MADON,J. - (1.) This petition under Articles 226 and 227 of the Constitution is directed against an order dated August 23, 1969, made by the State of Maharashtra, respondent No. 1, whereby the State Government set aside the order of the Sub -Divisional Officer, Yeotmal, dated September 12, 1967 holding that the petitioners were entitled to refund of certain amounts paid by them as gin, bale and boja tax.
(2.) THE petitioners own a Ginning and Pressing Factory situated at Yeotmal within the municipal limits of the Yeotmal Municipal Council, respondents No. 2. On August 2, 1910, the Chief Commissioner, Central Provinces issued a Notification No. 823 under Section 44, Sub -sections (1) and (5) of the Berar Municipal Law, 1886. The said Notification was in the following terms: NOTIFICATION. Nagpur, the 2nd August, 1910. No. 828. With reference to Section 44, Sub -sections (7) and (8) of the Berar Municipal Law, 1886, it is hereby notified that the Municipal Committee of Yeotmal in the Yeotmal District, directed the imposition with effect from the 1st August, 1910, of Tax on the Ginning and the Pressing of cotton under Section 41(1)(a)(b) of the said Law to be levied from all persons carrying on within the limits of the Yeotmal Municipality the trade of Ginning cotton or Pressing the same into Bales by means of steam or mechanical process at the following rates - (1) For each Boja of Ten maunds ginned...8 pies. (2) For each Boja of fourteen maunds pressed. ... 10 pies. The tax is payable in one instalment on the 1st of September each year. R.P. Colomb. Second Secretary to the Chief Commissioner, Central Provinces. Under the Central Provinces and Berar Municipalities Act, 1922, which replaced the Berar Municipal Law, 1886, the tax imposed by the said notification continued to subsist and was levied as prescribed by the said Notification. It is the petitioners' case that the gin, boja and bale tax levied by the said notification was a tax on profession, trade or calling under Section 142A of the Government of India Act, and therefore, under the said Act it could not have been levied in excess of Rs. 50 per annum during the period in which the Government of India Act was in force. It is also the case of the petitioners that it is a tax in respect of profession, trade or calling within the meaning of Article 276 of the Constitution, and therefore, the total amount payable in respect of any one person to any municipality in the State by way of such taxes cannot exceed Rs. 250 per annum after January 26, 1950. Respondents No. 2, the Municipal Council, Yeotmal, however, recovered from the petitioners a sum of Rs. 15,721.41 during the period from 1939 -40 till the year 1962 -63 by way of such taxes, such amount being in excess of the constitutional limits prescribed by Section 142A of the Government of India Act, 1935 and Article 276 of the Constitution. By their notice dated March 16, 1967, respondents No. 2 made a demand upon the petitioners to pay to them the said tax for the years 1964 -65 and 1965 -66. The demand was in excess of the constitutional limits and accordingly the petitioners filed in this Court a petition under Article 226 of the Constitution being - Special Civil Application No. 304 of 1966. By the judgment delivered on December 23, 1966 Abhyankar and Tulzapurkar JJ., in the said petition, this Court quashed the said demand in so far as it was in excess of Rs. 250 per annum. According to the petitioners, after this pronouncement they for the first time became aware of the mistake of law tinder which they had so far been paying the amounts of the tax under the said notification. Accordingly by their advocate's letter dated March 16, 1967, the petitioners pointed out to respondents No. 2 the decision of the Court in the said Special Civil Application and called upon them to settle the accounts of the amounts in excess of the constitutional limits paid by the petitioners by way of tax under the said notification. In the said letter it was contended that on the pronouncement of the said judgment, the amounts so paid in excess by the petitioners became due to them within the meaning of the provisions of the C.P. and Berar Municipalities Act and the rules made thereunder. As no reply was received to the said letter and as the requests made therein were not complied with, the petitioners filed an appeal under Section 83(7) of the C.P. and Berar Municipalities Act in the Court of the Sub -Divisional Officer, Yeotmal. In the said petition of appeal, the petitioners averred that they were prepared to settle the figure of the excess amount or quantum of refund by amicably negotiating the same with respondents No. 2 as it was a matter of calculation. Thereafter the petitioners also filed a detailed statement showing a sum of Rs. 15,721.41 as being the amount of such excess paid by them and prayed for an order of refund of the said amount by respondents No. 2 to the petitioners. Respondents No. 2 filed their reply to the said petition of appeal in which they admitted the unconstitutionality of the levy and the facts averred by the petitioners. The only contentions raised by respondents No. 2 in their reply were: (1) that the petitioners' application for refund was barred by limitation and (2) that the petitioners' remedy lay not under the C.P. and Berar Municipalities Act, but under the Maharashtra Municipalities Act, 1965 which had come into force on June 15, 1966 and whereby the C.P. and Berar Municipalities Act was repealed.
(3.) THE Sub -Divisional Officer, Yeotmal, by his order dated September 12, 1967 negatived the contentions raised on behalf of respondents No. 2 and allowed the petitioners' appeal and directed respondents No. 2 to pay the said sum of Rs. 15,721.41 to the petitioners within a period of 30 days from the date of his said order. Being aggrieved by the said order, respondents No. 2 filed a revision application under Section 83(1 -A) of the C.P. and Berar Municipalities Act, 1922, to the State Government. This revision application was allowed and the order of the Sub -Divisional Officer set aside. In revision it was held that the petitioners' remedy did not lie under the C.P. and Berar Municipalities Act, but their proper remedy was to file a civil suit. It was further held that even assuming the petitioners could file an appeal against the refusal to refund the excess amounts paid by them, their remedy lay under the Maharashtra Municipalities Act and not under the C.P. and Berar Municipalities Act, and therefore, the appeal filed by them to the Sub -Divisional Officer, Yootmal, was incompetent and untenable. The State Government further held that under Section 318 of the Maharashtra Municipalities Act, the State Government has the power of revision, and therefore, they could revise the order of the Sub -Divisional Officer under the said Section 318 of the Act. It is against this order of the State Government that the petitioners have approached this Court under Article 226 of the Constitution.;