JUDGEMENT Law. Rep. 64 Ind. App. 118 ( 1936- 1937) Radha Kishan Jaikishan V. Municipal C ommittee, Khandwa 28 Consolidated Appeals (Nos. 3 and 4 of 1931) from two decrees of the Court of the Judicial Commissioner, Central Provinces (November 20, 1928), the first affirming a decree of the D1strict Judge of Nimar (July 15, 1924), which affirmed a decree of the Subordinate Judge of Khandwa (April 11, 1924), the second reversing a decree of the Additional D1strict Judge of Khandwa (February 6, 1926). The appeals arose out of two suits brought by the appellants against the respondent committee D1sputing the validity of a tax purporting to be imposed under the Central Provinces Municipal Act, 1903, on the trade of ginning and pressing cotton by means of steam or mechanical process. The decrees of the Court of the Judicial Commissioner D1smissed both suits. The appeals were previously before the Judicial Committee of the Privy Council when their Lordships, on December 18, 1933, delivered a judgment [( 1933) L. R. 61 I. A. 125] holding (inter alia) that a resolution was not validly passed under s. 39, sub-s. 1, of the Act of 1903, if it failed to settle the amount or rate of the proposed tax, and their Lordships thereupon adjourned the further hearing of the appeals and remitted the case in order that the respondent committee might adduce evidence as to the contents of the resolution passed at a special meeting of the committee held on July 16, 1922, from which it D1d not clearly appear that the amount or rate of the tax, as subsequently published in accordance with sub-s. 2 of s. 39 of the Act of 1903, was specifically settled. The facts, the material provisions of the Central Provinces Municipal Act, 1903, and the terms of the resolution of July 16, 1922, appear from the judgment of the Judicial Committee reported at ( 1933) L. R. 61 I. A. 125. 1937. Feb. 9, 11. Dunne K.C. and J. M. Parikh for the appellants. De Gruyther K.C. and Wallach for the respondent committee. March 2. The judgment of their Lordships was delivered by LORD THANKERTON. 1937. Feb. 9, 11. Dunne K.C. and J. M. Parikh for the appellants. De Gruyther K.C. and Wallach for the respondent committee. March 2. The judgment of their Lordships was delivered by LORD THANKERTON. The further inquiry, for which these appeals were remanded to the Court of the Judicial Commissioner, Central Provinces, by the Order in Council dated December 21, 1933, was taken in the Court of the Additional D1strict Judge, Khandwa, and has been transmitted to this Board by the Court of the Judicial Commissioner. The situation was made clear in the judgment of this Board, dated December 18, 1933, to which reference may be made. (( 1933) L. R. 61 I. A. 125.) The only issue remaining to be determined may be restated. Sect. 39 of the Central Provinces Municipal Act, 1903, so far as material, provides as follows — " 39.—(1.) A committee may resolve at a special meeting to propose the imposition of any tax for the purposes of this Act. (2.) Where a resolution has been passed under sub-s. 1, the committee shall publish, in the prescribed manner, a notice defining the class of persons or description of property proposed to be taxed, the amount or rate of the tax to be imposed, and the system of assessment to be adopted.1 The respondents claimed that a resolution was duly passed at a special meeting of the municipal committee held on July 16, 1922, which satisfied the requirements of sub-s. 1 of s. 39. The resolution was recorded in the committees proceeding book as follows — Law. Rep. 64 Ind. App. 118 ( 1936- 1937) Radha Kishan Jaikishan V. Municipal C ommittee, Khandwa 29 " (3.) Read Secretariat letter No. 731-343-VIII, dated the 30th March, 1922, on the subject of imposing a tax on the trade of ginning and pressing cotton by means of steam or mechanical process. Read also the draft bye-laws prepared by the President, together with his note recommending to adopt them for imposing this tax in this municipality with a view to increase the committees income. The bye-laws adopted by Murtizapur and other municipalities in Berar, where this tax has already been imposed, were also read. Read also the draft bye-laws prepared by the President, together with his note recommending to adopt them for imposing this tax in this municipality with a view to increase the committees income. The bye-laws adopted by Murtizapur and other municipalities in Berar, where this tax has already been imposed, were also read. Resolved that the proposed bye-laws drafted by the President be passed and that they be published locally as well as in two successive issues of the Central Provinces Gazette for inviting objections or suggestions in respect of them within one month from the date of their publication. Note.—Seth Kamaruddin proposed that this tax be imposed on the trade of pressing cotton only and not on ginning. This proposal was, however, dropped, as it was not seconded by any member/ Commenting on this document, their Lordships observed (( 1933) L. R. 61 I. A. 134.) “ This slovenly record is open to the comment that, but for the note at the end, it might be doubtful if the question of the imposition of the tax was considered and resolved on by this meeting. The notice convening the meeting had stated the business as Consideration of the by-laws regarding the imposition of a tax on the trade of ginning and pressing cotton.” But the criticism of more immediate importance is that the record contains no reference to the amount of the tax to be imposed, and it is clear, in their Lordships1 opinion, that, in view of sub-ss. i and 2 of s. 39 of the Act of 1903, it is essential that the resolution contemplated by sub-s. 1 should settle the amount or rate of the proposed tax. If, however, the proposed by-laws drafted by the president can be identified, it should then be possible to ascertain definitely whether the approval of the amount or rate of the proposed tax was involved in the resolution. If, however, the proposed by-laws drafted by the president can be identified, it should then be possible to ascertain definitely whether the approval of the amount or rate of the proposed tax was involved in the resolution. But it is here that D1fficulty and confusion arises ; there is no documentary evidence which enables one to identify the by-laws referred to in the resolution, and as already stated, the parties adduced no oral evidence at the trial." It was in these circumstances that their Lordships gave the respondent the opportunity of adducing evidence to identify the " by-laws drafted by the president " referred to in the resolution of July 16, 1922, the appellants being entitled to adduce evidence in reply thereto. The amount or rate of the tax proposed to be imposed, of which notice was published as provided by sub-s. 2 of s. 39, was as follows — Rs. a. p. (1.) For each bondri of three maunds ginned 0 16 (2.) For each bale of 4 ½ maunds pressed 0 23" It is for the respondent committee to prove clearly that this amount or rate of tax was consciously resolved upon at the special meeting of July 16, 1922. In the opinion of their Lordships they have failed to do so. Evidence for the respondent committee was given by three members of the committee at that time, the president, the vice-president and a member of the committee, and also by the head clerk in the Law. Rep. 64 Ind. App. 118 ( 1936- 1937) Radha Kishan Jaikishan V. Municipal C ommittee, Khandwa 30 municipal office at that time. The appellants two witnesses were members of the committee who were present at the meeting of July 16, 1922, but their recollection is not very clear, and their Lordships will deal with the matter on the evidence for the respondent committee. The respondents1 case is that " the draft by-laws prepared by the president " are that portion of exhibit D1 in the second suit, which is printed on pp. 66, 67 and the top of p. 68 of the record in that suit, and which was fully quoted in the judgment of their Lordships. (( 1933) L. R. 61 I. A. 135.) Their Lordships accept that the same document forms part of exhibit D1 in the first suit, but, as printed on pp. 66, 67 and the top of p. 68 of the record in that suit, and which was fully quoted in the judgment of their Lordships. (( 1933) L. R. 61 I. A. 135.) Their Lordships accept that the same document forms part of exhibit D1 in the first suit, but, as printed on pp. 68 and 69 of the record in that suit, the date " July 15, 1922," and the signature of Mr. K. R. Harne have not been reproduced. This document is referred to by the witnesses as pp. 9 and 10 of exhibit D1 which, as printed, includes the amount or rate of the proposed tax as subsequently published and quoted above. But it is clear from the evidence of the head clerk that there are a large number of corrections on this document, one of them being dated as late as August 17, 1922, and the evidence of the president shows that there were changes in the rates proposed. The presidents evidences to the preparation of the draft by-laws may be shortly stated, but it may be first observed that the nomenclature of " by-laws M and " rules M appear to have been applied indiscriminately, and their Lordships are willing to take it that the " draft by-laws " referred to in the resolution included the part of the document which is headed " Rules." On receipt of the letter from the Local Self-Government Department, dated March 30, 1922, suggesting the tax here in question, the president instructed the secretary, K. R. Harne, to prepare a draft of the rules to be framed under s. 35 of the Act. The secretary put up a draft of the proposed rules on May 21, 1922. On this draft the president made some alterations, and, as so revised, it forms exhibit D16. The 1 amount or rate of the proposed tax, as shown in it, is — " (1.) For each bondri of three maunds ginned, 1 anna. (2.) For each bale of 4 ½ maunds pressed, Re. 0-1-6." On the margin there is a note with a circle round it, initialled by Mr. Harne and dated June 10, " This should be one pie per maund as per presidents note, dated May 26, 1922." On this last date the president asked Mr. (2.) For each bale of 4 ½ maunds pressed, Re. 0-1-6." On the margin there is a note with a circle round it, initialled by Mr. Harne and dated June 10, " This should be one pie per maund as per presidents note, dated May 26, 1922." On this last date the president asked Mr. Harne to get certain information as to weights from the ginning and pressing factories, and expressed the view that the taxation should be started with one pie per maund of cotton pressed and ginned, and asked Mr. Harne to make the necessary changes in the draft. After some correspondence with other municipal committees, in which information was asked for as to the local weight of the maund and other matters, the president addressed a memorandum (exhibit D26) to the secretary on July 15, 1922, the material part of which is as follows — "1 have made certain amendments in the draft of the bye-laws prepared by you (vide flag A). Please get a duplicate typed copy ready of the draft before this evening. My reasons for these changes are obvious. The local maund is equal to 40 seers while that of the Berar towns equal to 14 seers. The boja of Berar is called a bondri at Khandwa. The rate of the tax in the municipalities of Yeotmal, Akot, Karanja, Mulkapur, Shegaon and Khamgaon is one pie for every 35 pounds ginned and one pie for every 39J pounds pressed while the tax proposed to be levied in our municipality is one pie for every 20 pounds of cotton ginned and pressed within our municipality. This change is advisable in view of the fact that the tax in the aforesaid municipalities was imposed in the year 1912 and the interim has seen economic changes of importance to justify the proposed increase.” The secretarys memorandum in reply, of the same date (exhibit D25) states "I beg to put up herewith a duplicate typed copy of the amended draft rules as ordered.....The rates Law. Rep. 64 Ind. App. Rep. 64 Ind. App. 118 ( 1936- 1937) Radha Kishan Jaikishan V. Municipal C ommittee, Khandwa 31 proposed by you do not require any change, I think It is important to notice that the rates appearing in exhibit D16, as revised by the president in May, and quoted above, correspond to a rate of one pie for every 20 pounds of cotton ginned and pressed. One anna for three maunds, the maund consisting of 80 pounds, equals 12 pies for 240 pounds, and, similarly, 4 ½ maunds at one anna and six pies equals 360 pounds at 18 pies. On the other hand, sheet 10 of exhibit D1 shows a 50 per cent, increase on these rates, and there is no evidence to show when or by whom this increase was made, and it was for the respondent committee to prove that the rates, as so increased, were before the meeting on July 16, 1922. In view of the slovenly way in which the records have been kept, there can be no presumption in favour of the committee. The president states that sheets 9 and 10 of exhibit D1 were placed before the meeting, and he says “The amend ments referred to in exhibit D26 are those to be found in sheet No. 10 of exhibit D1. The alterations bear my initials. They relate to figures giving rates.1 These amendments, it will be noticed, do not include the 50 per cent, increase. The president further states that all the papers prior to his endorsement of D25, including exhibit D26, were before the meeting, and he adds, " I have not dated the correction in sheet No. 10 of D1, but the date of this correction is to be deduced from the first paragraph of exhibit D26. The reasons for the change in rates in sheet No. 10 of exhibit D1 are given in second paragraph of exhibit D26." He also states that exhibit D26 is presumably the note of recommendation referred to by the secretary in the resolution of July 16, 1922. All this evidence, as it stands, is prima facie inconsistent with the increase of 50 per cent, having been before the meeting, and, as already stated, no explanation is given as to the origin of this increase. All this evidence, as it stands, is prima facie inconsistent with the increase of 50 per cent, having been before the meeting, and, as already stated, no explanation is given as to the origin of this increase. This increase does appear in exhibit D28, which, along with D27, is a fair copy of the by-laws made for purposes of publication, but the head clerk, who prepared them, states that he D1d so in obedience to the order of the secretary, dated July 16, 1922, received by him on July 17 in the morning. He adds, " But the said documents bear my initials, dated July 15, 1922. I mean to say that the said documents were ready with my initials < and were put up before the secretary after July 17, 1922, This somewhat ambiguous statement is not pursued further, and, as it stands, is without value. Their Lordships1 conclusion, accordingly, is that the respondent committee have failed to prove that the amount or rate of tax here in question was resolved upon by the special meeting of July 16, 1922, and that the tax has not been validly imposed. Their Lordships will therefore humbly advise His Majesty that the appeals should be allowed, that in appeal No. 3 of 1931 the decree of the Court of the Judicial Commissioner, dated November 20, 1928, and the decrees of the lower Courts should be set aside, and that the appellants should be granted an injunction as craved, and that in appeal No. 4 of 1931 the decree of the Court of the Judicial Commissioner, dated November 20, 1928, should be set aside, and the decree of the Additional D1strict Judge, Khandwa, dated February 6, 1928, should be restored. The appellants will have the costs of these appeals, and in appeal No. 3 their costs in the Courts below, and in appeal No. 4 their costs in the Court of the Judicial Commissioner.