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PETITIONER: BHARAT KALA BHANDAR LTD.

       Vs.

RESPONDENT: MUNICIPAL COMMITTEE, DHAMANGAON

DATE OF JUDGMENT: 26/03/1965

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K. DAYAL, RAGHUBAR BACHAWAT, R.S. RAMASWAMI, V.

CITATION:  1966 AIR  249            1965 SCR  (3) 499  CITATOR INFO :  RF         1966 SC1089  (17,18,37)  RF         1967 SC 887  (22)  RF         1968 SC 271  (11)  RF         1969 SC  78  (19,20)  F          1970 SC1002  (2)  R          1971 SC  97  (12)  RF         1975 SC2238  (21)  RF         1976 SC1207  (102)  E          1977 SC 955  (12,13,14,15,20)  RF         1986 SC1556  (27)

ACT: Central Provinces and Berar Municipalities Act (2 of  1922), ss.  48  and 84(3)-Scope of-Suit for refund  of  excess  tax paid-If barred.

HEADNOTE: The  appellant  was  paying a tax at the rate  of  one  anna per--unit weight of cotton, under s. 66(1)(b) of the Central Provinces Municipalities Act. 1922, from 1936.  In all  1941 the  rate  of  tax  was increased to 4  as.   In  1952,  the appellant  filed a suit for recovery of the excess,tax  paid within  3 years of the date of suit.  It was contended  that after the coming into force of s. 142A of the Government  of India Act, 1935, on 1st April 1939, till 25th January  1950, a tax in excess of Rs. 50 per annum could not be imposed  by the  respondent,  and, after the coming into  force  of  the Constitution  the upper limit of the tax was raised  to  Rs. 250  per annum under Art. 276 of the Constitution; and  that as  the appellant was already paying more than  this  amount per year even at the rate of one anna, the enhanced rate  of 4  annas was illegal.  The trial court decreed the suit  for recovery from the Municipal Committee of excess tax paid  by the  appellant  within 3 years of the date of  suit  but  on appeal,  the High Court held that the suit was bad for  non- compliance  with  the  requirements of s.  48  of  the  Act, according to which a suit for anything done or purported  to be  done  under the Act shill be instituted only  after  the expiration  of 2 months after serving a written  notice  and

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within  six  months  from the date of  the  accrual  of  the alleged cause of action. In its appeal to this Court, the appellant contended that it was  a case of recovery of an illegal tax and therefore,  a, claim  for its refund fell outside the provisions of s.  48. The respondent contended that (i) since the ban was not upon the rate of tax but upon the excess collection thereof,  the collection  of a tax above the constitutional limit was  not without  jurisdiction  but  only illegal  or  irregular  and therefore,  the  suit  would  be  in  respect  of  a  matter "Purported to be done under the Act" and the provision of s. 48 would apply, and (ii) on the basis of Raleigh  Investment Company  Ltd. v. Governor. General in Council, (74 I.A.  50) the  suit  was barred by s. 84(3) of the Act,  which  enacts that  no objection shall be taken to any assessment  in  any other manner than is provided in the Act. HELD  (Per  K. Subba Rao, J. R. Mudholkar and  V.  Ramaswami JJ.):  (i) Since the respondent had no authority to  levy  a tax  beyond  what s. 142A of the Government  of  India  Act, 1935, or what Art. 276 permitted, the assessment proceedings were  void  in  so far as they purported to levy  a  tax  in excess   of  the  permissible  limit  and   authorise.   Its collection,  and the assessment order would be no answer  to the  suit  for  the  recovery  of  the  excess  amount,  and therefore, the suit was maintainable. [522G-H] The  Constitution is the fundamental law of the land and  it is  unnecessary to provide in any law that anything done  in disregard   of  the  Constitution  is  prohibited,  Such   a prohibition has to be read into 500 every enactment, and 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. [512A-B; 516B-C] Poona  City  Municipal  Corporation  v.  Dattatraya   Nagesh Deodhar.[1964] 8 S.C.R. 178, followed. (ii)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 s.  142A  of  the Government  of India Act and Art. 276 of  the  Constitution, extends  only  to recoveries and not to  an  earlier  stage. [513G] It  is true that the respondent had jurisdiction to  recover an amount up to the constitutional limit.  But it cannot  be contended  that merely because of this, the recovery by  the respondent  of  an amount in excess  of  the  constitutional limit  was  only irregular or at the worst  illegal.   Where power exists to assess and recover a tax up to a  particular limit and the assessment or recovery of anything above  that amount  is  prohibited,  the assessment or  recovery  of  an amount in excess is wholly without jurisdiction.  To such  a case,  the  statute under which action was purported  to  be taken can afford no protection.  Indeed, to the extent  that it  affords protection it would be bad.  But it is the  duty of  the  court to so construe it as to avoid  rendering  the provision  unconstitutional, that is, to construe s.  48  as affording  protection  only if what was done  was  something which could legally have been done by the respondent but was wrongly  done  by it, and reject a construction  which  will invalidate the provision. [515B; 516B-H] (iii)The  appellant’s suit could not be barred even  if s.  84(3) of the Act is interpreted in the same way  as  the Privy  Council interpreted s. 67 of the Income-tax  Act,  in the  Raleigh Investment Co.’s case.  Unlike  the  Income-tax

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Act the Act does not provide a machinery for making a  claim for   refund  or  repayment  on  the  ground  of   the   un- constitutionality  of the levy, and the jurisdiction of  the civil  court in cases of refund is not taken away.  Even  in the class of cases to which the provisions of ss. 83 and  85 of  the  Act,  which are the  only  provisions  providing  a machinery  under  the  Act for  challenging  an  assessment, apply,  they  cannot  be  said  to  provide  a  sufficiently effective  remedy to an assessee.  A reference to  the  High Court  is  only  at  the  discretion  of  the  appellate  or revisional  authority and the person aggrieved has no  right to move the High Court.  Besides, in the Raleigh  Investment Co.’s  case, the expression "assessment made under this  Act was given too wide a construction, because, it is  difficult to appreciate how taking into account an ultra vires  provi- sion,  which in law must be regarded as not being a part  of the  Act at all, will make the assessment as one  under  the Act. [517G; 518B, F, H; 519A-B; 520D-F; 521H] The exclusion of the jurisdiction of the civil court is  not to  be  readily inferred but such exclusion must  either  be -explicitly  expressed  or  clearly  implied.   One  of  the corollaries flowing from the principle that the Constitution is  the fundamental law is that the normal remedy of a  suit will   be  available  for  obtaining  redress  against   the violation  of  a  constitutional  provision.   Moreover  the provisions of Art. 265 of the Constitution preclude the levy or  collection  of a tax except by authority of  law,  which means  only  a  valid  law.   There  was  no   corresponding provision  in the various Acts for the governance  of  India which  preceded  the Constitution and the  decision  in  the Raleigh  Investment  Co.’s case was given in  that  context. Further under Art. 501 226, the Constitution has provided a remedy to a citizen  to obtain redress in respect of a tax levied or collected under an invalid law, and this remedy will not be affected by  any provision  like s. 67 of the Income-tax Act, or s. 84(3)  of the Act. [520G-H; 521C-E] Thus, when the question merely is whether the assessment had been   made   according  to  law,  the   respondent   having jurisdiction  over the subject matter and the assessee,  the provisions  of s. 84(3) may be a bar to a suit.  But,  where the  question  raised  is  as to  the  jurisdiction  of  the respondent  to proceed against the assessee, and levy on  or collect  from him an amount in excess of that  permitted  by the  Constitution, the matter would be entirely out  of  the bar of that provision. [522E-G] Per  Raghubar  Dayal  and Bachawat,  JJ.  (dissenting):  The appellant’s  suit  for the recovery of the tax  realized  in excess  of  Rs.  250 a year was rightly  dismissed,  as  the correctness  of  the  assessment of the  tax  could  not  be challenged  by a suit in a civil court in view of  s.  84(3) and  as  the provisions of s. 48, requiring  the  giving  of notice  to  the respondent and the institution of  the  suit within a certain period, had not been complied with.  [534H; 535A-B] The  suit  was in essence a suit for, first,  modifying  the amount assessed and then to decree the payment of the amount held  to have been paid in excess of the tax as modified  by the  court.   But  the  act of  assessing  the  tax  or  the consequential act of collecting the amount cannot be  broken up into two acts, one, upto the legal limit and the other in excess  of  it.   The act of  assessment  or  of  collection therefore  was  an  act done by  the  respondent  under  the provisions of the Act, though it acted wrongly in  assessing

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the  tax  at  an  excessive  figure,  and  consequently   in collecting an amount in excess of that which could have been legally collected.  The suit was therefore fully covered  by s. 48 and had to be dismissed. [526E-H] In view of s. 84(3), exclusive jurisdiction to determine the correctness   of  the  amount  assessed  is  given  to   the authorities mentioned in s. 83. The result is that no  other authority can enter into the question of the correctness  of the assessment on grounds of law or fact, and therefore  the appellant’s suit was barred from the cognizance of the civil court. [527G] Raleigh Investment Co. Ltd. v. Governor-General in  Council, L.R. 74 I.A. 50 and Firm of Illuri Subbayya Chetty & Sons v. State of Andhra Pradesh, [1964] 1 S.C.R. 752, followed. Poona  City  MuniciPal  Corporation  v.  Dattatraya   Nagesh Deodhar, [1964] 8 S.C.R. 178, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 600 and 679 of 1964. Appeals from the judgment and decree dated February 20, 1962 of the Bombay High Court (Nagpur Bench) at Nagpur in Appeals Nos. 196 and 195 of 1956 from original decree. S.G. Patwardhan, S. Murthy and B. P. Maheshwari, for  the appellant (in C.A. No. 600/64). S.N. Kherdekar and A. G. Ratnaparkhi, for the appellant (in, C.A. No. 679/64). A.V.   Viswanatha  Sastri  and  M.  S.  Gupta,  for   the respondent (in C.A. No. 600/64). A.V. Viswanatha Sastri and M. S. Gupta for U. P. Singh,  for the respondent (in C.A. No. 679/64). 502 The Judgment of Subba Rao, Mudholkar and Ramaswami, JJ.  was delivered by Mudholkar J. The dissenting Opinion of Raghubar Dayal and Bachawat, JJ. was delivered by 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. 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 & Berar  but is  now  in the State of Maharashtra.  The  company  owns  a ginning factory at Dhamangaon.  The Notified Area  Committee of  that  place imposed, under s. 66(1)(b)  of  the  Central Provinces Municipalities Act, 1922 (hereinafter referred  to as  the Act) as applied to Berar, a tax at the rate  of  one anna  per  bojha of ginned cotton and one anna per  bale  of pressed  cotton  as  from  Dec. 22, 1936  on  which  date  a notification  sanctioning the imposition under s. 241(1)  of the  Act was published in the official Gazette by  order  of the  Government  of  the  Province.   The  Notification   in question runs as follows: -               "No.   7911-3242-M-VII:-In  exercise  of   the               powers conferred by clause (a) of sub-sec. (1)               of   sec.   241  of  the   Central   Provinces               Municipalities Act, 1922 (C.P. Act 11 of 1922)               as  applied to Berar, the Local Government  is               pleased to confirm the following rule made  by               the  Notified Area Committee,  Dhamangaon,  in               the  Amravati  district, under clause  (b)  of

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             sub-s.  (1) of sec. 6(1) of the said Act,  for               imposing  a  tax on persons  carrying  on  the               trade of ginning and pressing cotton by  means               of  steam  or mechanical  process  within  its               limits:-                                    Rule               The  committee  shall levy  from  all  persons               carrying  on  within its limits the  trade  of               ginning or pressing cotton into bales by means               of  steam or mechanical process a tax  at  the               following   rates   from  the  date   of   the               publication   of  this  notifiCation  in   the               Central Provinces Gazette:-               (a)   For  each  bojha of  392  lbs.  ginned-1               anna.               (b)   For  each  bale of  392  lbs.  pressed-1               anna. By order of the Government, (Ministry of Local Self-Government), Sd/- R. N. Bannerjee, Secretary to Government, Central Provinces. 503 The  Notified Area Committee of Dhamangaon decided to  raise the  rate from 1 anna per bojha and 1 anna per bale to  four annas  per bojha and four annas per bale.  Soon  after  this decision   it  caused  the  following  notification  to   be published  in the official Gazette on April 10,  1941.   The Notification runs thus:-               "The  following  amendment  to  the  rule  for               imposition  of  the tax’ by  the  o  Municipal               Committee,   Dhamangaon,   in   the    Amraoti               district,  under  cl. (b) of sub-sec.  (1)  of               sec.    66    of   the    Central    Provinces               Municipalities  Act, 1922 (11 of 1922) as  ap-               plied  to  Berar, on persons carrying  on  the               trade of ginning and pressing cotton by  means               of  steam  or mechanical  process  within  its               limits, published in the Central Provinces and               Berar  Gazette  Notification  No.   7911-3242-               M/Vlll, dated the 22nd Dec. 1936, is published               for  the information of the public,  the  same               having  been previously published as  required               by subsection (3) of sec. 68 of that Act,  and               in  exercise of the powers conferred  by  sub-               sec. (7) of sec. 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 ’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  assess- ment and collection of tax which were also published on Dec. 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

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bale. It  may  be mentioned that in Dec. 1951 the  Municipal  Com- mittee.  Dhamangaon, which by then had replaced the Notified Area Committee proposed to raise the tax from four annas  to one rupee per bojha and per bale but eventually dropped  the proposal.  Apparently being alarmed at the abortive  attempt of  the  Municipal committee to raise the tax  further,  the appellant and other factory owners in Dhamangaon  instituted suits  for recovery from the Municipal Committee  of  excess tax  paid  by  them  within 3 years  of  the  dates  of  the respective suits.  The Company claimed refund of Rs. 12,511- 6-6 on the ground that it was recovered from it illegally 504 by  the Municipal Committee and paid by it under a  mistake. The  amount has been computed by them thus:  Rs.  6,905-14-6 recovered  from  them in respect of  ginned  cotton  between 29-3-49 and some date in the year 1952 plus Rs. 8,048-8-0 in respect  of  pressed cotton recovered from them  during  the same  period less Rs. 3,738-9-6 which was legally  due  from them  thus totaling to Rs. 11,215-13-0.  To this they  added Rs. 1,295-9-6 as interest by way of damages on the aforesaid said amount at the rate of 9 per cent. p.a. In the plaint it was  contended  by the Company that after  the  coming  into force of s. 142A of the Government of India Act, 1935 (which came into effect from 1-4-1939) till January 25, 1950 a  tax on  trade, profession or calling in excess of Rs.  501-  per annum could not be imposed either by a Provincial Government or  by  a Local Body.  Nor again, could an existing  tax  on trade,  profession  or calling be raised further  so  as  to exceed Rs. 501- per annum.  The Company further pointed  out that  after  the coming into force of the  Constitution  the upper  limit of the tax was raised to Rs. 250/per annum  and that as the Company was already paying more than this amount per year even at the rate of one anna per bojha and one anna per bale recovery from them at the enhanced rate of 4  annas was  illegal with effect from April 1, 1939.  The  Municipal Committee contended in its written statement that the provi- sion of s. 142A of the Government of India Act and Art.  276 of  the  Constitution which limit the  tax  on  professions, trades or callings or employments to Rs. 50 and Rs. 250  per annum  respectively  do  not apply to a  case  such  as  the present  where there is no imposition of a new tax but  only an  enhancement of the rate of an 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  Art. 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 s. 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 s. 48 of the Act and that  is  the point which we have to consider in this appeal. Sec. 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 stating the cause of action, the name  and place  of  abode of the intending plaintiff and  the  relief

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which he claims, 505 has  been, in the case of a committee, delivered or left  at its office, and, in the case of any such member, officer  or servant or person as aforesaid, delivered to him or left  at his  office  or usual place of abode, and the  plaint  shall contain  a statement that such notice has been so  delivered or left. (2)Every   such  suit  shall  be  dismissed  unless  it   is instituted within six months from the date of the accrual of the alleged cause of action." Mr.  Patwardhan for the appellant contends that this  was  a case  of recovery of an Illegal tax and, therefore  a  claim for  its refund fell outside the provisions of s. 48 of  the Act.   In support of his contention he relied upon a  number of decisions and we will proceed to examine them. The first of these cases is Municipal Committee, Karania  v. New, East India Press Co. Ltd., Bombay(1).  That was also  a case  where enhancement of a tax was made by  the  Municipal Committee  of Karanja after March 31, 1939 in excess of  Rs. 50 per year payable by one person.  There, a Division  Bench of  the  High  Court  held,  that  the  enhancement  was  in contravention  of  s. 142A of the Government of  India  Act, 1935 and was illegal, that a’ suit for refund of the tax  is maintainable  by  the person who has paid the tax  and  that such a suit is not barred by the provisions of ss. 48, 83 or 84  of the Act.  The relevant ’observations of  Bose  A.C.J. (as he then was) who delivered the judgment are as follows:               "It was then argued that the Civil Courts have               no jurisdiction because of sections 83 and  84               of the Central Provinces Municipalities Act as               applied  to  Berar.   It  was  said  that  Act               provides  for  remedies in cases  of  wrongful               recovery    of    taxes.     Therefore,    the               jurisdiction of the civil courts is barred.               A  large number of cases have dealt with  this               question but we need consider only two of  the               latest   decisions.   In   District   Council,               Bhandara v. Kishorilal (Civil Revision No. 220               of 1946 decided on the 25th June, 1948) one of               us    (Bose,   J.)   held   that    provisions               corresponding to sections 83 and 84 come  into               play  only when the Municipal  Committee  acts               within the scope of its authority, that is  to               say,  when it is acting or purporting  to  act               under  the Municipalities Act.  It is  pointed               out  there in respect of this very section  of               the Government of India Act, sec. 142-A,  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(2), this objection does not               appear to have               (1)  I.L.R.  [1948] Nag. 971.  (2)  [1939]  30               Nag.  T.R. 121 (P.C.)               506               been taken.  It is hardly likely that it would               have-been omitted had there been any force  in               the contention.

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              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  sec. 48 of the Municipalities Act.   There               again the same considerations apply.  Sec.  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               because  its  action  is  something  which  is               prohibited  by law, and so wholly  beyond               its  jurisdiction,  and therefore  section  48               does  not  apply.  The distinction  between  a               case where section 48 applies and a case where               it  does not is clearly shown in  The  Amraoti               Town Municipal Committee v. Shaikh Bhikan(1)". Kishorilal’s  case to which reference is made in  the  above quotation is a decision of a Division Bench upon a reference made by Bose J. and which, though rendered earlier, has been reported in I.L R. 1949 Nag. 87.  In that case a tax imposed by the District Council, Bhandara under a similar  provision of the Local Self Government Act, 1920 at the rate of  three pies  per  khandi on persons carrying on trade  of  husking, milling  or grinding of grains was raised by it to one  anna as  from April 1, 1942 with the sanction of  the  Provincial Government.   It was contended on behalf of  the  respondent that  the recovery was illegal.  Since the  matter  involved the interpretation of s. 142A of the Government of India Act 1935 Bose J, acting under one of the rules of the High Court referred it to a Division Bench.  This is what the  Division Bench held:               "  We are clear that the tax in question is  a               tax which can be so termed.  This was in  fact               conceded in the Court below and the contention               raised  before  us that the persons  who  gave               grain  to Kishorilal for grinding and  not  he               were the traders concerned was plainly  devoid               of  force.  He had a mill and with it  carried               on  the  trade of milling grain.  The  tax  in               question  was  recovered from him  because  of               this  and  it  was one of  the  taxes  hit  by               section 142-A of the Government of India  Act,               1935, and the Professions Tax Limitation  Act,               1941 (XX of 1941)." When  the matter went back before Bose J., it was  contended on  behalf of the District Council that the suit was  barred altogether  by  the  provisions  of  s.  71  and  that   the provisions of s. 73 make the issue of a notice by the Distt. Council a precondition for the institution of a suit of  the kind before him.  Reliance was placed on a (1)I.L.R. [1939] Nag. 216, 219, 220. 507 certain  rule  framed under s. 79(1) (xxix) of  the  Central Provinces  local Self-Government Act, 1920 After quoting  s. 71 and the rule relied on the learned Judge observed:               "It will be observed that both section 79  and               the rule Fire confined to orders and decisions               given under the Act.  It is impossible to  say               that an order which contravenes the law or  is               made  in  the  face of  an  express  statutory

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             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. The King(2) also  in               Hori Ram Singh v. The Crown(2) of which  their               Lordships   approved.   The  question   is   a               difficult one and as Varadachariar J. observed               in the Federal Court decision at p. 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   act               complained     of    and     the     attendant               circumstances."  I  think, however,  that  the               following  test which their Lordships  of  the               Privy  Council laid down concludes the  matter               so far as this Act is concerned.  Their  Lord-               ships say: "A public servant can only be  said               to  act or to purport to act in the  discharge               of his official duty, if his act is such as to               lie  within the scope of his  official  duty."               Now I can understand it being said that an act               which is within the scope of an official  duty               cannot  be taken out of that  category  simply               because   it  is  carelessly  or   negligently               performed,  but I cannot see how an act  which               is expressly prohibited by law can be said  to               lie  there.   If  a  magistrate  directed   to               supervise a sentence of whipping duly  imposed               by a competent Court has the wrong man whipped               by  mistake or imposes more lashes  than  war-               ranted, I can understand him being  protected.               He  is  there acting within the scope  of  his               duty.   But  if,  instead of  having  the  man               whipped. he has him branded with a hot iron he               would not, in my opinion, be able to claim the               protection.  In the same way I cannot see  bow               a Municipal Committee can               (1)A.I.R. [1948] P.C. 128.               (2)[1939] F.C.R. 159.               508               be  said to be acting ’under the Act’ when  it               does that which is expressly prohibited by the               Legislature.   Say it purported to  tax  salt.               Its  action  would not be covered by  sec.  73               because  the  Constitution Act makes  that  an               exclusively  Central  subject.   Say  also   a               municipality  attempted  to tax  marriages  or               births,  that would be completely  beyond  its

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             province and it could not be heard to say that               because  it  has been  given  certain  limited               powers of taxation, therefore it ’purports  to               act’ under the Act whatever the nature of  the               tax  it attempts to impose.  In the same  way,               if the Legislature limits the authority of the               Committee  to  a maximum of Rs. 50  1  do  not               think it can be said to purport to act  within               the scope of the Act if it travels beyond  its               limited provisions." A reference may be made to the decision in The Amraoti  Town Municipal  Committee  v. Shaikh Bhikan(1)  which  apparently takes a contrary view.  There Niyogi J., sitting singly  has held  that  a  suit against a municipal  committee  for  the recovery  of a tax illegally collected is governed by s.  48 of  the  Central  Provinces  Municipalities  Act,  and,  is, therefore,  barred  by limitation if not  filed  within  six months of the. date of the collection of the tax.  That case is,   however,   distinguishable  in  that  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 s. 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 Hiratal v.  Municipal Committee,  Washim(2).  That was also a case in which a  tax on  bojhas  and bales of ginned cotton was raised  from  Re. 0-2-3 per bale to Re. 0-4-0 per bale and the learned  Judges held,  following  the decision in the New East  India  Press Co.’s  case(1) that the enhancement was ultra vires of  Art. 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, however, another decision in the same volume at p. 483 (The Municipality of Chopda v. Motilal Manekchand) which is relevant for consideration in this appeal.  In that  case a Division Bench, while pointing out that the particular tax which was levied by the Municipality was in substance a  tax on trade within the meaning of Art. 276 of the  Constitution and being in (1) I.L.R. [1939] Nag. 216.  (3) T.L.R.. [1948) 971.  (2) I.L.R. [1958] Bom. 625.                             509 excess  of  Rs. 250 p.a. was beyond the  competence  of  the Municipality,  held  that a suit for its refund  beyond  the time   prescribed  by  rules  was  barred   by   limitation. According  to the learned Judges the levy of the tax  though beyond the authority of a Municipality was " an act done  in pursuance  or execution or intended execution of the  Bombay District  Municipal  Act" and was merely a wrongful  act  as distinguished from an ultra vires or illegal act.  In coming to this conclusion they followed a previous decision of  the High  Court in Jalgaon Borough Municipality v. The  Khandesh Spinning and Weaving Mills Co. Ltd.(1). Incidentally we  may mention  that an appeal was brought before this  Court  from that  part  of the decision in The Municipality  of  Chonda, East Khandesh v. Motilal Manekchand Press Factory, Chonda(2) which held that the levy was unconstitutional.  Ayyangar  J.

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who  spoke for the Court has stated towards the end  of  the Judgment as follows:-               "In  the circumstances the correctness of  the               decision  of  the High Court  in  holding  the               impugned  levy  to be a tax on "  callings  or               employments’   and  therefore  subject  to   a               pecuniary  limit of Rs. 250 per year does  not               really    arise   for   consideration.     The               respondent-,  had in their plaint,  no  doubt,               challenged the entirety of the levy and sought               relief  on  that basis, but they  had  however               pleaded in the alternative that the tax  might               be  held  to  be one on  ’a  trade  etc.’  and               therefore  within  Art.  276(2)  and   claimed               relief  on  this footing in  the  alternative.               The  learned  Civil Judge  had  accepted  this               alternative contention and had granted them  a               decree  on that basis and the respondents  had               not   challenged  the  correctness   of   that               decision  by  preferring  an  appeal  and  the               learned Judges of the High Court had  accepted               this  view  of  the nature of  the  levy.   We               however  consider it proper to add that  there               is considerable force in the opinion expressed               by the High Court that the tax in question, at               the date when the same was challenged, being a               levy  imposed  on  persons  carrying  on   the               business  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(3) on which the  High Court relied in Motilal Manekchand’s case, what had happened was  this:  The Municipality acting under s. 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’. (1)  55 Bom.  L.R. 65. (2)  C.A. No. 168 of 1961 decided on March 11, 1962, (3)  55 Rom.  L.R. 65. (N) 4SCI--5 510 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 s.  206  of the  Bombay  Municipal Boroughs Act, 1925  corresponding  to those   of  s.  48  of  the  Central  Provinces  and   Berar Municipalities  Act, 1922 applied to the case.  The  learned Judges  of  the High Court held that what  the  municipality (lid was not an act done in pursuance of the Act, but it was an act which it purported to do in pursuance of the Act  and that  therefore its action was well within the terms  of  s. 206.   In the course of the judgment Bhagwati  J.,  observed that the acts which fell within the category of those  "done or  purporting to have been done in pursuance of  this  Act" could  only  be  those which were done under  a  vestige  or

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semblance  of authority or of a shadow of right.  If an  act was  outrageous and extraordinary or could not be  supported at all, not having been done with a vestige or semblance ’of authority, or a shadow of right invested in the party  doing that act, it would not be an act which is done or  purported to have been done in pursuance of the Act.  The  distinction is  really between ultra vires and illegal acts, on the  one hand, and wrongful acts, on the other-wrongful in the  sense that they purport to have been done in pursuance of the Act; they are intended to have been done in pursuance of the  Act if  they are done with a vestige or semblance of  authority, or a sort of a right invested in the party doing those acts. The  learned  Judge then referred to certain  decisions  and said that under s. 73(iv) of the Act power was given to  the Municipality  to  impose octroi duty on articles  and  goods imported  within its jurisdiction.  What had happened  there was  that the defendants, on the interpretation  which  they gave  to the words "oils used for machinery", did  something which  ultimately,  on an adjudication in that  behalf,  the court  found  to be wrong.  By acting in that way  what  the Municipality purported to do could not be said to be illegal or  outrageous and extraordinary or done without having  any vestige  or semblance of authority or without even a  shadow of a right. Apart from the fact that much of what was said in this  case is  opposed to a recent decision of this Court to  which  we will presently make a reference certain observations made by Bhagwati  J., in fact lend support to the argument  advanced before  us by Mr. Patwardhan.  The observations we  have  in mind  are  to  the effect that where  ,a  municipality,  not having  the  power to levy a particular tax at  all,  either wholly or in regard to some classes of goods, had  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 over stopping 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                             511 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 The Poona  City Municipal Corporation v. Dattatraya Naresh  Deo- dhar(1).  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 Corporation to the respondents.  It was contended on  behalf of  the Corporation that the deduction made by it was  valid and  that  the suit was barred by  limitation.   This  Court upheld   the   contention  of  the  respondents   that   the Corporation had no power to impose the tax and that in  fact there was a prohibition against the imposition of such a tax by  the Corporation.  On the plea of limitation,  which  was founded  upon  the provisions of s. 487 of  the  Bombay  Act which are almost the same as those of s. 48 of the Act  with which we are concerned, this Court observed:               "The   benefit  of  this  section   would   be

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             available  to the Corporation only if  it  was               held  that this deduction of ten per cent  was               ’an  act  done  or purported  to  be  done  in               pursuance  or execution or intended  execution               of  this Act.’ We have already held that  this               levy was not in pursuance or execution of  the               Act.  It is equally clear that in view of  the               provisions  of  s. 127 (4) (to which  we  have               already  referred) the levy could not be  said               to  be ’purported to be done in  pursuance  or               execution  or intended execution of the  Act.’               For,  what  is plainly prohibited by  the  Act               cannot  be claimed to be purported to be  done               in  pursuance  or intended  execution  of  the               Act."               Sub-sec.  (4)  of s. 127 of the Act  to  which               this  Court has referred is in  the  following               terms:               "Nothing  in the section shall  authorise  the               imposition   of  any  tax  which   the   State               Legislature  has  no power to  impose  in  the               State under the Constitution." It is pertinent to bear in mind that the conclusion of  this Court on the question whether the act was "done or purported to  be  done"  under the Act was not based  solely  on  this provision  and  reliance  wag placed upon  it  as  affording additional support to the conclusion already arrived at.  It seems  to  us  that this provision was  enacted  by  way  of abundant caution.  For, the Constitution is the (1)[1964] 8 S.C.R. 178. 512 fundamental law of the land and it is wholly unnecessary  to provide  in  any law made by the Legislature  that  anything done in disregard of the Constitution is prohibited.  Such a prohibition  has  to  be  read  in  every  enactment.   This decision does appear to conclude the matter. During  the pendency of the suit before the trial court  the appellant  had  preferred a writ petition  before  the  High Court at Nagpur in which it contended that the  notification of April 10, 1941 enhancing the tax from one 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 4 annas per no ha and 4 annas  per               bale,   that  both  under  s.  142-A  of   the               Government  of India Act and Art. 276  of  the               Constitution  the  Municipal  Committee  could               collect such a tax to the constitutional limit

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             (which  was formerly Rs. 50 p.a. and is  after               the coming into force of the Constitution  Rs.               250 p.a.). The mischief, according to him,  is               not  in the levy but in the realisation of  an               excess over the limit.  To put it differently,               the  ban is not upon the rate of tax but  upon               excess  collection  thereof.   Therefore,  the               collection  of a tax above the  constitutional               limit  was not without jurisdiction  but  only               illegal  or irregular.  A suit by an  assessee               to recover the amount paid by him in excess of               the constitutional limit would therefore be in               respect  of  a matter "purported to  be  done"               under  the Act and the provisions of s. 48  of               the  Act would apply to it. Further  according               to  him  every suit against  a  Committee  for               anything  done or purported to be  done  under               the  Act must comply with the conditions  laid               down  in the section.  He points out that  the               assessment of the tax was made by an authority               competent  to  make  an  assessment,  that  in               making   it   the   authority   proceeded   in               accordance with the provisions of the Act  and               assessed the tax as authorised by Rules  which               had  been sanctioned by the former  Government               of  Central Provinces and Berar.  So, even  it               is assumed that any of               513               the  Rules were ultra vires and therefore  the               assessment   and  recovery  of  the  tax   was               illegal,  what  the  authority  had  done  was               something purported to be done under the  Act.               Some of these arguments were advanced in cases               discussed earlier               and rejected. In  support  of  his contention he placed  reliance  on  the decisions  in  Richard  Spooner  and  Bomanjee  Nowrojee  v. Juddow(1)  and Dhondu Dagdu Patil v. The Secretary of  State for  India(2).  These cases were not pressed in aid  in  the decisions so far considered and we would deal with them now. Before we deal with these cases it is necessary to point out the rationale upon which s. 142-A of the Government of India Act,  1935  was  enacted  and  on  which  Art.  276  of  the Constitution now rests.  It is that the legislative  spheres of  the  Provinces  and  the  Centre  came  to  be   clearly demarcated in regard to items falling within Lists 1 and  11 of  Schedule VII of the Government of India Act and  now  to those  falling within the same lists of Schedule VII of  the Constitution.   Taxes on professions, trades,  callings  and employments  are  taxes on income 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 s. 100 of  the Government of India Act.  When this was realised  s. 142-A 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  Art. 276 of the Constitution with the modification that the upper limit of such tax payable per annum would be Rs. 250 instead

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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, the first was one  in  which  the question  considered  by the Privy Council was  whether  the Supreme  Court at Bombay was competent to entertain  a  suit for   recovery  of  damages  brought  by  one   Harkissondas Hurgovindass  against the Collector of Bombay and others  in respect  of  trespass  and  nuisance  committed  by  certain officers  of the Collectorate while purporting to execute  a distress  warrant  issued against one  Narrondass  for  non- payment  of  arrears  of land revenue.   Under  the  Letters Patent  dated Dec. 8, 1823 the jurisdiction of  the  Supreme Court was barred "in any matter concerning the revenue under the management of the (1) 4 MI.A. 353, 379. (2) I.L.R. 37 Bom. 101, 106. 514 said  Governor and Council of Bombay  respectively......  or concerning any act done according to the usage and  practice of  the  country,  or the regulations of  the  Governor  and Council  of  Bombay  aforesaid."  Similar  provisions   were contained  in  s.  8 of Statute 21 Geo.  111,  c.  70.   The Supreme  Court over-ruled the defendant’s contention on  the ground that what was due from the plaintiff was not  revenue but  a  perpetual ground rent which was incapable  of  being enhanced and could not be regarded as revenue at all.  After holding  so Lord Campbell who delivered the opinion  of  the Judicial Committee observed:               "The   point,  therefore,  is,   whether   the               exception  of jurisdiction only  arises  where               the Defendants have acted strictly,  according               to the usage and practice of the contrary, and               the  Regulations of the Governor and  Council.               But  upon  this  supposition  the  proviso  is               wholly  nugatory; for if the Supreme Court  is               to  inquire  whether the  Defendants  in  this               matter  concerning  the  public  revenue  were               right  in  the demand made, and to  decide  in               their favour only if they acted in entire con-               formity to the Regulations of the Governor and               Council  of  Bombay,  they  would  equally  be               entitled  to succeed, if the Statutes and  the               Charters contained no exception or proviso for               their  protection.  Our books  actually  swarm               with decisions putting a contrary construction               upon such enactments, and there can be no rule               more firmly established, than that if  parties               bona  fide and not absurdly believe that  they               are  acting  in  pursuance  of  Statutes,  and               according  to  law, they are entitled  to  the               special   protection  which  the   Legislature               intended for them, although they have done  an               illegal act.  In this case it may well be that               the  warrant against the goods  of  Tookaydass               did  not authorise the taking of the goods  of               Hurgovindass, or even that Hurgovindass  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

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             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               515               facie it appeared to be a trespass over  which               his jurisdiction might be properly exercised." This  case would have assisted Mr. Sastri only if  what  was done was something which could legally have been done by the Municipality  but was wrongly done by it as,  for  instance, the collection of a lawful tax from a person other than  the one from whom it was due.  But this decision is no authority for the proposition that if the Collector recovered or tried to  recover from a person a sum of money as arrears of  land revenue even though it did not fall within the definition of revenue  or  tried to collect a sum of money  which  he  was expressly -prohibited by law from collecting, he would still be said to have purported to act under the revenue law which empowered  him  to  collect  land revenue.   If  an  act  of trespass  was committed in execution of a  distress  warrant for  recovery of such monies. a suit for damages would  not. have been barred. in  the next case what the High Court was dealing  with  was the  claim  of  the plaintiff  against  the  Government  for damages  occasioned  by  the wrongful  cancellation  of  his licence to sell liquor.  The suit had been dismissed by  the trial  judge  as barred by the provisions of s.  67  of  the Bombay  Abkari Act, 1878, firstly because the Collector  had acted bona fide in pursuance of the Act and secondly because it  was not instituted within four months from the  date  of the act complained of.  The High Court upheld the  dismissal of the suit and in the course of its judgment observed:               "It is quite true that the Collector’s  action               is not strictly in conformity with the section               which  authorises the revocation only  on  the               actual  conviction of the licensee.   But  the               circumstances under which the Collector  acted               are   so   near  the   circumstances   legally               entitling  him to act as he did that  we  feel               bound to say the act was done in pursuance  of               the  Statute.  The law upon this point may  be               found  stated in many cases, of which  we  may               notice    Hermann   v.    Saneschal(1).     In               strictness,  anything  not  authorized  by   a               Statute  cannot be said to be in pursuance  of               it,  while if it is authorized by the  Statute               clearly  it  would need no  other  protection.               But   if   effect  were  given   to   such   a               construction it would altogether do away  with               the   protection   intended   to   be   given;               accordingly  the general principle is that  if

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             any  public or private body charged  with  the               execution of a Statute honestly intends to put               the   law  in  motion  and  really   and   not               unreasonably  believes  in  the  existence  of               facts.  which, if existent, 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(2) also. Mr.  Sastri  laid  particular  emphasis  on  the  concluding portion (1) (1862) 32 L.J.C.P. 43. (2) 4 M.I.A. 353, 379. 516 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 s. 142-A of the Government of India  Act,  1935.   The levy of tax at  that  rate  cannot, therefore, be regarded to be beyond the jurisdiction of  the respondent  so  long  as the constitutional  limit  was  not exceeded.   What  is, however, contended on  behalf  of  the appellant is that the action of the Committee in  compelling it  to  pay  the  tax in excess  of  the  amount  which  was constitutionally  recoverable from it in respect of any  one year was ultra vires, that thereby the provisions of section 142-A have been transgressed and, therefore, this was a case of utilization by the Committee of the provisions of the Act and the rules made thereunder for doing something which  was prohibited by the Government of India Act, 1935 and is  now, by  the  Constitution.  It is true that  the  Committee  had jurisdiction  to recover an amount up to the  constitutional limit.  But it cannot fairly be contended on its behalf that merely because of this, that the recovery by it of an amount in excess of the constitutional limit was only irregular  or at  the  worst illegal.  Where power exists  to  assess  and recover a tax up to a particular limit and the assessment or recovery  of  anything above that amount is  prohibited  the assessment  or  recovery of an amount in  excess  is  wholly without  jurisdiction and nothing else.  To such a case  the Statute  under  which action was purported to be  taken  can afford no protection.  Indeed, to the extent that it affords protection,  it  would  be bad.  But  where,  as  here,  the validity  of a provision of a statute can be upheld  upon  a possible construction of that provision it would be the duty of  the  court to so construe it as to avoid  rendering  the provision  unconstitutional and reject a construction  which will invalidate the provision. The  final contention urged by Mr. Sastri is based upon  the decision of the Privy Council in Raleigh Investment  Company Ltd.  v.  Governor-General in Council(1).  His  argument  is that  the  Municipalities Act contains  adequate  provisions dealing  with refund of taxes and that the provisions of  s.

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85(2) bar a suit for recovery of a (1)74 I.A. 50. 517 tax wrongfully recovered by the Municipal Committee.  It may be mentioned that the contention was not raised in the  suit or  in the grounds of appeal before the High Court  and  has not therefore been considered by it.  It has been raised for the  first time in the statement of case.  But the scope  of an appeal cannot, even at the instance of the respondent who is  entitled to support a decree 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  consider- able  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(1) we  may refer  to the provisions of the Act which Mr. Sastri  placed before  us.  Sec. 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-s. (1-A)  for  a revision before the State Government.  Sub-sec. (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 s. 31(1) or s. 33(4) of the Indian  Income-tax Act entitling the assessee to a hearing either in the appeal or revision petition.  Section 85 empowers the State Govern- ment  to make rules for regulating the refund of taxes,  and such  rules  may impose limitations on such  refunds.   Sub- section (2) thereof provides that no refund of any tax shall be claimable by any person otherwise than in accordance with the  provisions ’of this Act and the rules made  thereunder. This sub-section can be availed only if the Act or the rules provide  for making a claim for refund.  The rules  relating to  refunds,  if there are any, were,  however,  not  placed before us.  Nor was our attention drawn to any provision  of the  Act  or to any rule which makes it  obligatory  upon  a person to apply to the Municipal Committee for a refund of a tax.   Even assuming that the Act contemplates  obtaining  a refund only upon compliance with rules made thereunder, does it contemplate cases where refund or repayment on the ground of the unconstitutionality of the levy?  It will be  noticed that   sub-s.  (1)  of  this  section  empowers  the   State Government  to impose by rules limitations on  the  refunds- presumably including limitation on the amount of refunds-and sub-s.  (2)  bars  a  claim for  refund  otherwise  than  in accordance  with  the rules made under  sub-s.  (1).   These provisions cannot possibly apply to case where the right  to obtain  a refund or repayment is based upon the ground  that the   action  of  the  Committee  was  in  violation  of   a constitutional  provision.  To hold otherwise would lead  to the startling result (1)74 I.A. 50. 518 that what was incompetent to the State Legislature to do  or authorise a committee to do directly can be permitted to  be done  indirectly by empowering the State Government to  make rules for refund where under the amount ’of refunds could be so limited as  to  permit retention by the committee of  the tax recovered by it in  excess of the constitutional  limit. In our view, therefore, s.    85  of the Act cannot, in  any

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event, be said to provide a machinery for obtaining  refunds in  cases  of  this kind.  Since s. 85  is  inapplicable,  a fortiori  s.  83  cannot apply either.   We  must  therefore proceed  on  the  footing that the Act does  not  provide  a machinery for making a claim for refund or repayment in such cases. It would be pertinent to advert also to the provisions of s. 84,   sub-s.  (3)  of  which  deals  with  "Bar   of   other proceedings".   Sub-s.  (1)  provides  for  the  period   of limitation  for  an  appeal under s.  83(1).   Sub-sec.  (2) empowers the appellate authority to require the assessee  to deposit  the tax before the hearing or the decision  of  the appeal.  Sub-sec. (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 s.  67  of  the Indian  Income-tax  Act,  1922.   In  fact  s.  48  of   the Municipalities  Act contemplates the institution of  a  suit subject  to  fulfillment  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-s. (3) of s. 83, In other words, no finality seems  to  have  been given to a  decision  rendered  by  an authority under s. 83 refusing to refund a tax improperly or ’File  -ally assessed or recovered.  In the light  of  these circumstances  we have to consider the applicability of  the decision in Raleigh Investment Co.’s case(1).  In that  case the   Privy  Council  considered  the  effect   of   certain provisions   of  the  Indian  Income-tax  Act,  1922   which prescribed  remedies to an assessee who sought to  challenge the  assessment made against him and also the provisions  of s.  67.   The relevant portion of s. 67 was  that  "no  suit shall  be brought in any civil court to set aside or  modify any   assessment  made  under  this  Act............   After examining  all these provisions the Privy Council said  that an  effective and appropriate machinery was provided by  the Act  itself for the review of any assessment on  grounds  of law,  including the question whether a provision of the  Act was ultra vires and it was in that setting that s. 67 had to be  construed.   Then  it went on to  say  that  the  phrase "assessment  made  under  this  Act"  in  s.  67  meant   an assessment  finding  its  origin  in  an  activity  of   the assessing  officer acting as such and that the  circumstance that (1)74 I.A. 50.                             519 he  had taken into account an ultra vires provision  of  the Act  was in that view immaterial in determining whether  the assessment was " made under this Act." But, with respect, we find  it difficult to appreciate how taking into account  an ultra  vires provision which in law must be regarded as  not being a part of the Act at all, will make the assessment  as one  ’under  the  Act’.   No doubt  the  power  to  make  an assessment is conferred by the Act and, therefore, making an assessment would be within the jurisdiction of the assessing authority.   But  the  jurisdiction can  be  exercised  only according,   as  well  as  with  reference,  to  the   valid provisions of the Act.  When, however, the authority travels beyond the valid provisions it must be regarded as acting in

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excess of its jurisdiction.  To give too wide a construction to  the expression "under the Act" may lead to  the  serious consequence  of attributing to the legislature,  which  owes its  existence itself to the Constitution, the intention  of affording  protection  to  unconstitutional  activities   by limiting  challenge  to them only by resort to  the  special machinery  provided  by it in place of the  normal  remedies available  under the Code of Civil Procedure, that is, to  a machinery which cannot be as efficacious as the one provided by  the general law.  Such a construction might  necessitate 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(1). This decision has been briefly referred to by this Court  in Firm  and  Iliuri  Subbayya Chetty & Sons v.  The  State  of Andhra Pradesh(2) and what this Court has observed is this:               "In determining the effect of s. 67, the Privy               Council  considered the scheme of the  Act  by               particular reference to the machinery provided               by   the   Act  which  enables   an   assessee               affectively  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 pro-               vision  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  wants   to               challenge the vires of the taxing provision on               which  an assessment is purported to  be  made               against him, it would be open to him to  raise               that  point  before the taxing  authority  and               take it for a decision before the Court  under               s. 66(1) of the Act.  It is not necessary  for               us to consider whether this assumption is well               founded  or  not.   But the  presence  of  the               alternative machinery by way of               (1) 74 I.A. 50.               (2) (1964) 1 S.C.R. 752 at 764,               520               appeals which a particular statute provides to               a  party aggrieved by the assessment order  on               the  merits, is a relevant  consideration  and               that  consideration  is satisfied by  the  Act               with  which  we are concerned in  the  present               appeal." We have already adverted to the provisions of ss. 83 and  85 of  the  Act which are the only provisions  brought  to  our notice   as  providing  a  machinery  under  the   Act   for challenging an assessment and we have pointed out that  they do  not cover a case like the present.  Again the  provision for  an  appeal  before  a Deputy  Commissioner  who  is  an authority  who performs numerous functions  under  different laws, functions which are executive, as well as  administra- tive  and  judicial, cannot be regarded as on par  with  one which  provides for an appeal before an Appellate  Assistant Commissioner  under the Income-tax Act, an  authority  whose

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duties  are  confined  to matters arising  under  that  Act. Further, the latter Act contains a safeguard in the shape of an  appeal to the Income-tax Appellate Tribunal which  deals exclusively  with matters arising under that Act and  is  an independent tribunal.  In the circumstances it must be  held that  even in the class of cases to which the provisions  of ss. 83 and 85 of the Municipalities Act apply they cannot be said  to  provide  a sufficiently  effective  remedy  to  an assessee to challenge the assessment made against him or  to a  person  who is aggrieved by the action of  the  Committee levying  or refusing to refund a tax.  It is true that  Sub- sec. (2) of s. 83 provides for a reference to the High Court but even that provision cannot be said to be a  sufficiently efficacious remedy for challenging the assessment made on an assessee.  For whether to make a reference or not is at  the discretion of the appellate or revisional authority and  the Act  does  not confer upon the person aggrieved a  right  to move the High Court, as does the Income-tax Act, to  require a reference to be made in an appropriate case.  We may again point  out that there is a complete absence of  a  provision corresponding to s. 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.(1) 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 and  Illuri Subbayya Chetty & Sons(2).  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 s. 67 of the Indian (1) [1940] 67 T.A. 222,226. (2) [1964] 1 S.C.R. 752 at 764. 521 Income-tax Act, so far as s. 83(3) of the Act is  concerned, we  find  it  reasonably  possible to  construe  it  as  not depriving  a  person of his right to obtain redress  from  a civil court in respect of an amount recovered from him as  a tax in violation of Art. 276 of the Constitution. We have already pointed out that no machinery is provided by the Act for obtaining a refund of tax assessed and recovered in excess of the Constitutional limit and that the machinery actually provided by the Act is not adequate for enabling an assessee  to challenge effectively the constitutionality  or legality of assessment or levy of a tax by a municipality or to  recover from it what was realised under an invalid  law. It   is,   therefore,  not  possible  to  infer   that   the jurisdiction of the civil court is barred.  The decision  in the  Raleigh Investment Co.’s case(1) does  not,  therefore, help  the  respondent.  Moreover, we must bear in  mind  the provisions  of Art. 265 of the Constitution  which  preclude the levy or collection of a tax except by authority of  law, which  means only a valid law.  There was  no  corresponding provision  in the various Acts for the governance  of  India which  preceded  the  Constitution.   Under  Art.  226   the Constitution  has provided a remedy to a citizen  to  obtain redress  in  respect of a tax levied or collected  under  an invalid  law.   This  remedy will not  be  affected  by  any

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provision like s. 67 of the Indian Income-tax Act or like s. 84(3) of the Municipalities Act. We  must not lose sight of the fact that what the  appellant has  claimed in the suit is the repayment by  the  Municipal Committee  of  an amount recovered by it in excess  of  that which  under  the Constitution it was competent  to  recover from the appellant.  The appellant has not sought to  modify or  set  aside  any order made by  an  authority  acting  or purporting  to act under the Act.  No doubt, the  relief  of repayment  is claimed on the ground that the enhancement  of the rate is unconstitutional.  No doubt also that the appel- lant had sought a further relief of injunction.  As  regards the first, the position is that the High Court of Nagpur has held,  in  the  petition under Art.  226  preferred  by  the appellant,  the enhancement to be unlawful.   This  decision was  rendered by the Court during the pendency of  the  suit and  was  binding on the civil court in which the  suit  was pending and has been in fact followed by it.  As regards the relief of injunction, that relief became unnecessary because of  the order made by the High Court 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 by or collection of the tax  but only to ascertain the amount which was payable to the appel- lant and whether the suit was barred under s. 48 or s. 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  s.   84(3)   of   the Municipalities  Act  in the same way as  the  Privy  Council interpreted s. 67 of the Indian Income-tax Act. (2)74 1.A. 50. 522 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(1)  or where 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  instrumentalities  in   transgressing   that prohibition  must  be  regarded as being in  excess  of  its jurisdiction.   Here there is a prohibition in s.  142-A  of the  Government  of  India Act and now in Art.  276  of  the Constitution, which preclude a State Legislature from making a law enabling a local authority to impose a tax on "profes- sions,  trades, callings and employments" in excess  of  Rs. 250 per annum.  These provisions have to be read in the  Act or  to  be  deemed  by  implication  to  be  there  as   the Constitution  is the paramount law to which all  other  laws are subject as was the Government of India Act, 1935  before January 26, 1950.  If therefore, after the date specified in s.  142-A  of  the  Government of India  Act  or  after  the commencement of the Constitution a local authority or any of its  instrumentalities imposed or imposes a tax which is  in excess of the permissible amount, it would be exceeding  its jurisdiction  and a provision like s. 84(3) of the Act  will not  bar  the jurisdiction of a civil court to  entertain  a suit  instituted by a person from whom it is  collected  for the  repayment of the money recovered from him in excess  of the permissible amount.  There is a real distinction between those cases where a suit was held to be incompetent and  the kind  of  cases  which we have before us.   Thus  where  the

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question  merely  is, whether the assessment had  been  made according to law, the Assessing Officer of the  Municipality having  jurisdiction  on  the subject matter  and  over  the assessee the provisions of s. 84(3) may be a bar to a  suit. Where,   however,   the  question  raised  is  as   to   the jurisdiction of the Assessing Officer to proceed against the assessee and levy on or collect from him an amount in excess of  that permitted by the Constitution, the matter would  be entirely  out of the bar of that provision.  Here since  the Assessing Officer had no authority to levy a tax beyond what s.  142-A of the Government of India Act, 1935 permitted  or what Art. 276 permits his proceedings are void in so far  as they  purport  to levy a tax in excess  of  the  permissible amount and authorise its collection and the assessment order is  no  answer to the suit for the recovery  of  the  excess amount.  To this extent, even the order of assessment cannot obtain the protection of s. 84(3) of the Act and, therefore, the appearances’ 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 costs throughout. (1)[1964] 8 S.C.R. 178. 523 Raghubar Dayal J. We have given careful thought to the ques- tions 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:  (i)   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  Art.  276  of  the Constitution, was ’an act done or purported to be done under the  Act’  within  the meaning of s. 48(1)  of  the  Central Provinces & Berar Municipalities Act, 1922 (Act 11 of 1922), hereinafter  called the Act-, and (ii) whether the  suit  is barred by s. 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  strict conformity with the provisions of the Act or will also cover such  acts which the Municipal Committee is competent to  do under the Act, but in doing which the Committee has, in some manner, acted beyond the provisions of the Act or beyond any other legal provision. Section 48 of the Act refers to suits against the  Committee or  any  of  the other specified persons  acting  under  the directions of the Committee, for anything done or  purported to be done under the Act.  If a suit is for anything done or purported to be done under the Act, the necessary conditions laid  down  in the section are to be  satisfied  before  the institution of the suit.  One condition is that the suit  is to  be instituted after the expiration of two  months  after the  service  of  a  notice,  in  writing,  to  the  persons mentioned in sub-s. (1).  Another is that suit be instituted within  six months from the date of accrual of  the  alleged cause  of action.  If a suit is not instituted after  giving notice or within this period, it has to be dismissed. The question then is: what is the present suit for?  And  it is  only  on the determination of the nature of the  act  to which  the present suit relates that it can be said  whether the  suit is covered by s. 48 for not i.e., whether the  act can  be  said to be done or purported to be done  under  the

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Act. The plaintiff claims a decree for the amount alleged to have been illegally collected from him as tax and for a permanent injunction.  The illegality of the collection is said to  be on  account of there being an upper limit for a person  ,  s liability to tax on trade and calling, in view of s. 142A of the  Govern of India Act, 1935 (shortly referred to  as  the 1935 Act) and Art. 276 of the Constitution.  The limit under the  Constitution is Rs. 250.  It was Rs. 50 under the  1935 Act.   What  was collected from the appellant  was  the  tax assessed  on  him.  According to the appellant,  the  amount assessed  exceeded  the legal limit and therefore  what  had been  collected  in  excess  of  that  limit  was  collected illegally. 524  We  may  now  consider  the procedure  laid  down  for  the collection  of  tax under the Act before  we  determine  the nature  of the alleged excessive collection of tax from  the appellant.  Section 66 empowers the Committee to impose  the taxes  enumerated  in sub-s. (1), clause (b)  of  subs.  (1) mentions a tax on persons exercising any profession 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 annual 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 tinder 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 s. 142A of the 1935 Act  and that  it was also invalid to the extent it offended  against art.  276 of the Constitution.  The writ issued by the  High Court  was a writ of mandamus prohibiting  the  Municipality from  resorting to the 1941 Notification for the purpose  of collecting  tax  in  excess  of  Rs.  250  per  annum.   The Municipality  therefore  was  empowered  to  impose  tax  in accordance with the notification of 1941 and, in view of  s. 142A  of the 1935 Act and art. 276 of the Constitution,  the total  tax  claimable  on  account  of  this  tax  from  the appellant  could not exceed Rs. 50 or Rs.  250  respectively during the period when s.     142A  was in force  and  later when art. 276 came into force. The  next  step,  after  the  imposition  of  a  valid  tax, according  to the Act, relates to the assessment of  tax  on the  person’s liability to pay it.  Section 71 empowers  the State  Government  to make rules under  the  Act  regulating assessment  of  tax  and  for  preventing  the  evasion   of assessment  and s. 76 empowers the State Government to  make rules  regulating  the collection of taxes.  The  rules  for assessment  and  collection  of taxes framed  in  1936  were notified on December 22, 1936.  Rule  1 required a person carrying on the trade of  ginning or  pressing  cotton  into  bales  by  means  of  steam   or mechanical process to furnish to the Committee, annually,  a return in the prescribed form which required the  furnishing

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of  the  number  of bojhas ginned and the  number  of  bales pressed,  with  the  total  weight  in  maunds  during   the financial year in each case.  This information was necessary as  the  rate of tax related to a bojha of 392  lbs.  ginned cotton and a bale of 392 lbs. pressed cotton. 525 Rule  4  provided that the tax would be assessed by  a  sub- committee  on  the basis of the information  received  under certain   rules  including  r.  1.  Rule  5   required   the communication  of the amount of assessment to the  assessee. Rule  6 provided that objections to the assessment would  be received  and considered by the sub-committee  if  presented within a month from the date of communication of the  amount of  assessment to the assessee and that the decision of  the sub-committee would be final subject to the confirmation  by the  general committee.  Rule 7 provided that the tax  would be payable in one instalment on August 1, each year.   Fresh rules  were  notified  in 1941 and  these  were  practically identical with the 1936 rules. It  is  not alleged that the tax assessed on  the  appellant during  the  periods  in  suit  had  not  been  assessed  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-s.  (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-s. (2) provides for a reference to the High Court by the appellate authority or the  revisional authority  on  its own motion or on the application  of  any person interested, for the opinion of the High Court on  any question as to the liability or the principle of  assessment of  tax  if  such a question arises on the  hearing  of  the appeal or revision.               sub-s. (3) of S. 84 Provides               "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,"               p(N)4SCI-7               526               Section 85 reads:               "(1) The State Government may make rules under               this  Act regulating the refund of taxes,  and               such  rules  may impose  limitations  on  such               refunds.               (2)No refund of any tax shall be  claimable               by  any  person otherwise than  in  accordance               with the provisions of this Act and the  rules               made thereunder."

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It follows from the above provisions that an assessee has to pay  the  tax  assessed  and  that  if  aggrieved  with  the assessment  of tax he has to appeal against  the  assessment order.   He  can  raise questions of law  and  fact  in  the appeal. The  appellant,  in the present case,  could  have  appealed against  the  assessment  on  the  ground  that  the  amount assessed exceeded the limits laid down for the tax under  s. 142A  of  the  1935  Act if that  applied  at  the  time  of assessment  or  under art. 276 of the  Constitution  if  the latter  applied  at the relevant time.  His  claim  for  the refund  of any amount, if paid, would arise only  after  the amount  assessed  and paid is modified by the  appellate  or revisional authority.  If that amount is not so modified, no question  for the refund or repayment of any amount paid  as tax  under  the Act arises.  The statute  provided  for  the assessment  of  tax  and  for its  collection  in  case  the assessee  did not himself pay the assessed amount  according to  the  rules.  The present suit for the repayment  of  the amount alleged to have been realised illegally is in essence a,  suit for firstly modifying the amount assessed and  then to  decree the payment of the amount held to have been  paid in  excess of the tax as modified by the Court.  It  follows therefore, to our mind, that the suit relates to the act  of the Committee in assessing the appellant wrongly by ignoring the  constitutional provision that the amount payable  by  a single  person to the municipality 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 upto 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 Linder  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-s, (1) of s. 48 of the Act.                             527 Sub-s. (2) of s. 48, as already stated, provides that  every such  suit,  i.e. a suit falling within Sub-s. (1)  of  that section,  shall be dismissed unless it is instituted  within six months from the date of the accrual of the alleged cause of  action.  The suit was instituted in the instant case  on December  6,  1952,  more than 8 months after  the  date  of recovery  of  most  of  the amounts  alleged  to  have  been illegally  recovered  from the appellant and,  clearly,  the suit for the recovery of such amounts bad to be dismissed. The  taxes  for the years 1951-52 were  recovered  in  small amounts on January 17, 1952, March 13, 1952, March 31,  1952 and  August 27, 1952.  The suit for the amount recovered  on January   17  was  also  instituted  after  the  period   of limitations No notice with respect to the alleged illegal collection  of taxes  in  March  and  August 1952 had  been  given  to  the Municipal Committee as notice was given on January 10, 1952, prior  to  these  collections and could  not  have  possibly

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referred to them.  The suit for these amounts also has to be dismissed as the condition precedent for the institution  of the suit under sub-s. (1) of s. 48 has not been satisfied. There is another reason which justifies the dismissal of the appellant’s suit, though the view of the High Court on  that point  is in favour of the appellant.  In view of  s.  84(3) the  assessment  of the tax or the liability of  the  person assessed  or  taxed cannot be objected to in any  manner  or before any authority other than what is provided in the Act. Section 83 provides the procedure by which the assessment of tax   can  be  questioned  both  on  law  and  facts.    The correctness  of the assessment cannot be questioned  by  any other  manner and questioning by instituting the suit  in  a Civil Court would be one such other manner.  We have already indicated that in essence the present suit is a suit for the modification  of  the taxes assessed and  for  consequential order  decreeing  the repayment of the amount held  to  have been collected in excess of the amount so modified.  In view of sub-s. (3) of s. 84. exclusive jurisdiction to  determine the  correctness  of  the amount assessed is  given  to  the authorities mentioned in s. 83.  The result is that no other authority can enter into the question of the correctness  of the assessment on grounds of law or fact.  The present  suit is barred from the cognizance of the Civil Court. The views we have expressed find support 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 s. 142A or art. 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 ss, 48 and 83 -of the Act. 528 In  Raleigh  Investment  Co.  Ltd.  v.  Governor-General  in Council(1)  the Privy Council had to construe s. 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  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  injunction restraining the department from making assessment in  future years in respect of such dividends and for the repayment  of the  amount said to have been illegally realised on  account of the illegal assessment.  The Privy Council said at p. 62:               "In  form the relief claimed does not  profess               to  modify  or set aside the  assessment.   In               substance  it does, for repayment of  part  of               the sum due by virtue of the notice of  demand               could not be ordered so long as the assessment               stood."               The same can be said with respect to the claim               for   repayment   of   the   alleged   illegal               collection  of  the  excess  amount  from  the               appellant.               The Privy Council further said:               "An   assessment  made  under  the   machinery               provided  by the Act, if based on a  provision               subsequently held to be ultra vires, is not  a

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             nullity  like  an  order of  a  court  lacking               jurisdiction.  Reliance on such a provision is               not an excess of jurisdiction but a mistake of               law made in the course of its exercise." In view of what the Privy Council has said, the  Committee’s overlooking the constitutional provisions in the exercise of its  jurisdiction  to  assess  the tax  will  not  make  its assessment of the tax an assessment without jurisdiction but would only show that the Committee mad-. a mistake of law in the course of the exercise of its jurisdiction. The Privy Council took into consideration the machinery pro- vided  in  the  Income-tax  Act  for  the  assessee  raising objections to the assessment made against him and held  that effective  and  proper  machinery was provided  by  the  Act itself  for the review on grounds of law.  This was  however not  the reason for their construing s. 67  in the way  they did.  In fact, they considered the construction of 67 clear and said:               "Under  the  Act  the  income-tax  officer  is               charged  with the duty of assessing the  total               income of the assessee.  The obvious  meaning,               and  in their Lordships’ opinion, the  correct               meaning, of the phrase ’assessment made  under               this Act’ is an assessment               (1)   LR. 74 I.A. 50.                                    529               finding  its  origin  in an  activity  of  the               assessing   officer   acting  as   such.   the               circumstance  that the assessing  officer  has               taken into account an ultra vires provision of               the   Act  is  in  this  view  immaterial   in               determining  whether the assessment  is  ’made               under  this  Act’.  The phrase  describes  the               provenance  of  the assessment:  it  does  not               relate  to its accuracy in point of law.   The               use of the machinery 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-s. (1) of s. 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 assess- ment 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  s. 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 be inconsistent with the statutory obligation to pay arising by virtue of the assessment.   The very fact that the appellant let the assessment become final without  taking  recourse  to the procedure  of  appeal  and revision  laid  down  in s. 83 of the Act  and  thus  became liable  under the statute to pay the amount assessed,  makes his  questioning the correctness of the amount  through  the Court  inconsistent with that obligation.  It  appears  that the Privy Council considered a special provision barring the

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taking of objection to assessment of tax by any authority to be unnecessary.  It said at p. 65 : "The  only  doubt,  indeed, in  their  Lordships’  mind,  is whether  an  express  provision was necessary  in  order  to exclude jurisdiction in a civil court to set aside or modify an assessment." This  would meet the contention for the appellant that  sub- s.,  (3) of s. 84 does not specifically refer to  the  Civil Court  and therefore does not specifically bar  jurisdiction of the Civil Court from taking cognizance of a suit relating to the assessment of tax. It  may also be mentioned that s. 84(3) of the Act,  by  its terms,  refers  to  an objection to assessment  and  not  to ’assessment under the Act or assessment made under the Act’. This  makes the provisions of s. 84(3) much wider  in  scope than those of s. 67 of the Indian Income-tax Act were. 630 The  other case we would refer to is Firm & Illuri  Subbayya Chetty  &  Sons  v. The State  of  Andhra  Pradesh(1).   The appellant before this Court, in that case, sued the State of Andhra  Pradesh  for a decree for a certain  amount  on  the ground  that  amount had been illegally  recovered  from  it under  the Madras General Sales Tax Act, 1939.  Section  18A of that Act provides that no suit or other proceeding shall, except  as expressly provided in the Act, be  instituted  in any  Court to set aside or modify any assessment made  under the  Act.  This provision is practically identical in  terms with  that  of s. 67 of the Income-tax Act  which  had  been considered  by the Privy Council in Raleigh’s Case(2).   The contention  raised before the Court was that if an order  of assessment  had been made illegally by the proper  authority purporting  to  exercise its powers under the Act,  such  an assessment could not be said to be an assessment made  under the  Act.  It was also contended that the use of  the  words ’any assessment made under this Act’ did not cover cases  of assessment which purported to have been made under the  Act. This Court said at p. 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 s, 18A." The view expressed by this Court is practically the same  as had been expressed in Raleigh’s Case (2).  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  tax  being leviathan  on  purchases  and  not  on  sales.   This  Court referred to Raleigh’s Case(1) at p. 764 and did not  express an  opinion, on the view of the Privy Council that even  the constitutional  validity  of the taxing provision  could  be challenged  by  adopting  the procedure  prescribed  by  the Income-tax  Act,  a  question  which  does  not  arise   for

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consideration in the present case. We are therefore of opinion that the construction put on the expression  ’assessment  made under the Act’  in  these  two cases  justifies the conclusion that the assessment  of  tax made on the appellant in this case is covered by sub-s.  (1) of s. 83 of the Act and  (1)  [1964] 1 S.C.R. 752. (2) 74 I.A. 50 531 amounts to ’an act done, under the Act’ for the purposes  of sub-s. (1) of s. 48 of the Act.  It is therefore unnecessary to  determine the scope of the expression ’an act  purported to be done under the Act’ in sub-s. (1) of s. 48. We may now briefly deal with the cases relied on for the ap- pellant. Before,  however, doing so, we may first deal with the  case of  Poona  City Municipal Corporation v.  Dattatraya  Naresh Deodhar(1)  decided by this Court.  In this case  the  Poona Municipality had imposed a tax on the amount of octroi  duty which  had  been  levied on the goods  imported  within  the Municipal  limits but had been subsequently exported out  of such  limits  within  the  specified  periods.   The   Poona Municipality used to deduct 10 per cent of the amount to  be refunded.  This deduction was held to amount to a tax on the octroi refund.  Such a deduction was imposed as a tax  under s.  59(b)(xi) of Act III of 1901.  The tax  continued  after the  1901 Act was repealed by the Bombay Municipal  Boroughs Act,  1925.  The Boroughs Act was, in its turn, repealed  by the Bombay Provincial Municipal Corporation Act, 1949.  That Act was applied to Poona on February 15, 1950 and thereafter the powers of taxation of the Municipality were governed  by s.  127  of  that Act which authorised  the  Corporation  to impose  the various taxes mentioned in that section.  A  tax on  octroi refund was not one of such taxes.  It  could  not come under cl. (f) which described: ’any other tax which the State Legislature has power under the Constitution to impose in  the States’.  The State Legislature had no  power  under the  Constitution to impose a tax on octroi refund.  It  was therefore  held  by  this Court that the amount  of  tax  on octroi  refund  could  not  be imposed  by  the  Poona  City Municipal  Corporation.   It  was, after  holding  so,  that reference  was made to sub-s. (4) of s. 127  which  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  his absence of power  to  impose               such  a tax, which is clear from  the  earlier               parts  of  s.  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 s. 127  itself had provided for the taxes which could be imposed.  Any  tax which was not specified in the section could not possible 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 (1)[1964] 8 S.C.R. 178. 532 therefore  provided that in such a contingency a tax  though specified in the section will not be imposed.  The provision

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of sub-s. (4) did not in any way affect the decision of this Court in holding that the Poona Municipal Corporation  could not impose a tax on octroi refund. The other contention for the Poona Municipal Corporation was that the suit was instituted beyond the period of limitation prescribed  under  s. 487 of the 1949 Act.  The  suit  would have been time-barred if the act of the Corporation imposing the tax on octroi refund could be held to be ’an act done or purported  to  be  done  in pursuance  or  in  execution  or intended  execution’ of the 1949 Act.  This Court held  that the tax was not levied in pursuance or in, execution of  the Act  and  therefore  the  benefit of s.  487  could  not  be available to the Corporation. The expression used in s. 487 is different from the one used in s.     48 of the Act.  Apart from this consideration, the act of imposing the tax could not be said to have originated from  any provision of the 1949 Act and therefore could  not possibly  be held to be an act done under the 1949 Act.   We do  not  think  this  case  can  be  taken  to  support  the appellant’s contention that the assessment of the tax on  it and the consequential collection of the amount in excess  of the limit laid down by art. 276 of the Constitution was  not an act done under the Act. The appellant has mainly relied on the cases decided by  the Nagpur  High Court and a brief reference may now be made  to them.  We may refer to the case reported as The Amraoti Town Municipal   Committee  v.  Shaikh  Bhikan(1)   first.    The plaintiffs  had  sued  to recover the  tax  which  had  been collected from them in excess of the lawful rate.  The  suit was   instituted  after  the  plaintiffs  had   obtained   a declaration  that the enhancement of the tax over that  rate was  illegal.  The Municipal Committee had power  to  impose and  enhance  the  tax.  It however  had  enhanced  the  tax without  following the entire procedure laid down  for  such enhancement and had omitted to consider the objections filed against  the proposed enhancement.  The question before  the ’High  Court  was whether the collection of the tax  at  the enhanced rate was an act which fell within the ambit of  the expression ’anything done or purported to be done under  the Act’  which Act, it may be mentioned, was the C.P.  &  Berar Municipalities  Act,  1929, the very Act with which  we  are concerned in the present appeal.  Niyogi J. expressed at  p. 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 principle however did not help the Municipal Committee,  the appellant before him. (3)  I.L.R. 1939 Nag. 216.                             533 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

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             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               although  irregularly, the power conferred  on               it by section 68 and to that extent it appears               to  me that the contention that they were               not acting under the statute is untenable." The  views expressed by Niyogi J., we may say with  respect, find  full  support  from Raleigh  s  Case(1)  and  Subbayya Chetty’s Case(2).  Amraoti Municipal Committee’s Case(3) was in  a way on all fours with the present case.  In that  case the  Municipal  Committee overlooked the  provision  of  law about considering the objections to the proposed enhancement in  tax.  In the present case the Committee  overlooked  the constitutional requirement that the maximum limit of the tax payable by a single individual is Rs. 250. The   next   case   is   District   Council,   Bhandara   v. Kishorilal(4).  In this case the question before Bose J. was whether  a suit for the recovery of an amount  recovered  in excess  of  what  could be legally  taxed  came  within  the mischief  of  s. 71 and s. 73(1) of  the  Central  Provinces Local Self-Government Act, 1920 (C.P. IV of 1920).  Bose J.   said at p. 92:               "It will be observed that both section 79  and               the rule are confined to orders and  decisions               given under the Act.  It is impossible to  say               that an order which contravenes 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  retarding               the other point is not present here." We  do not see why an ordinary decision given under the  Act be  not  considered  to  be an order  made  under  the  Act. Neither  of the expressions refer to the order  or  decision being correct or not. (1)74 I.A. 50. (2)[1964] 1 S.C.R. 752. (3) I.L.R. 1939 Nag. 216. (4)I.L.R. [1949] Nag. 87. 534 Section  73 of the Central Provinces  Local  Self-Government Act   prescribed   that   no  suit   shall   be   instituted etc..........  for  anything done or purporting to  be  done under that Act, unless the prescribed notice be first given. Bose  J. presumably in view of what he had said  earlier  in connection  with orders and decisions given under  the  Act, said: "I am clear that what was done here was not done ’under  the Act’,  so the only question is whether it ’purported  to  be done’ under the Act." In these observationshe   seems  to  have  equated   the expression ,given under the Act’with   ’done  under   the Act’.   His  view,  as  we have  already  pointed  out  with reference  to  something done under the Act, does  not  find support   from  Raleigh’s  Case(1)  and  Subbayya   Chetty’s Case(2).  BoseJ.   then  considered  the  content  of   the expression ’purported to bedone’.   We need  not  discuss what he says on this point as we haveheld    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

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Act. The  appellant mainly relied on the Nagpur case reported  as Municipal  Committee,  Karanja v. New East India  Press  Co. Ltd.,  Bombay.   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 ss. 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,  Bliandara Case(1) and held that the claim for  the recovery  of  the tax illegally reallised in excess  of  the permissible  limit were not barred by reason of ss.  83  and 84.   He then referred to s. 48 and, after stating that  the act  of the Municipality when prohibited by law  was  wholly beyond  its jurisdiction and therefore s. 48 did not  apply, said: "The distinction between a case where section 48 applies and a  case  where it does not is clearly shown in  The  Amraoti Town Municipal Committee v. Shaikh Bhikan(4)." We  have referred to this case and expressed full  agreement with the views expressed by Niyogi J. there.  It appears  to us  that  the full significance of that  judgment  has  been overlooked in Municipal Committee, Karanja Case(3). We  bold that the appellant’s suit for the recovery  of  the tax  realised in excess of Rs. 250 a year has  been  rightly dismissed as (1) 74 I.A. 50.     (2)  [1964] 1 S.C.R. 752. (3) I.L.R. [1948] Nag. 971.   (4) I.L.R. [1949] Nag. 87. 535 the  correctness of the assessment of the tax could  not  be challenged  by a suit in a Civil Court in view of  s.  84(3) and  as  the  provisions of s. 48 requiring  the  giving  of notice  to the Municipality and the institution of the  suit within  a  certain period had not been  complied  with.   We would therefore dismiss the appeal with costs.                            ORDER In view of the majority judgment, the appeal is allowed with costs throughout. 536