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Andhra High Court · body

2001 DIGILAW 1628 (AP)

Nandyal Municipal Council, Nandyal v. N. M. D. Ismail

2001-12-13

V.V.S.RAO

body2001
V. V. S. RAO, J. ( 1 ) A short but interesting question arises in this revision petition filed by the Nandyal Municipal Council against the order of the learned Principal District Munsif, Nandyal, dated 3-3-1993 rejecting the plaint presented by the petitioner as barred by limitation. ( 2 ) THE petitioner is the plaintiff in an un-numbered suit on the file of the Principal District Munsif Nandyal. The suit was filed for recovery of an amount of Rs. 11,215. 80p, being the damages for use and occupation of Nandyal vegetable market and weekly market including the salary of sweeper for the period from 1-4-1988 to 31-3-1989. It was alleged in the plaint that in furtherance and in accordance with the provisions of Sections 271 and 277 of the A. P. Municipalities Act, 1965 ( the Act for brevity) and an order of the Government in G. O. Ms. No. 686, Municipal Administration Department, dated 30-7-1968, the plaintiff issued a notification in Kurnool District Gazette dated 21-3-1988 proposing to conduct auction on 22-3-1988 for leasing out the right to collect market fee for daily, weekly and monthly markets within the territorial limits of the Municipal Council. On the date of auction the sole defendant (respondent herein) became the successful bidder at Rs. 25,900. 00 for daily vegetable market and at Rs. 11,215. 80p. for monthly market as well as weekly market and his bid was accepted. The defendant was given the licence/lease to collect the market fee. By March 1988, the defendant fell in arrears and was due to the Municipal Council an amount of Rs. 11,215. 80 ps. The Municipal Council issued a legal notice dated 20-7-1991 as well as demand notice calling upon the defendant to pay an amount of Rs. 11,215. 80 ps. with interest at 18%, otherwise the Municipality will take appropriate steps for recovery of the amount under the provisions of the Act. Though the demand/legal notice was received by the defendant, he did not respond and therefore the petitioner-plaintiff filed the suit on 17-6-1992. The learned District Munsif returned the plaint inter alia objecting as to how the suit claim is within three years and within limitation. The learned Counsel for the plaintiff in the lower Court appeared to have represented the plaint stating that the suit was within time as per the provisions of Section 365 of the Act. The learned District Munsif returned the plaint inter alia objecting as to how the suit claim is within three years and within limitation. The learned Counsel for the plaintiff in the lower Court appeared to have represented the plaint stating that the suit was within time as per the provisions of Section 365 of the Act. The lower Court was not satisfied with the same and by the impugned order rejected the plaint purportedly under Order 7, Rule 11 (d) of the Code of Civil Procedure, 1908 ( cpc for brevity ). ( 3 ) THE lower Court referred to a Division Bench judgment of this Court in District Panchayat Officer v. M. Krishna Murthy, 1977 (2) APLJ 272 , and also another judgment of this Court in The Vijayawada Municipality v. Lank Rama Murthy, 1977 APHC Notes 250, and held that the provisions of Section 365 of the Act can only be applied where the said amount is in relation to a contract and not otherwise. This order is assailed in this revision petition. ( 4 ) THE learned Counsel for the petitioner, Sri Prasad representing Sri G. Vijay Kumar submits that the provisions of the Limitation Act, 1963 have no application in view of the provisions in the special enactment namely A. P. Municipalities Act. According to him, as the contract was given to the respondent on 22-3-1988, the suit was presented within the period of limitation of six years as per the provisions of Section 365 of the Act. ( 5 ) THE short question is as to whether the Limitation Act, 1963 applies or Section 365 of the A. P. Municipalities Act, 1965 applies when Municipal Council constituted under the Act files a suit for recovery of "dues" to the Municipal Council? ( 6 ) THE Limitation Act, 1963 is a consolidating and amending law for the limitation of suits and other proceedings. Section 3 of the Limitation Act lays down that subject to the provisions contained in Sections 4 to 24 every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. The period of limitation defined in Section 2 (j) is the period of limitation prescribed for a suit etc. The period of limitation defined in Section 2 (j) is the period of limitation prescribed for a suit etc. and the Schedule appended to the said Act containing 137 Articles gives the description of the suits, period of limitation and the time from which the period begins to run for the purpose of limitation and Section 29 (2) is relevant for the purpose of this case and reads as under. SECTION 29 (2 ). Where any special law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as and to the extent to which, they are not expressly excluded by such special or local law. ( 7 ) A plain reading of Sub-section (2) of Section leads to a conclusion that where any special law or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule appended to the Limitation Act, the provisions of Section 3 shall apply as if such period were the period, prescribed by the Schedule and for the purpose of determining the limitation for any suit under any special or local law the provisions contained in Sections 4 to 24 of the said Act are applied only insofar as they are not expressly excluded by special law or local law. The Municipalities Act being a special law in relation to local bodies in urban areas, there cannot be any doubt that the Schedule under Section 3 of the Limitation Act has no application for the suits, appeals or proceedings initiated by the Municipalities for recovering the dues under the Act. I must hasten, however, to add that the Limitation Act, especially the provisions of Sections 4 to 24 and Section 3 and Schedule thereto would be equally applicable to plaints presented by the Municipalities if the Municipal law does not specifically prescribe any period of limitation in relation to such claims or actions. I must hasten, however, to add that the Limitation Act, especially the provisions of Sections 4 to 24 and Section 3 and Schedule thereto would be equally applicable to plaints presented by the Municipalities if the Municipal law does not specifically prescribe any period of limitation in relation to such claims or actions. ( 8 ) IN the present case, as the things stand, the petitioner accepted the bid of the respondent for leasing out/licensing their right to collect market fee in daily, weekly and monthly markets in Nandyal town. Under Sections 271 and 277 of the Act, an obligation is cast on the Municipality to maintain slaughterhouses and public markets respectively and prescribe appropriate licence fee for the same. The same having been done, any amount payable by a licensee/ contractor in a situation like this, is deemed to be dues within the meaning of Section 365 of the Act and insofar as the same is relevant reads as under. SECTION 365 (1): No distrait shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the Council under this Act after the expiration of a period of three years from the date on which distrait might first have been made, or after the expiration of a period of nine years from the date on which a suit might first have been instituted, or after the expiration of a period of six years from the date on which prosecution might first have been commenced, as the case may be, in respect of such sum. ( 9 ) AS per Sub-section (1) of Section 365 of the Act, as extracted above, the period of limitation for institution of a suit is three years from the date on which the distrait order might have been made or six years from the date on which the suit might have been instituted. At this state, a reference may be made to Section 364 of Act which reads as under. SECTION 364. At this state, a reference may be made to Section 364 of Act which reads as under. SECTION 364. Recovery of sums due as taxes:--All costs, damages, penalties, compensation, charges, fees, other than school fees, expenses, rents, contributions and other sums which under this Act or any other law or rules or bye-laws made thereunder or under any contract in respect of water supply or drainage, made in accordance with this Act, the rules or bye-laws, are due by any person to the Council, may if there is no special provision in this Act for their recovery be demanded by bill as provided in the rules in Schedule II and recovered in the manner provided therein. As per the above provision of Section 364 of the Act, all damages, charges, fees payable to the Municipality for the purpose of recovery shall be demanded as provided in the rules in Schedule II and recovery in the manner provided therein. Rules 34 and 29 to 38 of Schedule II read with Section 130 of the Act provide about the method and manner of recovering any taxes, dues to the Municipality and these provisions mutatis mutandis apply to recovery of all dues to the Municipality under Section 365 read with Section 364 of the Act. ( 10 ) IN Vijayawada Municipality case (supra), the suit was filed by the Municipality for recovery of the expenditure incurred by it upon the public health staff and monthly fees payable to it by the respondent. The suit was dismissed by the trial Court as barred by limitation. A Division Bench of this Court dismissed the appeal filed by the Municipality on the ground that a suit by a Municipality for recovery of the amount which is not "due under the Act" is governed by the provisions of the Limitation Act and therefore a suit beyond three years is barred. In was observed therein. IT is thus clear that the amounts which are now claimed from the defendants are the amounts due under the terms of and by virtue of the lease-deed executed between the parties. They cannot be said to be amounts due under the provisions of the Act. The position, probably, may have been different if the Act directed the Municipality to farm out the said right by auction every year and also prescribed the conditions of such auction. They cannot be said to be amounts due under the provisions of the Act. The position, probably, may have been different if the Act directed the Municipality to farm out the said right by auction every year and also prescribed the conditions of such auction. The Act in question, however, merely empowers the Municipality either to farm out the said right by auction, or to collect it by itself. If it chooses to farm out, it is entitled to prescribe appropriate conditions of auction, which it things fit, in the circumstances. The auction conditions so prescribed by the Municipality are not satisfactory. No doubt, the conditions of auction so specified by the Municipality, form part of, and are deemed to be incorporated in the lease deed executed between the parties yet, it does not follow that the amount due under the said contract can be said to be an amount due under the Act . ( 11 ) I have referred to the provisions of Section 364 of the Act which enables the Municipality to recover all damages, taxes, etc. , In accordance with the provisions of Schedule II. As the respondent did not execute the lease deed and paid the amount in accordance with the terms and conditions of the auction notice, the observations made in Vijayawada Municipality case (supra) also support my view. ( 12 ) THE upshot of the above discussion I is that all the damages for use and occupation of municipal property or the dues of licence fee/arrears of rent can be recovered as arrears of taxes under Section 364 read with the relevant rules in Schedule II. When a notice of demand is issued as required under Section 29 of Schedule II read with Section 364, option is available to the Municipal Council either to sue the respondent within three years from the date of demand notice or within a period of six years after the expiry of three years after serving the demand notice/distrait order. So to say, a Municipal Council can file a suit within a period of limitation of nine years from the date of serving a demand notice in a case like this. ( 13 ) THE above view is also supported by the judgment of the Division Bench in Krishna Murthy s case (supra ). So to say, a Municipal Council can file a suit within a period of limitation of nine years from the date of serving a demand notice in a case like this. ( 13 ) THE above view is also supported by the judgment of the Division Bench in Krishna Murthy s case (supra ). In the said case, Section 139 of the A. P. Gram Panchayats Act, 1964 fell for consideration. The said Section is in pan materia with Section 365 of the Act which reads as under:section 139: Limitation for recovery of dues.---No distrait shall be made, no suit, shall be instituted and no prosecution shall be commenced in respect of any tax or other amount due to a Gram Panchayat under this Act or any rule, bye-law, regulation or order made under it, after the expiration of period of three years from the date on which the distrait might first have been made, a suit might first have been instituted, or prosecution might first have been commenced, as the case may be, in respect of such tax or amount. ( 14 ) INTERPRETING the said provision, Jeevan Reddy, J. , (as his Lordship then was) speaking for the Division Bench observed. ANALYSED, Section 139 provides a uniform period of limitation of three years in case of distrait, suit and prosecution, in respect of any tax or other amount due to the Gram Panchayat. The said period of three years has to be computed "from the date on which distraint might first have been made, a suit might first have been instituted, a prosecution might first have been commenced, as the case may be, in respect of such tax or amount. " In this case, we are concerned with the starting point of limitation in the case of a suit. Now, Section 139 provides not only for recovery of the taxes due to the Gram Panchayat, but also for recovery of any other amount due to Gram Panchayat under the provisions of the Act, Rules, bye-laws, regulation, or orders made thereunder. Now, what is the meaning of the expression "the date on which a suit might first have been instituted?" In our opinion, it means the date on which the amount in question became or fell due. For an amount to become due, it must be known and ascertained. Now, what is the meaning of the expression "the date on which a suit might first have been instituted?" In our opinion, it means the date on which the amount in question became or fell due. For an amount to become due, it must be known and ascertained. If it is a case of a tax or any other specified amount due to the Gram Panchayat, there would ordinarily be no difficulty because one would know the due date by looking at the provisions of law, or the relevant order or proceeding, if any. ( 15 ) APART from the above, in a case like this the Court should adopt purposive interpretation as otherwise public authorities like the Municipalities would be failing to discharge their legal duties and obligations. Section 365 of the Act speaks of ordering distraint and Section 364 speaks of arrears of all dues to the Municipality as arrears of taxes and provides an elaborate procedure. As already seen, Section 29 (2) of the Limitation Act is categorical that when a special law or local law provides for law or limitation, the said period of limitation will apply and all the provisions contained in Sections 4 to 29 of the Limitation Act will apply subject to the said condition. In this case, the demand notice/legal notice was issued and received by the respondent on 25-7-1991 and therefore the period of limitation starts from that date and not from the date when the bid or offer was accepted by the Municipality. ( 16 ) IN this context, I may refer to the judgment of the Supreme Court in Reserve Bank of India v. Peerless General Finance and Investment Company Limited, AIR 1987 SC 1023 = (1987) 1 SCC 424 , the law has been laid down in the following terms. INTERPRETATION must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both the important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. Neither can be ignored. Both the important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With those glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolated. Statutes have to be construed so that every word has a place and everything is in its place. ( 17 ) IN Dadi Jagannadham v. Jammulu Ramulu, 2001 AIR SCW 3051, the Apex Court held:the settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction, which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the Legislature, the Court could not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not here, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there. The Court could not add words to a statute or read words into it which are not here, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there. ( 18 ) IN Gurudevdatta Maryadit v. State of Maharashtra, (2001) 4 SCC 534 , the Apex Court held that the words used in a provision should be considered in the following terms :it is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning irrespective of the consequences. It is said that the words themselves best declare the intention of the lawgiver. ( 19 ) WHEN the State Legislature enacted the A. P. Municipalities Act, 1965, it should be presumed to be aware of the Limitation Act. Despite that a different period of limitation was prescribed for claiming or recovering the arrears of taxes, damages etc. and Section 365 of the Act was enacted. The provision, having regard to larger public interest, should be interpreted to enlarge the rights of the Municipal Council to recover the dues rather than restricting such right, for the interpretation of Section 365 of the Act which, is adopted by me should be in furtherance of public interest as otherwise many claims by the Municipalities would get nullified. ( 20 ) IN the result and for the aforesaid reasons, the civil revision petition is allowed. The lower Court shall number the suit and proceed with the trial of the suit. After service of summons, the lower Court may dispose of the suit as expeditiously as possible within a period of six months treating the suit as an identified case. The lower Court shall number the suit and proceed with the trial of the suit. After service of summons, the lower Court may dispose of the suit as expeditiously as possible within a period of six months treating the suit as an identified case. Further, any observations made insofar as the merits of the case are concerned, are only prima facie inferences and they do not bind the parties to the suit. Having regard to the facts and circumstances of the case, there shall be no order as to costs.