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TMI Blog1961 (1) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... Act (Act XXIII of the Malayalam year 1116), hereinafter called the Act. By this resolution, it was resolved to levy a profession tax at the rates specified in the schedule. This was notified in the Government Gazette of September 26, 1943, under the name of the Commissioner of the respondent Council. In this notification, it was stated :- Any inhabitant of the local municipal town objecting to the proposal may submit his objection in writing to this office within 30 days of date of publication of this notification in the Government Gazette. This notification was also published in a local newspaper called the Abhimani. It does not appear, nor is there any assertion or allegation that any objection was raised to this tax by the appellants or any one else. On January 12,,1944, a resolution under s. 79 of the Act wag passed, by which the profession tax became payable from the beginning of the second half of the Malayalam year 1119. A trust, Kottar Chetty Ninar Desikavinayaga Swamy filed a suit on February 10, 1946, challenging the legality of this tax. C.A. 502 of 1958 has arisen out of that suit. Amongst other allegations, which are common to the other suits, which will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x and when quoted it is as follows:- S. 78. Resolution of Council determining to levy tax or tolls.-Any resolution of a municipal council determining to levy a tax or toll shall specify the rate at which any such tax or toll shall be levied and the date from which it shall be levied: Provided that before passing a resolution imposing a tax or toll for the first time or increasing the rate of an existing tax or toll, the council shall publish a notice in Our Government Gazette and at least in one Malayalam or Tamil newspaper having circulation in the municipality of its intention, fix a reasonable period not being less than one month for submission of objections, and consider the objections, if any, received within the period specified. (Italics are ours). After the various steps given in s. 78 have been taken, a Municipal Council has then to adopt the taxes proposed by means of a resolution under s. 79, which provides : S.79. Notification of new taxes and tolls When a municipal council shall have determined subject to the provisions of Section 78 to levy any tax or toll for the first time or at a new rate the executive authority shall forthwith publish a notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fourth appeal, that the words used in the first proviso to s. 78 required that a clear period of one month had to be given for inviting objections and as within thirty days was not a clear period of one month, the provisions of the section had not been complied with. In support of his contention that the provision as to time was a mandatory requirement, he particularly stressed three words and phrases used in that proviso: (1) before passing a resolution ; (2) shall publish ; and (3) fix a reasonable period not being less than one month for submission of objections. The argument was that where these words are used, the effect was that the requirements were mandatory and not merely directory. It was submitted that the words before and ,shall provided that what was mentioned in the proviso were conditions precedent for giving power to the Municipal Council to pass a resolution under a. 79 and when those two words were read along with not being less than one month , it was a clear indication of the mandatory nature of the requirements of the section. Quite a number of cases were relied upon by Counsel and besides this it was also emphasized that ss. 78 and 79 conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of thirty clear days, were so decided because that notice is the basis of the jurisdiction to tax, and a legal notice is an obligation imposed in order to tax an individual and it is a mandatory provision. Similarly, cases under Rent Act will also not apply. In Thompson v. Stimpson ([1960] 3 All E.R. 500) the law required that not less than four weeks' notice shall be given for vacation of premises on a weekly tenancy and only one week's time was given. It was held there that it was a bad notice. It was further held that four weeks' notice was a condition precedent and the words had been used which had been interpreted in the past as providing for four clear weeks and also it was construed as four clear weeks, so that there might be certainty in the matter. In other cases, that were relied upon and which related to taxing statutes, the Municipal Council, Cuddapah v. The Madras and Southern Mahratta Railway Ltd. ((1929) I.L.R. 52 Mad. 779), The Borough Municipality of Amalner v. The Pratap Spinning, Weaving and Manufacturing Co. Ltd., Amalner (I.L.R. [1952] Bom. 918) and Kalu Karim v. Municipality of Broach ((1927) I.L.R. 5r Bom. 764) ; it was held that taxing statutes h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 502 of 1958, in the plaint it was alleged that the trust was a religious trust and was following no profession and therefore it did not fall within the definition of the word profession as used in s. 91 of the Act. The defendant joined issue and the matter was put in issue in the following form: Is the taxation by defendant of plaintiff illegal and in contravention of the provisions of the District Municipalities Act ? Although no specific finding was given as regards the operation of s. 91, the suit was decreed and the question whether the trust followed a profession or not seems to have got lost at the subsequent stages of the proceedings, that is, in appeal in the court of the District Judge and in the High Court. It is this point which was urged by counsel for the trust; his plea was that his case was not covered by s. 91, as being a religious trust it had no profession and was carrying on none. That is a matter which, in our opinion, should have been decided, and as neither the District Judge nor the High Court has given a finding on that point, it is necessary to remit the case to the High Court with the direction that the appeal be reheard and that particular q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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