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TMI Blog1965 (3) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ot obtain the protection of section 84(3) of the Act and, therefore, the appellant's suit is maintainable. For all these reasons we hold that the High Court was in error in dismissing the appellant's suit. We hold the same in the connected appeal and accordingly allow both the appeals with - Civil Appeals Nos. 600 and 679 of 1964 - - - Dated:- 26-3-1965 - Judge(s) : RAGHUBAR DAYAL., V. RAMASWAMY., K. SUBBA RAO., J. R. MUDHOLKAR., R. S. BACHAWAT JUDGMENT [The judgment of Subba Rao, Mudholkar and Ramaswami JJ. was delivered by Mudholkar J. The judgment of Raghubar Dayal and Bachawat JJ. was delivered by Raghubar Dayal J.] MUDHOLKAR J.---This judgment will also govern Civil Appeal No. 679 of 1964, since common questions of law arise in both the appeals. For illustrating the points which arise for consideration in these appeals we will set out briefly the facts pertaining to C.A. No. 600 of 1964. The appellant (hereinafter referred to as the company) is a private limited company having its registered office at Calcutta and a branch office at Dhamangaon which was formerly in the Province of Central Provinces and Berar but is now in the State of Maharashtra. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Berar Gazette Notification No. 7911-3242-M/VIII dated the 22nd December, 1936, is published for the information of the public, the same having been previously published as required by sub-section (3) of section 68 of that Act, and in exercise of the powers conferred by sub-section (7) of section 68 of that Act, the municipal committee directs that the said amendments shall come into operation on the 1st August, 1941 : AMENDMENT For the figure and the word '1 anna' occurring in clauses (a) and (b) of the rule, the figure and word '4 annas' shall be substituted. Sd./- B. S. Mundhada, President, Municipal Committee. No. 2418-M-XIII. " Certain rules were framed by the Government for the assessment and collection of tax which were also published on December 22, 1936. These rules were, however, amended by the Local Government and the amended rules were published in the Gazette on July 30, 1941. It is these latter rules which are now in force. Consequent upon the amendment of the rules the appellants in the two appeals and the proprietors of the ginning factory in Dhamangaon have been paying these taxes at the new rate of 4 annas per bojha and 4 annas per bale. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existing tax. It further contended that the tax in question at the rate of 4 annas per bojha and 4 annas per bale was in existence when article 276 came into force and is saved by that article. According to the Committee, the company is not entitled to claim back the amount paid by it under section 72 of the Indian Contract Act or the general law. This contention, however, was negatived by the trial court and does not appear to have been reiterated before the High Court. Nor again was it pressed before us by Mr. Viswanatha Sastri who appears for the Municipal Committee. The principal contention which was pressed before the trial court and raised before the High Court was that the company's suit was bad for non-compliance with the requirements of section 48 of the Act and that is the point which we have to consider in this appeal. Section 48 of the Act reads thus : " (1) No suit shall be instituted against any Committee or any member, officer or servant thereof or any person acting under the direction of any such committee, member, officer or servant for anything done or purporting to be done under this Act, until the expiration of two months next after notice in writing stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment of India Act, section 142A, that when a municipality is prohibited by law from imposing a tax in excess of a certain amount then it cannot be said to be acting either under the Act or purporting to act under the Act if it exceeds that amount, and in such a case the jurisdiction of the civil courts is not barred. Here again we may refer to the fact that in the Privy Council case, Radha Kishan Jaikishan (Firm) v. Municipal Committee, Khandwa this objection does not appear to have been taken. It is hardly likely that it would have been omitted had there been any force in the contention. In the present case, as in District Council, Bhandara v. Kishorilal, the municipality is seeking to recover sums which the law has prohibited it from taking in the shape of taxes. Accordingly, as it is acting wholly without jurisdiction, the claims lie and are not barred by reason of sections 83 and 84. Then it was stated that the claims are barred by section 48 of the Municipalities Act. There again the same considerations apply. Section 48 comes into play only when the act is done or is purported to be done under the Municipalities Act. As we have said, that is not the case here becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes the law or is made in the face of an express statutory prohibition can be said to be under the Act. The words 'purporting to be given' or 'made under the Act' are not present in this section and so the difficulty which arises regarding the other point is not present here. I hold that the suit is not incompetent on this score. " Pointing out that the other question urged before him was more difficult, the learned judge said that his conclusion was that what was done in the case was not " under the Act " and, therefore, what remained for consideration was whether it was " purported to be done " under the Act. He came to the conclusion that what was done was not " purported to be done under the Act " and expressed himself thus : " Now this expression has recently been interpreted by their Lordships of the Privy Council in H. H. B. Gill v. King, also in Hori Ram Singh v. Crown of which their Lordships approved. The question is a difficult one and as Varadachariar J. observed in the Federal Court decision at page 187, it is neither possible nor desirable to lay down any hard and fast rule. The question is substantially one of fact and 'must be determined with reference to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there was no prohibition to the levy of the tax and all that had happened was that proper procedure had not been followed in imposing the tax. This was thus a case of something purporting to be done under the Act but not done strictly in accordance with the provisions. That such a case would squarely fall within the ambit of section 48 cannot be questioned. But the point is whether what was done by a local body under the colour of an Act can be regarded as something purported to be done under the Act even though neither the local body nor even the State legislature has the power to do what was in fact done. The next case referred to was Gajadhar Hiralal v. Municipal Committee, Washim. That was also a case in which a tax on bojhas and bales of ginned cotton was raised from Rs. 0-2-3 per bale to 0-4-0 per bale and the learned judges held, following the decision in New East India Press Co.'s case, that the enhancement was ultra vires article 276 of the Constitution. The other question did not arise for consideration in this case. This decision is, therefore, of little assistance to us, because it is not contended before us that the enhancement of the tax is valid. There is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of pressing cotton, was a tax on 'professions, trades, callings or employments' and that the learned judges of the High Court came to a correct conclusion that the respondents were entitled to the declaration which was granted as regards the maximum amount of the tax that could be levied from the respondents." In Jalgaon Borough Municipality's case 'on which the High Court relied in Motilal Manekchand's case what had happened was this : The municipality acting under section 73(iv) of the Bombay Municipal Boroughs Act, 1925, levied octroi duty on fuel oil or furnace oil under certain rules and by-laws framed by it with the sanction of the Government which provided for the levy of an octroi duty on various articles including " oils used for machinery ". It was found that the municipality was not entitled to levy any octroi duty on fuel oil or furnace oil which was not comprised within the items enumerated in the octroi rules and by-laws. The respondent who had paid the tax instituted a suit for its recovery. One of the questions which arose for consideration was whether the provisions of section 206 of the Bombay Municipal Boroughs Act, 1925, corresponding to those of section 48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d purported to levy the same it would certainly be an act which was " outrageous and extraordinary, or done without having any vestige or semblance of authority or without even a shadow of a right ". Here, the overstepping of its authority by the municipality consists not in the matter of the selection of a class of goods but of that of the rate at which it has levied and collected a tax. It has levied and collected a tax beyond constitutional limits. Therefore, to the extent it has done so the tax could properly be said to have been levied without a vestige or semblance of authority or even of a shadow of right. We may now refer to the recent decision of this court in Poona City Municipal Corporation v. Dattatraya Nagesh Deodhar. That was a case in which the municipal corporation had imposed a tax on the refund of octroi duty collected by it on goods imported within the municipal limits of the city. Its practice was to deduct the tax from the amount which it was required to refund and pay the person entitled to the refund only the balance. A suit was instituted by the respondents for refund of the amount illegally deducted by the corporation from the octroi refund made by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne anna per bojha and one anna per bale to four annas per bojha and, four annas per bale was illegal and ultra vires and should therefore be quashed. This petition was granted by the High Court on April 12, 1955. There was, therefore, a direct decision before the trial court and the appellate court which though it could not be treated as res judicata was binding on those courts and was treated as such by them and it is perhaps because of this that it was not sought to be urged on behalf of the municipal committee when the second appeal was argued before the High Court that the notification is valid and, therefore, the municipal committee could recover the tax at the enhanced rate. Though Mr. Viswanatha Sastri did say that the decision of the High Court is not res judicata, he did not directly challenge its correctness. What he argued was as follows : The levy of a tax on professions, trades, callings, etc., was within the power of the Provincial legislature and is now within the power of the State legislature. It could in the past and can even now levy such a tax at the rate of four annas per bojha and four annas per bale, that both under section 142A of the Government of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and are thus outside the provincial/and now State list and belong exclusively to Parliament and before that to the Central legislature. Yet under a large number of laws enacted before the Government of India Act, 1935, came into force, power was conferred on local governments and local authorities to impose taxes on such activities. This was obviously in conflict with section 100 of the Government of India Act. When this was realised section 142A was enacted by the British Parliament which saved the power conferred by pre-existing laws but limited the amount payable to Rs. 50 after 31st March, 1939. A saving was made, however, of pre-existing laws subject to certain conditions with which we are not concerned. The provisions of this section have been substantially reproduced in article 276 of the Constitution with the modification that the upper limit of such tax payable per annum would be Rs. 250 instead of Rs. 50. A tax can be recovered only if it is " payable " and it would be payable only after it is assessed. It is, therefore, futile to contend that the ban placed by the aforesaid provisions extends only to recoveries and not to an earlier stage. Now coming to the cases, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorise the taking of the goods of Hurgovundass, or even that Hurgovundass might not be liable for the arrears of 'quit rent' which accrued before he became owner of the house. Still the Collector was evidently of opinion, that a distress might be made for the whole of the arrears due, and that it was sufficient to introduce into the warrant the name of Tookaydass, in whose name the house continued to be registered. The other defendant never could have doubted the sufficiency of the warrant. If Indian revenue officers have fallen into a mistake, or without bad faith have been guilty of an excess in executing the duties of their office, the object of the legislature has been, that they should not be liable to be sued in a civil action before the Supreme Courts." Later in his opinion Lord Campbell said : "If it concerned the revenue, or was a matter concerning an act bona fide believed to be done according to the regulations of the Governor and Council of Bombay, his (i.e., of the judge of the Supreme Court) jurisdiction was gone, although prima facie it appeared to be a trespass over which his jurisdiction might be properly exercised." This case would have assisted Mr. Sas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent, would justify his acting, and acts accordingly, his conduct will be in pursuance of the statute and will be protected." The learned judges then referred to Spooner's case also. Mr. Sastri laid particular emphasis on the concluding portion of the observations quoted above. This again, it may be said, is not a decision which is quite in point. There was no want of jurisdiction in the Collector to do what he did but there was only the absence of facts which, had they existed, would have given him power to do what he did. Cases of this type must be distinguished from those like the present in which we must imply a constitutional or statutory prohibition against the act done. Where such prohibition exists or can be implied, anything done or purported to be done by an authority must be regarded as wholly without jurisdiction and is not entitled to a protection of the law under colour of which that act was done. It is true, as urged by Mr. Sastri, that it was within the competence of the respondent-committee to raise the rate of tax from one anna to four annas per bojha and bale even after the coming into force of section 142A of the Government of India Act, 1935. The levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in his favour even upon a ground found against him by the High Court, be permitted to be enlarged beyond that of the appeal before the High Court or the courts below. But as it is a question of considerable importance and might be raised in other similar suits which are said to be pending, we propose to deal with it. Before dealing with Raleigh Investment Co.'s case we may refer to the provisions of the Act which Mr. Sastri placed before us. Section 83(1) provides for an appeal against the assessment or levy of or refusal to refund any tax under the Act before the Deputy Commissioner and sub-section (1A) for a revision before the State Government. Sub-section (2) provides that if the authority hearing the appeal or revision entertains a reasonable doubt on any question as to the liability to or the principles of assessment of a tax it shall draw up a statement of the facts of the case and the point on which the doubt is entertained and refer the statement with his own opinion on the point for the decision of the High Court. There is, however, no express provision like that of section 31(1) or section 33(4) of the Indian Income-tax Act entitling the assessee to a hearing either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation for an appeal under section 83(1). Sub-section (2) empowers the appellate authority to require the assessee to deposit the tax before the hearing or the decision of the appeal. Sub-section (3) is in the following terms : " No objection shall be taken to any valuation, assessment or levy, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act. " It will be seen that there is no express mention of a civil court in this sub-section as there was in section 67 of the Indian Income-tax Act, 1922. In fact section 48 of the Municipalities Act contemplates the institution of a suit subject to fulfilment of certain conditions and thus indicates that it was not the intention of the legislature to make the machinery provided by the Act exclusive. But even if a bar to the jurisdiction of a civil court be assumed or implied, there is an absence of a reference to " refund " in sub-section (3) of section 83. In other words, no finality seems to have been given to a decision rendered by an authority under section 83 refusing to refund a tax improperly or illegally assessed or recovered. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consideration of the very constitutionality of the provision which contains this expression. This aspect of the matter does not appear to have been considered in Raleigh Investment Co.'s case. This decision has been briefly referred to by this court in Firm Illuri Subbayya Chetty Sons v. State of Andhra Pradesh and what this court has observed is this : " In determining the effect of section 67, the Privy Council considered the scheme of the Act by particular reference to the machinery provided by the Act which enables an assessee effectively to raise in courts the question whether a particular provision of the Income-tax Act bearing on the assessment made is or is not ultra vires. The presence of such machinery, observed the judgment, though by no means conclusive, marches with a construction of the section which denies an alternative jurisdiction to enquire into the same subject-matter. It is true that the judgment shows that the Privy Council took the view that even the constitutional validity of the taxing provision can be challenged by adopting the procedure prescribed by the Income-tax Act ; and this assumption presumably proceeded on the basis that if an assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y again point out that there is a complete absence of a provision corresponding to section 67 of the Indian Income-tax Act barring the institution of a suit in so far as refusal of refund of a tax is concerned. In Secretary of State v. Mask Co., the Privy Council has observed that it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. As earlier pointed out, this decision has been approved by this court in the case of Firm Illuri Subbayya Chetty and Sons. Further, one of the corollaries flowing from the principle that the Constitution is the fundamental law of the land is that the normal remedy of a suit will be available for obtaining redress against the violation of a constitutional provision. The court must, therefore, lean in favour of construing a law in such a way as not to take away this right and render illusory the protection afforded by the Constitution. So, whatever be the position with respect to section 67 of the Indian Income-tax Act, so far as section 83(3) of the Act is concerned, we find it reasonably possible to construe it as n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the writ petition. It is apparently for this reason that the civil court did not award that relief to the appellant. In view of the High Court's decision it was not at all necessary for the trial court to consider in the suit before it the question of the validity of the assessment or collection of the tax but only to ascertain the amount which was payable to the appellant and whether the suit was barred under section 48 or section 85(2) as contended by the respondent. In these circumstances, we are of opinion that the appellant's suit cannot be said to be barred even if we interpret section 84(3) of the Municipalities Act in the same way as the Privy Council interpreted section 67 of the Indian Income-tax Act. We may further observe that where there is an express prohibition in a statute against a local authority from imposing a tax, as for instance the recovery in the statute construed by this court in the Poona City Municipal Corporation case or where a prohibition can be implied---whether it be with regard to an item of taxation or with regard to the rate of tax or the quantum of tax payable by an individual assessee---the action of a local authority or of any of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons we hold that the High Court was in error in dismissing the appellant's suit. We hold the same in the connected appeal and accordingly allow both the appeals with costs throughout. RAGHUBAR DAYAL J.---We have given careful thought to the questions of law arising in this appeal, but regret we have not been able to agree with the view expressed by brother Mudholkar J. in the majority judgment. We need not recapitulate the facts which have been fully set out in the judgment of Mudholkar J. The questions of law which arise for determination are : (1) whether the respondent's collecting the amount in excess of the amount which it could have collected on account of the tax on trade, in view of the provisions of article 276 of the Constitution, was " an act done or purported to be done under the Act " within the meaning of section 48(1) of the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), hereinafter called the Act ; and (ii) whether the suit is barred by section 84(3) of that Act. The question in short boils down to this : whether the expression " anything done or purporting to be done " under the Act will cover only those acts which would be in stric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion or art, or carrying on any trade or calling, within the limits of the municipality. Sub-section (2) empowers the State Government, by rules made under the Act, to regulate the imposition of taxes mentioned in the section and to impose maximum amounts of rates for any tax. The rate of tax fixed by Government notification dated December 22 1936, was enhanced by another notification dated April 10, 1941. The former rate of one anna was enhanced to four annas. These notifications did not lay down any upper limit for the amount of tax payable by one person to the municipality. The legality of the imposition is not questioned. The legality of the enhancement was questioned by the appellant through Miscellaneous Petition No. 389 of 1954, decided by the High Court on April 12, 1955. The appellant prayed, by that petition, for the issue of a writ prohibiting the committee from collecting taxes under the notification of 1941. The High Court did not hold the notification to be bad in law. What it held was that the tax was invalid to the extent it offended against section 142A of the 1935 Act and that it was also invalid to the extent it offended against article 276 of the Constitution. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by following the procedure laid down in the Rules. It follows from the statutory rules that once the tax is assessed according to the Rules, the assessee becomes liable statutorily to pay the assessed tax. Section 77 provides how any arrears of tax claimable by the committee under the Act can be recovered. They can be recovered on an application to a Magistrate, by distress and sale of movable property of the defaulter within the limits of his jurisdiction. Sections 77A and 80 provide other procedure for arrears of certain taxes to be realised. Section 83 provides for an appeal, against the assessment or levy of or refusal to refund any tax under the Act, to the Deputy Commissioner or some other officer empowered by the State Government in that behalf. Sub-section (1A) allows a person aggrieved by the decision of the appellate authority to apply to the State Government for revision of the decision on the grounds that the decision is contrary to law or is repugnant to any principle of assessment of tax or that the appellate authority has exercised jurisdiction not vested in it by law or has failed to exercise a jurisdiction vested in it by law. Sub-section (2) provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pality for such tax was not to exceed a certain limit and that it is not merely with respect to the act of collecting the excess amount. In fact, the assessment of the entire tax was one act and so was the collection of the amount assessed. The act of assessing the tax or the consequential act of collecting the amount cannot be broken up into two acts (i) of assessing the tax up to the legal limit ; and (ii) of assessing the tax with respect to the amount in excess of the legal limit. Neither can the act of collection be broken up into two acts (i) of collecting the amount which can be legally assessed ; and (ii) of collecting the amount in excess of the legally realisable amount of tax. The act of assessment or of collection therefore was an act done by the committee under the provisions of the Act, though it may be, as appears to be the case, that it acted wrongly in assessing the tax at an excessive figure and consequently in collecting an amount in excess which could have been legally collected. The suit is therefore fully covered by the provisions of sub-section (1) of section 48 of the Act. Sub-section (2) of section 48, as already stated, provides that every such suit, i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from what has been decided by the Privy Council and this court. We would first refer to those cases before dealing with the cases relied on for the appellant in support of the contention that the committee had no jurisdiction to assess the tax beyond the limit allowed by section 142A or article 276 and that therefore the act of the committee was an act which could not be said to have been done or purported to have been done under the Act and that it was not necessary for the appellant to take recourse to the procedure laid down in sections 48 and 83 of the Act. In Raleigh Investment Co. Ltd. v. Governor-General in Council the Privy Council had to construe section 67 of the Income-tax Act which provided : " No suit shall be brought in any civil court to set aside or modify any assessment made under this Act ...... The suit giving rise to the appeal before the Privy Council was for a declaration that a certain provision of the Act was ultra vires the legislative powers of the Federal legislature, that therefore the appellant before the Privy Council was not liable to be assessed or charged to tax in respect of certain dividends and the assessment was illegal and wrongful, for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chinery provided by the Act, not the result of that use, is the test." These observations fully apply to the expression " the assessment of any tax under the Act " in sub-section (1) of section 83. It follows that when the committee made the assessment of the tax on the appellant the assessment was founded on the activity of the committee acting as the assessing authority and the fact that it overlooked the constitutional requirement is immaterial in determining whether the assessment is made under the Act. The expression " made under the Act " has no relation to the accuracy of the assessment in point of law. The expression " assessment of any tax under the Act " in section 83 is equivalent in its content to the expression " assessment made under the Act ". Lastly, the final observations of the Privy Council in this case indicate that when an exclusive machinery for the determination of the tax is provided by the Act and the tax is assessed by that machinery, there arises a duty to pay the amount of tax demanded on the basis of that assessment and that the jurisdiction to question the assessment otherwise than by the use of the machinery expressly provided by the Act would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not cover cases of assessment which purported to have been made under the Act. This court said at page 759 : " The expression 'any assessment made under this Act' is, in our opinion, wide enough to cover all assessments made by the appropriate authorities under this Act whether the said assessments are correct or not. It is the activity of the assessing officer acting as such officer which is intended to be protected and as soon as it is shown that exercising his jurisdiction and authority under this Act, an assessing officer has made an order of assessment, that clearly falls within the scope of section 18A." The view expressed by this court is practically the same as had been expressed in Raleigh's case. In fact, the only difference between the two cases appears to be that in the Privy Council case the illegality of the assessment was said to lie in basing the assessment on a provision which was said to be ultra vires the legislature while the illegality of the assessment made in the case before this court lay in the alleged mistake of the assessing officer in construing certain transactions to be transactions of purchases though they were really transactions of sale, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be imposed by the Poona City Municipal Corporation. It was, after holding so, that reference was made to sub-section (4) of section 127 wbich provided that nothing in that section would authorize the imposition of any tax which the State legislature had no power to impose in the State under the Constitution, and it was said : "Apart from this absence of power to impose such a tax which is clear from the earlier parts of section 127, we have the categorical prohibition in sub-section (4) against the imposition of any such tax by the Corporation." This reference was to emphasize that the impugned tax could not possibly be imposed under the Act. Sub-section (4) appears to have been enacted as a matter of caution. There could be no necessity for sub-section (4) as section 127 itself had provided for the taxes which could be imposed. Any tax which was not specified in the section could not possibly be imposed by the corporation. The legislature might have considered the possibility of any of the specified taxes not remaining in future within the legislative list of the State and therefore provided that in such a contingency a tax though specified in the section will not be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at page 219 his agreement with the principle that if the municipal committee exercised a power which it did not possess, it should not be regarded as acting in pursuance of the statute governing its affairs and its acts should not be regarded as being done under the statute, and further stated that that principle however did not help the municipal committee, the appellant before him. Niyogi J. then said, after noticing the failure of the Municipal Committee to consider the objections to the proposed taxes : " Now there can be no question that the municipal committee, in imposing and collecting tax at four annas per animal, was acting exactly in accordance with section 68. It must be observed that there is a difference between a case when a corporate body exercises a power which is wholly absent and a case where it has power but it exercises it illegally or with material irregularity. In the former case the municipal committee's act from beginning to end is illegal ; whereas in the latter case the act is quite legal in the beginning but becomes illegal in the end. " Again he said : "In enhancing the tax and collecting it the municipal committee was certainly exercising, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh's case and Subbayya Chetty's case. Bose J. then considered the content of the expression " purported to be done ". We need not discuss what he says on this point as we have held that the assessment made on the appellant was an assessment made under the Act and that the act of illegal collection with respect to the amount in excess was an act done under the Act. The appellant mainly relied on the Nagpur case reported as Municipal Committee, Karanja v. New East India Press Co. Ltd. It was held in that case that a suit for refund of a tax illegally imposed by the municipal committee was not barred by reason of sections 48, 83 and 84 of the Central Provinces Municipalities Act as the municipal committee did not act or purport to act under the Act in imposing the illegal tax. Bose, Acting C.J., delivering the judgment, relied on his earlier decision in District Council, Bhandara case and held that the claim for the recovery of the tax illegally realised in excess of the permissible limit were not barred by reason of sections 83 and 84. He then referred to section 48 and, after stating that the act of the municipality when prohibited by law was wholly beyond its jurisdiction and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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