The Government of Tamil Nadu vs S.S.M. Soundi Chetti and Another

Ismail, C.J.—This is an appeal against the order of Varadarajan, J. dated 16th October 1979 allowing W.P. No, 2513 of 1977, and

directing the Panchayat, the second respondent herein, to refund the excess water tax collected from the first respondent herein. The matter lies

within a very narrow compass. u/s 26(1) of the Tamil Nadu Public Health Act, 1939, any local authority, may, with the previous sanction of the

Government, levy within its area or any part thereof, any tax which may be necessary for providing water supply in such area or part. Under

subsection (3) (a) of the same section, the rates at which any tax may be levied under the section shall be determined by the local authority with the

previous sanction of the Government, in case the tax is levied by the local authority of its own motion, and by the Government in case the tax is

levied at their direction. In this particular case by G. O. Ms. No. 766 Health dated 21st March, 1962, the Government of Tamil Nadu accorded

sanction to the Kumarapalayam Town Panchayat in Salem District, u/s 25 of the Act referred to above under the following terms:-

Under Section 25 of the Madras Public Health Act, 1939 (Madras Act III of 1939) the Government accord sanction to the levy by the

Kumarapalayam Panchayat in Salem district, of a water tax at 5% (five per cent) of the house tax levied in its area, with effect from 1-4-1962.

However, the Panchayat, instead of levying the tax at 5% of the house tax, levied the tax at 5 per cent of the annual value of the house within its

jurisdiction and this went on from 1962-63 to 1975-76. When the matter was brought to the notice of the Government, the Government passed an

order in G. 0, Ms. N 1097 Rural Development and Local Administration Department, dated 23-6-1977, directing that the action of the Executive

Officer, Komarapalayam Town Panchayat in having collected water tax on the basis of the annual value of houses may be ratified as a special

case. The first respondent herein filed the writ petition in question praying for the issue of a writ of certiorari and mandamus for quashing the order

of the Government dated 23rdJune, 1977 and for directing the Komarapalayam. Town Panchayat to refund the excess water tax illegally collected

from the first respondent in respect of the properties of the first respondent situate within the limits of the Panchayat area. As we said earlier, the

learned Judge allowed the writ petition and directed the Panchayat to refund the excess water tax collected from the first respondent. It is against

this order, the State of Tamil Nadu has preferred the present writ appeal.

We are clearly of the opinion that the conclusion of the learned Judge is correct. We have referred to the provisions contained in Sections 25(1)

and 25(3)(a) of the Tamil Nadu Public Health Act, 1939, and the actual terms of G. O. Ms. No. 766 Health dated 21-3-1962. It will be seen that

so far as the present case is concerned, Section 25(1) as well as Section 25(3) (a) refers to the ''previous sanction'' of the Government, and what

the Government accorded in G. 0. Ms. No. 766 Health dated 21-3-1962 was the 1previous sanction'' referred to in these statutory provisions.

But what the Government purported to do by the impugned order is to retrospectively ratify or legalise what was done illegally by the second

respondent Panchayat. As a matter of fact, the Government order itself does not say that it was passed in the purported exercise of any statutory

power. In fact, Section 25 of the Tamil Nadu Public Health Act 1939, does not confer such a power on the Government to retrospectively ratify

some thing which was not legally done by the local authority. On the, other hand, when the statute uses the expression ''previous sanction'' it means

only previous sanction and does not mean or include subsequent ratification. Under these circumstances, the collection of water tax at 5 per cent of

the annual value of the houses situate within the area of the second respondent Panchayat was illegal from the very inception and that illegality

cannot be cured by a subsequent ratification by the Government. As a matter of fact, the authority or legality for the collection of the tax is the

previous sanction of the Government. Once the previous sanction of the Government is not there for the collection of the particular tax at, a

particular rate, the water tax collected in the present case in excess of what was sanctioned by the Government under G. O. Ms. No. 766 Health

dated 21-3-1962, was illegal as being opposed to the specific statutory provision and that illegality cannot be cured by a retrospective

administrative ratification by the Government In view of this, the appeal fails and is dismissed.

Appeal dismissed.