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Emperor Vs. Dema Mahadu Amberkar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Application for Revision No. 72 of 1936
Judge
Reported in(1936)38BOMLR790; 165Ind.Cas.637
AppellantEmperor
RespondentDema Mahadu Amberkar
Excerpt:
.....local boards act (bom. vi of 1923), section 100-rules 2 and 8 of rules made by district local board at ratnagiri-rule ultra vires-goods brought by boat to naka but destined for another port without naka-octroi cannot be levied on such goods.;the accused, who was the tindal (master of a country ship), carried goods consigned to merchants in jaitapur and rajapur, two ports on a creek in the ratnagiri district. the boat arrived at the port of jaitapur, which is at the mouth of the creek. the goods consigned to jaitapur traders were landed on payment of octroi duty in accordance with the rules framed by the district local board of ratnagiri under section 100 of the bombay local boards act, 1923. there being no separate octroi naka for the rajapur port, which is about eighteen..........case involves some interesting and rather difficult questions as to the powers of the district local board of ratnagiri to levy octroi in respect of goods lying on ship board in port before they have been landed. the applicant was the tandel or master of a country ship, which on october 20, 1934, arrived at the port of jaitapur, at the mouth of a creek in the ratnagiri district, carrying goods consigned to various persons in jaitapur and in rajapur, a port some eighteen miles further up the creek. the goods which were consigned to jaitapur traders were landed, and octroi was duly paid in accordance with the rules made by the district local board. it appears that there is no separate octroi naka for the port of rajapur, and the nakedar of the jaitapur naka went on board the.....
Judgment:

Broomfield, J.

1. This case involves some interesting and rather difficult questions as to the powers of the District Local Board of Ratnagiri to levy octroi in respect of goods lying on ship board in port before they have been landed. The applicant was the Tandel or master of a country ship, which on October 20, 1934, arrived at the port of Jaitapur, at the mouth of a creek in the Ratnagiri District, carrying goods consigned to various persons in Jaitapur and in Rajapur, a port some eighteen miles further up the creek. The goods which were consigned to Jaitapur traders were landed, and octroi was duly paid in accordance with the rules made by the District Local Board. It appears that there is no separate octroi Naka for the port of Rajapur, and the Nakedar of the Jaitapur Naka went on board the applicant's ship together with a peon and panchas, and demanded from the Tandel the amount of octroi duty, about Rs. 60 on the goods which he was proposing to take to Rajapur. The Tandel declined to pay, firstly, because he had not the money to do so, and, secondly, because, as he said, the Rajapur merchants objected to pay. On his refusal the Nakedar seized part of the cargo, viz., a bag of black pepper, the value of which, he estimated, would be sufficient to pay the amount of octroi duty. He was proceeding to weigh the bag of pepper, when the Tandel obstructed him and took the bag away. After that he sailed up the river to Rajapur, and it is admitted that the goods were subsequently landed there. The Tandel was prosecuted for an offence under Section 183, Indian Penal Code, that is, for the offence of resistance to the taking of property by the lawful authority of a public servant. He was convicted by the First Class Magistrate, Ratnagiri, and sentenced to pay a fine of Rs. 51. On appeal the Sessions Judge has confirmed the conviction, and the case now comes to this Court in revision.

2. The conviction cannot, of course, be justified unless the Nakedar was lawfully authorised to board the applicant's ship, demand payment of the octroi duty on the goods which were being taken to Rajapur, and, on refusal, seize part of the goods in lieu of the tax. The principal question in this revision application is whether it has been clearly established that the Nakedar had this authority, so far as to justify the conviction of the applicant of an offence under Section 183. It is hardly necessary to say that as it is a criminal case the prosecution was bound to produce full and clear and satisfactory proof of the existence of the necessary authority.

3. The Nakedar purported to act under Rule 8 of the rules framed by the District Local Board under Section 100 of the Bombay Local Boards Act. This rule provides in Clause (I) that whenever goods are brought to the Naka for import, the Nakedar shall prepare an import bill stating among other things the amount of the tax leviable on the goods, and Clause (3) of the rules provides that if on demand the person importing the goods refuses to pay the amount leviable, the Nakedar shall seize any part of the goods of sufficient value to pay the amount of the octroi, and refer the matter to the President of the Taluka Local Board, who is to take action as laid down in Section 116 of the Act. I may mention that under the definitions prefixed to the Octroi rules, ' Octroi' means a tax on animals or goods or both brought within the octroi limits for consumption, use or trade therein; ' Import' and ' Export' mean respectively the conveying into or out of the octroi limits of the District Local Board from or to any other area; ' Naka' means a District Local Board station at which goods are being either imported or exported or both.

4. A very similar case came before Mr. Justice Murphy and myself in 1932, Emperor v. Appa Krishnaji Tandel (1932) Crim. Rev. Appln. No. 314 of 1932, decided by Murphy and Broomfield JJ., on December 1, 1932 (Unrep.). The facts in that case were that the Tandel of a country vessel had brought certain goods from Bombay for the village of Serjekot, which is within the port limits of Malwan in the Ratnagiri District. The Nakedar demanded payment of octroi duty on the goods destined for Serjekot. The Tandel refused to pay, and, as in this case, the Nakedar seized part of the goods, and the Tandel resisted him. We held in that case, in the first place, that it was not established that the District Local Board has jurisdiction over the limits of the port of Malwan or any legal authority to levy a tax on goods which are on board a ship in the port and not landed. We held, in the second place, after a detailed examination of the octroi rules and bye-laws framed by the District Local Board, that even these rules and bye-laws do not make it clear that there is any liability to pay octroi before goods are landed. Lastly, we expressed a doubt as to the validity of the rule empowering the Nakedar to seize goods on refusal to pay the tax. That last point, the importance of which the learned Sessions Judge, I think, has not fully grasped, arises in this way. There is a special chapter in the Bombay Local Boards Act, Chapter VIII, which deals with the collection of taxes, and by Section 116 it is specifically provided that in the case of non-payment on demand of any toll leviable by a District Local Board, the person appointed to collect such toll may seize any vehicle or animal on which the toll is chargeable or any part of its burden which is of sufficient value to satisfy the demand. That is to say, specific power is given by the Act itself to recover the particular tax referred to by a species of distress. No such power is given by the Act in the case of any other tax, for instance, octroi. The relevant provisions in Chapter VII which deal with taxation are, firstly, Section 99, which provides that subject to general or special orders of Government the District Local Board, after observing the preliminary procedure required by Section 100, and subject to the sanction of the Commissioner, may impose for the purposes of the Act any tax which a local authority may be authorised to impose by any local law without the previous sanction of the Governor-General. Section 100 deals with the procedure preliminary to the imposing of a tax, and prescribes that notice should be given and objections considered. It also provides for the framing of rules which are to describe the tax selected, the class or classes of persons or property liable and exemptions to the same, the amount or rate of the tax, and lastly, all other matters which the Government may require to be so specified. Section 102, proviso (b), authorises and requires the publication of rules prescribing the mode of levying and recovering the tax. But presumably any such rules must be consistent with the Act. Non constat that the Board has any power to make a rule such as Rule 8 providing for the collection of the octroi in the same manner which is provided in the Act in the case of a toll by Section 116.

5. I myself delivered the judgment in Appa Tandel's case, and I may admit that, so far as the construction of the rules is concerned, some of the considerations on which we relied in that case impress me less than they did, One of the questions discussed in that case was as to the liability of the carrier of the goods or the master of the ship to pay octroi duty. That particular point appears to have been dealt with by a new bye-law which has been sanctioned since Appa Tandel's case was decided, and the learned counsel who appears for the applicant has not in this case contended that if octroi was legally leviable on these goods his client would not have been bound to pay it. I am still of opinion, even after the further argument which we have had in this case, that the rules are very far from clear on the points which are in dispute, for instance, on the point whether goods which are brought on ship board to a port where there is a Naka can be said to be brought to the Naka so as to attract the operation of Rule 8. But in any case, as we pointed out in the other case, it is obvious that the rules cannot confer powers which are beyond the powers given by the Act itself. The doubt which I previously felt as to whether the jurisdiction of the District Local Board extends to the limits of ports in the District or to ships in ports or creeks or goods thereon has not, by any means, been removed.

6. Mr. Kane, who appeared on behalf of the District Local Board, contended that Appa Tandel's case could be distinguished, because Malwan and Serjekot are on the open sea, whereas Jaitapur is at the mouth of a creek, and Rajapur is a port eighteen miles inland. I am not satisfied, however, that this makes any difference in principle. The prosecution examined as a witness a District Surveyor in the Land Records Department, who has deposed as follows :-

All the creeks in this district are measured. Half of the bed of a creek is shown as included in the area of a village on one side of it and the other half in the area of the opposite village. All the creeks in this district are included in the area of the Revenue district.

7. But all that appears to mean is that the bed of the creek is shown as included in the area of the Revenue district. This evidence, in my opinion, carries the matter no further. It cannot establish that the District Local Board has any authority to impose taxes on goods which are on board a ship in the creek or to make rules authorising their servants to board ships and distrain goods on refusal to pay the tax. Moreover my doubts as to the validity of Rule 8 have also not been removed. Mr. Kane's argument on this point was that all the rules, including the rules as to the collection of the octroi, have been sanctioned by the Commissioner and Government, and that therefore by virtue of Section 102 of the Act they must be regarded as having the force of law. Section 102 is in these terms :-

All rules sanctioned under section 101 with all the modifications subject to which the sanction is given, shall be published by the district local board....and the tax as described in the rules so published shall...be imposed accordingly.

The section does not say, however, that the rules, when sanctioned, are to have the force of law, and, in my opinion, it cannot have been the intention of the legislature to give legal effect in this way to rules not covered by the provisions of the Act. It should be noted that Section 62 of the Act specifically provides that bye-laws made by the District Local Board with the sanction of the Commissioner, after they have been duly confirmed by Government, shall have the force of law. There is no similar provision in the case of the rules. We are not satisfied, therefore, that the prosecution have succeeded in establishing that the Nakedar had lawful authority to board the applicant's ship and seize the goods he was carrying. It follows that the conviction for an offence under Section 183 cannot be sustained.

8. Mr. O'Gorman made a further point in the course of his argument that the octroi rules are ultra vires, because they were sanctioned in the first instance for a period of three years only, and the period has subsequently been extended by Government from time to time. He relies on Section 102, proviso (c), of the Act, which is to the effect that if the levy of a tax has been sanctioned for a fixed period only, the levy shall cease at the conclusion of that period except in respect of unpaid arrears, and he contends that Government had no power to extend the period of the tax unless the District Local Board had first repeated the procedure prescribed by Section 100 preliminary to the imposing of a tax. In my opinion there is no force in this argument. The Government is given wide and unrestricted powers by Section 99, according to which all taxation is to be imposed subject to any general or special orders which may be made by the Government. Under this section I consider that it was perfectly competent to Government or to the Commissioner in virtue of powers delegated to him both to limit the period of operation of the tax in the first instance and to extend the period. It was not a case of imposing a new tax, and Section 100 therefore would not apply. However, for the reasons already given the application succeeds on other grounds. We set aside the conviction of the applicant, and direct that the fine, if paid, be refunded.

Wassoodew, J.

9. I agree.


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