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Municipal Board, Through the Chairman B. Ram Prasad Vs. Banwari Lal - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All623
AppellantMunicipal Board, Through the Chairman B. Ram Prasad
RespondentBanwari Lal
Excerpt:
.....there is any such provision as would bar the plaintiff from enforcing his right in a court of law. municipal board, banda air1926all517 all that was held was that where according to the rules the right of an exporter of goods to got refund depends on his adopting the procedure for obtaining a refund, his failure to comply with such procedure prevents him from putting any claim to the refund in the civil court. such a claim clearly involved an objection to assessment within the meaning of section 164, municipalities act, and hence it was held that no suit for a refund of octroi which has been assessed by the munioipal board on goods imported lies in a civil court on the ground that the goods were not in fact assessable or that the amount of assessment was excessive. this contention is to..........code was duly followed in respect of all the applications which are the subject-matter of the suit. in municipal board, bareilly v. abdul aziz khan : air1934all795 it was held thatwhere a liability which did not exist prior to the enactment is created by the statute which at the same time gives a special and particular remedy for enforcing it then unless a contrary intention appears the remedy provided by the statute has to be followed and it is not competent to a party to pursue other forms of remedy.8. upon this principle the claim of the municipal board, bareilly, in that case to recover certain octroi dues by means of a suit in the civil court was repelled. this decision necessarily implies that where no special remedy is provided for the enforcement of a liability imposed by a.....
Judgment:
ORDER

Mulla, J.

1. This is an application under Section 25, Small Cause Courts Act, by the Municipal Board of Jaunpur seeking revision of a decree passed by the learned Munsif, Jaunpur, in the exercise of Small Cause Court powers in a suit brought by the opposite party Banwari Lal to recover a certain amount as refund of octroi under the rules laid down in the Municipal Accounts Code. The circumstances which led to the institution of the suit may briefly be stated. Between 14th and 18th May 1937, a number of merchants in Jaunpur despatched goods outside the municipal limits. As octroi duty would have been leviable on those goods if they had been imported within the Municipal limits, the exporters became entitled to receive payment of a sum equivalent to that duty as refund under Section 178, Municipal Accounts Code which runs as follows:

A person who exports from a municipality any goods on which if they were being imported octroi would be leviable shall be entitled to receive payment of a sum equivalent to that octroi. This payment shall be described as refund.

2. The Municipal Accounts Code also prescribes a certain procedure for obtaining payment of refund. The material provision in this connexion is to be found in Rule 184 which runs as follows:

In order to obtain payment of a refund the exporter shall cause to be presented at the head octroi office an application in Form 69. Cols. 1 to 10 of the form shall be filled in before presentation and the form shall be signed by the exporter or his representative authorized in writing in this behalf. The application may then be presented by the exporter in person or by a representative of the exporter. The entry in column 4 of Form 59 is sufficient authority for payment of refund to the person named.

3. In conformity with this Rule, twenty separate applications were made on behalf of the exporters in Form No. 59. It may be noted here that the plaintiff had admittedly nothing to do with the preparation or presentation of these applications as required by the Rule nor was his name mentioned in column 4 of any of these applications as that of the person to whom according to the Rule payment of refund could be made. There is however in each application an endorsement at the end containing a request to the Municipal Board to pay the round duty to the applicant. The endorsement in each case is signed either by the exporter or his authorized representative. The procedure prescribed in the Municipal Accounts Code was followed with toward to these applications and it is admitted that they were duly presented and entered in the Refund Ledger as required by Rule 186. Now according to the Code these applications could be presented at the head octroi office either by the exporter or by the person authorized on the application to receive payment within one month of their registration in the Refund Ledger and in that case the Municipal Board would have been bound to make payment of the refund it is admitted that the applications were not presented within that period and hence the claim foe refund based on them lapsed under Rule 192 which runs as follows:

If an application for refund is not presented for payment within such period not exceeding one month after the registration of the application in the Refund Ledger as the Board may determine, the claim shall be considered to have lapsed.

4. There is however a rule in the Code providing for the revival of lapsed claims which fans as follows:

Rule 193. If the claim is subsequently revised the original application must be produced with an explanation of the delay. If the Refund Ledger has not been closed for the month under Rule 191 the application Khali be dealt with as if the claim had not lapsed. If however the Ledger has been closed the application shall be renumbered and re-dated and fresh on trios made in columns 1 to 5 of the ledger in the same manner as for a new application.

Provided that no application for the revival of the claim shall be entertained if presented after three monts from the date of the registration of the original application in the Refund Ledger.

5. In conformity with this Rule, the plaintiff presented the above-mentioned twenty applications along with two others. In the petition mado by the plaintiff while presenting these applications he gave an explanation of the delay as required by Rule 193. The executive officer of the Municipal Board accepted the explanation in respect of two applications and accordingly granted refund of the amount due on their basis. As regards the remaining twenty applications which form the subject-matter of the present case the executive officer appears to have instituted an inquiry into the truth of the explanation of delay furnished by the plaintiff and finding as a result thereof that the explanation was not correct he dismissed them all and refused to make any payment on their basis. The total amount due under these applications was Rs. 63-10-0 and in order to recover that amount the plaintiff instituted the suit out of which the present application in revision arises. The two main grounds on which the suit has been resisted by the Municipal Board and which alone have to be considered for the purposes of the present application are: firstly, that the plaintiff is not a person authorized to recover the amount: in dispute and is not therefore entitled to maintain the suit; and secondly, that the suit does not lie within the cognizance of the Civil Court. I shall deal first with the latter ground which to my mind is not ten-able. The argument on behalf the applicant is that the jurisdiction of the Civil Court is barred by Section 164, U.P. Municipalities Act (2 of 1916), which runs as follows:

No objection shall be taken to a valuation or assessment, nor shall the liability of a person to be assessed or taxed be questioned in any other manner or by any other authority than is provided in this Act.

6. In support of this contention the learned Counsel for the applicant relied upon the following three decisions of this Court : Mulchand Ram Prasad v. Municipal Board Banda : AIR1926All517 , Municipal Board, Bareilly v. Abdul Aziz Khan : AIR1934All795 , and Municipal Board, Benares v. Krishna & Co. : AIR1935All760 . Having carefully considered all the cases, I find that they do not lend any support to the learned counsel's contention and have no application to the facts of the present case. It is in my opinion perfectly clear that Section 164 cannot possibly apply to the present case because the claim to recover an amount as refund of octroi duty under the Rules referred to above does not involve any objection to valuation or assessment or the questioning of the liability of a person to be assessed or taxed. In fact no question either of valuation or assessment or of the liability of a person to be assessed or taxed arises at all in the present case. All that the plaintiff seeks is to recover a certain amount to which he says he is entitled under the rules laid down in the Municipal Accounts Code. The learned Counsel for the applicant had to concede in the course of his arguments that Section 164 does not apply in terms to the present ease and further that there is no provision either in the Municipal Accounts Code or in the Municipalities Act under which a person entitled to refund of octroi duty can enforce his right if it is unjustly or arbitrarily denied by the Municipal Board, Nor is there any provision for any appeal to any authority prescribed by the Municipalities Act against such a denial. A person entitled to refund of octroi duty under the statutory right conferred upon him by the Municipal Accounts Code must be deemed to have a remedy in a Court of law unless it is found that his claim is barred either expressly or by necessary implication by any provision contained in the Municipalities Act or in the Municipal Accounts Code. In the present case, the applicant has entirely failed to show that there is any such provision as would bar the plaintiff from enforcing his right in a Court of law. It must therefore be held that this suit was not beyond the cognizance of the Civil Court. None of the cases relied upon by learned Counsel for the applicant has decided anything to the contrary. In Mulchand Ram Prasad v. Municipal Board, Banda : AIR1926All517 all that was held was that

where according to the rules the right of an exporter of goods to got refund depends on his adopting the procedure for obtaining a refund, his failure to comply with such procedure prevents him from putting any claim to the refund in the Civil Court.

7. This obviously has no application to the present caso where it is admitted that the procedure as laid down in the Municipal Accounts Code was duly followed in respect of all the applications which are the subject-matter of the suit. In Municipal Board, Bareilly v. Abdul Aziz Khan : AIR1934All795 it was held that

where a liability which did not exist prior to the enactment is created by the statute which at the same time gives a special and particular remedy for enforcing it then unless a contrary intention appears the remedy provided by the statute has to be followed and it is not competent to a party to pursue other forms of remedy.

8. Upon this principle the claim of the Municipal Board, Bareilly, in that case to recover certain octroi dues by means of a suit in the Civil Court was repelled. This decision necessarily implies that where no special remedy is provided for the enforcement of a liability imposed by a particular statute the ordinary right to institute a suit in the Civil Court remains intact. In the present case it is admitted that there is no special remedy provided either by the Municipalities Act or by the Municipal Ac counts Code for the enforcement of the right to refund of octroi by a person who acquires that right. It follows therefore that the case relied upon by learned Counsel for the applicant affords no authority in the present case for holding that the Civil Court had no jurisdiction to entertain the suit. In Municipal Board, Benares v. Krishna & Co. : AIR1935All760 the plaintiff sought to recover a certain amount which had been levied from him as octroi duty on the ground that the goods in question were not chargeable with octroi at all. Such a claim clearly involved an objection to assessment within the meaning of Section 164, Municipalities Act, and hence it was held that

no suit for a refund of octroi which has been assessed by the Munioipal Board on goods imported lies in a Civil Court on the ground that the goods were not in fact assessable or that the amount of assessment was excessive.

9. This has obviously no application to the facts of the present case. On the other hand, I find that the matter in dispute is set at rest by the Pull Bench decision of this Court in Munna Lal v. Municipal Board, Cawnpore : AIR1936All676 . In that case the plaintiff who had been assessed to house and water tax claimed remission from the Municipal Board for a certain period during which his house had remained unoccupied and upon his claim being rejected brought a suit in the Civil Court to enforce his right. The suit was resisted by the Municipal Board on the ground that the cognizance of the Civil Court was barred by Section 164, Municipalities Act. This contention was repelled by the majority who held that the statutory right for remission or refund created in favour of the taxpayer by Section 151, Municipalities Act, was enforceable in a Court of law and the jurisdiction of the Court to entertain such a claim was not ousted either expressly or by necessary implication by anything contained in Section 164 of the Act. That decision in my opinion fully governs the present case. I therefore reject the applicant's contention that the suit was not cognizable by the Civil Court.

10. The next contention on behalf of the applicant is that the plaintiff had no right to maintain the suit because the persons who were entitled to recover the amount in dispute were the exporters and the plaintiff was not their agent or representative for the purpose of enforcing the right on their behalf. This contention is to my mind perfectly sound and must prevail. The learned Munsif has tried to meet this contention by reliance on the fact that the plaintiff was nominated in all the applications as the person to whom payment of refund was to be made and arguing upon that basis, presumably in view of Section 188, Contract Act, that the plaintiff must be deemed to have had also the authority of adopting any legal process for recovering the said amount. I am clearly of opinion that this argument is not well founded. It does not recognize the vital difference between the right to receive and the right to recover. A person who is entitled to a certain amount has a right which is clearly divisible into two parts-the right to recover and the right to receive payment. If the amount itself is transferred or assigned in accordance with the law both the rights pass to the transferee or the assignee. It is open to the person having title to delegate only one of the two rights which he possesses, namely the right to receive payment. Such a delegation does not necessarily involve also the delegation of the other right Ito recover. A moneylender can engage any person to make collection on his behalf from his debtors and such a person may become an agent or that particular purpose and a payment made to him may amount to a valid discharge of the debt; but it can hardly be argued with any show of reason that such a person would have the right to institute a suit on behalf of the moneylender for recovering any debt. A shopkeeper may employ a servant for sending bills to his customers and may authorize that servant to receive payments; but it can hardly be argued with any force that such a servant would have the right to institute a suit on behalf of the shopkeeper against a customer who refused to make the payment to him. The authority of an agent is strictly limited to acts which are I permitted by the principal either expressly 'or by necessary implication. In the present case there is no suggestion that the amount due on account of refund was transferred or assigned to the plaintiff in his own right or that the plaintiff was expressly authorized to recover the amount. The mere fact that he was authorised to receive payment of the amount does not necessarily imply any authority to recover it by instituting a legal process. Section 188, Contract Act, upon which the learned Munsif has apparently relied, says nothing to the contrary. It runs as follows:

An agent having an authority to do an act has authority to do every lawful thing which is necessary in order to do such act.

11. Now the plaintiff in the present case had authority to receive payment of the refund from the Municipal Board and he could therefore do every lawful thing which was necessary in order to do that act. He could, for instance, make an application to the Municipal Board as he did. It does not necessarily follow that he could institute a suit for recovering the amount. The first illustration to Section 188 which might have influenced the mind of the learned Munsif clearly recognizes the difference between authority to receive payment and authority to recover a debt. In view of the facts mentioned above, the plaintiff in the present case had only the status of an agent or a servant employed on a small payment or commission by a number of merchants who wanted to save themselves the inconvenience and trouble of going to the office of the Municipal Board for making applications for refund of petty amounts. He had only been authorized to receive the amount, but there is nothing to show that he had further the authority to institute a legal process for recovering that amount. I therefore hold that the plaintiff had no right to maintain the suit. The result therefore is that I allow this application in revision, and setting aside the judgment and decree of the Court below dismiss the plain, tiff's suit with costs throughout.


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