N.K. Vakil, J.
1. In this group of 21 writ petitions, the petitioners are various Cotton Textile Mills located within the limits of the Municipal Corporation of the City of Ahmedabad (hereafter referred to as the 'Corporation')- They challenge the validity of Sub-sections (1) and (2) of Section 152A of the Bombay Provincial Municipal Corporations Act, 1949 and pray that respondent No. 1 the Corporation be directed to refund to them the respective amounts recovered by it as property tax. Respondent No. 2 is the Municipal Commissioner. For the sake of convenience and easy reference, the details as regards the names of the petitioning Textile Mills, the year of assessment of the property tax, the amount claimed as refund etc. are given hereunder in a tabular form:
----------------------------------------------------------------------------------------Sr. No. Petitioner's name Present Amount of taxes Years ofpetition ordered to be assessmentnumber refunded by thethe Supreme Court-------------------------------------------------------------------------------------------1 2 3 4 5-------------------------------------------------------------------------------------------1. The New Shorrocks Mills Co. Ltd. 39/69 1,62,604.73 1964-65 and 1965-662. The Ahmedabad Shri Ramkrishna Mills Co. Ltd. 40/69 60,993.48 1964-653. --do-- 41/69 58,463.52 1965-664. Maheshvari Mills Co. Ltd. 42/69 66,453.88 1964-655. --do-- 43/69 63,675.80 1965-666. The Ahmedabad Mfg. and Calico 50/69 6,55,447.42 1964-65 and 1965-66Ptg. Co. Ltd. (Calico Mills)7. --do-- 51/69 2,09,167.35 1964-65 and 1965-668. The Aryodaya Spg. and Wyg. Mills Co. Ltd. 52/69 1,92,607.98 1964-65 and 1965-669. --do-- 53/69 1,69,770.75 1964-65 and 1965-6610. The Vijaya Mills Co. Ltd. 54/69 2,28,432.62 1964-65 and 1965-6611. Shri Ambica Mills Co. Ltd. No. 1. 352/69 2,36,823.21 1964-65 and 1965-6612. Shri Ambica Mills Co. Ltd. No. 2. 353/69 1,91,718.23 1964-65 and 1965-6613. Shr Arbuda Mills Co. Ltd. 354/69 2,20,899.76 1964-65 and 1965-6614. Shri Vivekanand Mills Ltd. 355/69 58,844.93 1965-6615. New Commercial Mills Co. 356/69 2,80,982.82 1964-65 andLtd. No. 1. 1965-6616. New Commercial Mills Co. 357/69 1,20,181.20 1964-65 andLtd. No. 2. 1965-6617. Maheshvari Mills Co. Ltd. 403/69 63,669.52 1963-6418. TheAhmedabad Kaiser-1-Hind 404/69 1,17,405.46 1964-65 andMills Co. Ltd. 1965-6619. The Ahmedabad Shri Ramkrishna 405/69 57,435.27 1963-64Mills Co. Ltd.20. The New Rajpur Mills Co. Ltd. 469/69 1,10,007.76 1964-65 and21. TheAhmedabad New Textile 517/69 93,158.80 194-65Mills Co. Ltd
As appears from this table, in two of the petitions the tax recovered was for the assessment year 1963-64, in two others for the year 1964-65, in three of them for the year 1965-66 and in the rest of the 14 for two years viz. 1964-65 and 1965-66. It is to be noted that the official year for assessment begins on the 1st of April and ends on the 31st of March every year.
2. These and other textile Mills had challenged by filing writ petitions in this High Court, the assessments made by the Corporation for the respective years affecting them and for which demand notices were also issued, as being illegal on the ground inter alia that the said assessment was based on a rateable value which was determined on the basis of rental value per square foot of the floor area which was illegal. They further contended that under Sub-rules (2) and (3) of Rule 7 of the Taxation Rules contained in Chapter VIII of Schedule 'A' to the Bombay Provincial Municipal Corporations Act, 1949 (hereafter referred to as 'the Act') all specified plant and machinery contained or situated in or upon the Mills' Buildings and lands were deemed to form part of such buildings and lands and these sub-rules were ultra vires and unconstitutional. The Corporation however collected or recovered the respective amounts of the property tax assessed before the final disposal of the petitions as the Court had vacated rule granting interim injunction. This High Court, in these petitions, did not accept the contentions raised on behalf of the petitioners and rejected the petitions. Being aggrieved by this judgment, these and other Mills filed appeals before the Supreme Court with leave of this Court. In a group of petitions filed under Article 32 of the Constitution by some other Mills which came up first for hearing, the Supreme Court by its judgment given on 21st February 1967 reported in : [1967]2SCR679 (New Manekchowk Spg. and Wvg. Mills Co. Ltd. etc. v. Muni. Corp. of Ahmd. J. held that Sub-rules (2) and (3) of Rule 7 were outside the legislative competence of the State Legislature which enacted them and also suffered from the vice of excessive delegation of Legislative power. It was also held that determination of rateable value as aforesaid applied indiscriminately, was sure to give rise to inequitabities as there was no classification of the factories on any rational basis and was violative of Article 14. It was also held that the method was not one which is generally recognised by authorities on rating. Consequently the Supreme Court ordered a writ of mandamus to issue in each of those cases directing the Municipal Corporation to treat the relevant entries in the assessment book for the relevant years relating to the petitioner Mills, as invalid and cancelled the assessment lists and ordered the Corporation to prepare fresh assessment lists for the relevant years. In view of this decision, the Supreme Court allowed the appeals of the present petitioners and set aside the order of this High Court rejecting the petitions and in place thereof orders in terms of prayers made in the respective special Civil Applications filed by the appellants, were substituted. The Supreme Court further directed that the order passed by it be punctually observed and carried into execution by all concerned. It may be noted that in those former petitions filed by these petitioners, a prayer was made that in case the amount of tax was recovered pending the final disposal of the petition, it should be ordered to be refunded to the petitioners.
3. It is the case of the petitioners before us that as the Supreme Court had held the assessment lists to be invalid, the tax levied and recovered was invalid and therefore the Corporation was bound to refund to them the amounts so recovered. Further more the Supreme Court had passed orders in terms of all the prayers in their respective petitions, the respondents were bound in obedience of the order of the Supreme Court to refund to them the respective amounts of tax recovered. The amounts of tax so recovered is indicated in the table hereabove as property tax including notice fees etc. for the respective assessment years. After the decision of the Supreme Court in their appeals the petitioners in writing requested the respondents to refund their respective amounts. The receipt of the letter of request was acknowledged but the respondents neither replied to the letter nor complied with the petitioners' request to refund their amounts.
4. In this group of petitions, at the suggestion of the parties, Special Civil Application No. 39 of 1969 has been treated as the representative petition and we shall when required to refer to the cases of the petitioners and the respondents, refer to this petition.
5. After the decision of the Supreme Court was given on the 21st of February 1967 in the petitions under Article 32 : [1967]2SCR679 New Manek Chowk Spg. and Wvg. Mills Co. Ltd. v. Municipal Corporation of Ahmedabad) (supra), the Legislature of this State enacted the Bombay Municipal Corporations (Gujarat Amendment) Act, 1968 being Act No. VIII of 1968, which came into force on the 30th Match 1968 (here after referred to as 'the Amending Act). By this Amending Act, inter alia the Legislature introduced Section 152A. The respondent Corporation claims that it is lawful for it, under the provisions of Sub-section (1) of Section 152A to assess or reassess in respect of the premises of the petitioners the property tax, for the respective years in which the assessment was held to be invalid and the tax so assessed can be levied and recovered from the petitioners. It further claims that under Sub-section (2) of Section 152A when the property tax for any official year prior to the year beginning with the 1st of April 1968 has been collected or recovered, the Corporation is entitled to retain that amount to be taken into account or adjusted while determining the amount of tax under Sub-section (1) of Section 152A. The Corporation, therefore, contends that the said provision negatives the right in the taxpayer to obtain an immediate refund of the amount of tax collected or recovered. On the other hand the petitioners' case is that under Sub-section (1) the Corporation has no right to assess or reassess the property tax in respect of their premises for the official years 1963-64, 1964-65 and 1965-66 on the proper reading of Section 152A read with the other provisions of the Act and particularly Rule 2IB. They also contend that Sub-section (2) of Section 152A does not authorise the Corporation to retain the amount of tax illegally recovered, particularly in face of the clear order of the Supreme Court. They also challenge the validity of Section 152A on various grounds. Before we deal with the contentions of the respective parties in details, it will be necessary to reproduce Section 152A since most of the contentions raised are in respect of the construction of the provisions of this section.
152A. (1) In the City of Ahmedabad if in respect of premises included in the assessment book relating to Special Property section, the levy, assessment, collection or recovery of any of the property taxes for any official year preceding the official year commencing on the 1st April, 1968 is affected by a decree or order of a Court on the ground that the determination of the rateable value of the premises on the basis of rental value per foot of the floor area was not according to law or that Sub-rules (2) and (3) of Rule 7 of the rules contained in Chapter VIII of Schedule A to this Act were invalid, then it shall be lawful for the Municipal Corporation of the City of Ahmedabad to assess or reassess in respect of such premises any such property tax for any such official year at the rates applicable for that year in accordance with the provisions of this Act and the rules as amended by the Bombay Provincial Municipal Corporations (Gujarat Amendment) Act, 1968, as if the said Act had been in force during the year for which any such tax is to be assessed or reassessed and accordingly the rateable value of lands and buildings in such premises may be fixed and any such tax when assessed or reassessed may be levied, collected and recovered by the said Corporation and the provisions of this Act and the rules shall so far as may be apply to such levy, collec-. tion and recovery and the fixation of rateable value and the assessment or reassessment, levy, collection and recovery of any such tax under this section shall be valid and shall not be called in question on the ground that the same were in any way inconsistent with the provisions of this Act and the rules as in force prior to the commencement of the said Act:
Provided that if in respect of any such premises the amount of tax assessed or reassessed for any year in accordance with the provisions of this section exceeds the amount of tax which but for the decree or order of the Court as aforesaid could have been assessed for that year in respect of the premises, then the amount of tax to be levied for that year in respect of the premises in accordance with the-provisions of this section shall be an amount arrived at after deducting from the amount of tax so assessed or reassessed such amount as may be equal to the amount as so in excess.
(2) Where any such property tax in respect of any such premises is assessed or reassessed under Sub-section (1) for any official year and in respect of the same premises, the property tax for that year has already been collected or recovered, then the amount of tax so collected or recovered shall be taken into account in determining the amount of tax to be levied and collected under Sub-section (1) and if the amount already collected or recovered exceeds the amount to be so levied and collected, the excess shall be refunded in accordance with the rules.
6. In the petition, a number of grounds have been raised but at the hearing, on behalf of the petitioners, the learned Advocate Mr. Daru, put forward only the following points for our consideration in support of the petitions:
I. Section 152A Sub-section (1) confers power on the Corporation to assess or reassess property tax for the official years 1963-64, 1964-65, 1965-66 and 1966-67 in cases falling within that sub-section but that power is a limited power, in that it can be exercised only in accordance with the provisions of the amended Act and the Rules. On a proper construction of the amended Act and the Rules, no assessment of the property tax for these official years could be made after the expiry of the official year except in cases falling within Rule 2IB. The cases of the present petitioners do not fall within the purview of Rule 2IB and therefore the Corporation has no power under Sub-section (1) of Section 152A to reassess property tax on lands and buildings of the petitioners for any of the aforesaid official years.
II. If the Corporation, on a proper construction of Sub-section (1), has no power to reassess property tax, Sub-section (2) of Section 152A can be of no avail to the Corporation to retain the property tax illegally recovered.
III. Even if it is held that the Corporation has power to reassess under Section 152A(1), on a proper construction of Sub-section (2), the Corporation has no authority to retain the amount of property tax illegally recovered and refuse to refund it.
IV. Alternatively if it is held that Sub-section (2) empowers the Corporation to retain the amount of tax illegally recovered and act in disobedience of the orders of the Court including the Supreme Court, the said provision is ultra vires as violative of Article 31(1) and 19(1)(f) of the Constitution of India and also suffers from the vice of legislative incompetence.
7. Before we proceed to deal with the controversy we have to first deal with the preliminary point raised on behalf of the respondents in their affidavit and supported at the hearing by the learned Advocate General appearing for them.
8. It is contended that the petitions as framed are not maintainable as in substance the petitioners seek the enforcement and execution of the order dated 15th April 1968 passed by the Supreme Court of India in the respective appeals of these petitioners. It is argued that the original liability having been adjudicated upon and incorporated in the decree of a Court, the said original liability merged in the order of the Court and therefore it could be enforced only as a decree under Rules 16 to 20 in Chapter XVII of the Appellate Side Rules of the High Court. It was urged that it would be abuse of the process of the Court if jurisdiction of the High Court under Article 226 is ultilised for the purpose of executing orders made by the High Court or the Supreme Court and it was likely to open flood gates of litigation under Article 226 for enforcement of the decrees of Courts. Even if it is the petitioners' case that Section 152A of the Act is an impediment in their way to claim back their amount wrongly recovered or collected by the Corporation from them, the correct procedure for them would be to resort to execution proceedings under the Rules and if the Corporation were to raise any defence under Section 152A of the Act, they can either come by way of reference or Writ petition to this High Court. But they cannot be allowed to circumvent the regular procedure and come directly to this Court without resorting to the specific procedure for executing the decree.
9. Technically speaking, the objection cannot be said to be without substance. But it would not be possible to reject the petitions in limine on this ground. It is in a few cases indeed that an order for refund amounting to money decree would be made in the proceedings under the writ jurisdiction of the High Court or the Supreme Court. It can hardly be disputed that such an order would be a money decree and has ordinarily to be executed in the manner prescribed by law. But all this cannot justify a dismissal of these petitions in limine The contention of the petitioners is that though they made a demand in writing for refund of their money which were held by the Supreme Court to have been illegally recovered or collected from them, the Corporation did not care even to reply nor did they refund the amount. The petitioners however having been advised that probably the Corporation relied on Section 152A of the Act in their attitude, they found themselves faced with this provision of law as an impediment in their right to get back their money. They, therefore, had to have this difficulty removed by challenging the validity of the provisions which they can effectively do by approaching this Court by way of a writ petition and for a declaration that Section 152A is ultra vires or in the alternative that on a correct interpretation of that provision of the section the section does not come in their way and the probable claim of the Corporation is futile. Now it is an established fact that the Corporation does rely on Section 152A to defeat the claim of refund, despite the orders of the Supreme Court. It is true that the petitioners have sought a mandamus directing the respondents to refund their respective amounts which prayer we may not be inclined to grant but that cannot defeat the petitions because they would be entitled to get the other prayer sought if they succeed in having Section 152A (1) or (2) declared to be unconstitutional or that on a correct interpretation of Sub-section (2), if they succeed to establish that it does not entitle the Corporation to withhold the amount of tax illegally recovered. Under the facts and circumstances of the present case, it would be hyper-technical to ask the petitioners to go on the merry-go-round of first filing the execution proceedings and then come here, as they must, for deciding the validity of Section 152A or its correct interpretation. The objection raised has therefore to be rejected. We shall therefore now deal with the petitions on merits.
10. This group of 21 petitions were heard together with another group of 24 petitions filed by other Textile Mills of this City against the Corporation being Special Civil Application No. 570 of 1968 and others. The said group of petitions were directed against the act of the Corporation to reassess the property-tax in respect of the premises of the said Group of Mills, after the Supreme Court had cancelled the entry made in respect thereof in the assessment book as being illegal. In the said petitions, the petitioners have inter alia contended that the Corporation has no power to reassess for past years under Section 152A of the Act, on identical grounds as raised in Point No. 1 before us. We have delivered judgment today in the said group of petitions and after a full discussion have held that the power of the Corporation to assess or reassess conferred on the Corporation under Section 152A Sub-section (2) is not confined to cases falling within Rule 21B and even in cases where assessment was completed by the Corporation within the official year, the Corporation would have power to assess or reassess under Section 152A Sub-section (1) if the original assessment was affected by a decree or order of a Court on either of the two grounds specified in Section 152A Sub-section (1). The Corporation has power, therefore, under Section 152A(1) to assess or reassess property tax on the lands and buildings of the petitioners for the official years 1964-65, 1965-66 and 1966-67. It would be futile to fully discuss the point here again and for the reasons given in the said judgment, we reject point No. 1. On this finding, point No. II does not survive. It is true that if point No. 1 was decided against the Corporation, no question of retaining the amount of tax already collected by the Corporation would have arisen in any event.
11. That takes us to the important question of construction of Sub-section (2) of Section 152A and in the alternative if need be its vires. It is a well known rule of construction of statutes that for an accurate and true interpretation of the provisions of a statute, it is necessary to consider how the matter stood before the Act is made, what is the mischief that the statutory provisions intend to prevent and the remedy provided thereby to cure the mischief Vide: Bengal Immunity Co. v. State of Bihar : [1955]2SCR603 . While dealing with the question of interpretation of Sub-section (2), it will therefore be expedient to note the circumstances in which Section 152A came on the statute book and the object of its insertion in the Act. The Corporation had already completed the assessment of the properties included in the assessment book relating to what was classified as 'Special Property Section' for the official years 1963-64, 1964-65, and 1965-66. This Special Property Section in the assessment book included the Textile Mills, factories, etc. of the City of Ahmedabad. The lands and buildings of the present petitioner Mills were also accordingly assessed. The assessed property tax was also recovered or collected from the petitioners for the respective assessment years as indicated in the table here above. This assessment of property tax was challenged and the first pronouncement of the Supreme Court holding the assessment of the property taxes in the Special Property Section for the three years to be illegal and unconstitutional, came on the 21st of February 1967 in the decision of New Manek Chowk Spg. and Wvg. Mills Co. Ltd. v. The Municipal Corporation of the City of Ahmedabad (supra). The grounds on which the assessment was struck down, we have already noted. The effect of the said judgment was that the Corporation had to reassess the property tax of properties in the Special Property Section of those years omitting the value of plant and machinery and also to arrive at a rate of value on some other legal basis than the flat rate method. The question therefore prima facie arose whether the' Corporation could, consistently with the provisions of the Act as they stood, validly reassess the property tax for the past official years. High Courts in India including the Division Bench of this High Court while interpreting the provisions of the Bombay Municipal Boroughs Act which though not identical but were similar, had taken the view that all the steps to complete the assessment of property taxes of a particular official year for a valid imposition of those taxes must be taken before the year runs out. Vide: The Municipal Corporation of the City ofAhmedabad v. Keshavlal Lallubhai Jhaveri VI G.L.R. p. 223. It was, therefore, felt that the Corporation had no power to reassess for the past official years and it was feared that the said properties would escape liability to pay the property taxes for those official years which taxes it was obligatory on the Corporation to levy under Section 127 of the Act. This was the situation and the mischief that started in the face of the Corporation. The Legislature therefore stepped in and provided the cure by inserting Section 152A and providing therein that it will be lawful for the Corporation to assess or reassess property taxes in respect of such lands and buildings the assessment whereof was or would be affected by a decree or order of a Court for past years. This was done by the Gujarat Amending Act (Gujarat Act No. VIII of 1968) which has come into force on the 31st March 1968. It was known by this time that for the concerned years property tax in many cases was already collected or recovered and the question therefore arose as to what is to happen to these amounts which under the effect of the decision of the Supreme Court were illegally recovered, and the Legislature thought it proper to enact Sub-section (2) of Section 152A which lays down as to what is to be done when such tax had already been collected or recovered by the Corporation. The petitioners and the respondents however differ as to the meaning and scope of this sub-section and that is the controversy which we are called upon to resolve.
12. On behalf of the petitioners it was submitted that Section 152A should be read as a whole. Sub-section (1) empowers the Corporation under certain circumstances to reassess the property tax of past years and Sub-section (2) then enables the Corporation to adjust at the time of making the reassessment the tax already recovered, provided the amount at that stage still happens to be with the Corporation. It is contended that on a correct construction of Sub-section (2) in view of the clear language used by the Legislature, until the stage comes to assess or reassess the amount of property tax under Sub-section (1), the Corporation is not entitled or empowered to retain the amount which was illegally collected or recovered.
According to the petitioners, Sub-section (2) only contains a direction to determine the liability of the property tax when assessed or reassessed, after taking into account the amount that is already recovered by the Corporation. The sub-section only says that the Corporation should take the amount into account and then determine the amount due under the new assessment. The section, according to Mr. Daru, cannot be read on any acknowledged principle of interpretation of statutes, to vest in the Corporation any authority to retain the amount illegally received and the Corporation was bound to refund it on demand in any case. It was further urged that in the present case the petitioners had in their former respective petitions actually made a prayer that if during the pendency of the petitions the amount of property tax was collected or recovered, then the Corporation be ordered to refund it. The Supreme Court had granted that prayer and under the circumstances the obligation was all the greater on the part of the Corporation to refund unless there was any other provision which vested a right in the Corporation to disregard the order of the Supreme Court.
13. On the other hand it was contended on behalf of the respondents that it is an undisputed fact that Section 152A was introduced to meet the situation created by the aforesaid decision of the Supreme Court in New Manek Chowk Spg. and Wvg. Mills Co. Ltd. v. The Municipal Corporation of the City of Ahmedabad and Ors. (supra) whereby the property tax of crores of rupees was held to be invalidly assessed and levied. The right to assess and levy the property tax or the rate at which the tax was to be levied was not in dispute at all. Only the mode of determination of the rateable value was struck down by the Supreme Court. Therefore the liability of the petitioners to pay the property taxes in the relevant past years was never in dispute. In order to enable the Corporation to reassess the property taxes of the past years which presumably the Corporation was not entitled to do under the provisions of the Act as it stood, the Legislature enacted Section 152A (1) to enable the Corporation to lawfully assess or reassess for the relevant years that had gone by and to levy and collect the property taxes. By Sub-section (2) the Legislature provided for making adjustments of the tax collected or recovered and which was affected by a decree or order of the Court. There is nothing in the wordings of Sub-section (2) to hold that it obliges the Corporation to refund the whole of the amount or entitles the taxpayers to get immediate refund. Though no doubt the provision made in Sub-section (2) is for refund to the amount already collected, the intention of the Legislature is clear that the refund is to be made after reassessment and the adjustment and only if there is any excess, the Legislature enacted Section 152A to save the Corporation from a grave situation arising because of the decision of the Supreme Court on the one hand from losing property taxes of four years that had passed and on the other hand also saved the Corporation from the impossible task of refunding the huge amount which it had already collected and which was affected by the decision of the Supreme Court. It was further submitted by the learned Advocate General that in any event, having regard to the facts, that the liability to pay the property tax in the respective years was undisputed, the amount of the tax already recovered was held to be invalid only on the ground that the method of assessment was false or illegal, the historical background in which Section 152A came on the Statute book and the evil that the Amending Act was intended to cure by enacting Section 152 A, the intention of the Legislature to empower the Corporation to retain the amount must be implied. It was further argued that the mere fact that the Supreme Court in the appeals filed by the petitioners made an order granting the prayer for the refund of the amount after the Amending Act came into force, cannot make any difference in the situation.
14. We have given our anxious consideration to the submissions made on both the sides which we have stated at some length and we have come to the conclusion that the construction canvassed on behalf of the petitioners is true for reasons which we will presently indicate.
15. One of the cardinal principles of interpretation of statutes or its provisions is that we must first look to the language and if the language is plain and unambiguous and the meaning clear, we have not to travel beyond it. But however clear and unambiguous the language may be, the section has to be analysed to ascertain its true meaning and that is what we now propose to do. The opening part of Sub-section (2) lays down two pre-requisites before the operative part thereof can come into effect. One is that the Corporation has exercised its right under Sub-section (1) and assessed or reassessed the property tax in respect of the lands and buildings which were affected by the order of the Court. The second is that in respect of the same premises the property tax for that year has already been collected or recovered. Only where these two conditions precedent exist, that the operative part of the sub-section comes into play. That operative part of sub-section is the provision of taking into account all the amount of tax already collected in determining the amount of tax to be levied and collected under Sub-section (1). If either of the pre-requisites do not exist, naturally the question of performing that Act under that operative part of the provisions does not arise at all. It is not disputed that in the present case no reassessment has been made by the Corporation. Under the circumstances the question of putting into effect the operative part of this sub-section does not at all arise and the Corporation has no right to refuse refund. We may then try to see the contents and nature of the operative part of this sub-section. It only says: 'The amount of tax so collected or recovered shall be taken into account in determining the amount of tax to be levied and collected under Sub-section (1). The meaning of this part of the sub-section requires no elaboration. It clearly casts a duty on the Corporation calling upon it to take into account the amount already recovered if it is still with the Corporation in determining the exact amount due under the reassessment. The natural consequence is that the Corporation will be entitled to recover only the deficit if the new tax amount exceeds the amount recovered. The Legislature has also been specific in laying down in the last part of the sub-section that if there is excess that too the Corporation shall refund and not keep with it for further adjustment in future. The plain reading of the Sub-section (2) therefore leaves no doubt that the anxiety of the legislature is not to confer any right on the Corporation to retain the money till it decides at its pleasure to reassess the tax but it is to cast an obligation on it to give credit of the amount already recovered by it when it reassesses the tax and only collect the deficit if any and refund the excess. This is certainly not the language which can be construed either expressly or by necessary implication to confer the right on the Corporation to refuse refund on the ground that it is entitled to retain the money with itself till it choses to make the reassessment.
16. There are two more circumstances which support the view we are taking. Firstly there is no period of limitation provided within which the Corporation should exercise its right under Sub-section (1) to reassess the property tax. This would leave the Corporation free to keep the money of the tax-payers as long as it likes. The second is that there is no provision made for payment of interest on the amount illegally recovered and lying with the Corporation. There is no provision to pay interest even on the excess amount. It is reasonable indeed to expect the Legislature to make either of these provisions to safeguard the taxpayers' interest if it were intended to empower the Corporation to retain the money till it choses to reassess the tax at its convenience. The absence of their of these provisions, to our mind, is indicative of the fact that the Legislature intended, as the language shows, to compel the Corporation to take into account the amount already collected by it if such an amount is in its possession when it reassesses the tax under Sub-section (1) and does not permit even by implication, any intention to give any power to the Corporation to retain the amount already recovered.
17. The learned Advocate General wanted us to read Section 152A as a whole while determining the true meaning and scope of Sub-section (2) and no exception indeed can be taken to that submission. As we have seen, Section 152A was introduced to enable the Corporation to reassess and collect the property tax for certain past years the assessment and the tax whereof were held to be invalid by the Supreme Court. In doing so -the Legislature contemplated two kinds of cases to be 'provided for One is where though the assessment was made and completed the amount was not collected and the other is the case where not only the assessment was completed but the amount of the property tax; assessed was also collected by the Corporation and the amount is still there with it when the reassessment is made. So the Legislature provided that in the first case the Corporation shall reassess and determine the amount as laid down in Sub-section (1), in the second case it shall determine the amount of the property tax as laid down in Sub-section (2). It is laid down in Sub-section (1) that it shall be lawful for the Corporation to reassess the property tax for the past years and recover the whole amount of tax so reassessed while by Sub-section (2) the Legislature enjoined the Corporation that it shall not recover the full amount determined under Sub-section (1) but recover only the deficit amount if any after taking into account the amount already lying with it. If on the contrary there is any excess it shall be refunded.
18. Reading of the section as a whole does not lead us to any different conclusion. On the contrary it reaffirms the view we are taking that only at the stage when the reassessment is made that the Corporation can say that we are taking into account the amount illegally recovered. There is no right prior to that in the Corporation to claim that they will retain the amount till they reassess if otherwise they have no other source of a right to retain. Even if by some stretch of argument it can be said that a right is given to the Corporation over the amount illegally recovered, the question is, what is the nature of that right and when can that right be exercised. The right, if any, is only to take into account the amount recovered and that right can only be exercised when the reassessment is made. The submission cannot be availed of for the purpose of retention of that amount to be taken into account at some future time when the Corporation decides to reassess. The language used definitely reflects the Legislative intent to make a provision in favour of the taxpayers to avoid the situation of the Corporation levying and collecting the full reassessed amount and driving the taxpayer to a legal proceeding to get the refund of the amount which was illegally recovered or collected from him for the same assessment year. Normally a Municipal Corporation will be bound to refund or return any amount of tax that it may have illegally recovered. It is true that in the present case the liability to pay the property tax by the petitioners for their lands and buildings for the relevant years is not in dispute and it was only the mode of assessing the tax, that was struck down as being unconstitutional. All the same the collection or recovery of the tax was illegal and under the common law right the tax payer is entitled to recover and the Corporation bound to refund the amounts. Merely because it is given a right to reassess and levy the tax for the same year, cannot give by itself, also the right to retain the illegally collected amount. The search for such a right in Sub-section (2) to our mind is futile. A provision which casts an obligation for adjustment only cannot be read to confer a power on the Corporation to retain the amount.
19. There is one more important factor to be noticed. The Legisla ture had enacted Section 152A, as already stated, with the object of overcoming the difficulty created for the Corporation by the Supreme Court decision. The very wording of Sub-section (1) indicates it. It is quite clear therefore that the Supreme Court's decision was very much present before the mind of the Legislature. If the Legislature then intended to authorise the Corporation to retain the amount for being adjusted when convenient to the Corporation and only refund if there was excess, we would expect the Legislature to use such language as to expressly authorise the Corporation not to refund the amount immediately or even when the demand is made. We do not find in the language of Section 152A read as a whole or of Sub-section (2) read by itself anything to indicate any vesting of such a right not to refund the amount but retain it till it choses to reassess the tax. There is yet another circumstance to be taken into account in this case. As referred to hereinabove, in the appeals of the present petitioners that were allowed by the Supreme Court relying upon its decision in New Manek Chowk Spg. and Wvg. Mills Co. Ltd. v. Municipal Corporation of the City of Ahmedabad (supra) it granted the prayer of the petitioners that if the tax was collected before their petitions were finally disposed of, it may be ordered to be refunded. Therefore there is not only the common law right of the petitioners to recover back the amount illegally collected from them but there is also the order of the Supreme Court to do so. We do not find in Section 152A any intention of the Legislature to authorise the Corporation to refuse to obey the said order of the Supreme Court.
20. We are further encouraged in reading Section 152A and particularly Sub-section (2) thereof in the way we have by the overall attitude adopted and action taken by the Legislature after the Supreme Court struck down on 21st February 1967 Sub-rules (2) and (3) of Rule 7 and held the flat rate method of fixing the tax as invalid and unconstitutional and the assessment list and the property tax levied in the respective years to be invalid. It is obvious from the steps taken by the Legislature that it decided to respect the decision of the Supreme Court in all its aspects. It did not try to validate the tax declared to be illegal. Instead it enacted the Amending Act (Act VIII of 1968) whereby they amended Rule 7 and omitted the offending sub-rules. They also did not try to include any rule or section empowering the Corporation to assess the tax on the flat rate basis and providing avoidance of any pitfalls which may again amount to violation of Article 14 or other defects pointed out by the Supreme Court. It only tried to cure the evil effect of the law as it stood by entitling the Corporation to reassess, levy and collect the property tax for the past years of which the assessment and tax were held to be invalid, by introducing Section 152A, but for which the Corporation would have lost that huge amount. Therefore there is no intention on the part of the Legislature exhibited any where to run counter to any part of the decision or orders of the Supreme Court. If we refer to the statement of objects arid reasons when the bill for the Amending Act was introduced, all this will be amply borne out. That we are entitled under such circumstances to refer to the objects and reasons for the limited purpose of ascertaining the situation that existed, the difficulty that existed and the cure that was tried to be provided, requires no support from authorities. But if any are needed, it is to be found from the following decisions of the Supreme Court : [1961]2SCR295 (M. Pentiah v. Veeramallappa) : [1968]68ITR503(SC) (Sevantilal v. I.T. Commissioner, Bombay). From this it is obvious that because the Legislature wanted to amend the Act so as to enable the Ahmedabad Municipal Corporation to assess or reassess the property tax on properties affected by the Supreme Court decision and to amend the provisions of the said Act relating to the assessment, levy, collection etc. of the property tax that it inserted Section 152A in the Act. It has to be noticed that the Amending Act has not only introduced Section 152A but has also made certain other amendments which they found-necessary for the purposes of the valid assessment of the property tax etc. Clause 7 of the objects and reasons refers to Section 152A and it reads as follows:
Clause 7 This clause inserts new Section 152A to meet the situation arising out of the Supreme Court's decision in Manek Chowk Spinning and Weaving Mills case referred to above. The section authorises the Ahmedabad Municipal Corporation to assess, levy etc. property tax for past years.
So even in the objects and reasons also there is nothing to justify taking a different view.
21. The submission made on behalf of the Corporation that the Legislature could not have intended the Corporation to refund on demand the illegally recovered amount and must have intended that it be retained by the Corporation for being adjusted as it would have otherwise caused great hardship to the Corporation in carrying out its obligations, does not appeal to us. As is well said the argument of hardship is always a dangerous one to listen to and Court must look hardships in the face rather than break down the rules of law. If the fact of hardship were to enter the field of our consideration, much can be said on the part of the petitioner-mills, quite a few of which we were informed, were either closed down or were in liquidation. But apart from that we are satisfied that on accepted cannons of construction the language being clear and unambiguous we cannot read any words in Sub-section (2) which are not there or can cull out by implication any intention to the contrary. Nothing would have been easier for the Legislature to lay down in clear language in Sub-section (2) that the Corporation will be entitled to retain any amount of tax illegally recovered till the assessment is made and the new amount is determined by adjusting the amount recovered or that such amount though illegally recovered, the tax-payers will not be entitled to recover back the full amount but will be entitled to receive only the balance if any after the reassessment is made and the amount is adjusted.
22. We, therefore, hold that on a correct construction of Sub-section (2) of Section 152 A the Corporation has no right to retain the respective amounts of the petitioners and they are entitled to get the refund thereof as per the order of the Supreme Court in their respective appeals. As observed above, the petitioners in these petitions are only entitled to the above declaration and no mandamus for the recovery of amounts can be issued, as the Supreme Court has already issued the mandamus. For that the petitioners will have to take proceedings according to law. We can only declare that Sub-section (2) of Section 152 A of the Bombay Provincial Municipal Corporations Act, 1949 does not stand in the way of the petitioners to enforce their right to refund as directed by the Supreme Court. In view of the decision we have reached on the interpretation of Section 152A(2) we do not find ourselves called upon to discuss and decide the contention raised by point No. IV challenging the constitutional validity of Sub-section (2) of Section 152A.
The result is that the petitioners only succeed in getting the declaration aforesaid and the rule is made absolute to that extent only. The respondent No. 1 shall pay the costs of the petitioners in each of the petitions.
The learned Advocate General makes an oral application for leave to appeal to the Supreme Court under Article 133(1)(b) and (c) on behalf of the Corporation in all the matters and on behalf of the State Special Civil Application No. 403 of 1969. Leave applied for is granted.