At, Supreme Court of India
By, HON'BLE JUSTICE G. T. NANAVATI AND HON'BLE JUSTICE S. C. AGRAWAL
1. This appeal is filed against the judgment of the High Court of Madhya Pradesh (Gwalior Bench) dated 26-7-1977 whereby the writ petition (MP No. 25 of 1972) filed by the appellant has been dismissed. In the said writ petition the appellant had assailed the assessment and recovery of house tax in respect of the factory and other buildings of the appellant at Birla Nagar, Gwalior. House tax has been imposed within the Gwalior Municipal limits by notification issued in 1945 under Section 56(8) of the Gwalior Municipalities Act, Samvat 1993 (hereinafter referred to as "the Gwalior Act"). By the Madhya Bharat Municipalities Act, 1954 (hereinafter referred to as "the 1954 Act") the Gwalior Act was repealed. Under the saving clause contained in proviso (c) of Section 2 all rules made or deemed to have been made, orders passed or deemed to have been passed, bye-laws framed or deemed to have been framed, notifications and notices issued or deemed to have been issued and taxes and rates imposed or deemed to have been imposed under the repealed enactments (including the Gwalior Act), so far as they are not inconsistent with the 1954 Act, are to be deemed to have been made, passed, framed, issued or imposed as the case may be under the 1954 Act
2. Before the High Court it was submitted on behalf of the appellant that the notification issued in 1945 under the Gwalior Act was no longer applicable after the repeal of the said Act by the 1954 Act and that the said notification was not continued by the saving clause aforementioned on the ground that the provisions of the Gwalior Act were inconsistent with the provisions of the 1954 Act. While dealing with the said contention the High Court has held that Section 52(1) of the Gwalior Act authorised the imposition of house tax on buildings situate within the municipal limits and it also provided that the house tax shall not exceed 4% of the gross annual letting value of the building while under Section 69(1) (i) of the 1954 Act, municipalities have been authorised to impose a tax on houses and buildings or lands situate within the municipal limits and that under Section 73 of the 1954 Act the tax is to be assessed on the net annual letting value after deducting a statutory allowance of 10% in lieu of costs of repairs etc. from the gross annual letting value. The High Court has observed that the notification issued under the Gwalior Act cannot be said to be wholly inconsistent with the 1954 Act and that the inconsistency is only to the extent that the 1954 Act permits a statutory allowance of 10% of the gross annual letting value which was not allowed by the Gwalior Act and that to this extent alone the notification under the Gwalior Act will not have effect. The High Court has, therefore, directed that the municipality will have to permit a deduction of 10% from the gross annual letting value while assessing the tax. The High Court has further stated that there was no clear averment in the writ petition that tax was being assessed on the gross annual letting value and not on the net annual letting value after making a deduction of 10% and, therefore, it could not be said that action that was being taken against the appellant is contrary to the provisions of the 1954 Act
3. The other contention that was raised on behalf of the appellant before the High Court was that the notification imposing the tax did not apply to the 3 area where the appellant's factory and buildings are situate. The said contention was rejected by the High Court on the view that the appellant's factory and buildings are situate in an area known as additional industrial area which was included within the Gwalior Municipal limits in October 1954. The High Court has referred to the provisions of Section 7(4)(a) of the 1954 Act wherein it is prescribed that "when any area is added to the municipality by a notification, the Act, rules, bye-laws, orders, notices and notifications of the Municipality concerned shall be applicable to that area". The High Court has held that in view of the said provision the 1945 notification passed under the Gwalior Act imposing house tax which was applicable after the 1954 Act, became applicable to the area wherein the properties of the appellant are situate. On that view the High Court has dismissed the writ petition filed by the appellant. Hence this appeal
4. The learned counsel for the appellant has urged the contentions aforementioned which have been rejected by the High Court. We do not find any reason to take a view different from that taken by the High Court. In our view, the said contentions were rightly rejected by the High Court for the reasons mentioned above
5. The learned counsel for
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the appellant has sought to urge a new contention, namely, that the area in which the properties of the appellant are situate is not included in the notification of October 1954 to which reference has been made by the High Court. This is a question of fact which was not agitated by the appellant before the High Court. It cannot be permitted to be raised for the first time in this Court6. We, therefore, do not find any merit in this appeal and the same is accordingly dismissed. The respondents will be entitled to their costs.