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Bangalore Municipal Corporation Vs. Tallam Subbaraya Setty and Sons - Court Judgment

LegalCrystal Citation
SubjectOther Taxes;Limitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 232 of 1953
Judge
Reported inAIR1955Kant110; AIR1955Mys110
ActsLimitation Act, 1908 - Sections 29 and 29(2) - Schedule - Article 62; Municipal Accounts Manual Rule - Rule 147; Mysore City Municipalities Act, 1933 - Sections 51 and 228
AppellantBangalore Municipal Corporation
RespondentTallam Subbaraya Setty and Sons
Appellant AdvocateK. Narayan, Adv.
Respondent AdvocateC. Nagaraja Rao, Adv.
Excerpt:
other taxes - levy of octroi - rule 147 of municipal accounts manual rule - appellant-corporation collected octroi duty on certain bales of cloth which were subsequently removed outside its limits by plaintiff for purposes of sale and that respondent-plaintiff was entitled to refund of octroi duty collected - issue was whether plaintiff's claim for refund was time barred under rule 147 - since rule 147 does not prescribe any period of limitation so suit was in time. - income tax act,1961[c.a.no.43/1961]-- section 143 (1)(a): [k.l. manjunath & a.s. bopanna, jj] income arising out of leasing of hotel building - assessee, carrying on hotel business assessees licence agreement with indian hotels co. ltd. - question whether amount received by the assessee from the company, be treated s..........of the application in the refund ledger as contemplated under rule 147 of the municipal accounts manual. the learned munsiff upheld the contention of the defendant-corporation holding that rule 147 of the municipal accounts manual was a 'special law', that it provided a special period of limitation for such claims, that the claim was not preferred within the period mentioned in that rule and that, therefore, the suit was barred by time. the learned additional subordinate judge disagreed with this finding of the learned munsiff and held that the municipal accounts manual was not a 'special law', that article (s. ?) 29(2), limitation act had no application, that the suit fell under article 62, limitation act and that the same was in time, and he accordingly decreed the.....
Judgment:

1. This is an appeal preferred by the appellant-defendant against the judgment and decree of, the learned Additional Subordinate Judge, Bangalore, in Regular Appeal No. 114 of 51-52, reversing those of the learned First Munsiff, Bangalore, in O. S. No. 48'of 1950-51 decreeing the respondent-plaintiff's suit.

2. The appellant-defendant in this case is the Bangalore Municipal Corporation, and the respondent-plaintiff is a cloth merchant doing business in Bangalore. Plaintiff's suit was for the refund of a sum of Rs. 699-11-6 paid by him to the defendant-Corporation as octroi duty on certain bales of cloth which were got into the defendant-Corporation limits and which were subsequently removed outside the Corporation limits for purposes of sale.

3. In their written statement the defendant-Corporation put the plaintiff to proof of the facts alleged in the plaint and they further contended that the claim for refund was barred by time as the same was not preferred within two months after the close of the month of registration of the application in the refund ledger as contemplated under Rule 147 of the Municipal Accounts Manual. The learned Munsiff upheld the contention of the defendant-Corporation holding that Rule 147 of the Municipal Accounts Manual was a 'special Law', that it provided a special period of limitation for such claims, that the claim was not preferred within the period mentioned in that Rule and that, therefore, the suit was barred by time. The learned Additional Subordinate Judge disagreed with this finding of the learned Munsiff and held that the Municipal Accounts Manual was not a 'special Law', that Article (S. ?) 29(2), Limitation Act had no application, that the suit fell under Article 62, Limitation Act and that the same was in time, and he accordingly decreed the respondent-plaintiff's suit. As against that decision, the appellant-Corporation has come up in appeal.

4. As regards facts, there is no dispute. It is an admitted fact that the appellant-Corporation has collected octroi duly on certain bales of cloth which were subsequently removed outside its limits by the plaintiff for purposes of sale and that the respondent-plaintiff was entitled to refund of the octroi duty collected on such bales of cloth but for the bar of Rule 147 of the Municipal Accounts Manual. The only point urged and that arises for consideration in this appeal is whether the plaintiff's claim for refund was barred by time under It. 147 of the Municipal Accounts Manual. On the side of the respondent-plaintiff it is contended that the Rule in question is no bar and that the suit filed by 'him is within time. It appears to me that the finding of the learned Additional Subordinate Judge that the suit is in time has to be upheld.

5. The finding of the learned Munsiff that the Municipal Accounts Manual is a 'special law' does not appear to be correct. A 'special law' or a 'local law' may be taken to mean a legislative enactment for 'special' or 'local' circumstances. This is the meaning given to these words 'special lavy' or 'local law' in the case reported in -- 'Mukund Mahto v. Niranjan Chakravarty', AIR 1934 Pat 353 (A). The learned Subordinate Judge also has understood the above words in the same sense. Thus it is clear that a 'special' or 'local' law to have the force of law must be a creature of the Legislature. Admittedly the Municipal Accounts Manual has no such legal sanction, much less Rule 147 thereof.

6. It was next contended by the learned counsel for the appellant that the Government had powers under Section 228, City Municipalities Act to make rules and pass orders for the purpose of carrying out the provisions of the Act, that Section 51 of the same Act empowered the Municipal Council to make, alter or rescind bye-laws and that in view of the powers conferred on the Government and the Municipality under the respective sections, Rule 147 made by the Municipality must be held to be 'intra vires' and as having the force of law. In none of these contentions there is any merit. No doubt Section 228, City Municipalities Act empowered Government to make rules and pass orders for the purpose of carrying into effect the provisions of the said Act.

In this connection, I would like to refer to the Preface to the First Edition' of the Municipal Manual--Part II. In para. 2 of the said preface, it is clearly mentioned that the Government have not expressly reserved to themselves under the Mysore Municipalities Act the power of framing any set of account rules, for adoption by the Municipal Councils. From this it is obvious that the Government have not reserved to themselves any power under Section 228 of the Municipalities Act to frame any account rules for adoption by the Municipal Councils. Hence Section 228 of the Municipalities Act does not help the contention urged on the side of the Appellant.

7. Section 51 of the Municipalities Act also does not support the contention urged on the side of the appellant inasmuch as it deals with making, altering or rescinding bye-laws. As admitted by the learned Counsel for the appellant, Rule 147 of the Municipal Accounts Manual is not a bye-law passed by the Municipal Council. As pointed out in the preface referred to above, these account rules embodied in the Municipal Accounts Manual were got made by the Government through a Conference for the use of the various Municipal Councils in the State. Any rule to have the force of law must have the sanction of the legislature or it must he the subject-matter of a bye-law passed in the prescribed form and manner. In para. 2 of the preface to the Municipal Accounts Manual, it is provided that the rules contained in it and approved by Government should formally be approved by each Municipal Council by passing single bye-law or rule under the enabling sections of the Municipal Act

This, as already mentioned, has not been done. Therefore, Section 51 of the Municipalities Act does not help the appellant. Under these circumstances, I am of opinion that Rule 147 of the Municipal Accounts Manual is not a special or local law within the meaning of Section 29(2), Limitation Act and that, therefore, the provisions of the said section of the Limitation Act are not applicable to the facts of the present case, and I agree with the finding of the learned Additional Subordinate Judge that Art, 62, Limitation Act is applicable to the facts of the present case and that the suit is in time.

8. Further, I am of opinion that R. 147 of the Municipal Accounts Manual does not prescribe any period of limitation in the sense it is understood under the Limitation Act. That rule runs as follows;

'If an application for refund is not presented for payment within two months after the close of the month of registration of the application 'in the refund ledger, the claim shall be considered to have lapsed.'

The use of the word 'lapsed' appears to be very significant. The rule does not specifically mention that the claim will be barred by time after the lapse of two months. The word 'lapsed' is not; in my' opinion, synonymous with the word 'extinguished' or 'barred'. It clearly implies that the claim could be revived at any time allowed under the general law: Words have to he understood in their ordinary and natural sense. The word 'lapsed' indicates that the claim has been passed over in favour of another subject to a right of revival at the request of the party affected provided the Said claim is renewed within the period of limitation allowed under the general law. Under these circumstances, I am of opinion that the decision of the learned Additional Subordinate Judge has to be affirmed.

9. In the result, the judgment and decree of the learned Additional Subordinate Judge are confirmed and this appeal stands dismissed. Considering the nature of the defence and the point of law involved, this is a fit case where parties should be directed to bear their own costs throughout. I order accordingly.

10. Appeal dismissed.


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