(1.) THE Masulipatam Municipal Council by its Commissioner and Executive Authority, who was the defendant in the action, is the appellant in this second appeal. The suit was filed by the respondent for a declaration that the defendant was not entitled to levy any taxes on the schedule property and that the defendant should be restrained by a permanent injunction from recovering from her the sum of Rs. 78-2-2 and from levying further taxes on the schedule property. The tax that has been levied by the Municipality is property tax and the property is situated in what was previously known as Frenchpet or French Loge in Masulipatam town. In the plaint it was admitted that the sovereignty of British India was transferred to the Dominion of India under the Indian Independence Act, 1947, and that the Dominion had acquired by transfer the said Loge which was subsequently included in Bandar Town in the Province of Madras, but it was claimed that the said Loge was never included in the municipality of Masulipatam and that the procedure laid down for inclusion under Section 4, District Municipalities Act, was not complied with. It was also alleged that there were no proper, legal and valid notifications and resolutions under Sections 78 (3) and 80, District Municipalities Act, and that therefore the defendant was not entitled to levy the tax. The defendant stated in the written statement that the French Loge was part and parcel of the Masulipatam town and it was so declared very early by Sir Samuel Hoare, the then Secretary of State for India, and that it was always within the Municipal limits of Masulipatam and constituted part of the Municipality under the District Municipalities Act, that there was no necessity for any notice under Section 4, District Municipalities Act, particularly in view of the order, --The Madras (Enlargement of Area and Alteration of Boundaries) Order, 1948 published in G. O. No. 899, Public (Political) Department, dated 14-4-1948 -- by which the doubts, if any, which existed by that date were removed and it was declared that the French Loge at Masulipatam was included in the territories of the Dominion of India and shall be deemed always to have been included in the said territory. That notification further declared that the Loge at Masulipatam should form part of Bandar town in Kistna district and that the area should be administered accordingly. It was also further declared that all the enactments for the time being in force in the said town and all notifications, orders, schemes, rules, forms and by-laws issued thereunder, shall extend to or be in force in the said territory and shall always be deemed to have extended to and to have been in force in the area included in the town. It was also averred that there was no necessity to issue a fresh resolution or notification under Section 78 (3) or 80, District Municipalities Act) and the levy of the property tax by the Municipality was therefore valid and justified. The contention of the Municipality was upheld by the District Munsif and the suit was dismissed by him. On Appeal this decision was reversed by the learned Subordinate Judge and hence this second appeal.
(2.) IT is no doubt true that for a long time French Loge or Frenchpet was under the French Government and the Municipality of Bandar or Masulipatam never exercised any rights over that area. In 1935, for the first time doubts arose whether the British Indian Court at Masulipatam had jurisdiction to try an offence which occurred in Frenchpet Under Section 438, Criminal P. C. , the Sessions Judge of Kistna referred the matter to the High Court. During the hearing of the reference the Advocate-General on behalf of the Crown obtained an adjournment of the case to obtain a declaration from the Secretary of State for India regarding the status of the territory in question. Under Section 57 (10), Evidence Act, the Court could take judicial notice whether a place is part of British territory or not and a declaration by the Political Department of the Government of India was treated as final. The Advocate-General obtained from the Foreign and Political Department of the Government of India, G. D. F. 24 x/35 dated 5-31935 and it was communicated to the High Court. It ran as follows: "the Advocate-General is informed that the Secretary of State for India has since intimated that His Majesty's Government regard the Loge at Masulipatam as part of the territories in the dominion of the British Crown. He is requested to inform the High Court accordingly. Should the High Court require a copy of the official letter from the India office to be produced. Government will have no objection to furnish it. The Advocate-General is requested to ask for it at once if he finds it necessary. " When this was brought to the notice of this Court, the learned Judges accepted the communication as final and treated the area known as the Loge at Masulipatam as part of the territories under the Dominion of the British Crown. Vide --'emperor v. Appayya', 1935 Mad Cr. C 424 (A ).
(3.) ONE would have thought therefore that the question whether this Loge was or was not part of British territory became final by the communication of the Political Department which was accepted by this High Court in 1935, but for the fact that the learned Subordinate Judge in the present case thought that this is of no consequence as it may be a mere paper declaration without effect being given to it. After the declaration of independence in 1947) the provisions of the Government of India Act were amended so as to make them applicable to the altered circumstance that India became a dominion. Under Section 290, Government of India Act, as amended, to clear all doubts the Government of India issued a notification which is styled the Madras (Enlargement of Area and Alteration of Boundaries) Order, 1948. It reads: "whereas by Section 290, Government of India Act, 1935, as adapted by the Indian (Provisional Constitution) Order, 1947, it is provided that the Governor General may by order increase the area, and alter the boundaries) of any province and may make such provisions as the Governor-General may deem necessary or proper for any supplementary, incidental or consequential matters; And whereas in accordance with the provisions of the said section, the Governor-General has ascertained the views of the Government of the Province of Madras, both with respect to the proposal to make the order and with respect to the provisions to be inserted therein; Now, therefore, in exercise of the powers conferred on him by the said section and of all other powers enabling him in that behalf, the Governor-General is pleased to make that following order: 1. This order may be cited as the Madras (Enlargement of Area and Alteration of Boundaries) Order, 1948. 2. The areas specified in the schedule to this order, which were known as the French Loges at Masulipatam and Calicut, are hereby declared to be included in the territories of the Dominion of India and shall be deemed always to have been included in the said territories. 3. The said areas shall form part of the Province of Madras and shall be deemed always to have formed part of the said Province and the boundaries of the said Province shall be deemed always to have been so altered as to comprise within them the said areas. ;