The Ganapathy Town Panchayat vs M/s. Textool Co., Ltd., Coimbatore

Ramaprasada Rao, J.—Both the writ appeal and the regular appeal are common based. A common quesarises in both the appeals, to wit,

whether the Ganapathi Town Panchayat have the requisite power under the provisions of the Tamilnadu Panchayats Act, 1958, hereinafter

referred to at the Act, to levy an annual fee over the machinery installed in a premises in addition to the licence fee which they are entitled to collect

in relation to the electrical or other energy used in such premises for working or energising the machinery so installed in it. The parties will now be

referred to by us with reference to the original suit, O.S. 152 of 1969 on the file of the Court of the Subordinate Judge, Coimbatore, out of which

A.S. 323 of 1971, arises. The plaintiffs filed a writ petition, W.P. 3353 of 1968 (1) on the file of this court, stating that the defendant had not the

requisite authority to claim a fee for the use of machinery by them in the industrial premises which is a textile factory situate in Ganapathi village

within the jurisdiction of Ganapathi Town Panchayat in the district of Coimbatore. It is common ground that the plaintiffs had as many as 710

machines and the total horse power of the said machines is 3951 H.P. and the machines are run with electrical power. During the years, 1966-67

and 1967-68; the defendant claimed from the plaintiffs annual licence fees for the use of such machinery exclusive of the fee which the Panchayat

defendant could levy under S. 111 of the Act. According to the plaintiffs, the maximum levy which the defendant could impose under S.111 of the

Act is Rs. 430 as per the prescriptions made for the purpose, besides additional fee, which is in addition to such a maximum fee, and which is

attracted in cases of belated applications for licence, no other fee could be charged. But, in violation of such existing prescriptions, the defendant

purported to act under Ss. 111 and 112 of the Act and demanded and collected from the plaintiffs various sums of money from 1963. The

plaintiffs, therefore, were obliged to file the above writ petition seeking for a writ of certiorari to quash the notice No. 191 of 1968 dated 19th

August 1968 calling for such a licence fee on the basis of the numerical strength of the machinery installed at the plaintiffs factory as above. The

contention of the plaintiffs in the above writ petition was that the Panchayat had not the requisite statutory authority to depart from the prescriptions

laid down in S. 159(2) of the Act, and therefore, the call for such payments and the levy made in the earlier years, more particularly during the

financial years 1966-67 and 1967-68 is illegal. After tracing the history of the levy which could be made and the necessary statutory provisions

which could be invoked to those circumstances, for making such a levy, it is contended that the impost was illegal. In the suit, repeating the same

contention, the plaintiff claimed a refund of a sum of Rs. 10,550 in respect of the year 1966-67, and a sum of Rs. 13,200/-, in respect of the year

1967-68, which according to them were attributable to the excess licence fee collected by the Panchayat without authority. After having issued the

prescribed notice under S.170 of the Act, they laid the action.

In the counter affidavit and the statement filed by the Panchayat, the Panchayat would maintain that they had the requisite power under S.111

and 112 of the Act read with the apposite notifications and rules made for the purpose and under the Act, to levy such import. They would further

maintain that the moneys having been paid not under protest cannot be said to have been paid under a mistake of law or of fact, and that therefore,

they cannot be refunded and that the civil court cannot go into the question as there are authorities in-built in the statute itself for redress.

Alagiriswami, J., as he then was, heard the writ petition and allowed it. The learned Judge was of the view that all the machinery used by the

plaintiffs at the factory premises should be treated as one single unit, and as they were used and utilised for one combined integrated activity and as

they could not be treated as independent units or parts of such independent units, the learned Judge upheld the contention of the plaintiffs in the writ

petition and made the Rule nisi absolute. In the civil suit for refund of the amounts, the learned I Additional Subordinate Judge framed the following

issues on the pleadings of the parties.

(1) Whether the levy and collection fee far renewals of licence for 1967-67 and 1967-68 are illegal and excessive under the Madras Panchayat

Act?

(2) Whether the plaintiff is entitled to any refund, and if to, to what amount?

(3) To what relief?

The learned Subordinate Judge held that the levy and collection of fee for renewal of licence for 1966--67 and 1967-1968 was illegal and

excessive under the Act. He was also of the view that there was no basis at all for the levy. Therefore, the contention of the defendant that the civil

court had no jurisdiction to go into the expediency of the levy was discountenanced. The learned Subordinate Judge further held that such

payments which were recovered by the Panchayat at should be deemed to be payments under a mistake of law as well as mistake of fact and in

these circumstances be directed the refund of the amounts paid by the plaintiffs and decreed the suit with costs. It is as against the judgment of

Alagiriswami, J. in W.P. 3353 of 1968 and as against the judgment and decree of the learned Subordinate Judge in O.S. No. 152 of 1969, the

present writ appeal and the regular appeal have been filed.

Mr. Alagiriswami, learned counsel for the panchayat, reiterates the arguments made before the learned Judge in the writ petition as well as

before the learned Subordinate Judge in the civil suit. According to him, the use of machinery in a factory projects a different concept and such use

being subject to a levy under the notifications issued by the Panchayat from time to time, which notifications in turn are based upon the rules issued

by the State Government under S.159 of the Act, such notifications are to be held to be legal, and therefore, the consequential levy and collection

are also to be held to be proper. Mr. Dulip Singh, learned counsel for the plaintiffs, however, would say that a fair reading of Ss. 111 and 112 of

the Act in conjunction with S.159 thereof and relevant rules and notifications issued by the appropriate authority in that behalf would not warrant a

levy and much less authorise the collection of an annual licence fee as made by the defendant Panchayat. As the relative contentions of the counsel

have an impact on the interpretation of the Sections of the statute and the rules and notifications made thereunder, it would be convenient at this

stage to refer to them S.111 of the Act mentions the purposes for which places may not be used without a licence. Such purposes which are

classifiable as offensive or dangerous to human life, health or property are from time to time notified by the Government in the appropriate manner.

This is provided for in S.111 (1). S.111(2)(ii) with which we are concerned says as follows--

111 (2) (ii). The Town Panchayat may, with the previous approval of the prescribed authority, notify that no place within the limits of the

Panchayat town shall be used for any of the purposes specified in the notification issued under sub-S. (1) without a licence and except in

accordance with the conditions specified in such licence.

S.112 deals with cases where permission for the construction of factories and installation of machinery is required. S.159(2) says that for every

such licence or permission required under the Act, fees may be charged on such units and at such rates as may be fixed by the Panchayat or the

Panchayat Union Council, as the case may be, provided that the rates shall not exceed the maximum, if any, prescribed. The prescription is made

invariably by the Government in exercise in their rule making power under S.178 read with S. 159(2) of the Act. We shall presently refer to the

rules issued by the Government and the prescriptions they have made in the matter of maximum rates to be levied by the Panchayats or Panchayat

Councils. There is a marked distinction between the scope of S.111(2)(ii) and S.112 of the Act. After the State Government have prescribed the

purpose which in their opinion are likely to be offensive, dangerous to human life, or health or property, the Panchayats (we are using this

expression compendiously) get the power, provided the rules and notifications and other prescriptions are made by the Government, to notify in

their respective areas that no place within their limits shall be used for any of the purposes as above without a licence and except in accordance

with the conditions specified in such licence. S.111 (2)(ii) of the Act in particular deals with the power of the town panchayats, whilst S.111(2)(i)

deals with the power of the Panchayat Union Council. We are not in this case concerned with the power of the Panchayat Union Council. In town

Panchayats the authority can levy a licence fee in respect of user of the premises for the purposes specified by the Government in S.111(1). In

juxtaposition to this, the purpose of S.112 of the Act is quite clear and obviously distinct. S.112 deals with a case where permission of the town

Panchayat or Panchayat Union Council is sought in the case of construction of factories and the installation of machinery. In the case of installations

of machinery in any premises, the Panchayat, if so authorised, can collect a fee in connection with such installation, but not otherwise. S.112

therefore, deals with the construction or establishment of factories, etc, and the installation in any premises of any machinery, etc. It does not deal

with the use of the premises for the purposes specified in the notification issued by the Government under S.111(1) of the Act. If any fee can

possibly be levied by the town panchayat under S.112, the basis of that levy totally distinct from the basil under which the town panchayat may call

for a licence fee within the prescribed limits from a person who intends to use any premises or place within its limits for any of the purposes

enumerated by the Government in their notification under S.111(1). When this distinction therefore, is borne in mind, the reasonableness of the

contention of the learned counsel for the plaintiffs become obvious.

We shall now deal with the rule made by the Government and the notifications issued for the purposes which are relevant for the present. We

have already seen that the Panchayat or the Panchayat Union Council, as the case may be, shall for such authorised purposes levy a fee which shall

not exceed the maximum, if any, prescribed by the Government in exercise of their rule making authority. It is common ground that in exercise of

the powers conferred by sub-S.(2) of S.159 and sub-S.(1) of S. 178 of the Act, several rules were framed by the State Government. We are,

however, concerned with Notification No. 46. The relevant rules may be extracted for ready reference:

Maximum licence fee for machinery driven by electricity or other powers: 1. The fees which may be charged for a permission granted trader S.112

of the Madras Panchayats Act, 1958, for the installation in any premises of any machinery or manufacturing plant driven by electrical power shall

not exceed the maxima specified in Sch. I appended to the ruler;

Provided that the fees which may charged under this rule shall not exceed those charged for the installation of any machinery or manufacturing plant

of like horse power driven otherwise than by electricity;

The fees which may be charged for a licence granted or renewed under S.111 of the said Act for a period of one year for a place in which any

machinery or manufacturing plant driven by electrical power is used shall not exceed the maximum specified is Sch. I appended to those rules.

Provided that where any such licence is granted or renewed for period of less than one year, the aggregate licence fees charged for the same place

in respect of the same machinery or manufacturing plant in any year shall not exceed the fees which may be charged for a licence granted or

renewed in respect thereof for a period of one year;

Provided further that the fees which may be charged under this rule shall not exceed those charged for any machinery or manufacturing plant of like

horse power driven otherwise than by electricity.

The maximum specified in schedule I appended to these rules apply only to applications made in time; in the case of a belated application an

additional fee not exceeding 25 per cent of the maximum fee specified in that schedule may be charged.

(Schedule I to the rules omitted)

From the first schedule appended to this notification it is seen that the licence fee is correlated to the number of horse power deployed by the

concerned industry and used by it at one particular place. The maximum that has been prescribed in this notification is Rs. 450 for installation and

working of machinery exceeding 500 horse-power.

This being the source of power, the notification issued by the panchayat claiming the questioned fee could at once be noticed. Ex. B. 3 is the

notification issued by the defendant Panchayat under Ss. 109, 111, 112, 113, 159 and 167 of the Act and as per rules under S.178 (2) of the Act.

We are here concerned with items 22 and 23 of the schedule to the notification, Ex. B 3. Under item 22, the Panchayat has notified that they are

going to charge only Rs. 450 for the use of machinery in a particular premises which uses machinery exceeding 500 horse power. We have already

referred to the fact that the total horse power of the machinery deployed by the plaintiff industry in the premise in question is 3951 H.P. and

therefore the Plaintiffs have to suffer the maximum fee as prescribed. But the question is, whether for the use of the machinery, the plaintiffs have to

suffer additional levy at the rate of Rs. 15 per machine. It is common ground that there are 710 machines in the premises. Under item 23 of the

schedule to Ex. B 3, the Panchayat has imposed an annual fee of Rs. 15 per machine stating that such use of machinery in any premises would

attract the levy. The point is, whether this part of the notification in Ex. B-3 is legal and valid.

We have already referred to the distention between a levy under S.112 and that arising under S.111. Under S.112, it appears to us that if the

Panchayat is entitled to levy a fee, if at all, it could do so only once and that too at the time when the machinery is installed in any premises. There is

no scope for the contention that once the machinery is installed, the Panchayat or the Panchayat council, as the case may be, has power under

S.112 to call for a licence fee or a fee year after year on the basis that the machinery has been installed in the previous year. If an authority imposes

a levy or a tax, it should have the requisite statutory authority to do so. There is no intendment, in either. If there is no charging section enabling an

authority to impose a levy or a tax, then the furtherance of that levy on the assumed authority that they have the power to call for such a tax or levy,

would not be countenanced, by a court of law, and if any collection has been made pursuant to such exercise of power which it non-existent the

courts will treat such collections as unauthorised collections and this relative payments suffered by the tax-payer as one made under a mistake of

law or sometimes under a mistake of fact. If, therefore, the Panchayat had no power at all to call for a fee for the use of machinery except

probably at the stage when they are installed in any premises, then it automatically follows that the levy is unauthorised and illegal. Much intelligence

is attempted to be drawn from the text of S.111 of the Act and it is said that a reading of Ss.111 and 112 and the rules issued by the State

Government and the challenged notification issued by the Panchayat will clearly show that the levy is proper. We are unable to agree.

It is in this context that the observations made by Alagiriswami, J. in W.P. 3353 of 1968 are apposite. It is common ground that all the

machineries are run by electrical power, and they are all found in one place, and are engaged in one integrated commercial activity for the

production of spare parts in a textile industry. Alagiriswami, J. has, therefore, rightly said that all the machinery should be treated as one single unit

and they cannot be treated, each individually. The learned Judge concluded by saying that when the items which are challenged speak of use of

machinery or manufacturing plant, they are not referring to two separate things but to the same thing, and, therefore, the levy of license fee cannot

be under both the headings, but can only be under one of them. We may add that the fee that could be levied by the Panchayat could only be for

the use of the premises for running the industry with the assistance of power, which is provided for under S. 111 of the Act and that in the absence

of any express provision for the levy of such fee over the machinery as such, year after year, the assumed jurisdiction of the Panchayat to call for

and collect such a fee is obviously without any basis whatsoever.

Whilst on this, it would be relevant to quote the observations of the Privy Council in Corporation of Calcutta v. Chairman Cassipoore and

Chittoore Municipality 49 Cal. 190. The learned Law Lords explained the word ""Machinery"" thus; The word ""machinery"" when used in ordinary

language, prima facie means acme mechanical contrivances, which, by themselves or in combination with one or more other mechanical

contrivances, by the combined movement and inter dependent operation of their respective parts, generate power, or evoke, modify, apply or

direct natural forces with the object in each case of effecting so definite and specific a result. Ultimately their Lordships would say that the equation

of the word ''machinery'' must, to a large extent, depend upon the special facts of each cage. This explanation of the word ''machinery'' has been

approved by the Supreme Court in COMMISSIONER OF Income Tax, MADRAS Vs. MIR MOHAMMAD ALI. ARUNA MILLS LTD. :

INTERVENER.,

In fact, the word ''machine'' as explained in the Shorter Oxford English Dictionary, Vol. I, 3rd Edn., at page 1182, means a ""combination"" of

parts moving mechanically, as contrasted with a being acting voluntarily and the word, ""machinery"" is explained at page 1183, as, ""machines, or

their parts, taken collectively."" Applying the usual and popular meaning of the word ''machinery'' as excerpted above, we are of the view that in the

absence of any charging provisions which would enable the Panchayat to levy a fee for the use of machinery in a premises and that too year after

year, the assumption of such jurisdiction on the basis that the premises is being used for one or the other of the purposes mentioned in S.111 of the

Act with the aid of power and incidentally with accessory machinery required for the purpose would not alter the situation.

It was in the above circumstances that the rule nisi was made absolute by Alagiriswami, J. in W.P. 3353 of 1968, and the notice issued by the

defendant-Panchayat demanding the licence fee was struck down.

We have already referred to the fact that the plaintiffs having invoked the jurisdiction of this court under Art. 226 of the Constitution and

questioned the authority of the Town Panchayat to levy the fee, contemporaneously filed a civil suit for recovery of a sum of Rs. 23,750 which was

collected by the Panchayat in the exercise of their purported power to levy the above licence fee for the rears 1966-67 and 1967-68. The learned

Subordinate Judge, after referring to the relevant statutory provisions and after considering the concerned notifications had to follow the judgment

of this court rendered by Alagiriswami, J. in W.P. 3333 of 1968. It is by now well settled that a decision rendered by the High Court in exercise of

its extraordinary original jurisdiction under Art. 226 of the Constitution would constitute res judica--vide Gulabchand Chhotalal Parikh Vs. State of

Bombay (Now Gujarat), Applying the said principle and as the learned Subordinate Judge was bound to follow the decision of this Court, the

learned Subordinate Judge held that the levy was unauthorised. He also rightly came to the conclusion that as there was no basis for the levy at all,

there was no bar for the institution of a civil suit for a refund of the amount collected under the garb of such pretended authority.

In the view that we have taken that the levy is without any statutory foundation, it follows that the plaintiffs are entitled to the relief they have

prayed for. The question that was mooted apparently before the learned Subordinate Judge was that when such amounts were paid, not under

protest, whether the plaintiff were entitled to seek for a refund of them as a matter of course. The contention of the plaintiffs, however, was that

those payments were made under a mistake of law and that under S.72 of the Contract Act, they were entitled to seek for such a refund.

The Supreme Court in the Sales tax Officer, Benaras v. Kanhaylal Mukundlal Sara AIR 1959 S.C. 1353 has made this position clear and the

proposition, therefore needs no reconsideration or a restatement. The Supreme Court has held as follows--

The term ''mistake'' used in S.72 Contract Act, has been used without any qualification or limitation whatever and comprises within its scope a

mistake of law as well as a mistake of fact. There is no warrant for ascribing any limited meaning to the word ''mistake'' as has been used therein.

It is easy to conceive that an industry functioning within the jurisdiction of a town panchayat, when called upon to pay a fee, though annually, will

not grudge to pay for the reason that it would not hazard to stop all its industrial activities for non-payment of such a fee. Apparently, the plaintiffs

in the present case took it for granted that the annual levy made was authorised. When they contested the authority of the Panchayat in the writ

proceedings and found that the Panchayat did not have the requisite power to impose a levy, they filed a civil suit. Obviously, therefore, they have

based their claim on the ground that they have paid the levy in the quondam years under a mistake of law. Such payments made under a mistake of

law are recoverable under S.72 of the Contract Act. The only thing that has to be made out by a person claiming such a refund in such

circumstances is to establish not only the fact that the authority which demanded and ultimately made the collection, acted without power, but that

they also lacked total jurisdiction to call for and collect such amounts. In the instant case, at no time the Panchayat had authority to levy such a fee.

Such total absence of jurisdiction on the part of the Panchayat to call for the levy and to make the collection would certainly enable the plaintiffs in

the present case to seek for a refund of such payments made by them during the years 1966-67 and 1967-68, as they have done, by instituting the

present notion. The suit has been rightly decreed.

In the result therefore, both the writ appeal and the regular appeal are dismissed. There will be one set of costs in A.S. No. 323 of 1971.