Civil Appeal No 3066 of 1987
From the Judgment and Order dated 971986 of the Punjab and Haryana High Court in RSA No 163 of 1978
Mala Ram Ghana and Dalveer Bhandari for the Appellant
MS Gujral and Dr Meera Aggarwal for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
Special leave granted
The High Court in its judgment and order dated 9th July 1986 has observed that the question of limitation has been canvassed before the High Court
The High Court expressed the view that there was a lot of conflict between the various High Courts on the interpretation of Article 54 of the Limitation Act which governed the point of limitation
The High Court however did not decide this question and expressed the view that due to passage of time prices of lands had gone up sky high and it would be unjust to enforce the agreement of sale entered into
In other words it appears that without deciding the question whether the claim of the plaintiff was barred by limitation or not the High Court exercised its discretion in refusing to grant the relief on the ground that there has been good deal of delay and the parties would suffer if specific performance of the agreement was granted
It appears from the facts that in this case the major portion of the agreed price had been paid long time ago and the balance thereof was to be paid at the time of execution of the documents was a sum of Rs 75 only
It further appears that possession of the premises was with the appellant for all these years in part performance of the agreement
In those circumstances the principle upon which the High Court refused to exercise its discretion in our opinion was not applicable and such discretion was not proper
The High Court exercised discretion on wrong principles
See in this connection Madamsetty Satyanarayana vs G Yellogi Rao  Two others   Dr Jiwan Lal  Ors
vs Brij Mohan Mehra  Another  and see also the observation in Debendra Nath Mandal vs Sakhilal Kar  Ors AIR 1950 Calcutta 526 In that view of the matter we cannot sustain the exercise of discretion in the manner done by the High Court
This however does 1101 not decide the matter because the High Court declined to go into the facts and decide the question of limitation on merits the High Court took the view in exercise of its discretion
Since we are not sustaining the High Court s exercise of discretion hence the order and the Judgment of the High Court are set aside but the matter is remanded to the High Court for its decision on the merits
The matter should be disposed of by the High Court as early as possible
The appeal is accordingly allowed with no order as to costs
PSS Appeal allowed


Summary:
The appellant a public limited company was a lessee of four cinema houses situated within the municipal limits of Poona City where it used to exhibit cinematograph films
The respondent the Municipal Corporation of Poona in exercise of its power under section 591 XI of the Bombay District Municipal Act 1901 levied with effect from October 1 1920 a tax of Rs 2 per day as license fee on the owners and lessees of cinema houses
That Act governed the Municipality till 1926 and thereafter it was governed by the Bombay Municipal Boroughs Act 1925
The tax was enhanced to Re 1 per show on June 3 1941 and to Rs 5 per show on June 9 1948
By the suit out of which the present appeal arose the appellant sought for a declaration that the levy of the said tax the rules framed in connection therewith and the enhancement of the tax as aforesaid were illegal and ultra vires
The trial court decreed the suit in part but the High Court in appeal reversed the decision of the trial court 72 and dismissed the suit
It was contended on behalf of the appellant that 1 the tax was not one covered by Entry 50 in List 11 of Seventh Schedule to the Government of India Act 1935 but was one on trade or calling covered by Entry 46 thereof and was as such governed by section 142A of the said Act and that 2 section 591XI Of the Bombay District Municipal Act 1901 was unconstitutional in that the legislature had thereby delegated essential legislative power to the Municipality to determine the nature of the tax to be imposed on the rate payers and completely abdicated its function leaving such power wholly unguided
Held that both the contentions must fail
The first point was covered by the decision given in the appellant s other appeal Civil Appeal No 145 Of 1955 which must also govern this case
It was not correct to contend that the power delegated to the Municipality under section 591XI Of the Bombay District Municipal Act 1901 was unguided
That section authorised the imposition of such taxes alone as were necessary for the purposes of the Act
The obligations and functions cast upon the Municipalities by ch
VII of the Act showed that taxes could be levied only for implementing those purposes and none others
Nor could it be said that the Provincial Legislature had abdicated its function in favour of the Municipality
The taxing power of the Municipality was made subject to the approval of the Governor in Council by the section itself
The marginal note to a section could not affect the construction of the section if its language was otherwise clear and unambiguous and the word modify  connoted not merely reduction but also other kinds of alteration including enlargement
The substitution of the word I reduce  by the word I modify  in the body of section 6o of the Bombay Municipal Boroughs Act 1925 notwithstanding the omission to do so in the marginal note therefore clearly indicated the intention of the Legislature to widen the scope of that section and consequently it could not be said that the enhancement of the tax was not sustainable thereunder
Commissioner of Income Tax Bombay vs Ahmedbhai Umarbhai  Co Bombay  and Stevens vs The General Steam Navigation Company Ltd  referred to