion and one only. The powers which they give are not spent by a single exercise. The finality referred to in Section 25A(4) relates exclusively to the Commissioner's function of review. The directions of the District Magistrate are not capable of being challenged otherwise than is thereby provided, but it is quite a different thing to say that the giving of one direction exhausts all the Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prices of yarn and saris respectively. Probably the draughtsman could find ample excuse in the circumstances of a harassing period of office. At any rate, although the same Notification includes both the cost of the police and the payment of compensation, the two matters are clearly severable, and the exercise of the powers of the Government under Section 25 is not prejudiced by the additional notification of the course, which the District Magistrate was about to take under Section 25A. 11. The short answer, however, to all this is to be found in construing the document reasonably in the light of the existing circumstances, and by referring for the rest to Section 79 of the Act: No...order, direction...or notification, made or published and no act done under any provision herein contained or in substantial conformity to the same shall be deemed illegal, void, invalid or insufficient for any affect of form or publication or any irregularity of procedure. 12. In the circumstances the meaning of the notification is obvious. As regards the cost of the additional police, the Government direction is actually expressed to be in supersession of those previous notifications dealing wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keepers who sell yarn to the Momins...are to be considered as agents for the purposes of recovery of these amounts. 15. In itself this action was insignificant and it may not have been known to the Government when the Notification was issued, but the use of words which seemed to support this notice instead of words clearly negativing it was unfortunate. What was meant, however, was that the shopkeepers were to be substituted for the weavers, as the section of the inhabitants to be charged with payment of the levy under the Act, with an addition, well-meant but probably unnecessary, that they might and would find means of passing on the burden to the weavers. In any case, these words were outside the requirements of the Police Act. They do not contravene it, though they do not correctly describe what was being done. 16. As for the rest of this branch of the complaint, the Act does not require proof of the active complicity of a section of the inhabitants before such an order as the Act contemplates can be made. To imply such a requirement would defeat the objects of the Act. It is the essence of measures of this kind, which in one form or another are not uncommon, that one class h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst them. This argument overlooks the fact that the first proposed inquiry was to enable the shopkeepers to show that they had at some time been on the side of the-Government and of law and order, which at no time have any of them attempted to show; that the inquiries actually made, as to the trade which the different merchants did, appear to have been such as would have been admissible for Income Tax purposes; that in any case the District Magistrate's suggestions formed no part of the order made under Section 25A or constituted a condition precedent to its validity and that the Act is ailent as to any such inquiry though, when an inquiry is desired, it is named expressly and that the implication of such an inquiry dilatory and often inconclusive as it would be would tend to defeat the operation of the Act itself. No substantial injustice appears to have been done for, although the notices issued to individual merchants, dated 25bh April 1922, invited them to show cause against the proposed assessments of the amount of the tax falling severally on them, they do not appear to have adopted this remedy, but preferred to try the effect of this collective suit for an injunction as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the cost of the additional notice should be recovered by the Municipality, he had represented to the Collector that it was totally unable to undertake the work in question. He stated that the weavers had become increasingly recalcitrant, that they flatly refused to pay and abused the officials employed. He quoted them as saying openly that the Municipality had no business to undertake the work, when the majority of ratepayers were thoroughly opposed to payment, and he added that even the Income Tax payers (only 26 in number) paid nothing but passively awaited the issue of warrants of distress under Section 183 of the District Municipal Act. His report concluded thus: Irregular recovery of Municipal taxes and large outstandings every year are due to the same reason. I may add that not a single pie of additional police charges has been recovered up to now. The situation, therefore, is very delicate, and it must be handled with great tact and circumspection. I, therefore, seek your advice as to how I should proceed in the matter, I should also be enlightened on the point, whether the work of executing warrants of distress against Income Tax payers should be taken in hand. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one, until default is made, appears to their Lordships to be more than a form which might be waived, or a matter, in which irregularity is excused. It cannot be a mere irregularity to disregard an express statutory prescription, however honestly or excusably, nor is a short cut permissible because the prescribed course promises little advantage. The Police Act interposes between the punitive action of the Government and the incidence of the burden on the individual the executive action of a Municipality which may be supposed to feel a responsibility towards its rate-payers and to mitigate, from their point of view the severity of the chastisement. It has, therefore, a constitutional importance, which must be recognised whether the practical moment of this arrangement is really considerable or not. On this point only and on this ground alone their Lordships are of opinion that the demand made by the Collector for payments in recovery of the costs of the additional police was premature and not in accordance with the Act. 25. It, accordingly, becomes necessary to consider the answer which Section 80 of the Code of Civil Procedure affords to the appellants' claim. This answer, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, when part or the whole of the relief claimed is a perpetual injunction. After some differences of opinion among their subordinate Courts, the High Courts of Calcutta, Madras and Allahabad have now agreed in deciding that these sections are to be strictly complied with and are applicable to all forms of action and all kinds of relief : see the case of Secy. of State v. Bajlucki Debi [1897] 25 Cal. 239 and Dahshina Banjan v. Omar Chand A.I.R. 1924 Cal. 145 of Secy. of State v. Kalekhan [1912] 37 Mad. 113 and Koti Reddi v. P. Subbiah [1918] 41 Mad. 792; of Bachchu Singh v. Secy. of State [1902] 25 All. 187, and Abdul Rahim v. Abdul Rahim A.I.R. 1924 All. 851. In Bombay on the other hand, in the cases of Secy. of State v. Gajanan Krishnarao [1911] 35 Bom. 362, Naginlal v. Official Assignee [1912] 37 Bom. 243 and Secy. of State v. Gulam Rosul [1916] 40 Bom. 392, which were suits to restrain by injunction the commission of some official act prejudicial to the plaintiff, it has been intimated or held that, if the immediate result of the Act would be to inflict irremediable harm, Section 80 does not compel the plaintiff to wait two months before bringing his suit, though, if nothing is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have been settled. In the one case all suits failing within the section could safely anticipate the prescribed delay by the simple device of adding a claim for an injunction at the end of the plaint. In the other it would depend on the view, which a Judge might take of the elastic and indefinite expression "serious or irreparable damage," whether the official should have or should lose the benefit of the statutory interval of two months; nor can this difficulty in the least depend on the intention, which may be speculatively attributed to the legislature in prescribing any interval at all. 31. To some extent the Bombay decisions purport to rest on the authority of English cases, of which the principal are : A.G. v. Hackney Local Board 20 Eq. 626 and Flower v. Low Leyton Local Board 5 Ch. D. 347. These were decided respectively upon the Metropolis Management Act, Amendment Act, 1862, and on the Public Health Act, 1875, and turned on the construction then put on the Public Authorities' protection clauses therein contained. The Public Authorities' Protection Act, 1893, has now repealed these clauses, and has adopted another form, to which the authority of Flower&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip or even irremediable harm might be caused, if it were strictly applied, might be used with equal cogency in connexion with a Code fixing the admissibility of evidence or with a limitation section, recognizing rights but barring remedies. For this, however, there is no authority. The Act, albeit a Procedure Code, must be read in accordance with the natural meaning of its words. Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions. A suit in which inter alia an injunction is prayed is still "a suit" within the words of the section, and to read any qualification into it is an encroachment on the function of legislation. Considering how long these and similar words have been read throughout most of the Courts in India in their liberal sense, it is reasonable to suppose that; the section has not been found to work injustice, but, if this is not so, it is a matter to be rectified by an amending Act. Their Lordships think that this reasoning is right. To argue, as the appellants did, that the plaintiffs had a right urgently calling for a remedy, while Section 80 is mere procedure, is fallacious, for Section 80 imposes a statutory and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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