JUDGMENT - Deshpande D.B. J.: These two appeals arise out of the same judgment and decree passed by the lower Appellate Court in Regular Civil Appeal No. 54/1974 against two different defendants and these two different defen-dants have preferred these two appeals separately and that is why, they are heard together and are disposed of by a common judgment. These two appeals arise out of the following facts : - On 2nd July, 1970, plaintiff (who is Respondent No. 1 in both these appeals) purchased some immoveable property within the limits of Latur Municipal Council. At the time when the registered deed of sale was registered in the Registration Office at Latur, the Registering Officer recovered from the plaintiff Rs. 406 by way of transfer-tax equivalent to two per cent of the value mentioned in the Transfer Deed and the plaintiff alleged that the Registering Officer had no right to recover this transfer-tax, which was, admittedly, ultimately to go to the coffers of the Municipal Council and hence, plaintiff filed a suit both against the State Government and the Latur Municipal Council for recovery of this amount. He con-tended that after the repeal of the Hyderabad Stamp Act and of the Hyderabad District Municipalities Act, 1956, the State Government had no right to recover this tax and, therefore, the recovery is illegal. 2. Both the defendants by separate written statements contended that this tax was rightly and legally recovered and the recovery of this tax was saved by section 346(i) of the Maharashtra Municipalities Act, 1965, which was a saving clause in this respect. I shall refer to the detailed contentions in due course of my judgment. 3. As the question was pure question of law the parties did not lead any evidence and after hearing the counsel for both the sides, the learned trial Judge held that the plaintiff failed to prove that the tax was illegally recovered. He held further that the suit was a representative suit. He held also that the notice under section 304 of the Maharashtra Municipali- ties Act, 1965, was valid and proper. He held that defendant No. 1 proved that the tax on transfer of immoveable property imposed under the Hydera- bad District Municipalities Act was not inconsistent with the provisions of the Maharashtra Municipalities Act. He held also that the notice under section 304 of the Maharashtra Municipali- ties Act, 1965, was valid and proper. He held that defendant No. 1 proved that the tax on transfer of immoveable property imposed under the Hydera- bad District Municipalities Act was not inconsistent with the provisions of the Maharashtra Municipalities Act. He held that defendant No. 1 proved that the tax was being collected in the nature of surcharge on the stamp duty and consequently, he dismissed plaintiff's suit but directed the parties to bear their own costs. 4. Plaintiff went in appeal and the learned Assistant Judge, Latur, who heard the appeal disagreed with the trial Court and according to him, after the repeal of the Hyderabad Stamp Act neither the State Government nor the Latur Municipal Council could recover this amount. According to the learned Assistant Judge, it was nothing else but an additional stamp duty and according to him further, it was not a tax and, therefore, he held that the recovery was illegal. Consequently, he allowed the appeal and passed a decree against both the defendants. Feeling aggrieved by this decision, defendant No. 2 -Latur Municipal Council-filed Second Appeal No. 385/1977 and the State of Maharashtra -defendant No. 1-preferred Second Appeal No. 683/1977. 5. Shri A. B. Naik, appearing on behalf of the Latur Municipal Council and Shri B. B. Jadhav, learned Assistant Government Pleader appearing on behalf of the State Government urged before me that the deci- sion of the lower Appellate Court was totally incorrect and according to both of them, the recovery was nothing else but was a tax and as such, the recovery was saved, by virtue of section 346 (i) of the Maharashtra Munici- palities Act, 1965 (hereinafter it is referred to as the “M. M. Act”). In the alternative, it was their submission that even if it is assumed for a moment that there was some inconsistency between section 106 of the Hyderabad District Municipalities Act, 1956 (hereinafter it is referred to as the “Act of 1956?) and section 105 of the Maharashtra Municipalities Act, under the second Proviso to section 346 (i) of the Maharashtra Munici- palities Act this recovery could be made till 1977 at any rate. 6. Now, in order to properly appreciate all these submissions we have to go to some legal positions. 6. Now, in order to properly appreciate all these submissions we have to go to some legal positions. Now, under section 96 of the Act of 1956 there was Chapter IX and it related to the “Municipal Taxes”. Taxes, as mentioned in section 96 of the Act of 1956, were liable to be imposed by the Municipal Committee. Section 96 (1) (g) lays “tax on transfer of immoveable property”, and, therefore, authorised the Latur Municipal Council to recover the tax on transfer of immoveable property. Then we have to refer to section 106 of the Act of 1956 and in order to properly appreciate the scheme, it will be better to reproduce this entire section which runs as follows:- “106.(1) The tax on transfer of property (hereinafter referred as transfer tax) shall be levied :- (a) in the form of a surcharge on the duty imposed by the Hydera- bad Stamp Act for the time being in force on every instrument of the description specified below which relates to immoveable property situated within the Municipality; and (b) at a rate of two per centum on the amount specified below against each instrument:- Description of Instrument Taxable Amount (i) Sale of immovable property. The amount or value of the consi- deration for the sale, as set forth in the instrument. (ii) Exchange of immovable The value of the property of the property. greater value, as set forth in the instrument, (iii) Gift of immovable property. The value of the property as set forth in the instrument. (iv) Mortgage of immovable The amount secured by the mort-property. gage, as set forth in the instrument. (2) All the provisions of the Hyderabad Stamp Act for the time being in force and the rules made thereunder shall mutatis mutandis apply to the transfer tax as they apply in relation to the duty chargeable under that Act. (3) No registering authority shall accept any instrument of the description specified above for registration unless the amount of transfer tax is paid in cash. (4) Every registering authority shall maintain an account of the transfer tax paid in respect of each instrument registered by him and a separate account showing the amount of the consideration, the value of the property of the amount secured by a mortgage as the case may be. (5) The transfer tax collected under this Act shall be credited to the Municipal Fund. (5) The transfer tax collected under this Act shall be credited to the Municipal Fund. In the absence of an agreement to the contrary the transfer tax shall be paid by the person who is primarily liable for the payment of Stamp duty in respect of the instrument executed.” It will, therefore, be seen that this tax was perfectly legal and all that is said in sub-section (1), clause (a) of section 106 of the Act of 1956 is that this tax is to be recovered in the form of a surcharge on the stamp duty imposed under the Hyderabad Stamp Act. Thus, by a deeming legal fiction only the mode of recovery is mentioned in section 106 of the Act of 1956. By this deeming fiction the nature of this recovery as a tax is not at all lost and here itself the lower Appellate Court has fallen in error. Sub-section (2) of section 106 of the Act of 1956 clearly shows that only the pro-visions of the Hyderabad Stamp Act would apply mutatis mutandis to the transfer tax as they apply in relation to the duty chargeable under that Act. It only means that this tax is to be recovered by the Registering Officer who registers the document tendered by the parties. It is, therefore, clear that the amount of tax is to be paid in cash and not in the form of a stamp duty. If this payment were in the nature of additional stamp duty, perhaps it could be said that after the abolition of the Hyderabad Stamp Act this additional stamp duty could not be recovered. But the Legislature has made a clear provision that the tax is to be recovered in cash and sub-sec-tion (5) of section 106 of the Act of 1956 further makes it clear that this tax goes to the coffers of the Municipal Council and does not go to the State Government Fund. Thus, under this section only the mode of recovery is mentioned with relation to the Hyderabad Stamp Act and at the fault of repetition I may point out that the recovery is not in the form of stamp duty but it is in the form of a surcharge on the duty imposed by the Hyderabad Stamp Act. 7. Now, admittedly, the Hyderabad Stamp Act was repealed in the year 1958 by the Bombay Stamp Act, 1958. 7. Now, admittedly, the Hyderabad Stamp Act was repealed in the year 1958 by the Bombay Stamp Act, 1958. Hence, in spite of the repeal of the Hyderabad Stamp Act, the nature of the recovery in the form of a tax is not at all lost and only the mode of recovery as mentioned in the Hydera- bad Stamp Act would go away with the repeal of the Hyderabad Stamp Act and as already stated earlier, the lower Appellate Court has fallen in error here only. 8. Now, it is an admitted fact that the Act of 1956 was repealed by the Maharashtra Municipalities Act of 1965 some time in the year 1966. Now, the corresponding provision for imposition and recovery of taxes in the Maharashtra Municipalities Act is contained in section 105 of the Maha- rashtra Municipalities Act and in order to find out properly whether there is any inconsistency between section 106 of the Act of 1956 and section 105 of the Maharashtra Municipalities Act it is better to reproduce section 105 of the Maharashtra Municipalities Act also just as section 106 of the Act of 1956 is already reproduced. Section 105 of the Maharashtra Municipalities Act runs as follows : - “105. Imposition of compulsory taxes-(1) Subject to any general or special orders which the State Government may make in this behalf, a Council shall impose, for the purposes of this Act, the taxes listed below: - (a) a consolidated property tax on lands or buildings or both situated within municipal area, based on their rateable value as deter. mined in accordance with section 114; (b) an octroi; (c) a tax on professions, trades, callings and employments; (d) a tax on cinemas, theatres, circuses, carnivals and other performances and shows; (e) tax on advertisements other than advertisements published in the newspapers : Provided that, the maximum and minimum rates at which the taxes aforesaid shall be levied in different classes of municipal areas and other matters relating to imposition, assessment, collection and exemptions thereof shall be such as may be prescribed by rules. • (2) the consolidated tax on property shall include. • (2) the consolidated tax on property shall include. (a) a general tax; (b) a general water tax; (c) a lighting tax; (d) a general sanitary tax; (e) a special latrine tax.” It will, therefore, be seen that there is no inconsistency between section 106 of the Act of 1956 and section 105 of the Maharashtra Municipalities Act. In section 106 of the Act of 1956 there is a provision for recovery of tax as a tax on transfer of immovable property, whereas, there is no correspond-ing provision in section 105 of the Maharashtra Municipalities Act. Thus, it cannot be said to be an inconsistency between the two provisions. Shri B. N. Bajpai, appearing for the plaintiff-respondent No. 1,was fair enough to admit that two things are said to be inconsistent when one law contained one provision and another law. contained another provision. He was also fair enough to admit that if in the law, which repeals the old law, there is no corresponding provision to the one in the old law, it cannot be said that there is an inconsistency between the two provisions. Hence, first of all, to my mind there is absolutely no inconsistency whatsoever between the provisions of section 106 of the Act of 1956 and section 105 of the Maharashtra Municipalities Act and in this context we have to turn to section 346(i) of the. Maharashtra Municipalities Act. That section speaks of the consequences of replacement of existing Councils and the relevant clause runs as follows :- “346, With effect on and from the appointed day, the following consequences ensue that is to say ;¯ (a)… … … … … … (b) … … … … … … (c) … … … … … … (d) … … … … … … (e) … … … … … … (f) … … … … … … (g) … … … … … … (h) … … … … … … (i) any appoint ment, notfification notice', fax, order; scheme licence, permission, rule, bye-law, regulation or form held, made, imposed, issued or granted by or in respect of art existing Council under any of the repealed laws-or any other law for the time being in force fa, the area of such existing Council, and in-force immediately before the-' appointed day, shall, in so far as it is not inconsistent with the pro-visions of this Act. continues to be in force as if made, issued, imposed or granted in respect of the corresponding area of the successor Council until superseded by any authority competent so to do: Provided that - (i) no rule made under any of the repealed laws in respect of an Existing Council and in force immediately before the appointed day shall be deemed to be inconsistent with the provisions of this Act by reason only of the fact that under this Act it is permissible to make only a by-law or any other instrument other than a rule in respect of the matter provided for in such rule; (ii) the provisions of clause (i) of this proviso shall mutcnh mutnndis apply to any by-laws, regulations, or any other instrument made under any of the repealed laws in respect of an existing Council and in force immediately before the appointed day: (Provided further that, any assessment made on any tax levied by any existing Council before the appointed day and in force immediately before that day shall notwithstanding the fact that it is inconsistent with the provisions of this Act, continue to be in force until it is replaced by assessment made or tax levied by the successor Council in accordance with the provisions of this Act or till the 31st day of March, 1977 whichever is earlier: Provided also that, no proceeding for the levy of any tax pending on the appointed day or commenced thereafter at any time before the rules under this Act are made by the State Government, whether completed before or after the commencement of such rules shall be void merely by reason of the fact that no rules had been made under this Act or the rates of tax adopted by any Council were different from those provided in such rules.)” Now, this clearly makes a reference to the tax. Now, under the old Act of 1956, the tax was being recovered as a tax on the transfer of immovable property and hence, there is no inconsistency between the two laws. The recovery of taxes on transfer of property was positively saved by virtue of this clause in section 346 of the Maharashtra Municipalities Act and, there-fore, the recovery of tax was quite legal and was quite proper. 9. The recovery of taxes on transfer of property was positively saved by virtue of this clause in section 346 of the Maharashtra Municipalities Act and, there-fore, the recovery of tax was quite legal and was quite proper. 9. Assuming for a moment that there is some inconsistency between the two provisions the second proviso will make this recovery perfectly legal. The second proviso runs as follows :- “… … … … … …… … … … … …… … … … … …… … … … … …… (Provided further that, any assessment made on any tax levied by any existing Council before the appointed day and in force immediately before that day shall notwithstanding the fact that it is inconsistent with the provisions of this Act, continue to be in force until it is replaced by assessment made or tax levied by the successor Council in accordance with the provisions of this Act or till the 31st day of March, 1977, whichever is earlier: Provided also that, no proceeding for the levy of any tax pending on the appointed day or commenced thereafter at any time before the rules under this Act are made by the State Government, whether completed before or after the commencement of such rules shall be void merely by reason of the fact that no rules had been made under this Act or the rates of tax adopted by any Council were different from those provided in such rules.)”. Now, it is an admitted fact that this second proviso was inserted by the Maharashtra Act No. 45/1975/S. 16. 1 have also brought the Maharashtra Act No..45/1975 and section 16, which inserts the second proviso, runs as follows. I have reproduced only the relevant portion : “In section 346 of the Principal Act, in clause (i), after the proviso, the following provisos, shall be, and shall be deemed always to have been inserted namely ;- ... ... ...” and thereafter, the second proviso starts. I have reproduced only the relevant portion : “In section 346 of the Principal Act, in clause (i), after the proviso, the following provisos, shall be, and shall be deemed always to have been inserted namely ;- ... ... ...” and thereafter, the second proviso starts. It is, therefore, clear that by virtue of this deeming provision the second proviso is made retrospective with effect from the date on which the Maharashtra Municipalities Act came into play and, therefore, assuming for a moment that there was some inconsistency, the recovery of this tax is clearly permissible till 31st day of March, 1977 because that provision is not replaced under the Maharashtra Municipalities Act by the Latur Municipal Council, and therefore, the recovery till 31st day of March, 1977 was clearly permissible. 10. I am, therefore, satisfied that the recovery of tax was perfectly legal and proper and the learned Assistant Judge has clearly fallen in error. and, therefore, the appeals deserve to be allowed. 11. In the result both these appeals are allowed. The judgment and decree of the lower Appellate Court are hereby set aside and the judgment and decree of the trial Court are restored but in the peculiar circumstances of this case there will be no order as to costs of the lower Appellate Court as well as of this Court. Appeals allowed. ----