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District Local Board Vs. Shantaram Rajaram - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
Decided On
Case NumberSecond Appeal No. 973, 974, and 975 of 1942
Reported inAIR1946Bom117; (1945)47BOMLR898
AppellantDistrict Local Board
RespondentShantaram Rajaram
Excerpt: of 1923 as amended by bom. act xxiii of 1938), sections 72, 104 and 116a - levy of octroi by local board-suit by local board to recover octroi duty under section 72-maintainability of suit-tax contrasted with octroi or customs duty. section 72 of the bombay local boards act, 1923, before the act was amended in 1938, did not apply to the levy of octroi, so as to enable the board to file a suit in a civil court to recover the amount of octroi from defaulters. even after the amendment of 1938, no such suit can be brought except where current accounts are maintained as regards octroi between the board and the defaulter.;per stone c.j. a tax can be and is usually imposed without difficulty on a person because he is the owner of some species of property such as income, a house or a motor.....leonard stone, kt., c.j.1. these appeals and petitions concern an octroi imposed by the local board of ratnagiri under the bombay local boards act, 1923. for convenience there has been called on together, second appeals nos. 973, 974 and 975 of 1942 and civil revision applications nos. 208 to 213 both inclusive and 626 to 645 both inclusive, all of 1942. one of the twenty-nine cases so called on comes from devgad and the remainder from malvan. except in civil revision applications nos. 208 to 213, the local board failed in the immediate courts below.2. the right to impose an octroi was not seriously disputed in the courts below, but in this court the arguments have ranged over a more extensive field and it became clear at an early stage that there is a sharp distinction between octroi.....

Leonard Stone, Kt., C.J.

1. These appeals and petitions concern an octroi imposed by the Local Board of Ratnagiri under the Bombay Local Boards Act, 1923. For convenience there has been called on together, Second Appeals Nos. 973, 974 and 975 of 1942 and Civil Revision Applications Nos. 208 to 213 both inclusive and 626 to 645 both inclusive, all of 1942. One of the twenty-nine cases so called on comes from Devgad and the remainder from Malvan. Except in Civil Revision Applications Nos. 208 to 213, the Local Board failed in the immediate Courts below.

2. The right to impose an octroi was not seriously disputed in the Courts below, but in this Court the arguments have ranged over a more extensive field and it became clear at an early stage that there is a sharp distinction between octroi alleged to be payable before December 22, 1938, and that alleged to be payable after that date. In the Courts below it was the method of collection of the octroi and in particular whether an action was maintainable for it's recovery in the civil Courts which were principally in dispute. However, on the pleadings and the evidence the larger question, which has been argued before us, is clearly open. Therefore before turning to the relevant statutory provisions and rules, it is necessary to say something about the nature of an octroi which, like a customs duty, has certain features which differentiates its nature from a tax. A tax can be and is usually imposed without difficulty on a person because he is the owner of some species of property such as income, a house or a motor car; whereas an octroi and customs duty, though a tax, are limited in scope to a levy or duty on the import of goods or animals into some town, place or country or a levy or duty on the goods or animals. As such the collection of the duty is effected at the point of entry, either by refusing entry or by seizure, or by penalties imposed on any person attempting to introduce the animals or goods and at the same time evading payment of the duty. There are obvious difficulties in imposing personal liability for such a duty, since it is the animals or goods in relation to location which causes the duty to arise and not property in relation to ownership. The word 'octroi' is of French origin, and literally means 'to authorise', In the Oxford Dictionary it is defined as: 'A tax levied on certain articles on their admission into a town (especially in France) '. No such levy is known in England, though it is not uncommon in certain other countries. In Belgium and Egypt it was formerly in force, but its abolition was effected in 1870 and 1903 respectively. No one has been able to suggest how the word came to be applied in India, except that it may have been used as appropriately descriptive of certain forms of levy anciently asserted. Whether an octroi can be correctly applied to a levy on goods or animals coming into a rural as opposed to an urban area seems to be in some doubt. In the article on octroi in the Encyclopaedia Britannica it seems to be suggested that it might be. No mention of the word is to be found in either Stroud's Judicial Dictionary or in Wharton's Law Lexicon, and it is not without significance to observe that in Section 192 of the City of Bombay Muncipal Act, 1888, levies on goods coming into the City of Bombay are called 'town-duties'. To impose such a levy on goods or animals entering a country district obviously presents great difficulties in its collection, unless, either personal liability can be validly and effectually attached to some person in relation to the goods and animals imported, or unless a very extensive army of officials is to be maintained to guard many miles of marine and rural boundary.

3. If the right to impose an octroi exists in a Local Board, its origin must be the creature of statute as also must be, if it exists, the right to enforce personal liability on some person not in physical possession or control of the goods or animals at the time when they attract the duty by an attempt being made to introduce them across the frontier or boundary. By Section 80A of the Government of India Act, 1919, and the sanction given thereunder by Rule 3 of the Scheduled Taxes Rules, a Provincial Legislature is empowered to make and take into consideration any law imposing, or authorising any local authority to impose, for the purposes of such local authority, any tax included in the second schedule to those rules. This schedule is as follows:

Schedule II.

(In this Schedule the word 'tax' includes a cess, rate, duty or fee).

1. A toll.

2. A tax on land or land values.

3. A tax on buildings.

4. A tax on vehicles or boats.

5. A tax on animals.

6. A tax on menials and domestic servants.

7. An octroi.

8. A terminal tax on goods imported into, or exported from, a local area, save wheresuch tax is first imposed in a local area in which an octroi was not levied on or bforethe 6th July 1917.

9. A tax on trades, professions and calling.

10. A tax on private markets.

11. A tax imposed in return for services rendered, such as-

(a) a water rate,

(b) a lighting rate,

(c) a scavenging, sanitary or sewage rate,

(d) a drainage tax,

(e) fees for the use of markets and other public conveniences.

4. The Bombay District Local Boards Act, 1923, is the enabling Act of the Provincial Legislature and this Act is in effect saved from repeal on the coming into operation of the Government of India Act, 1935, by Section 143 of the Act. Section 99 of the Bombay Local Boards Act empowers District Local Boards subject to the preliminai-ries and sanctions therein mentioned to impose for the purposes of that Act a tax other than a toll which the Provincial Government could impose. Sub-sections (2) and (2) of Section 100 are as follows:

(1) Every district local board shall, before imposing a tax,, by resolution passed at a meeting of the board

(a) select a tax which may under Section 99 be imposed ; and

(b) approve rules describing the tax selected ; and shall in such resolution and in such rules specify;

(c) the class or classes of persons or of property, or of both, which the district local board desires to make liable, and any exemptions which it desires to make;

(d) the amount for which, or the rate at which it is desired to make such classes liable; and

(e) all other matters which the Provincial Government may require to be so specified.

(2) When such resolution has been passed, the district local board shall publish the rules with a notice in the form of Schedule B prefixed thereto.

5. Sub-section (3) of Section 100 provides for objection being taken by an inhabitant of the district. Section 101 is as follows:

The Commissioner may either refuse to sanction the rules submitted, or may return them to the district local board for further consideration, or, if no objection, or no objection which is in his opinion sufficient, was made to the proposed tax within one month from the publication of the said notice, may sanction the said rules either-

(a) without modification, or

(b) subject, as he deems fit,

(i) to such modifications not involving an increase of the amount to be imposed, or

(ii) to such conditions as to the application within the district to any purpose or purposes of this Act specified in such conditions of the whole or any part of the proceeds of such tax.

6. As appears from the judgment of the learned District Judge in the appellate Court below, the Ratnagiri District Local Board considered that the natural boundaries of their District placed them in a peculiarly favourable position for the levy of an octroi, provided they could enlist the assistance of the customs authorities, who already had in operation customs control of the District's principal boundary which lies on the sea. That assistance was offered and accordingly in 1927 the Ratnagiri District Local Board took up the matter of the imposition of an octroi; but Government were doubtful of the wisdom of such a step and it was not until 1929 that the Local Board obtained sanction for its proposed octroi rules. The sanction of Government to the imposition of the tax was, however, expressed to be as an experimental measure and was given for three years only. By the 1929 rules no attempt was made to impose personal liability for the octroi, the duty being in effect collected by nakedars at the supposed points of entry. In effect the 1929 octroi rules set up a machinery similar to that laid down for the collection of customs duty under the Sea Customs Act of 1878. The 1929 rules make it clear that the octroi was on animals and goods brought within the octroi limits for consumption, use or trade therein and that the duty only arose on import, that is to say on crossing the octroi limits and, except under special arrangement under the provisions in connection with goods exported after import, the duty was to be paid to the nakedar 'at the time of import on his tendering the import bill for the same'. The effective deterrent by which the octroi was collected was provided by Sub-rule 8(3) which is as follows:

Every Nakedar appointed under these rules and bye-laws shall require every person, importing goods, to comply with the provisions of these rules and bye-laws, and if, on demand, the said person refuses to permit an inspection of goods or to pay the amount leviable thereon, the Nakedar shall, unless there be any special reason to the contrary, seize any part of the goods to be imported of sufficient value to defray the amount of octroi, and if the amount of tax remains undischarged for twenty-four hours, with the cost arising from such seizure, the case shall be referred to the President of the Taluka Local Board within whose jurisdiction the Naka is situate. The said President should then take action as laid down in Section 116(3)(4)(5) of the Bombay Local Boards Act. When, however, any article seized is subject to speedy and natural decay or when the expense of keeping it, together with the amount of octroi chargeable, is likely to exceed its value the Nakedar shall proceed according to Section 116 (2)(3)(4)(5).

7. Section 116 of the Bombay Local Boards Act, 1923, and indeed the whole of Chapter VIII which is headed 'Collection of Taxes' was, before the 1938 amendments, completely silent as to an octroi. Section 116 provided for the collection of tolls by seizure and sale of the goods or animals imported without payment of the toll, it does not aim at imposing any personal liability for which action could be taken in a civil Court. The sanction for the imposition of the octroi, originally limited to three years, was extended by the Provincial Government from time to time. However, it was not long before trouble arose in the collection of the octroi duty which appears to have raised opposition often of a violent character. The learned Judge in the Court below has set out in paragraphs 31 to 39 (both inclusive) of his judgment an account of some of the disputes and the civil and criminal proceedings by which they were followed. The practical difficulty in enforcing the levy of the octroi was made abundantly clear by these disputes and proceedings and an attempt was made to stop the gap by changing the octroi rules. Accordingly there were sanctioned by the Commissioner under Section 100 of the Act what have been referred to in this Court as 'the 1936 Revised Octroi Rules'. By them there was introduced a vita] change, the object of which appears to have been to impose personal liability on the owner of the goods or animals irrespective of whether he was in charge of them when the octroi duty arose by virtue of their crossing the frontier. By Rule 2, which is a definition clause, 'import' means the conveying into the octroi limits from any other area and includes such conveying through the agency of the Post; 'importer' means the owner of, and includes any person in actual charge of, goods at the time of their import. Rule 4 which purports to impose the octroi in terms affixes liability on the importer which by the definition clause includes the owner and is as follows:

4. Subject to the exemptions and provisions hereinafter expressly specified, an importer of the goods described in Schedule B shall on the import of any such goods pay to the Board on octroi at the rates specified in Schedule B.

8. Sub-section 10(1) of the new rules in substance takes the place of Sub-rule 8(3) of the 1929 rules, but the expression 'every person importing goods' in the 1929 Rules is now replaced by 'every importer' which by virtue of the new definition clause now includes every owner. The persons in fact sued in the cases before us are the owners of the goods or animals and not the person in whose actual charge they were when the boundaries of the Ratnagiri District were crossed. It may be that in some cases the owners were the same persons as the men in charge, but there is no evidence about this at all, and the onus to show that they have sued the right persons is on the Board.

9. As I have already pointed out, Section 116 of the Bombay Local Boards Act, 1923, before its amendment, was completely silent with regard to the imposition of an octroi. In my judgment, assuming that the incorporation of the machinery for the enforcement by seizure and sale set up by Section 116 in the case of a toll was validly applied by the 1929 Octroi Rules and the 1936 Revised Octroi Rules to an octroi, new Rule 4 in the 1936 Revised Octroi Rules, which sought to impose personal liability on persons not necessarily in charge of the goods or animals at the time when the liability for octroi arose, cannot be enforced. The fundamental statutory power and the consequential right to impose taxes expressly permits the levy of an octroi, a peculiar type of duty the nature of which I have already referred to, and which is one the very character of which cannot involve any one in personal liability who does not actually cause the duty to arise. It does not necessarily follow that either the consignor) or the consignee is such a person. There can, I think, be little doubt that some such difficulty must have been realised by the Provincial Government, since by the Bombay Local Boards (Amendment) Act, being Act No. XXIII of 1938, the 1923 Act was' amended for the express purpose of including an octroi and by laying down the method of its collection. However, the short answer to all the cases before us in so far as they are concerned with the collection of octroi before December 22, 1938, is that Section 104 which heads Chapter VIII of the 1923 Act before its amendment provided that when any amount, not being payable on demand on account of a toll, is claimable as an amount which is imposed in the district shall have become due, 'the district local board shall, with the least practicable delay, cause to be presented to the person liable for the payment thereof a bill for the sum claimed as due'. By Sub-section(2) it is provided what every such bill shall specify, and this includes inter alia 'the liability incurred in default of payment'. It is not disputed that before the 1938 amendments became operative, no written demands or notices or bills which could ratify this sub-section were served. Therefore, it is clear that the amount of this octroi, assuming the validity of its imposition, could not be recovered by distress under the subsequent sections of Chapter VIII, because there was no demand and no delivery of a bill under Section 104. Accordingly the alternative procedure of suing in a civil Court by virtue of Section 72 could not arise unless the machinery of Section 104 with regard to the giving of a bill, which is mandatory, had been complied with.

10. The Local Board, therefore, fails in these appeals and revision applications in so far as the amounts claimed arose before December 22, 1938.

11. I will now proceed to consider the position after the coming into operation of the 1938 amendments. In the first place Section 99 is amended by inserting after the word 'toll' where it occurs for the second time in that section the words 'or octroi'. This has the effect of putting into the proviso an octroi as a tax which shall not be levied for the passage of troops, the conveyance of Government stores or of any other Government property and makes it clear that the Provincial Government regarded an octroi for the purposes of the Bombay Local Boards Act, 1923, as amended in 1928, as a tax although it was not previously mentioned in the sections of that Act. Section 4 of the amending Act is as follows:

4. In Clause (b) of Sub-section (1) of Section 104 of the said Act,, after the words, 'on account of' the words 'an octroi or' shall be inserted.

12. But the words 'on account of' twice appear in Sub-section 104(1)(b), once in the exception and once in the substantive part of the section. Two copies of the amended statute were handed up to this bench. In one of them the words 'an octroi or' had been inserted after the words 'on account of' where they first appear and in the other copy after the words 'on account of' where they secondly appear in the section. In both cases the section as thus amended reads correctly in point of form and grammar, though the resultant sense is very different. Carelessness in legislative drafting of this character is liable to bring the law into great confusion, and this case clearly demonstrates how desirable it is, when sections of a Provincial Act are subsequently amended, for the whole amended section to be re-enacted in its amended form or for prints of the Act in its amended form to be speedily available. The great inconvenience attendant upon the present method of making legislative amendments by correction slips intended to be stuck into unamended copies is but too well-known in this Court.

13. In this case in order to settle what was the intention of the Legislature we sent for the King's printer's copy of the Act as amended and from it, it appears, that the inserted words are to be placed after the words 'on account of' where they first occur in the old section. Accordingly the result is that Section 104 had no application at all to an octroi. So that the detailed bill as therein specified no longer has to be presented. The position is in fact now dealt with by certain new sections, viz. Sections 102A, 102B, 115A, 115B and 115C and the amendments made to Section 116 and new 116A. New Section 102A provides for the collection of octroi by one public body on behalf of another. Section 102B is as follow:

A district local board when submitting to the Commissioner for sanction a proposal for the imposition of octroi shall, after observing the requirements of Sub-sections (2) and (3) of Section 100, include in such rules provisions for fixing octroi limits and stations; providing for the exhibition of tables of octroi; regulating, subject to any general or special orders which the Provincial Government may make in this behalf, the system, under which, refunds are to be made on account thereof when the animals or goods on which the octroi has been paid, or articles manufactured wholly or in part from such animals or goods, are again exported, and the custody or storage of animals or goods declared not to be intended for use or consumption within the area of the board; and prescribing a period of limitation after which no claim for refund of octroi shall be entertained and the minimum amount for which any claim to refund may be made.

Section 115A(1) provides that a person bringing into or receiving from beyond the octroi limits of a district local board any animal or goods on which octroi is payable shall permit inspection and examination and communicate information as therein mentioned, and Sub-section (2) provides a power of search. New Section 115B is as follows:

An officer demanding octroi by the authority of the district local board shall tender to every person introducing or receiving anything on which the tax is claimed, a bill specifying the animal or goods taxable, 'the amount claimed, and the rate at which the tax is calculated.

Section 115C provides a penalty for the evasion of the payment of octroi of ten times the amount of the duty or Rs. 50 whichever is greater. Then comes old Section 116(1) in its amended form:

In the case of the non-payment on demand of any octroi or toll leviable by district local board the person appointed to collect such octroi or toll may seize any animal or goods on which octroi is leviable or vehicle or animal on which the toll is chargeable or any part of its burden, which is of sufficient value to satisfy the demand, and may detain the same. He shall thereupon give the person in possession of the property seized a list of the property together with a written notice in the form of Schedule E that the' said property will be sold as shall be specified in such notice.

And the remaining sub-sections of this section provide the power to sell the property seized, for the release of property on payment and certain provisions with regard to the sale and how any surplus is to be dealt with. Section 116A is also new and that provides a special power for the Local Board to keep current accounts with any person, firm or public body instead of requiring payment 'at the time when the animals or goods in respect of which the octroi is leviable are introduced within the octroi limits'. It is submitted by Mr. A.G. Desai on behalf of the various owners that in order for the Local Board to sue in a civil Court in respect of an octroi, personal liability to pay must have been in some way imposed on the persons sued and that Section 72 of the Act is the only section which makes any provision that 'the district local board may sue in any Court of competent jurisdiction the person liable to pay the same'. This provision is alternative and only applies in lieu of proceeding by distress and sale, or in case of failure to realise by so proceeding the whole or any part of any amount recoverable under the provision of Chap. VIII or of any compensation, expenses, charges or damages awarded under this Act.' Now, except for Section 116A which has no application to any of the cases before us, none of the new sections or the amendments to the old ones introduced by the 1938 Amending Act provides for the levy of a distress. Section 116 as amended is in respect of seizure of the goods or animals in respect of which duty arises and is limited to those goods and animals, whereas the power to levy a distress and consequent thereon are contained in Sections 105 to 111 of the Act and apply to any moveable property of the person named in the warrant. Mr. Kavalekar on behalf of the District Local Board is unable to suggest that those sections or any other empower the Local Board to distrain any moveable property generally of any person in respect of unpaid octroi. That being so, it is clear that the alternative procedure laid down in Section 72 of suing in a civil Court has no application to the case of an octroi. The result is that in all the cases arising after December 22, 1938, the District Local Board also fails in these civil suits.

14. I desire to add that in deciding this case, we have not taken into consideration an argument that was adumbrated in this Court, viz. that as Section 143 of the Government of India Act, 1935, only protects taxes lawfully levied before April 1, 1937, under a law in force on January 1, 1935, the whole effect of the 1938 amendments are inoperative because that Act did not come into operation until December 22, 1938, by which date it was too late for the Provincial Government to legislate otherwise than by virtue of List II and List III of the Seventh Schedule to the Government of India Act, 1935, in which there is no mention of an octroi, though item 49 of List II is in respect of 'cesses on the entry of goods into a local area for consumption, use or sale therein' We express no opinion on this question.

15. The costs must follow event.

Divatia, J.

16. The common question arising for decision in all these matters is whether the plaintiff Local Board is entitled to maintain the suits under Section 72 of the Bombay Local Boards Act, 1923, for recovery of octroi duty for personal decrees against the defendants. It may be assumed for the purpose of these suits that the Local Board is competent to recover octroi from persons who bring the goods or the animals within its' jurisdiction. The only question is whether for the non-payment of the octroi at the Naka, the power of the Board is merely to seize the goods or also to file a suit against their importers. In chapter VIII of the Bombay Local Boards Act relating to the collection of taxes as it stood before the amendment of 1938 the octroi duty was not mentioned as one of the taxes to be collected. Section 72 applies to amounts recoverable under chapter VIII, and it also appears that no written demand or bills were issued under Section 104 before the amendment. It follows in my opinion that Section 72 would not apply to the levy of octroi and no suit could be filed against the defaulters.

17. Even after the amendment of 19138 when the term 'octroi' was introduced in several sections in chapter VIII, it appears from the authorised publication of the amended Act that in Section 104(1)(b) octroi is included along with toll in the amount not being payable or demanded and is thus an exception to the provisions for presenting bills to the persons liable for the payment. The subsequent sections in the same chapter, with the exception of! Section 1.16A, where the word octroi is added do not relate to personal liability. It is under Section 116A which provides that the Local Board may instead of requiring payment of octroi at the Naka maintain current account with any person, mercantile firm or public body and such account may be settled and paid for at intervals. It is further provided in that section that any amount so due at the expiry of any such interval shall, for the purpose of chapter VIII, be deemed to be recoverable in the same manner as an amount claimed on account of any tax recoverable under that chapter. This shows the intention of the Legislature that it is only in a case where such current account is kept that the amount is recoverable under chapter VIII and not otherwise, because octroi duty is excepted from the provisions of Section 104 imposing personal liability of importers to whom the bills are presented. As a result, Section 104 will apply only to cases where current account is maintained. Section 72 will therefore apply to cases falling under Section 116A but not to any other cases where octroi duty is payable. There is also some force in the contention of Mr. Desai for the respondent that in cases of octroi duty to be collected under chapter VIII the duty is not leviable by distress and sale but by seizure and sale. Section 72 applies to proceeding by distress and not by seizure.

18. For these reasons I am of the opinion that even after the amendment of the Act in 1938 the Local Board has no power to file the suits in all these matters under Section 72 of the Act. Rule 8 framed by the Board is thus ultta vires. I, therefore, concur in the order proposed by the learned Chief Justice.

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