Skip to content


The City Municipality Vs. the Hindustan Construction Company - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 280 of 1942
Judge
Reported inAIR1943Bom30; (1942)44BOMLR890
AppellantThe City Municipality
RespondentThe Hindustan Construction Company
Excerpt:
bombay municipal, boroughs act (bom. xviii of 1925), sections 203, 98, 99--octroi dues--recovery by suit--alternative remedy--'process', 'such process'--interpretation.;section 203 of the bombay municipal boroughs act, 1925, provides an alternative remedy to make recovery of municipal dues by suit. according to the first part of the section that alternative remedy can be adopted 'in lieu of any process of recovery allowed by or under the act,' provided the person sued 'is liable to pay.' it can also be resorted to in case of failure to realise by process the whole or any part of any amount recoverable under the provisions of chap. viii.;the process of recovery of octroi dues other than by suit is indicated in sections 98 and 99 of the act.;if a current account of octroi dues has been kept..........any part of any amount recoverable under the provisions of chap. viii. the process of recovery of octroi dues other than by suit is indicated in two sections of the act. the first is section 98 and the second section 99. section 98 (1) says:in the case of non-payment on demand of any octroi or of any toll leviable by a municipality, any person appointed to collect such octroi or toll may seize any animal or goods on which octroi is chargeable,...4. clause (4) of that section provides:if no such tender (as contemplated by the process claimed) is made, the property seized may be sold, and the proceeds of such sale shall be applied in payment of such octroi, or toll and the expenses incidental to the seizure, detention and sale.5. clause (5) deals with the return of the surplus. section 99.....
Judgment:

Wassoodew, J.

1. This is a second appeal from a decree of the learned Assistant Judge of Jalgaon. It arises from a claim of the City Municipality of Bhusaval to recover Rs. 364-12-3 as octroi duty from the respondent-defendant. It is common ground that the defendant, who is a railway contractor, brought certain goods between January 15, 1936, to December 3, 1936, into the limits of the municipal district which were liable under the rules of the Municipality to pay octroi duty. They were brought without passing the 'import Nakas' fixed by the Municipality for collection of such dues. The main defence which prevailed in the Courts below was that under Section 203 of the Bombay Municipal Boroughs Act (Bom. XVIII of 1925) the Municipality could not institute a suit for the recovery of octroi duty in a civil Court. Accordingly the plaintiff's suit was dismissed. The plaintiff-Municipality has therefore filed this second appeal.

2. Section 203 of the Act upon which the defendant relies is as follows:--

In lieu of any process of recovery allowed by or under this Act or in case of failure to realise by such process the whole or any part of any amount recoverable under the provisions of chap. VIII, or of any compensation, expenses, charges or damages payable under this Act, it shall be lawful for a municipality to sue in any court of competent jurisdiction the person liable to pay the same.

3. That section as I read it provides an alternative remedy to make recovery of municipal dues by suit. According to the first part of the section that alternative remedy can be adopted 'in lieu of any process of recovery allowed by or under the Act', provided the person sued 'is liable to pay'. It can also be resorted to in case of failure to realise by process the whole or any part of any amount recoverable under the provisions of chap. VIII. The process of recovery of octroi dues other than by suit is indicated in two sections of the Act. The first is Section 98 and the second Section 99. Section 98 (1) says:

In the case of non-payment on demand of any octroi or of any toll leviable by a municipality, any person appointed to collect such octroi or toll may seize any animal or goods on which octroi is chargeable,...

4. Clause (4) of that section provides:

If no such tender (as contemplated by the process claimed) is made, the property seized may be sold, and the proceeds of such sale shall be applied in payment of such octroi, or toll and the expenses incidental to the seizure, detention and sale.

5. Clause (5) deals with the return of the surplus. Section 99 permits the Standing Committee, if it thinks fit, instead of requiring payment of octroi due from any person, mercantile firm or public body to be made at the time when the animals or goods in respect of which octroi is leviable are introduced within the octroi limits of the municipal borough, to direct that an account-current shall be kept on behalf of the Municipality of the octroi so due from such person, firm or body. Then the section provides that 'any amount so due shall, for the purposes of chapter VIII, be deemed to be, and shall be recoverable in the same manner as, an amount claimed on account of any tax recoverable under the said chapter', that is by process as expressly provided by Section 104(1) (b) in chap. VIII. There can be no doubt having regard to the provisions of Section 203 that if a current account has been kept as required by Section 99, a suit will lie for the recovery of the municipal dues. It is common ground that no such current account has been kept and that the only process for recovery which the Municipality could issue was under Section 98. That process the Municipality has not issued in this case. The question is whether the alternative remedy by suit is barred to the Municipality and that the only remedy of recovery is by process.

6. According to my interpretation of Section 203 if no process as contemplated by Section 98 to recover the octroi duty is issued, then in lieu thereof it shall be lawful for the Municipality to sue in any Court of competent jurisdiction the person liable to pay the same. The Courts below thought that that remedy was not available to the Municipality because of the decision in Poona Municipality v. Paranjpe & Sons : AIR1933Bom296 . There the learned Judges were dealing with the case of a claim by the Poona City Municipality to recover the balance of octroi dues which were omitted to be recovered by reason of miscalculation.

7. The only jurisdiction to institute a suit to effect recovery of its dues given to the Municipality being under Section 203, it was held that that remedy was limited under that section to the case of a person 'liable to pay', and that as there was no liability imposed on the defendants to pay, the balance not claimed owing to miscalculation the suit could not lie. That seems to be the ratio decidendi as I understand the judgment. It seems to have been assumed that the liability to pay could only arise if under Section 99 a current account was kept, for Section 98 did not impose any liability and merely gave the power of seizure to the Municipality.

8. Undoubtedly it is true that the right is given under Section 203 to the Municipality to sue only a person liable to pay. But the liability to pay in order that the first clause of Section 203 may come into operation may arise independently of Section 98 and Section 99. In my opinion in the consideration of the application of the first clause of Section 203 the Court has to consider whether that liability to sue has arisen under the Act. For that purpose it would be necessary to refer to certain sections of the Act particularly in regard to the imposition of taxes. Section 73 contains a catalogue of taxes which may be imposed by the Municipality. Clause 4 of that section specifies a tax known as 'an octroi on animals or goods or both, brought within octroi limits for consumption or use therein.' The procedure preliminary to the imposition of taxes is contained in Section 75. The Municipality before imposing a tax has by resolution to select one or other of the taxes specified in Section 73 and approve rules prepared for the purpose of Clause (j) of Section 58, prescribing the tax selected, and in such resolution and in such rules specify according to Section 75(a) (i) the class or classes of persons or of property or of both, 'which the Municipality proposes to make liable.' Section 58(j) deals with the power of the Municipality to make rules prescribing taxes to be levied, the time at which and the mode in which such taxes shall be levied or recovered or payable and so forth. In order to ascertain whether the defendants are liable to pay the octroi dues one has necessarily, by reason of the provisions of Section 75 (a) (i), to refer to the rules specifying the class of persons or property proposed to be made liable. The rule of the Municipality in that behalf particularly Rule 15 is as follows:

Any person bringing goods or animals into the municipal limits without passing any import Naka shall pay duty at the Municipal Office.

9. The rates are prescribed according to the schedule annexed to the rules. So then Rule 15 of the rules of the plaintiff-Municipality makes the defendant liable to pay. That distinguishes, in my opinion, this case from the case in Poona Municipality v. Paranjpe & Sons, for the Municipality there failed to prove independently of Section 98 the liability of the defendants to pay. It was a case as I have said where the Municipality claimed octroi unrecovered through mistaken calculation and the Court held that the suit to make such a recovery was incompetent under Section 203. Here the question is entirely different. The liability has not been denied. All that is urged on behalf of the respondent is that upon a proper construction of Section 203, the Municipality's remedy should be limited to the process of recovery under Section 98. The underlying assumption is that that section imposes a restriction on the capacity of a Municipal Corporation to sue to recover its dues. I find the greatest difficulty in restricting the operation of the first clause of Section 203 to the process of recovery permissible under chap. VIII. It does not say so in terms. The word 'process' in that clause implies in my opinion summary process generally. The words 'such process' in the second clause do create difficulty, but in my opinion in view of the general words governing the word 'process' in the first clause, the words 'such process' merely refer to the generality of summary remedies conferred by the statute. A corporation like an individual has a right to enforce its claims by suit unless that right is expressly limited or the limitation clearly implied. The language of Section 203 in my opinion is not susceptible of the interpretation restricting the Municipality's right in this particular case. It is true that Section 104(b) in chap. VIII does not apply to the sum recoverable by process under Section 98, but even so in my opinion there is nothing in the decision in Poona Municipality v. Paranjpe & Sons to suggest that the operation of the first clause should be limited to process permissible only under chap. VIII. In my opinion the suit is maintainable to recover the octroi dues.

10. It has been pointed out on behalf of the respondent that the claim being limited to Rs. 364-12-3 no second appeal lies. In upholding that contention I have permitted this appeal to be converted into a civil revisional application. Consequently I make the rule absolute in the civil revisional application, set aside the decrees of the lower Courts and pass a decree in terms of the prayer in the plaint with interest from the date of the suit till date of payment at four per cent, per annum with costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //