Lallubhai Shah Ag. C.J.
1. [His Lordship, after setting out the facts of the case, proceeded:] I shall first deal with the preliminary points raised in the arguments before us in appeal. The most important among them is the point as to notice under Section 80 of the Code of Civil Procedure. The section provides as follows:-
No suit shall be instituted against the Secretary of State for India in Counoil, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been, in the case of the Secretary of State in Council, delivered to, or left at the office of, a Secretary to the Local Government or the Collector of the District, and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims......
2. There is no objection to the form of the notice given in this case: but it is urged that as the suit was instituted before the expiration of two months next after the notice, it should be dismissed. On the one hand it is urged that it makes no difference whether the suit be against the Secretary of State for India in Council or against a public officer, and that whatever the nature of the suit, it cannot be instituted before the expiration of two months. On the other hand it is urged that the principle of not requiring the aggrieved party to wait for two months when the circumstances require that the proposed act should be immediately prevented with a view to stop an irremediable loss to the party the Courts have entertained suits in spite of the peremptory provisions as to notice in the interests of justice and various decisions have been referred to in support of the view. It is urged that the provision is a rule of procedure and does not affect the right: and where the right requires an immediate remedy the Courts have entertained the suits, where they have been satisfied as to the need of an immediate remedy by way of prevention of the wrong complained of.
3. After considering the arguments on both sides, I am content to accept the view taken by this Court in Secretary of State v. Gajanan Krishnarao I.L.R. (1911) 35 Bom. 302 : 13 Bor. L.R. 273. and Secretary of State, for India v. Gulam Rasul I.L.R. (1916) 40 Bom. 392 : 18 Bom. L.R. 243 as to the powers of the Court to entertain suits for injunction against the Secretary of State for India before the expiration of two months from service of notice. As I understand the observations in Dayal v. Secretary of Stated : (1920)22BOMLR1089 they do not in any way conflict with or modify the view taken in the two cases just referred to. As regards a similar suit against a public officer in respect of any act purporting to be done by such public officer, I accept the view taken by this Court in Naginlal Chunilal v. The Official Assignee, Bombay I.L.R. (1912) 37 Bom. 243 : 14 Bom. L.R. 1148. The question whether a suit for injunction could be filed against the Secretary of State for India in spite of the provisions of Section 80 of the Code of Civil Procedure before the expiration of two months from the date of the notice was not decided in Hari v. Secretary of State for India I.L.R. (1903) 27 Bom. 424: 5 Bom. L.R. 431. But the case was decided on the ground that in that suit and under the circumstances of that case no injunction could be claimed against the Secretary of State. The observations in that case at p. 451 that the Court should, if possible, always require notice, however short, to be given relates to an ex parte injunction during the pendency of the proceeding and has nothing to do with the point we have to consider.
4. I am aware of the weight due to the contrary view taken in Secretary of State v. Kalekhan 5 Bom. L.R. 431 and Muradally Shamji v. B.N. Lang I.L.R. (1919) 44 Bom. 555 : 21 Bom. L.R. 980. I have carefully considered these decisions, and the wording of Section 80 in the light of the arguments urged at the bar: but I still think that the view taken in the Bombay decisions, which I have above referred to, is the right view. I agree that the words 'in respect of any act purporting to be done' apply to the 'public officer' only and not to the Secretary of State for India in Council. But as I understand the principle underlying the decisions, which I am prepared to follow, it is independent of these words and in my opinion applicable to suits against the Secretary of State for India as well as to suits against public officers. The really difficult question is whether the imperative provisions of the section do not exclude the application of the principle based upon such considerations as may arise in suits for injunction where the necessity for the remedy by way of an injunction is made out. In applying this principle, this Court has followed the radio decidendi of the English decisions in Attorney-General v. Hackney Local Boards (1875) L.R. 20 and Flower v. Local Hoard of Low Leyton (1877) 5 Ch. D. 347. In the sections which were under consideration in these two cases, the provisions as to notice were not less imperative than the words of Section 80 of the Code; and the decisions were not in any sense dependent upon the view whether the expression was 'act purporting to have been done' or 'purporting to be done'. They are based on the broad consideration of the object of the notice and of the necessity for a speedy remedy according to the nature of the wrong complained of. It is true that in virtue of the provisions of the Public Authorities Protection Act. 1893 (56 & 57 Vic. c. 61) these English decisions have not the same value now as they had before that Act was passed so far as their actual application is concerned. When this Court adopted that view in dealing with the point as to notice under the old District Municipal Acts of 3873 and 1884 it was based upon. this broad consideration though partly it was based upon the effect of the words 'anything done or purporting to have been done' used in Section 48 of Bombay Act II of 1884. [See Shid-mallappa v. Gokak Municipality I.L.R. (1887) 22 Bom. 605 and Harilal v. Himat I.L.R. (1897) 22 Bom. 636.]
5. The rule contained in Section 80 is a rule of procedure and does not affect in any way the cause of action or the rights of the parties. If the cause of action requires an immediate remedy by way of injunction, and if Section 80 is literally applied, the party aggrieved would have no remedy. It seems to me that this Court has accepted a view which is in consonance with justice, equity and good conscience, which is not in any sense based upon any technical rule of English law, and which is in accordance with the rule that has been followed in England in cases where the provisions as to notice were no less stringent than we have here.
6. It is desirable that this question should be decided one way or the other in a manner which would be practically final and leave no scope for such elaborate argument as is unavoidable under the present state of the decisions. I have not overlooked the desirability of having this que|tion considered by a Full Bench of this Court but under the circumstances of this case, we both agree, it is not necessary to do so.
7. It remains to consider whether this is a case, in which the relief by way of injunction was essential to meet the requirements of the case. On a consideration of the admitted facts it seems to me that it was. It appears that shop-keepers as a class were not taxed in 1921 either as to the additional Police or compensation charges. In April and May 1922 the Sub-Divisional Magistrate made inquiry as to the extent of their business in Saris in the next preceding year: and in the result in June 1922 the shop-keepers were required to pay Rs. 92,874 for police charges and Rs. 5,04,546 during three years ending with June 1924. The amount payable for the first year was one-third of the total amount and it was payable in three instalments. In default of payment of any one instalment, the whole amount for all the three years was to become payable. It appears that the plaintiffs (exclusive of the plaintiffs who have withdrawn from the suit) had to pay, on July 3, 1922, a substantial sum: and in default of payment they were liable to pay the whole amount for all the three years (see notice Exhibit 94). We also know that on June 12 the Collector had told them that the orders were not likely to be modified. We also know that when the temporary injunction was refused on June 30 the Collector immediately proceeded to enforce the notices, with the result that the shop-keepers had either to pay the first instalment or to incur the risk of the liability to pay the whole amount at once. It is urged that after all it was a case of money payment, and the plaintiffs could have waited for two months. It appears, however, that the waiting would have been more or less formal so far as the defendants were concerned, as it is clear from the conduct of the Revenue Authorities immediately after the temporary injunction was refused by the trial Court that they were not going to reconsider the question. In a case of this kind where a class of persons is taxed heavily, as in this case, it would not be fair to treat the position as one of ordinary pecuniary liability of an individual only. I am satisfied that this is a case in which at the date of the suit a situation had arisen which was calculated to cause serious apprehension in the minds of the plaintiffs that irremediable damage might be caused to their business as dealers in Saris, unless the enforce-merit of the orders were stopped at once. The remedy sought by way of injunction was appropriate and necessary to safeguard their interests under the circumstances. I think that the suit is not open to the objection based on Section 80 of the Code of Civil Procedure.
8. The other preliminary objection raised on behalf of the defendants may be briefly dealt with. It is urged that Sections 80 and 81 of the Bombay District Police Act are a bar to this suit. I do not think that this argument is sound. Section 80 has no application as this is not a suit of the character contemplated by Section 80(4). As regards Section 81 also it seems to me that it creates no bar to the present suit. The orders published by the Government do not require a particular class of persons to perform some duty or act or to conduct or order themselves in a particular manner. It is an order practically directing the Collector to recover the particular amounts from a class of persons. That does not appear to me to be an order to any Particular class of persons (i. e. in this case the shop-keepers) to perform any duty or act or to conduct or order themselves in a particular manner. Besides it seems to me that Section 81 provides an additional remedy which the party concerned may follow but it does not bar a suit, which it may be otherwise open to the party to file.
9. It is further urged that the suit is barred by Section 4, Clause (f), of the Bombay Revenue Jurisdiction Act, as it is in effect a suit to set aside a cess or rate authorised by Government, under the provisions of the District Police .Act. This clause cannot apply in terms to the order as to compensation amount as the Government is not empowered by Section 25A of the Bombay District Police Act to levy any cess or rate and the section refers to cess or rate authorised by Government and not to cess or rate authorised by the District Magistrate with the previous sanction of the Commissioner. Apart from this ground it is clear that the provision cannot apply where the legality of the order of the Government is questioned. It would apply to a cess or rate which is authorised, that is, legally authorised by the Government. In the present case the legal basis for the action of Government is questioned, and I think that the suit is not barred by this clause even as regards the tax relating to the additional police charges, provided it is established that the rate is not legal. Thus the objection would apply to the Police charges, if it be proved that the rate is legally authorised. It is necessary, therefore, to determine the merits of the abjections as to the legality of the rate or tax.
10. As regards the merits it will be convenient to deal with the questions as to the additional Police and the compensation money quite separately. The provisions of Sections 25 and 25A, though similar in certain respects, are different in material particulars ' and in order to avoid confusion I shall deal with the two matters quite independently of each other.
11. As regards the additional Police, the authority of the Government is derived from Sections 25 and 26.
12. [Afer setting out the provisions of the sections, the judgment went on:] The objections taken to the legality of the Government Notification of June 6, 1922, so far as it relates to the police charges, are these:--
(a) First that the Government having once decided to levy the Police charges from the male adult Momins of Malegaon, they could not alter the order and direct the whole of it to be levied from the shop-keepers.
(b) That the Government have no [lower under the section to make A pay for 13, and that the order requiring the shopkeepers to pay on behalf of the Momins is illegal.
(c) That after the Municipality made a default in payment of the rate levied in the first instance the Government could direct the Collector to recover such rate or tax but the Government could not impose a new tax or a rate instead of the first rate or tax and ask the Collector to recover it directly without first calling upon the Municipality to pay the amount or assess the rate under Sub-section (4) of Section 25.
(d) That the rate in question in not a rate on property.
(e) That the powers are not exercised by the Government fairly, but wantonly, arbitrarily, and oppressively.
(f) And, lastly, that no restrospective operation could be given to the notification.
13. As regards the first objection it is true that the Government first ordered the additional Police for one year and ordered the charges to be levied by a tax imposed upon the male adult Momins of Malegaon. The Momins are weavers and form nearly three-fourths of the population of that town. The second notification directed employment of the Police in effect for two years. As regards the second year's charges the objection would not apply. But that is not a sufficient answer to the objection. Under the section the Government have the power to give directions as to how the charges shall be recovered: and 8. 21 of the General Clauses Act (Bom. Act I of 1904) provides that:-
Where by any Bombay Act a power to issue Notifications, Orders...is conferred, then that power includes power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any Notifications, Orders,...so issued.
If this section applies it affords a complete answer to the objection raised on behalf of the plaintiffs. The Act was passed long after the Bombay District Police Act of 1890, and unless it were clear that this provision applies to Acts already passed it would not help the defendants. The scheme of the Act is to distinguish between the provisions which are intended to apply to all Bombay Acts and those which are intended to apply to Bombay Acts made after the commencement of the Act. The use of the words 'any Bombay Act' in Section 21 indicates that the section was intended to be of general application. Therefore it was perfectly open to the Government to alter the first notification if minded to do so.
14. The second objection is more difficult. It is clear that the Government have no power under the section to call upon A to pay for B as an agent of B. It is open to the Government under Sub-section (2), Clause (b), to charge any section or sections or class or classes of persons, and under the powers mentioned in Section 21 of the Bombay General Clauses Act it is open to them to add to, amend or vary the first order on this point. But under the section the Government cannot call upon A to pay on behalf of B. The proposition as thus stated is not seriously contested by the learned Advocate General. The plaintiffs' case rests upon the use of the words 'on behalf of the Momins' in the notification, and the facts disclosed in the correspondence commencing with December 7, 1921, and ending with the notification of June 6, 1922, between the District Magistrate, the Commissioner, and the Government. The notice issued by the Sub-Divisional Magistrate refers to the new class of persons as agents of the Momins, and the evidence of the District Magistrate (Exhibit 131) shows that the plaintiffs were regarded as the agents of the Momins. The. use of the expression 'on behalf of the Momins' in the Government notification is consistent only with that view. If the matter rested there, I think, the objection would be good, as the plaintiffs or shop-keepers of Malegaon are in no sense the agents of Momins.
15. But the effect of the notification in law is clearly to impose a new tax on the shop-keepers. In the written statement this is made clear. I have already quoted, that passage from the written statement and in my opinion, this paragraph has been justly criticised by the learned counsel for the plaintiffs as involving a change of front on the part of the defendants. That, however, does not enable him to get over the difficulty of the notification. We have to consider the true legal effect of the notification; and taking its effect to be that a new tax or rate is imposed upon the 'shop-keepers' of Malegaon, it is within the powers of the Government, under the section. It is hardly reasonable to declare it to be illegal, when on that footing it is within the powers of the Government to impose the tax or rate which has been imposed. I am, therefore, unable to allow this objection as the effect of the notification is within the scope of authority of the Government. It may be said that this view is subject to the criticism that it is practically allowing the Government to substitute a new notification for one which cannot be justified in its entirety. But so long as in substance it is a tax or rate on another class of persons living within the area concerned, it is within the legal authority of the Government and, as the Government have sought to support it on that footing, I do not see how it can be declared to be illegal. I need hardly observe that the Court is not concerned with the propriety of the new tax or rate. We are concerned with its legality and that is the only point with which I am dealing. It is for the Government to consider its propriety as the Legislature has laid the obligation of determining the questions mentioned in that section upon that authority.
16. As regards the objection (c) it is clear that under Sub-section (4) the Government have to ask the Municipality of Malegaon to pay the amount and assess the tax or rate conformably to their orders. In the present case the Government asked the Municipality to recover the tax or rate levied in the first instance (Exhibit 96). The Municipality was unable to recover it from the Momins and made a default in payment. The Government then reconsidered the position and imposed a tax or rate which was a, new tax on a different section or class of inhabitants.]f the Government were reimporting the old tax or rate they would be justified in acting upon the default of the Municipality which had undoubtedly taken place. But if the tax is to be justified as a. different tax or rate and not as the old rate on the Momins the legality of the course adopted by the Government must be considered on that footing. It is clear under the proviso to Section 26, Sub-section (2), that the Government can ask the Collector to recover the tax or rate in respect of which the Municipality has made a default. And I think it was obligatory upon the Government to ask the Municipality under Sub-section (4) of Section 25 to recover this amount; but in the notification they acted upon the default already made by the Municipality. As a practical proposition it may be a correct view to take: and even legally it would be correct if the same tax or rate were to be levied. But in the present case the legality of the tax or rate can be established only on the footing of its being a different tax or rate on another section or class of the public of Malegaon: and the Municipality was not called upon to pay or to recover that tax. We have to consider the effect of this omission. I think that an obligatory provision in the Statute cannot be allowed to be ignored without adequate grounds. The effect of this omission on the legality of the levy by the Collector in a question of some difficulty. In the present case, it is clear that the Municipality had been unable to do anything in the first instance: and the Municipality had in effect said so. I am not prepared to hold that though the tax or rate may be legal its recovery by the Collector is illegal under the circumstances. At least as regards' the class of income-tax payers undoubtedly there was a default by the Municipality and to that extent the direction to the Collector is quite regular. And when it is partially legal, for the rest the direct reference to the Collector is in the nature of an irregularity, which cannot affect the legality of the tax.
17. The objection that it is not a rate on property as described by the Government in the notification has no substance in it. It does not matter to my mind whether it is a tax or rate on property. It is a tax determined on the footing of the extent of the business done during the previous years by the shop-keepers. It is in no way dependent upon their continuing the business during the period of the recovery of the rate: nor does it depend upon the extent of the business actively done during the period. Therefore it is preferably a tax on the shop-keepers as a class of persons living at Malegaon; but it is undoubtedly one or the other and the objection appears to me to be profitless.
18. The next objection is that this tax or rate on the shop-keepers is wanton, arbitrary and oppressive. This objection can be more appropriately dealt with along with the similar objection as to compensation charges.
19. As to the last objection about the retrospective operation of the Notification I doubt whether it is retrospective. For it is an order to recover during the period after the notification certain charges incurred and to be incurred. But whether retrospective or not in its operation it is clear that it is within the powers of the Government under Section 25 read with Section 21 of the General Clauses Act. I hold, therefore, that the notification so far as it relates to the Police charges is not illegal or ultra vires.
20. As regards the compensation charges the powers of the authorities are defined by Section 25A. [The section was set out.]
21. The facts about the compensation money have been already stated. It is relevant to note that after the Commissioner passed his orders on August 1(3 and 17 (Exhibits 134 and 104), there is nothing to show that under Section 25 A, Sub-section (1), Clause (b), the District Magistrate asked the Collector to realise the amount as had been directed by the Commissioner. The District Magistrate does not appear to have beeen satisfied with the Commissioner's orders as to the method of realisation; and whether on that account or for any other reason he refrained from taking, the step required by Sub-section (1), Clause (b). Then in December the District Magistrate started the correspondence again. Ultimately in March 1922 the District Magistrate reopened the subject with the result that the Government issued the notification in question and then the Commissioner and the District Magistrate were all agreed as to how the amount was to be recovered. Then, on June 12, the District Magistrate took for the first time the step contemplated by Sub-section (1), Clause (b), and he wrote to the Collector to recover the amount in the manner indicated in his letter of June 12 (Exhibit 110). It is not obligatory to ask the Municipality to recover the amount under this section. It may also be observed that the authorities mentioned in the section are the District Magistrate and the Commissioner and not the Government.
22. The objections urged against the notification, so far as it relates to this amount, are these:-
(a) The District Magistrate having once decided the question, and the Commissioner having passed his orders on revision, the question as to who were liable to pay was finally settled and could not be reopened.
(b) The Government have no power to interfere in this matter under Section 25A.
(c) The direction that the money should be recovered from the 'shop-keepers' on behalf of the Momins is illegal.
(d) That the powers are arbitrarily, wantonly and oppressively exercised by the District Magistrate and the Commis-sioner in so far as they make the shop-keepers pay the whole amount, whieh is justly payable by the Momins.
(e) That no further inquiry was made as is contemplated by Section 25 A or as was suggested by the District Magistrate in his letter of March 7, 1922, before the plaintiffs were taxed.
23. As regards the first objection the Advocate General has relied upon Section 21 of the Bombay General Clauses Act; but there is a difficulty in holding that Section 21 applies to orders made by the District Magistrate under Section 25A, Sub-section (1), Sub-section (4) provides that every declaration, assessment, direction and order made by the District Magistrate under Sub-section (1) shall be subject to revision by the Commissioner but save as aforesaid shall be final. The express provision as to finality would apparently exclude the application of Section 21 of the Bombay General Clauses Act. It is difficult to reconcile this provision as to finality with the idea of his being able to vary it from time to time. The question whether the Commissioner can revise it from time to time is more difficult. Having regard to the nature of the powers conferred by the section, it has been argued that with reference to the orders and the directions made under Sub-section (1) the legislature intended finality and that the idea of revising the same from time to time is repugnant to the scheme and purpose of the section. I do not desire to decide this point, as in the view I take of the facts of the case on this point, it is not necessary to do so. Assuming, without deciding, that the declarations, orders etc. made under Sub-section (1) with the previous sanction of the Commissioner would be final, and that the Commissioner could not revise the same from time to time thereafter, in the present case it is not shown that the District Magistrate passed any orders under Sub-section (1), Clause (b), requiring the Collector to recover the amount in any particular proportions from the inhabitants of the local area or from any defined class before he wrote the letter of June 12, 1922 (Exhibit 110). It is true that the Commissioner passed his orders on or before August 17, 1921: but as apparently there was a difference between the District Magistrate and the Commissioner as to the class of persons from whom and the proportion in which the compensation money was to be recovered, the District Magistrate appears to have waited until he got an opportunity to reopen the matter on December 7. But finally the matter was taken up by his successor in March 1922, and as a result the Government and the Commissioner accepted the District Magistrate's proposals. Then with the sanction of the Commissioner for the first time the District Magistrate required the Collector to recover the amount on the new basis. Whether the District Magistrate was thus justified in waiting from August 1021 to June 1922 in taking action under Clause (b) is quite a different matter, in determining the legality of the present orders I am not concerned with the propriety of that attitude on the part of the District Magistrate But the order of June 12, 1.922, made with the sanction of the Commissioner and communicated to the Collector, is the first order of its kind on the record. I may here refer to Exhibit 150 which is a memo signed by the District Magistrate and Collector and addressed to the Mamlatdar asking him to realise the amounts to be recovered from the class of income tax payers who were Momins. It is to be remembered that the Commissioner had specified two classes of the Momin adults of Malegaon. As regards class 1, there was no difference between the District Magistrate and the Commissioner. Though there is no letter by the District Magistrate asking the Collector to recover the amount payable by the income tax payers under class I, this memo would indicate that without any formal compliance with the requirements of Section 25A(1)(b), the District Magistrate and Collector ordered the Mamlatdar to realise the amount or that this letter itself was a formal requisition in respect of this class of persons. At any rate the fact remains that as regards class II there was no letter from the District Magistrate to the Collector before June 12, 1922. As regards the class of income-tax payers the letter (Exhibit 150) was the first intimation to the local officer at Malegaon to recover the amount payable by that class under the Commissioner's order dated August 16, 1921 (Exhibit 134). There is no such intimation in the case of class II, as to which the correspondence had been started again by the District Magistrate by his letter of March 7, 1922. As against this it may be urged that the letter of December 30, 1921, addressed by the Commissioner to the Collector would not be appropriate unless the District Magistrate had already written to the Collector to recover the compensation. I do not think that such an inference can arise, as the letter relates to the Police charges also, with respect to which it is clear that no intimation could have been given to the Collector to realise the charges. It is true that Section 25A makes a clear distinction between the District Magistrate and the Collector. In fact the same officer occupies two capacities. This circumstance at times tends to obscure the essential legal distinction in official corres-pondence. But on the present record it is a fair inference that until March 8. 1922, no attempt whatever was made to recover the amount and that until june 12, the District Magistrate did not require the Collector to recover the amount as provided in Section 2.5A(1)(b). This inference is consistent with and derives support from the wording of para (4) of the memorandum of the District Magistrate (Exhibit 108), in which he refers to the orders to he issued to the Collector for the recovery of the sums due. Therefore the final direction under Sub-section (I)(b) revised by the Commissioner as contemplated by Sub-section (4) is that given by Exhibit 110 at least as regards class II of shop-keepers.
24. Apart from this consideration it is clear that when the Commissioner made his order of August l6. 1921, a reservation was made as to 'such other inhabitants of the said town as may be hereafter notified. 'But as the new class of shop-keepers now notified is not in addition to the class of Momins but in the eye of the law in substitution of class II of the adult male Mahomedan inhabitants other than income-tax payers as previously notified, it involves a substantial change: and its validity must depend upon the Commissioners power to alter it. As the stage of finality contemplated by the provisions of Sub-section (4) was not reached, and as the subject was still open to the District Magistrate in consequence of his having made no requisition on the Collector under Sub-section (1)(b). it does not matter to my mind whether there was any such reservation in the Commissioner's order of August Hi. This objection therefore fails.
25. As regards the second objection the section does not refer to the Government at all. The Commissioner was substituted for the Government in the section by Bombay Act 111 of 19155: and while the position that the District Magistrate and the Commissioner may consult the Government is intelligible, the Government has no authority under the section in the purely legal aspect of the question. The District Magistrate and the Commissioner are the authorities we are concerned with, under Section 25A, and the legality of their action as such is to be considered,
26. As regards the third objection I would not repeat what I have said with reference to the same objection as to Police charges. The really effective document in this matter is not the Government notification, but the order that was communicated by the District Magistrate on June 12, 1922, with the sanction of the Commissioner as disclosed in the correspondence, As I have already pointed out the order to make A pay for B would not be legal; but the simple order to make A pay would be legal. That is the effect of the order: and I take the same view, as in the case of Police charges on this point. It does not matter whether A is able to recover it in any indirect form from B or not: nor does it matter whether ultimately A is able to recoup himself in trade by taxing the article in his dealings with any other persons. So far as the legality of the tax is concerned, in my opinion, it does not matter whether the intended economic adjustment takes place as between the persons taxed and those who deal with them in Saris and yarn at all, and if so, to what extent.
27. This brings me to the next objection that this tax or rate is wanton, arbitrary and oppressive, and as such not legally recoverable. Sir Chimanlal Setalvad has relied upon the observations of West J. in Nagar Valab Narsi v. The Municipality of Dhandhuka I.L.R. (1887) 12 Bom. 490 and generally upon the summary given in Maxwell on Interpretation of Statutes under the heading 'Construction to prevent abuse of powers' in Chapter IV, section II (pp. 226-34, 6th Edition). It is necessary to bear in mind the basic principle of interference by civil Courts in matters which are assigned primarily to the discretion of public authorities by the legislature. Different Judges have expressed in different language what appears to me to be the same principle, the language being adapted to the requirements of the particular case. I shall quote a few passages as containing an enunciation of the principle which underlies the particular objection.
28. In Duke of Bedford v. Dawson (1875) L.R. 20 Eq. 353. Sir George Jessel M.R. observes (p. 358):-
This means that when the words 'for the, purpose' are used, that does not imply what the Plaintiff or Home body else may think the purpose, or what the Court may think is for the purpose, but it means what the public body entrusted with the power by the Legislature may in their honest and reasonable exercise of judgment think necessary for the purpose. They are to bo the Judges, subject to this, that if they are manifestly abusing their powers, and purporting to use the land for a purpose for which manifestly it is not intended, the Court will say it is not a fair and honest judgment, and will not allow it. But subject to that limit they are the persons to decide.
29. It may be stated in the words of Lord Esher M.R. in The Queen v. Vestry of St. Pancras (1890) 21 Q.B.D. 371:
If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exorcised their discretion.
30. In Sharp v. Wakefield [1891] A.C. 171. Lord Halsbury L.C. observes an follows (p. 179):-
An extensive power is confided to the justices in their capacity as justices bo be exercised judioially; and 'discretion' means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's Case (5 Rep. 100 a): according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.
31. I have selected these passages as indicating the range of the Court's powers to interfere with matters confided by the legislature to public authorities.
32. In dealing with this point we have to boar in mind the special purpose of Section 25A, the extent of the powers given to the District Magistrate and the Commissioner for determining the amount and fixing the proportion in which it may be recovered from different classes and the manner of recovering it, and the wide discretion given to them to meet the exigences in a disturbed area. This is equally true of the powers conferred upon the Government under Section 25 also. On the other hand we have the fact that a large sum of nearly Rs. 5,00,000 (in round figures) on account of compensation and if we include about Rs. 93,000 for the Police charges for two years nearly six lacs were to be recovered. It was the view of the public authorities, at least of the Commissioner and the Government in 1921, that the inhabitants of this area responsible for the amount were the Momins and they were proposed to bo taxed then in two ways: income-tax payers to pay on a certain scale and the adult male Momins to pay equally, provided that a Mom in having more looms than one was to count as an extra unit for each loom in excess of one. Apparently there was difficulty felt by the Municipality in realising even the amount of about Rs. 50,000 (fifty thousand), which was then the only charge under Section 25. And apparently no effort was made to recover the bigger sum of compensation, under Section 25A. When this difficulty was realised the authorities on a reconsideration taxed the inhabitants in a different way within the limits prescribed by law as now found. The class of income-tax payers was kept exactly the same: but for class II of adult male Momins a comparatively small class of shop-keepers was substituted and they were required to make up the whole of the balance of both the charges in three 'years. This class consisted of Momins and non-Momins. In effect about a hundred shop-keepers were called upon to pay nearly six lacs of rupees in three years: and if we exclude Rs. 38,000, the total amount payable by the class of income-tax payers according to the figures supplied by the learned Advocate General, the balance payable by the shop-keepers would be nearly Rs. 5,60,000.
33. Out of 102 shop-keepers 48 are Hindu shop-keepers and their total liability compared to the total liability of the Mahomedan shop-keepers would be roughly in the ratio of 17 to 7 that is the Hindu shop-keepers would have to pay nearly Rs. 3,96,000 and the Mahomedan shop-keepers would have to pay about Rs. 1,64,000. I have taken this ratio from the figures given by the Advocate General, according to which out of a total of Rs. 2,37,000 and odd the Hindu shop-keepers (48 in number) would have to pay Rs. 1,08,000 and odd and the Mahomedan shop-keepers would have to pay Rs. 68,000 and odd which works out roughly the ratio of 17 to 7. Both the ratio and the figures are rough and intended only to indicate broadly the effect of the orders passed in June 1922. In a population about twenty-five thousand persons only about 100 people are selected to pay up such a heavy amount. The Momins generally, who according to the authorities even now are responsible but from whom it is either inconvenient or impossible to recover the amount, are to be left practically exempt so far as the direct taxation is concerned. They will have to pay indirectly to some uncertain extent if they are effectively taxed through the medium of the Saris. It is also pointed out that this class of shopkeepers is determined without any special inquiry with the result that the list includes according to the appellants three or four persons and according to both sides one person in whose favour an order for compensation has been in fact made. This has been stated on a comparison of lists Exhibits Nos. 164 and 166. In view of these facts it is nrged for the appellants that the tax is wanton, arbitrary and oppressive. On the other hand we have the fact that these amounts are to be levied from the inhabitants of Malegaon. An attempt to recover it from the adult male Momins had failed in the case of Police charges and for the compensation money such an attempt was not or could not be made. The levy was of an emergent nature and for nearly one year nothing could be done. The Government and the authorities had to decide upon the best method of recovering it under difficult and somewhat baffling circumstances. They acted upon a basis which is intelligible. I have referred to these facts as representing the other side of the question. But we have to consider only whether there is any sufficient ground to hold that their judgment is so unreasonable under the circumstances as to make it practically not a valid decision under the sections, or, in the words used in Duke of Bedford v. Dawson, whether it amounts to a manifest abuse of the powers conferred upon the authorities. I am of opinion that no manifest abuse of power by the authorities is made out; nor can I say that they have taken into consideration any matter which it was not legally proper for them to consider. To adopt the words of the argument urged on behalf of the appellants I am unable to hold this tax to be wanton or arbitrary. There is a method in the taxation which is intelligible and according to the opinions of the authorities, the adult male Momins will be taxed indirectly. As regards its being oppressive it must be remembered that there is a certain degree of hardship in such punitive taxation in a disturbed area, which may be treated almost as a normal incident of it. We need not take that into account. There is no doubt a certain degree of extra hardship, and in my opinion a real hardship, in such taxation when only a small group is selected to make up such a large amount. But what we have to consider is whether its operation is calculated to be oppressive so as to render it liable to be set aside. On the materials on this record I am unable to hold that it could be justly described as oppressive in that sense. In my opinion the evidence led on behalf of the plaintiffs to prove that this has dislocated the business of some shop-keepers is not satisfactory and I hold that the allegation is not proved. But the nature of the tax still has to be considered with reference to its probable effect upon those who are taxed. It is clear that the nature of the tax is certain in its operation as regards the shop-keepers and very uncertain in its operation as regards its ultimate adjustment among the dealers with the shop-keepers. After all it is a point in favour of the appellants that the class of shop-keepers is taxed more because the amount cannot be recovered from the adult male Momins than because the shopkeepers are themselves primarily liable. It is clear, however, that the orders represent an honest effort on the part of the authorities to arrive at the best working method of recovering the amounts leviable under the two sections, and they have proceeded with calculation and consideration in dealing with a difficult situation. I am, therefore, unable to accept the contention that these orders of the authorities are illegal on the ground of their being wanton, arbitrary and oppressive. I must say that I have found this point more 'difficult than the other questions of law in the case. It is difficult to draw the line beyond which civil Courts cannot examine this question. We have not to consider whether this is a proper and just mode of taxing the inhabitants or any class of inhabitants within the area. It is for the District Magistrate with the previous sanction of the Commissioner to require the Collector under Section 25A(1)(b) to recover the amount so determined in such proportions as he may with the like sanction draw from all inhabitants of the area declared under Sub-section (1) Clause (a)(ii) or from any section or sections or class or classes of such persons and it is for the Government to determine the same questions under Section 25 as the Police charges. A civil Court can interfere only when the discretion is exercised in such a manner as to enable the Court to say that it is not an exercise of the discretion within the meaning of these sections. I am unable to hold that the discretion is exercised in that manner in this case. Beyond this I express no opinion either as to the justice or the propriety of the direction given by the District Magistrate under Section 25A(1)(b) or by the Government under Section 25, Sub-section (2).
34. As to the mistake of including a person or persons in whose favour compensation is allowed, I have no doubt it can be and will be corrected by the Commissioner under Section 25A (2). In dealing with a large number of persons a casual mistake of this kind is apt to occur: and it cannot be accepted as a ground for holding that the discretion is not validly exercised.
35. As regards the omission to make any inquiry it may be pointed out that Section 25A does not provide for any inquiry as to order under Section 25A(1)(b). The words 'after such inquiry as he deems necessary' are to be found in Sub-section (1) Clause (a) and do not govern Clause (b). There is no legal basis for this contention. The District Magistrate referred in his letter of March 7, 1922, to some kind of inquiry as regards the Hindus: and the Government in their letter of April 5 required the District Magistrate to make such inquiry. No such inquiry has been made. The Sub-Divisional Magistrate made inquiry as to the extent of the business done by each shop-keeper. I agree with the view of the trial Court that this inquiry was fair, though it is possible that in such rough and ready calculation of the extent of the business some mistakes might have crept in. But the Sub-Divisional Magistrate Mr. Hulyal says in his evidence (Exhibit 135, para 9) that he made no other inquiry. Thus in point of fact even the inquiry suggested by the District Magistrate was not made. But as there is no legal obligation for making sach an inquiry, I cannot attach any real importance to this omission. I cannot agree that the omission to hold an inquiry, which was only departmentally arranged, is sufficient to vitiate the direction given by him under Section 25A(1)(b). The provisions of Section 70 of the District Police Act would condone such an irregularity in procedure.
36. Lastly, I may mention that the point that it is not a rate on property was raised with reference to this part of the case also. But the point has been already dealt with; and I doubt whether it can apply to the compensation charges. Clause (b) of Section 25A (1) is silent on this point. It does not refer to tax or rate assessed on property as Sub-section (2) of Section 25 does.
37. It is not suggested before us on behalf of the appellants that it was obligatory upon the District Magistrate to require the Municipality to assess and recover the amount of compensation under Sub-section (1), Clause (c); and I do not see how it could be suggested in view of the wording of that clause.
38. I may mention that a fresh notification issued in May 1923 was referred to in the argument. It reduces the Police charges to some extent, and imposes the additional Police for the third year. In other respects it proceeds on the same lines as the notification in question, and does not affect the decision in this suit.
39. The result is that the appeal fails.
40. As to costs, though it may be said that the wording of the notification affords a basis for the suit, I do not think that there is any good ground to depart from the usual rule that the costs must follow the event.
41. I would confirm the decree of the lower Court with costs.
Kemp J.
42. [His Lordship, after summarising the facts of the case, continued:] The first point raised is the question of notice under Section 80 of the Code of Civil Procedure (Act V of 1908). The suit here is against two defendants, the Secretary of State and the District Magistrate and Collector. So far as the Secretary of State is concerned the words of the section are clear. No suit may bo instituted against him until the expiration of the two months' notice required by the section. The terms of the section are imperative and make no exception in the case of suits for an injunction and I do not consider that a Court of law is entitled to graft on to the plain wording of the section a qualifying clause excepting suits for an injunction-a kind of relief which must have been in the contemplation of the framers of the Code when the section was drafted and redrafted. Nor does it to my mind make any difference that the injury apprehended is immediate or irreparable. On this point I entirely agree with the judgment of Sadasiva Ayyar J. in Secretary of State v. Kalekhan. I.L.R. (1912) Mad. 113.
43. The case of a public officer requires a little more consideration. The (Secretary of State acts through his subordinates and an injunction against his subordinate can afford sufficient relief. The words of the section restrict in the public officer's case the necessity of the notice to a suit for an act purpoting to be done by him in his official capacity. The appellants contend that there was no such act by the District Magistrate or Collector but merely a threatened act. They say that at the date of the suit the District Magistrate had rejected their petition (Exhibit 111) to him and that what they are suing him for is to prevent him carrying out in his capacity as District Magistrate the order (Exhibit 110) to the Collector to carry out the Government Notification No. 152 of June 6, 1922, and in his capacity as Collector the notices (Exhibit 94) to the separate shop-keepers demanding the amounts at which they had been assessed under the same Government notification. They say the suit is in respect of something the second respondent is going to do not in respect of something he has done. It is not in respect of the order Exhibit 110 or the notices Exhibit 94 but in respect of the further acts threatened under them. Paragraph 10 of the plaint states the appellants' grievance on this point and prayer (b) of the plaint prays that both the defendants may be restrained from making the recoveries which were demanded by the Collector (purporting to act pursuant to Government Notification No. 152 of June 6, 1922, in Exhibit 94). In my opinion, therefore, no notice is necessary so far as the suit is one for an injunction against the second defendant in respect of the amount of compensation mentioned in prayer (b) of the plaint.
44. I think, however, in so far as the suit is for the declaration in prayer (a) so far as it relates to the compensation which is imposed under Section 25A of the Bombay District Police Act, 1890, by the District Magistrate with the previous sanction of and subject to revision by the Commissioner, the suit is one in respect of an act purporting to be done by the District Magistrate and Collector in his official capacity. The act purporting to be done in the case is, as regards this particular relief, the passing of Exhibit 110 and the notices Exh. 94. So far, therefore, as this relief is concerned, notice under Section 80 of the Civil Procedure Code is necessary.
45. The case or Flower v. Local Board of Low Leyton (1877) 5 Ch. D. 347 cannot be relied upon in considering the question of notice to the Secretary of State as the wording of Section 80, Civil Procedure Code, is, so far as the Secretary of State is concerned, entirely different to the wording of the particular statute in that case.
46. I think that those decisions of the Bombay High Court which have been cited in the argument and which hold that where the damage threatened is immediate or irreparable, no notice is necessary either in the case of the Secretary of State or of any public officer in respect of any act purporting to be done by such public officer in his official capacity can be explained on the recognition of the application of equitable principles to the case of an act operating harshly or in a manner in which it was not intended to operate. Assuming that such equitable considerations could be admitted to override the plain words of Section 80 where * the Secretary of State is sued I am of opinion, for the reasons given hereafter, that the present is not a case of irreparable damage.
47. The respondents contend that the suit does not lie by virtue of the Bombay Kevenue Jurisdiction Act (X of 1876), Section 4(f), which provides that no civil Court shall exercise jurisdiction as to certain matters one of which in Clause (f) is claims against Government to set aside any cess or rate authorised by Government under the provisions of any law for the time being in force The appellants say that this is not a cess and that in so far as it is, if at all, a rate it is, as regards the order for compensation under Section 25A of the Bombay District Police Act (Bom. Act IV of 1890), an order which it is only competent for the District Magistrate with the previous consent of the Commissioner to pass and not one that can be authorised by Government. They also say that the Act does not apply where an order is wholly illegal or ultra-vires. [See Maganchand v. Vithalrav I.L.R. (1912) 37 Bom. 37 : 14 Bom. L.R. 793. and Gangaram Hatiram v. Dinkar Ganesh I.L.R. (1913) 37 Bom. 542 : 15 Bor. L.R. 065]. They further say that under Section 5(a) of Act X of 1876 where they contest the liability altogether the Court may entertain the suit. To understand this last argument it must be mentioned that Government Notification Exhibit 99 of June 6, 1922, makes these charges under it recoverable as arrears of land revenue under Section 26(2) of Bombay Act IV of 1890; and by Section 3 of the Bombay Revenue Jurisdiction Act (X of 1876) the definition of 'land revenue' would cover such charges.
48. I think in so far as the objection that the compensation must be imposed by the District Magistrate with the previous consent of the Commissioner under Section 25A of Act IV of 1890 is concerned, Exhibits 107, 108, 109, 90 and 110 and the Government Notification No. 152 (Exhibit 99) show that even if Government notified the charge by Government Notification No. 152 the District Magistrate was the originator of the proposal and adopted the terms of the Government Notification in his letter to the Collector Exhibit 110, dated June 12, 1922, under the terms of Section 25A (b). Any defect there may have been in this procedure was. in my opinion, cured by the provisions of Section 79 of Bombay Act LV of 1890. The proposal for the recovery of the compensation emanated from the District Magistrate, was ultimately approved by the Commissioner, and notified by Government.
49. It seems, however, on the decided cases in this Court, that there is more substance in appellants' contention that the Bombay Revenue Jurisdiction Act (X of 1876), Section 4, does not stand in the way of suit in respect of a wholly illegal and unauthorized cess or rate purporting to be authorized by Government or a public officer [see Maganchand v. Vithalrav I.L.R. (1912) 37 Bom. 37 : 14 Bom. L.R. 793 and Gangaram Hatiram v. Dinkar Ganesh I.L.R. (1913) 37 Bom. 542 : 15 Bom. L.R. 605.] The validity of the respondents' objection on this point would, therefore, depend on the illegality of the Government Notification No. 152.
50. As, however, appellants contend they are not the persons liable to pay the charges on the ground that they are not the persons responsible for the riot the Court has, under Section 5(a) of the Bombay Revenue Jurisdiction Act, jurisdiction to entertain this suit. Nor can the respondents' objection apply to the compensation which is imposed by the Commissioner and the District Magistrate under Section 25A of the Bombay District Police Act, 1890, and not by Government.
51. Then the respondents contend that the suit is barred for want of notice under Section 80(4) of Bombay Act IV of 1890. Section 80, however, seems to refer to suits for damages against a Commissioner, Magistrate, or Police Officer, and as this is not a suit of such a character, Clause (4) of Section 80 would not apply.
52. Nor does Section 81 of the same Act bur this suit. That section refers to orders of the nature of those mentioned in Section 38 of the same Act. The Advocate General was constrained to admit that Section 81 had no application to the present case. Moreover, the order as to compensation has to be made by the District Magistrate under Section 25A of Bombay Act IV of 1890 and not by Government.
53. The respondents' next contention is that the District Magistrate's order under Section 25A (1) of Bombay Act IV of 1890 is final under Clause (4) of that section, i. e., it cannot be questioned by a civil Court. The appellants say it can, and further, that the District Magistrate having once made his order under Section 25A cannot review it by passing a fresh order under Government Notification No. 152, dated June 6, 1922 (Exhibit 99). The order, they say, the District Magistrate first made was one under the Commissioner's order of August 16, 1921 (Exhibit 134). Nowit will be seen that the scheme of Section 25A of Bombay Act IV of 1890 is that the District Magistrate can make orders with the previous sanction of, and subject to revision by, the Commissioner. With these qualifications the District Magistrate's order is to be final. The Commissioner is the reviewing authority. Now what were the facts hero On August 16, 1921, the Commissioner passed his order Exhibit 134 and the appellants say that the District Magistrate must have given effect to it by passing an order under Section 25A in accordance with its terms. I may point out, incidentally, that there is no such order of the District Magistrate on the record. Exhibit 146, dated December 30, 1921, which has been relied on, is four months later, and in any case is no such order. Exhibit 150, dated March 8, 1922, is still later and refers to the Mahomedan income-tax payers whose liability is continued in the Government Notification No. 152, dated June 6, 1922 (Exhibit 99). Assuming, however, he made such an order, could the District Magistrate legally pass the fresh order of June 12, 1922 (Exhibit 110), in review of the first order? I think with the previous sanction of the Commissioner and subject again to revision by him the District Magistrate may. In effect, he obtains the revision of the reviewing authority. That the District Magistrate's order, Exhibit 110, was approved by the Commissioner is clear because the latter passed the District Magistrate's proposal on to Government and signified his agreement with them in his letters Exhibit 107, dated March 9, 1922, and Exhibit 147, dated January 14, 1922. The review of the first order was clearly, therefore, by the authority having power to review. Indeed, I am not at all certain that under the General Clauses Act (Bombay Act I of 1904) Section 21, the District
54. Magistrate himself may not review his first order subject to the prior assent of and revision by the Commissioner. That it had such assent, I have already pointed Jut, is clear from Exhibit 107, dated March 9, 1922, and Exh. 147, dated January 14, 1922. Further, I wish to point out that although the Commissioner by his order, dated August 16, 1921 (Exhibit 134), specifically provided for other inhabitants of the town being assessed for compensation by any subsequent order that might be passed, if it be contended he has substituted another class of persons, the District Magistrate passed no orders on Exhibit 194.
55. I see nothing in the scheme of Section 25A to suggest that no fresh order can be passed by the District Magistrate in accordance with a revision of his first order by the Commissioner. It might lead to unfortunate results to adopt such a construction because the Commissioner and the District Magistrate would be unable to correct any order passed under Section 25A on a misapprehension of the true facts or by mistake. To understand the way in which the word 'final' is used by the legislature, it is permissible, though with caution, to look at other instances in which the legislature has used the word. In Section. (329 of the Civil Procedure Code of 1882 an order made under that section was described as 'final,' i. e. non-appealable. The new Code of Civil Procedure of 1908, Order XLV II, rule 7, substituted the words 'shall not be appealable' for the word 'final'. This was merely a verbal alteration and shows the legislature meant to exclude any appeal from the order. See also the use of the word in the Court Fees Act (VII of 1870), Section 5, and the case of Balkaran Rai v. Gobind Nath Tiwari I.L.R. (1890) All 129 and in the Public Demands Recovery Act (Bengal Act 1 of 1895) Section 19, Sub-section (4) and the case of Matangini Devi v. Girish Chunder Chongdar I.L.R. (1903) Cal. 619. A similar meaning is given to the use of the word 'final' in Section 13 of the Bombay Revenue Jurisdiction Act (X of 1876); and to the word 'determinative' in Section 121 of the Land Revenue Code (Bombay Act V of 1879): Bai Ujam v. Valiji Rasulbhai I.L.R. (1886) 10 Bom. 456. But if we limit the scope of the discussion to the Bombay District Police Act (Bombay Act IV of 1890), Section 25A alone-and the case of Bank, of England v. Vagliano Brother [1801] A.C. 107. lays down that the particular statute should be considered with reference to its language-I see nothing in that section or in the Act to suggest the word 'final' means the District Magistrate can only make his order under that section once and for all. To adopt this construction would limit the power of the Commissioner to exercise of a single revision and the words of this clause do not justify this. In Stroud's Judicial Dictionary, 2nd edition, the word 'final' is defined thus:- 'Where a statute provides that a specified determination shall be 'final,' e. g. the decision of a Poor Law Auditor qua ' an un-taxed Solr's Bill, Section 39, 7 & 8 Vic. c. 101,-it is not open to review even though the Court does not see the reasonableness of the provision'. It might easily be that facts might come to the notice of the District Magistrate, after passing an order under Section 25A which would require it to be reviewed by a fresh order. The scheme of the section is to make the Commissioner and not the Court the reviewing authority. Clause (5) of the same section specifically excludes a suit in respect of loss or injury for which compensation has been granted under the section. I think this shows that the jurisdiction of the Courts was intended to be excluded. The order of the District Magistrate, Exhibit 110, dated June 12, 1922, under Section 25A not having been revised by the Commissioner is, therefore, as regards the recovery of compensation final and cannot be reviewed by the Court.
56. Then, the appellants contend that Government having once declared by Government Notifications Nos. 6423 (Exhibit 96) and 6801 (Exhibit 97) who were responsible for the riots and, therefore, to pay the additional Police charges and the Commissioner by Exhibit 134 having decided who was to pay compensation under Section 25 A no fresh order under Government Notification No.152 (Exhibit 99) could be passed. In other words, that the powers given, once exercised, were exhausted. Moreover, they say that it was not open to the Commissioner in Exhibit 134 to make a reservation for others to be brought in afterwards as liable to compensation. As regards this it will be noted that both with regard to the additional Police charges and the compensation the right to include others is reserved (see Exhibits 96 and 134). I see nothing wrong in this. As to the power once exercised being exhausted it seems to me that the case is covered by Section 21 of the General Clauses Act (Bombay Act I of 1904). The finality Provided for an order under s Section 25A, Clause (4), of Bombay Act IV of 1890 means, in my opinion, to give a final effect to the ultimate order that the District Magistrate with the previous assent of the Commissioner may subject to revision by the Commissioner, or in accordance with any such revision pass. Clause (4) is not, in my opinion, intended to exclude the powers which by a. 21 of Bombay Act I of 1904 are included in a Power to issue an order.
57. The next objection raised by the appellants is that when the Government Notification No. 152 (Exhibit 99) was passed it lay on the Municipality in the first instance under Section 25, Clause (4), of Bombay Act IV of 1890, to attempt to regover tax and rate for the additional Police. Whatever obligation there may have been on Government or the District Magistrate (I note that it has not been contended that the District Magistrate's 'discretion' in Section 25A(1)(c) is only for one of the two alternatives of a tax or a rate) to use the Municipality in the first instance as the collecting agency, it is clear from the correspondence that the Municipality were afforded an opportunity to recover the cost of additional Police and were utterly unable to collect it. Government were, therefore, justified in directing the Collector under Section 26(1) proviso to recover it. There was no point in directing the Municipality again to recover the charges after the fresh Government Notification No. 152 (Exhibit 99) when it was clear the same circumstances existed then as prevailed when the Municipality attempted to recover the costs of additional Police after the Government Notification No. 6801 (Exhibit 97) of July 11, 1921. On July 19, 1921, the District Magistrate wrote to the President of the Municipality asking the Municipality to raise the cost of additional Police by a rate on the male adult Maho-medans of Malegaon. The Municipality appears to have made every effort to do so but without success. The failure of their attempt is recorded in the President of the Municipality's letter of December 1, 1921 (Exhibit 105), and the Collector himself recognized that the Municipality was powerless in the matter. Any attempt to raise the money by indirect taxation of the Momins through the shop-keepers must have met with the same fate. Nor am I satisfied that any irregularity there may have been in this respect is not covered by Section 79 of Bombay Act IV of 1890. Moreover, the Municipality has neither paid the charge from the Municipal fund nor assessed the rate under Section 25, Clause (4), of Bombay Act IV of 1890. The obligation is on them to do so and there has therefore been a default in recovery under Section 26(1) proviso of the Act. The force of this argument might, however, be affected by the fact that although the Municipality had notice of Government Notification No. 152 of June 6, 1922, that Government Notification requires the compensation to be recovered by the Collector. The objection cannot affect the validity of the Government Notification No. 152 (Exhibit 99) itself.
58. Again the appellants urge that the rate under Government Notification No. 152 of June 6, 1922, levied on the purchases of Saris and sales of yarn by the shop-keepers was not a rate on property. In this connection it is to be noted that Section 25A does not require the rate for the compensation to be assessed on property although the word 'rate' would seem to imply the ownership of property. The point, however, is immaterial as if the charge for Additional Police is not a rate on property it is a tax however it may be described and is, therefore, within the powers of Government to levy under Section 25. Any objection to the form of this Government Notification is, in my opinion, cured by Section 79 of Bombay Act IV of 1890.
59. A further point has been raised by the appellants that there was no summary enquiry as required by Section 25A of Bombay Act IV of 1890. This refers to the compensation. But it appears that, on April 2, 1922, the District Magistrate by Exhibit 108 directed the Sub-Divisional Magistrate to make the summary enquiry. Such an enquiry was held. It was such an enquiry as the District Magistrate 'deemed necessary' and there was no obligation on him that I can see to repeat it after the Government Notification No. 152 of June 6, 1922. .
60. We now come to the appellants' main contention. Shortly put, it may be illustrated by the proposition that Government cannot tax A to recover a tax or charge due by B. Appellants say that the real offenders responsible for the riots were the Momin weavers of Malegaon and that Government so regarded them and have merely taxed the Mahomedan and Hindu shopkeepers referred to in order to make them a collecting agency for the amounts the Momins refused to pay. I think the correspondence shows clearly the charges could not be recovered from the Momins. It is unnecessary to refer in detail to the letters on this point. Exhibit 105, dated December 1, 1921, from the President of the Municipality to the Collector clearly states the reasons why the costs of additional Police cannot be recoverd from the Momins. Obviously, an attempt to recover the compensation charges from the Momins would have been equally futile. Government Notification No. 152 of June 6, 1922, speaks of recovering the balance of the charges from the shop-keepers 'on behalf of the Momin adult weavers.' Exhibit 106, dated March 7, 1922, calls the shop-keepers 'agents for collection.' But in para 6 of the written statement defendants plead they intended to recover the charges from the shop-keepers in their own individual capacity as being pirmarily responsible and not as agents for the weavers. Certainly Government and the District Magistrate apparently considered it would be a good thing to punish the weavers but I think Government also acquiesced in the suggestion to tax the shop-keepers because the District Magistrate in his letters of December 7, 1921 (Exhibit A), December 15, 1921 (Exhibit B), and March 7, 1922 (Exhibit 106), considered the shop-keepers had fostered the movement which led to the disturbances and should therefore participate in the collection of the charges imposed. It is not, therefore, a case of taxing an innocent party A for a guilty party B but a case of recovering the charges for which both A and B were answerable by making A recover B's share of the charges. If Government thought, rightly or wrongly, that they could recover the charges to be imposed on both the shop-keepers and Momins by recovering them from the shop-keepors leaving them to recover wholly or in part from Momins that surely was a case of leaving the parties responsible to decide between themselves how they should apportion the payment. The Court is not concerned with whether Government have judged correctly the party who should pay, provided Government has exercised its judgment on the point. That is a matter left to Government under Section 25 and to the District Magistrate, with the previous sanction and subject to revision by the Commissioner under 8.25A. Section 25A was not, I think, intended to permit the Court to enquire into the question of who were the persons really responsible for an outbreak of this sort. There seem ample grounds for holding that the shop-keepers were not the innocent persons they profess they were. The majority of them are Mahomedans and as the persons to whom the Momins sold Saris and from whom the Momins bought yarn were in a position to have exercised control over them. The contention that they were coerced into subscribing to the Khilafat Funds and ranging themselves on the side of those actively assisting in fomenting discontent in Malegaon is theoretically untenable, whatever may have been the real facts bacause theoretically there was always the protection of the law to fall back upon, and if the authorities were tolerant of the activities of the fomentors of trouble in Malegaon that was no reason for the shop-keepers to lend their influence to the forces of disorder and discontent in the town. I am unable, therefore, to hold that the imposition of these charges on the shop-keepers was tyrannical, oppressive or arbitrary. If the appellants had come before this Court as admittedly innocent arties the position might have been different.
61. I have held that Government had power to make the Government Notification No. 152 of June 6, 1922, at any rate as regards the charges for additional Police, and that the District Magistrate may be considered under the circumstances as having passed the order for compensation under Section 25A. The order in the Government Notification to recover the compensation was made at the direct request of the District Magistrate and with the consent of the Commissioner see Exhibits 109, dated April 21, 1922,147, dated January 14, 1922. and A, dated December 7, 1921). The Collector, who in this connection is also the District Magistrate, was also responsible for the suggestion to lump the two charges together (Exhibit 147, dated January 14, 1922, and Exhibit B, dated December 15, 1921). The District Magistrate, on June 12, 1922 (Exhibit 10), subsequently asked the Collector to carry out the Government Notification of June 6, 1922. Both impositions were, therefore, according to law and I fail to see how the lumping of the two sums for the purposes of recovery into one- which after all is a defect that could in any case be cured by Section 79-is a breach of the terms of Clause (1)(b) of Section 25A. The convenience of the procedure adopted speaks for itself.
62. Therefore, I think, the orders passed were not illegal or ultra vires. This really disposes of the appeal...
63. In, my opinion, the suit was properly dismissed and I would confirm the order of the lower Court and dismiss this appeal with costs.