Appeals Nos 499 to 502 of 1958
Appeals from the judgment and decree dated July 13 1956 of the former Travancore Cochin High Court in A section Nos
94 95 96 and 156 of 1952
G section Pathak and G C Mathur for the appellants in C As
499 to 501 of 58
P George and M B Krishna Pillai for the appellants in C A No 502 of 58
T N Subramania Iyer B Ganapathy Iyer and G Gopalakrishnan for the respondent
January 27
The Judgment of the Court was delivered by KAPUR J
These four appeals are brought against the judgments and decrees of the erstwhile High Court of Travancore Cochin
The appellants were the plaintiffs in the respective suits out of which these appeals have arisen and the respondent was the defendant in all the suits
As all the suits involve a common question of law it will be convenient to dispose of them by one judgment
The facts of the cases are these
On September 9 1943 the Nagercoil Municipal Council the respondent passed a resolution under section 78 of the Travancore District Municipalities Act Act XXIII of the Malayalam year 1116 hereinafter called the Act
By this resolution it was resolved to levy a profession tax at the rates specified in the schedule
This was notified in the Government Gazette of September 26 1943 under the name of the Commissioner of the respondent Council
In this notification it was stated   Any inhabitant of the local municipal town objecting to the proposal may submit his objection in writing to this office within 30 days of date of publication of this notification in the Government Gazette
This notification was also published in a local newspaper called the Abhimani
It does not appear nor is there any assertion or allegation that any 611 objection was raised to this tax by the appellants or any one else
On January 121944 a resolution under section 79 of the Act wag passed by which the profession tax became payable from the beginning of the second half of the Malayalam year 1119
A trust Kottar Chetty Ninar Desikavinayaga Swamy filed a suit on February 10 1946 challenging the legality of this tax
CA 502 of 1958 has arisen out of that suit
Amongst other allegations which are common to the other suits which will be mentioned presently the trust pleaded that it was not carrying on a profession within the meaning of the word used in the Act and that it was only a religious trust and had no profes sion
That suit was tried by the Munsif and was decreed
An appeal was taken against that decree to the District Judge
Three private limited companies carrying on business brought three suits challenging the legality of the imposition of the tax out of which the other three appeals ie Civil Appeals Nos 499 to 501 have arisen
In these suits it was alleged that the publication of the resolution was not in accordance with the provisions of section 78 of the Act in so far as 1 it was not published by the respondent Municipal Council but by the Commissioner 2 the newspaper in which the advertisement was published was not selected by the Council 3 time given in the notification was fixed not by the Council but by the Commissioner and 4 the period prescribed in the notification that is  within 30 days  was not fixed by the Council and was not in accordance with the Act
The respondent Municipal Council denied these allegations and several issues were raised and the suits were decreed
The appeal which had been taken in the suit by the Trust was also decided in favour of that plaintiff
The result was that all the suits and the appeal were decided against the respondent Municipal Council
It took four appeals to the High Court
The decrees were reversed and the suits of the various plaintiffs were dismissed
Against those judgments and decrees these four appeals have been brought by the plaintiffs in the various suits who are now the appellants
612 In Civil Appeals Nos 499 to 501 Counsel for the appellants has raised two points 1 that the publication was not by the Council and 2 that the time given in the notification ie  within 30 days  was not in accordance with the law and as these were conditions precedent to the legality of the resolution under section 79 the resolution was ultra vires and therefore the imposition of the tax was illegal
It is therefore necessary to examine the various provisions of the Act upon which the whole argument has proceeded
Chapter VI of the Act deals with Taxation and Finance
In section 77 are enumerated the various taxes which can be levied by Municipal Councils
Section 78 gives the procedure for the levying of the tax and when quoted it is as follows section 78
Resolution of Council determining to levy tax or tolls
Any resolution of a municipal council determining to levy a tax or toll shall specify the rate at which any such tax or toll shall be levied and the date from which it shall be levied Provided that before passing a resolution imposing a tax or toll for the first time or increasing the rate of an existing tax or toll the council shall publish a notice in Our Government Gazette and at least in one Malayalam or Tamil newspaper having circula tion in the municipality of its intention fix a reasonable period not being less than one month for submission of objections and consider the objections if any received within the period specified Italics are ours
After the various steps given in section 78 have been taken a Municipal Council has then to adopt the taxes proposed by means of a resolution under section 79 which provides  S79
Notification of new taxes and tolls When a municipal council shall have determined subject to the provisions of Section 78 to levy any tax or toll for the first time or at a new rate the executive authority shall forthwith publish a notification in Our Government Gazette and by beat of drum specifying the rate at which the date from which 613 and the period of levy if any for which such tax or toll shall be levied
 The functions of the executive authority that is of the Commissioner of the Council are contained in section 16 of the Act which is as follows  section 16
Functions of the Executive Authority
The executive authority of the municipal council shall a carry into effect the resolutions of the council b furnish to the council such periodical reports regarding the progress made in carrying out the resolutions of that body in the collection of taxes as the council may direct and c perform all the duties and exercise all the powers specifically imposed or conferred on the executive authority by this Act and subject whenever it is hereinafter expressly so provided to the sanction of the council and subject to all other restrictions limitations and conditions hereinafter imposed exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfilment of the purposes of this Act
 Section 16 which contains the power of the executive authority does not support the contention of the appellants because it provides that the executive authority has to give effect to the resolutions of the council and has to perform all duties specifically imposed on the executive authority by the Act and can also exercise executive power for the carrying out of the provisions of the Act and can act without sanction unless the Act otherwise requires
Therefore when the Commissioner of the respondent council got published a notification of the resolution under section 78 of the Act to impose a tax he was acting within his powers and the fixing of the time in which objection had to be made was provided under the Act and was not exercise of authority by the executive which it did not possess
The only serious question which arises for decision is whether the period of  within thirty days  given in the notification was compliance with the provisions of the Act or not
If it was not then is the period of 614 time mentioned a mandatory requirement a breach of which makes the tax illegal Counsel for the appellants in the first three appeals argued and that argument was adopted by counsel for the appellant in the fourth appeal that the words used in the first proviso to section 78 required that a clear period of one month had to be given for inviting objections and as within thirty days was not a clear period of one month the provisions of the section had not been complied with
In support of his contention that the provision as to time was a mandatory requirement he particularly stressed three words and phrases used in that proviso 1 before passing a resolution   2  shall publish   and 3  fix a reasonable period not being less than one month for submission of objections
 The argument was that where these words are used the effect was that the requirements were mandatory and not merely directory
It was submitted that the words before and shall  provided that what was mentioned in the proviso were conditions precedent for giving power to the Municipal Council to pass a resolution under a 79 and when those two words were read along with  not being less than one month  it was a clear indication of the mandatory nature of the requirements of the section
Quite a number of cases were relied upon by Counsel and besides this it was also emphasized that sections 78 and 79 concerned taxing matters and as the liability of the taxpayers arises after the tax is legally imposed strict compliance with the provisions was necessary
It is not necessary to discuss all the cases on which reliance was placed
The words  not being less than one month  do imply that clear one month s notice was necessary to
be given that is both the first day and the last day of the month had to be excluded
To put it in the language used by Maxwell on Interpretation of Statutes 10th Edition p 351   when  not less than  so many days are to intervene both the terminal days are excluded from the computation 615 That does not seem to have been done in the present case
But in order to decide whether this portion of the proviso is a mandatory provision it is convenient to see the object for which it has been enacted
Under section 78 the procedure is laid down for the levying of a new tax which has to be done by a resolution
But in the proviso it is stated that before such a resolution can be passed a notice to that effect has to be published in the official gazette and also in one Malayalam or Tamil newspaper having circulation within the municipality
Then comes the period for inviting objections
The object of notifying in the Gazette and Local Newspaper is both to give notice to the public and particulary to the persons who are likely to be taxed and to invite their objections
For this purpose the proviso requires a reasonable period of not less than one month to be given
The object of the provision is to give reasonable time and opportunity and it is given as a guidance that reasonable time would be a month
The use of the words I reasonable period before the words not being less than one month  is significant
If sufficient time has been given for the invitation of the objections which only just falls short of the period mentioned in the proviso then it would serve the object of the legislature
The provision in regard to time in the context must be held to be directory and not mandatory
The cases under the Income tax Act like the Commissioner of Income tax vs Ekbal and Co 1 where the notice under section 222 of the Income tax Act which requires the furnishing of a return within such period not being less than thirty days of 30 days only was held to be bad because it was not a notice of thirty clear days were so decided because that notice is the basis of the jurisdiction to tax and a legal notice is an obligation imposed in order to tax an individual and it is a mandatory provision
Similarly cases under Rent Act will also not apply
In Thompson vs Stimpson 2 the law required that not less than four 1 194513 ITR 154
2  79 weeks  notice shall be given for vacation of premises on a weekly tenancy and only one week s time was given
It was held there that it was a bad notice
It was further held that four weeks  notice was a condition precedent and the words had been used which had been interpreted in the past as providing for four clear weeks and also it was construed as four clear weeks so that there might be certainty in the matter
In other cases that were relied upon and which related to taxing statutes the Municipal Council Cuddapah vs The Madras and Southern Mahratta Railway Ltd 1 The Borough Municipality of Amalner vs The Pratap Spinning Weaving and Manufacturing Co Ltd Amalner 2 and Kalu Karim vs Municipality of Broach 3  it was held that taxing statutes have to be strictly construed and requirements which are precedent to the imposition of the tax have to be complied with before tax can be legally imposed
In every case the words have to be construed in the context taking into consideration the language used and the object to be achieved
As we have said above the use of the words  not being less than one month  implies the giving of a clear month excluding both the first and the last day of the month
There is no dispute as to the meaning of that expression alone which has been so construed and the observations of Lord Parker in Thompson vs Simpson 4 will apply
But the question that arises in the present case is what is the exact significance of these words when used in the context of the other words used in the proviso
The power of the municipality to levy the tax does not depend upon a period prescribed for notice for objections
The power to tax is derived from the Statute the provisions relating to the length of notice inviting objections and publication are merely procedural
The object of the notification is to inform the future rate payers and to invite objections from them
The proviso itself uses words  reasonable time 
Reading  reasonable time  and  not being less than one month together it is clear that the 1 Mad 779
2 ILR 3 Bom
4 617 time given must be reasonable and the legislature has only added a guide so that periods shorter than a month may not be fixed
In the present case the whole of the period except one day has been fixed and in view of the other facts it must be regarded as reasonable and to have complied with the provision which is directory in its later part
Counsel for the appellants in C A 49950158 wanted to raise a further objection to the legality of the tax levied and that ground was that the appellants were not carrying on a profession as they were only engaged in motor business and trade
This question was never raised at any previous stage and was not taken in the statement of the appellants  case
Therefore it cannot be allowed  to be raised
Besides it is without any substance in view of the definition of profession as given in section 91 of the Act which includes business
In our opinion the High Court Was right in so holding and the three appeals Nos
499 to 501 of 1958 are dismissed with costs one hearing fee
Coming now to Civil Appeal No 502 of 1958 in the plaint it was alleged that the trust was a religious trust and was following no profession and therefore it did not fall within the definition of the word  profession  as used in section 91 of the Act
The defendant joined issue and the matter was put in issue in the following form Is the taxation by defendant of plaintiff illegal and in contravention of the provisions of the District Municipalities Act  Although no specific finding was given as regards the operation of section 91 the suit was decreed and the question whether the trust followed a profession or not seems to have got lost at the subsequent stages of the proceedings that is in appeal in the court of the District Judge and in the High Court
It is this point which was urged by counsel for the trust his plea was that his case was not covered by section 91 as being a religious trust it had no profession and was carrying on none
That is a matter which in our opinion should have been decided and as neither the District 618 Judge nor the High Court has given a finding on that point it is necessary to remit the case to the High Court with the direction that the appeal be reheard and that particular question be decided on the materials on the record
Nothing that has been said in this judgment must be taken to be an expression of opinion on the merits of this plea taken by the appellant Trust
Appeal No 502 of 1958 is therefore allowed and the case remitted to the High Court for decision
The costs in this Court and in the High Court will abide the decision of the appeal in the High Court
Appeals nos
499 to 501 dismissed
Appeal No 502 allowed
Case remitted


Summary:
The imposition of profession tax by the respondent Municipal Council under the Travancore District Municipalities Act Act XXIII of the Malayalam year 1116 was challenged on the grounds inter alia 1 that the requisite notification was not published by the Municipal Council but by its commissioner 2 that the period of thirty days which was given for filing objections to the imposition was insufficient in law which required a period of  not less than a month  and 3 that this was a mandatory provision under the proviso to section 78 of the Act
Held that under section 16 the Commissioner being the executive authority of the Municipal Council was authorised to give effect to the resolutions of the Council and to perform all its executive duties
The words  not being less than one month  in the proviso to section 78 implied the necessity for one clear month s notice excluding the first and last day of the month but the use of the words  reasonable period  before the words  not being less than one month  showed that the time given must be reasonable
In view of the facts of the case the period allowed must be regarded as reasonable and to have complied with the provision which is directory in its later part
Commissioner of Income tax vs Ekbal and Co 1945 13 ITR 154 and Thompson vs Stimpson  distinguished
Municipal Council Cuddapah vs The Madras and Southern Mahratta Railway Ltd Mad 779 The Borough Municipality of Amalner vs The Pratap Spinning Weaving and Manufacturing Co Ltd Amalner ILR and Kalu Karim vs Municipality of Broach BOM
764 referred to
610 The definition of  profession  as given in section 81 includes business