Decided on November 22,1973


Referred Judgements :-



M.P.THAKKAR - (1.)This common judgment will dispose of a group of five appeals arising out of suits instituted by different rate-payers in the city of Surat against the Surat Municipal Corporation with the end in view to challenge the legality and validity of municipal tax levied by the then Borough Municipality of Surat (subsequently the Borough Municipality was converted into a Municipal Corporation). Both the lower Courts have recorded a concurrent finding that the imposition of tax is legal and that there is no substance in the challenge made by the rate-payers. The rate-payers have preferred five second appeals under sec. 100 of the Code of Civil Procedure. Most of the contentions are common. In two matters namely Second Appeal No. 715/69 and Second Appeal No. 109 there is an additional point involved. As the appeals were disposed of by a common judgment by the District Court and as the matters involve common questions of facts and law it would be convenient to dispose them of by a common judgment.
(2.)The learned counsel for the appellant-plaintiff has urged two submissions which require to be considered in somewhat greater detail. The first point urged by counsel is that the lower Courts have arrived at an erroneous conclusion that the defendant-Municipality had duly observed the preliminary procedure enjoined by sec. 75 of the Boroughs Act (in regard to assessment for 1964-65) and sec. 101 of the Gujarat Municipalities Act (for the assessment year 1965-66) on account of a wrong approach.
(3.)The plaintiff knocked at the door of the Court on a general allegation that the Municipality had not followed the proper procedure required to be followed by the relevant provisions of the Act. He did not specify which particular step had not been taken. No particulars were given in the plaint or at any stage thereafter. It would have been better if the Municipality had made an application calling upon the plaintiffs to furnish further and bettor particulars. Be that as it may the parties went to trial on the basis of this vague general allegation that appropriate procedure was not followed. It was not the case of any of the plaintiffs that there was any particular specified defect or lacuna in the procedure followed by the Municipality. They did not give any particulars in the pleadings or at the trial. Even so the Municipal authorities produced the entire record and established that all the necessary steps enjoined by sec. 75 of the Boroughs Act (and sec. 101 of the Gujarat Municipalities Act which is in pari materia) were followed during the ralevant period. ... ... ... ... ... Now it has been clearly established by the documentary evidence produced by the defendant-Municipality that public notices inviting objections to the imposition of the tax had been duly published as required by sec. 78 of the Boroughs Act (the corresponding section of the Municipalities Act is sec. 101). It is also established that the Government had approved the rules published by the Municipality. The sanctioned rules were published by the Government on February 27 1965 A notice under sec. 87 was published giving information as regards the preparation of the assessment list. The grievance of the learned counsel for the appellants-plaintiffs is that the defendant-Municipality should have produced and proved the resolution passed at the general meeting for selecting one of the taxes specified in sec. 73 of the Municipal Act. Now it has been established that rules under sec. 53(j) had been framed pursuant to the resolution and sanction had been accorded to it by the Government. It is also proved that objections had been invited and all the necessary steps had been taken. Since it was not specifically challenged and put in issue pointedly that the resolution contemplated by sec. 73 selecting the tax had been passed by the Municipality that particular resolution was not produced. The argument of counsel for the appellant is that it is the duty of the defendant-Municipality and the burden rests entirely on it to establish that all the necessary steps had been taken. It is no doubt true that it is for the Municipality to show that proper procedure was followed but even so the question has to be examined in the back-drop of the pleadings and the contentions. It cannot be divorced from the nature of the pleadings. And it is an admitted position that the plaintiffs never pleaded in the plaint that no such resolution had been passed. The attention of the parties was not focussed on this aspect at all. Again it is not necessary for proving the resolution that the minutes of the meeting should be placed on record. It can also be proved by circumstantial evidence. The very fact that objections were invited the rules were framed rules were sent to the Government and sanction was accorded to levy the tax shows that the resolution was passed. It must be realised that a civil action is not a game of hide and seek between the parties. It is not a game of chess where parties try to checkmate each other by their wiles and guiles. It is not an arena to lay booby traps for trapping each other. The Courts entertain the disputes between the parties with a view to objectively and impartially resolve the real lis between them. If therefore a plaintiff complains that a particular thing was not done he has to clearly say so and call upon the other side to prove it. It is not fair of him not to specify the alleged defect or lacuna. It is not sufficient for him to make a mere allegation that the procedure was not followed and rest content by pointing out some unwary slip committed by the other side. It was open to the plaintiffs at any stage to make an application to the Court to call upon the defendant-Municipality to produce this resolution. The plaintiffs never did so. It is not as if they were lying in ambush to attack the defendant by sneaking an opportunity to do so. They had come to the Court complaining that a public body had not levied a tax in the proper manner without stating what they meant by saying that the appropriate procedure had not been followed. Be it realised that it is no longer possible to uphold the proposition that taxation is an obnoxious thing and an evil measure. Taxation by a Municipality is imposed on those who can bear the burden in order that the health and well-being of the citizens is maintained and the citizens can live in sanitary conditions. Civil amenities and sanitary conditions are equally essential for those who are required to pay taxes as for the society at large. It is not as if these amenities are meant solely for those who are not obliged to pay the taxes. When there is scarcity of rain for instance the citizens look to the Municipality for providing them with the amenity of drinking water at the cost of lacs of rupees (as it happened in the case of Bhavnagar which had no drinking water in its water reservoir on account of draught and the Municipality provided a special long distance pipeline at the cost of lacs of rupees). When there are floods or epidemic again the citizens look to the Municipality for maintaining sanitary conditions. It is thanks to these measures that the affluent sections are able to live in health safety and comfort as also to maintain their sang-froid. An industrialist cannot make money if there is an epidemic and the workers flee from the city. So also a lawyer a doctor a professor or a merchant will be without his client patient student or customer. Nor will the epidemic extend special immunity to him or his family members. It is therefore not possible to view taxation as an evil measure and to feel trigger-happy or feel virtuous in striking down an impost. More so when it is challenged on trivial and technical grounds and when reliance is sought to be placed on the failure to produce a resolution which the Municipality was never required to produce and in regard to which nO specific grievance was made by the plaintiffs at any stage. The lower Courts were right in reaching the conclusion that the Municipality had established by voluminous documentary evidence that all the necessary steps had been taken. I am unable to detect any infirmity in the approach made by the lower Courts. There is no substance in the contention. It must therefore be rejected.

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