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TMI Blog1964 (10) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... tion frame proposals specifying the tax, the persons or class of persons to be made liable, and the description of property or other taxable thing or circumstance in respect of which they are to be made liable, the amount or rate leviable from each such person or class of persons, and any other matter required by the Rules framed by the State Government. The Board has also to prepare a draft of the rules which it desires the State Government to make in respect of the tax, namely, for assessment, collection, exemption and other matters relating to tax, [s. 131(2)]. Section 131(3) which is important for our purposes reads thus : "The Board shall, thereupon publish in the manner prescribed in section 94 the proposals framed under sub-section (1) and the draft rules framed under subsection (2) along with a notice in the form set forth in Schedule III." Section 132 provides for procedure subsequent to framing proposals and permits any inhabitant of the municipality within a fortnight from the publication of the notice, to submit to the Board an objection in writing to all or any of the proposals. The Board has to take these, propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Government may, by general or special order, direct." According to the respondent, it followed the procedure provided under the Act for the imposition of the tax and after following the procedure the tax came to be imposed from April 1, 1957 at the rate of 10 per centum of the annual value of lands and buildings. After the tax was thus imposed, the respondent sent notices of demand to the appellant requiring it to pay water tax for the years 195758 and 1958-59. This was done on October 7, 1958. It may be added that under s. 129 of the Act there are certain restrictions subject to which water tax can be imposed and one of the restrictions is that the tax shall not be imposed, where the unit of assessment is a plot of land or a building, on any such plot or building of which no part is within a radius to be fixed by rule in this behalf for each municipality from the nearest standing or other waterwork whereat water is made available to the public by the Board. In the present case this limit has been fixed by the rules at 600 feet. The appellant objected to the payment of water tax demanded from it, and one of its objections was that it was exempt under S. 129 (a), as there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the; provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. The respondent strongly relies on the State of U.P. v. Manbodhan Lal Srivastava([1958] S.C.R. 533), where Art. 320(3) (c) of the Constitution was held to be directory and not mandatory, and contends that the principle of that case applies with full force to the facts of the present case. If is therefore necessary to consider that case before we consider the facts of the present case in the light of the circumstances to which we have referred above and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings ending with the final order of the Government. It was also pointed out in that case that an examination of the terms of Art. 320 showed that the word "shall" appeared in almost every paragraph and every clause or sub-clause of that Article. If it were held that the provisions of Art. 320 (3) (c) were mandatory in terms, the other clauses or sub-clauses of that Article would have to be equally held to 'be mandatory. If they were so held, any appointments made to the public services without observing strictly the terms of these sub-clauses in cl. (3) of Art. 320 would adversely affect the person so appointed to a public service, without any fault on 'his part and without his having any say in the matter, and this 'could not have been intended by the makers of the Constitution. 'Thus this Court approximated Art. 320(3) (c) to a statutory provision like the one which came up for consideration in Montreal Street Railway Company's case([1917] L.R. A.C. 170) and held that if the Article were construed as mandatory, it would cause serious general inconvenience, and injustice to persons who had no control over those entrusted with the duty. That decision was clearly based on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether and may not proceed further with them, if the reaction of the tax-payers in general is of disapprobation. Further the purpose served by the publication of the proposals being to invite objections, in particular from the tax-payers, to the tax proposed to be levied on them, the legislature in its wisdom thought that compliance with this part of s. 131(3) would essentially carry out that purpose. In the circumstances if we are to hold that this part of s. 131(3) was merely directory, the whole purpose of the very elaborate procedure provided in ss. 131 to 135 for the imposition of tax would become meaningless, for the main basis of that procedure is the consideration of objections of tax-payers on the proposals of the Board. If such publication is merely directory, the Board can proceed to levy the tax without complying with them and that would make the entire elaborate procedure provided in the Act before a tax is imposed nugatory. We are therefore of opinion that this part of s. 131(3) is mandatory and it is necessary to comply with it strictly before any tax can be imposed. We shall consider the interpretation of s. 135(3) later, but we have no doubt that in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Secretary to the Election Commission; and (iii) it must further show that it had been made as security for the costs of the petition. The question then arose whether the words 'in favour of the Secretary to the Election Commission" were mandatory in character so that if the deposit had not been made in favour of the Secretary to the Election Commission as therein specified the deposit even though made in a Government Treasury or in the Reserve Bank of India and as security for the costs of the petition would be invalid and of no avail. This Court held that these words in s. 1 17 were directory and not mandatory in their character, and that the essence of the provision contained in s. 117 was that the Petitioner should furnish security for the costs of the petition and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees had been made by him either in a Government Treasury or in the Reserve Bank of India to be at the disposal of the Election Commission to be utilised by it in the manner authorised by law and was under its control and payable on a proper application being made in that behalf to the Election Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) inasmuch as the publication has not been made in a local paper published in Hindi. We must however point out that if s. 94(3) is interpreted literally, all that it requires is that the publication must be in a local paper and that local paper must be published in Hindi, though the actual publication of the resolution may not be in Hindi. That does not seem to us to be the real meaning of s. 94(3) and what it substantially requires is that the publication should be in Hindi in a local paper, and if that is done that would be compliance with s. 94(3). Now what has happened in this case is that the publication has been made in a local paper which on the evidence seems to have good circulation in Rampur and the actual resolution has been published in Hindi, though the paper itself is published in Urdu. It seems to us therefore that there is substantial compliance with the provisions of s. 94(3) in this case, even though there is a technical defect inasmuch as the local paper in which the publication has been made is published in Urdu and not in Hindi. But what has happened in this case is in our opinion substantial compliance with s. 94(3) and as we have held that provision to be dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in our opinion similar to that case. Here also the publication was made, as we have already pointed out in compliance with what we have called the first part of s. 131(3). Further the manner of publication was in substantial compliance with s. 94(3). Therefore, as there was substantial compliance with the provisions of s. 94(3), s. 135(3) would in our opinion come to the help of the respondent and it must be held that all necessary steps had been taken. It is however contended on behalf of the respondent that s. 135(3) goes further and means that where it applies, the tax must be held to be imposed in accordance with the provisions of the Act, even though none of the procedural provisions may have been complied with at all. It is enough to say that the question in this form does not arise before us directly for we have held that there was publication in compliance with s. 131(3) though the manner was not strictly, in accordance with s. 94(3). We do not think it necessary in the present case to decide what would happen if there was no compliance at all with the various procedural provisions including s. 131(3) by a Board before imposing a tax and the evidence consisted only of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the second point raised before us. So far as that is concerned, it is enough to say that it is mainly a question of fact whether the buildings or any of them belonging to the appellant are within 600 feet of the standpipe. The restriction imposed in cl. (a) of s. 129 is that water-tax can be levied on a building where any part of it is within a radius fixed by rules which in the present case is 600 feet from the nearest standpipe or water-work whereat water is made available by the Board to the public. What is contended on behalf of the appellant is that these words mean that there should be standpipe or water-work from which water is made available to the public by the respondent and that it is not enough if underground pipes carrying water are passing within 600 feet. It seems to us that this contention of the appellant is correct. The restriction in s. 129(a) is that no water-tax can be levied on a building which is more than a certain distance fixed by the rules from a standpipe or other water-work from which water is made available to the public. The restriction that water should be made available to the public within the specified distance does not mean that if pipes carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sals and the rules or may send them back for further consideration. The proposals and the rules when finally sanctioned by Government are returned to the Municipality which imposes the tax with effect from a specified date by passing a fresh resolution. This does not impose the tax proprio vigore. The resolution has to be submitted to Government and when it is notified in the official Gazette, the tax is imposed from the appointed date. Section 153 (3) then provides "A notification of the imposition of a tax under subsection (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of the Act." The tax here was imposed by Rampur Municipality and the notices were published in an Urdu newspaper called "Aghaz" though the notices were in Hindi. Section 94(3) of the U.l. Act provides: "Every resolution passed by a Board at a meeting shall, as soon thereafter as may be published in a. local paper published in Hindi and where there is no such local paper in such manner as the State Government may, by general or special order, direct." There was in Rampur another newspaper which was published in Hindi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are devised for the protection of the taxpayers and some others for ministerial operations connected with the method or system of imposing the tax or for promoting dispatch, efficiency and publicity etc. All conditions of the first kind must, of course, be regarded as mandatory, because they lie at the very root of the exercise of the power. Thus preparation of assessment rolls, hearing of objection, framing of assessment rules are all mandatory. Similarly, conditions involving the passing of resolutions by the necessary majority at special meetings after proper notice to members are fundamental and cannot be overlooked. If a defect of a fundamental kind occurs it would (in the absence of curative provision) remain even if Government gave its sanction See Scadding v. Lorant(3 H.L.C. 418-10 E.R. H.L. 164) (affirming SubNom) (13 Q.B. 706) and Joshi Kalidas v. Dakor Town Municipality(I.L.R. 7 Bom. 399). Conditions which promote despatch or provide for ministerial operations are usually directory and although compliance with them is also necessary it is sufficient if the compliance is substantial. It may be accepted that a provision for a notice to the taxpayers informing them ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature itself imposed it. Whether one reads s. 135(3) as enacting an absolute rule of evidence (and I am in favour of reading it as such-See: The Berar Swadeshi Vanaspati v. Municipal Committee, Shegaon) ([1962] 1 S.C.R. 596) or as merely related to venial defects, errors or omissions, it is plain that it must at least protect the imposition of water-tax in Rampur against a flaw in procedure of the kind we are dealing with or it would serve no purpose at all. This provision, therefore, 'serves to cure the breach of the direction which was intended to serve merely as a guide to the municipalities, and it precludes courts from inquiring into such a breach. That was a matter for Government to take into consideration before according its approval and Government must be deemed to have approved this other mode of publication which, it is clear enough it could have permitted to be followed in the first instance under the latter part of s. 94(3) itself. Subject to these reasons for holding the tax to be valid I agree that the appeal be dismissed with costs. Mudholkar J. I agree that the appeal be dismissed but on the point of law urged before us I would like to state my reasons separat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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