Shelat, J. - (1.) This appeal by special leave is directed against the judgment and order of the High Court of Madhya Pradesh in Second Appeal No. 378 of 196l.
(2.) The respondents as trustees of, a charitable trust are the owners of certain houses situate in Indore City. Prior to January 26, 1954 the Indore Municipality was governed by the Indore City Municipal Act, 4 of 1909. By virtue of the power conferred on it by that Act the Municipa1ity used to levy and collect house tax at the rate 7 per cent of the gross annual letting value of these houses and the trustees duty paid such tax. After the formation of the State of Madhya Bharat, the legislature of that State passed the Madhya Bharat Municipalities Act, 1954 which came into force on January 26, 1954. The 1954 Act repealed amongst other Acts the Indore City Municipal Act, 1909. The Indore Municipality however purported to levy the house tax on the basis of the gross annual letting value at the rate of 7 per cent of such value for the financial years 1953-54 and 1904-55. This was objected to by the respondents on the ground that under the 1954 Act the tax could be assessed on the basis of gross annual letting value less 10 per cent statutory allowance in lieu of costs of repairs or on any other account whatsoever. The difference came to Rs. 1,461 and of this the trustees claimed refund on the ground that the Municipality had collected the excess from them under pain of distress. The Municipality having refused to refund the excess the respondents filed the suit to recover it on the ground that the excess, amount was illegally recovered. The Trial Court decreed the suit and the appeals filed by the Corporation in the District Court and the High Court were dismissed.
(3.) To appreciate the stand taken by the appellant Corporation it is necessary to examine some of the provisions of the two Acts. Section 21 of the Indore City Municipal Act authorised the Municipal Council to impose tax on houses, buildings or lands within the municipal limits at a rate not exceeding 121/2 per cent of the gross annual letting value. As aforesaid, this Act amongst other Acts was repealed by the Madhya Bharat Municipalities Act, 1954 Section 2 of the 1954 Act which contains both a repealing and saving provisions repealed the several Acts set out therein Clause (a) however provides that such repeal shall not affect the validity or invalidity of anything already done under any of the said enactments. Clause (c) of Section 2 provides that all rules, orders, bye-laws, notifications and notices, taxes and rates made, passed, framed, issued or imposed or deemed to have been made passed, framed, issued or imposed, shall so far as they are not inconsistent with this Act, be deemed to have been made, passed, framed, issued or imposed, as the case may be under this Act. Section 69 authorises a Municipality to impose the several taxes set out therein including the tax on houses, buildings or lands or both. Section 70 lays down the procedure which the municipality would have to follow before it imposes any one of those taxes. Section 73 provides that when a tax on buildings or lands or both is imposed, the Chief Executive Officer shall cause an assessment list of all buildings or lands in the municipality to be prepared containing the particulars therein set out. Amongst such particulars are the valuation based on capital or annual letting value as the case may be on which the property is assessed. Sub-section (a) provides that in assessing the tax on buildings or lands, where the valuation determined under clause (d) of subsection (1) is the annual letting value, a sum equal to 10 per cent of such valuation shall be deducted therefrom in lieu of allowance for costs of repairs or on any account whatsoever. Section 75 provides for the publication of the assessment list and the right of the owner or occupier of properties included in the list to take inspection thereof and to make extracts therefrom. Section 76 provides for a public notice of time fixed for lodging objections to such assessment list and the hearing of such objections. Subsection (4) of Section 76 provides for the authentication of the list Sub-section (6) lays down that subject to such alterations as may he made therein under Section 77 and to the result of any appeal or revision made under Section 190 in the case of City Municipality and under Section DO in the case of other municipalities, the entries in the assessment list so authenticated shall be accepted as conclusive evidence for the purposes of all municipal taxes of the valuation or annual letting value of buildings and lands to which such entries respectively refer and for the purposes of the tax for which such assessment list has been prepared of the amount of tax leviable on such buildings or lands "in any official year in which such list is in force" Section 79 (1) provides that it would not be necessary for a Municipality to prepare a new assessment list for every year. It further provides that subject to the condition that such assessment fist shall be completely revised not less than once in every 4 years the Municipality may adopt the valuation and assessment contained in the list for any year with such alterations as may be necessary for the year immediately following. But sub-section (2) lays down that the provisions of S. 75 and S. 76 shall be applicable every year as if a new assessment list has been completed at the commencement of the official year.;