1. These are three connected references by the District Magistrate of Jhansi under Section 162 (1), U.P. Municipalities Act (II  of 1916.
2. The facts which have led upto these references are these : The Municipal Board of Jhansi charged Messrs. Mansukh Das Sita Ram octroi duty on some consignment of biris on the basis of Item 73 of Notification No. 1014 23-1 62, dated 20th February 1943, published in the United Provinces Gazette, Part III, p. 94, dated 27th February 1943. Item no. 73 is as follows : 'Foreign tobacco and all kinds of cigars, cheroot3 and cigarettes.' The Municipal Board was of opinion that biris were included in these words and, therefore, assessed the opposite party to octroi. The opposite party took the matter in appeal to the District Magistrate under Section 160, U.P. Municipal Act. On 6th June 1946, the District Magistrate decided in favour of the opposite party and held that biris were not governed by these terms. There was then a review application against this order which was dismissed on 31st October 1946. In the meantime, some more consignments were received by the opposite party and they were again charged with octroi. They again filed three appeals before the District Magistrate Nos. 348a, 681 and 682. These appeals were decided on 31st October 1946, on which date the review application in connection with the previous appeal was also dismissed.
3. In the meantime, it appears that a suit was fought out between the Municipal Board and one Ballabh Dass in the civil Court in connection with this very matter. That suit was decided by the Munsif in favour of the Municipal Board on 30th April 1946. The matter was taken in appeal by Ballabh Dass to the District Judge and the appellate judgment was given on 12th September, 1946, and the order of the learned Munsif was upheld. Even though, therefore, this appellate judgment in favour of the Municipal Board had come into existence more than six weeks before the order passed by the District Magistrate in these three appeals, it did not strike the Municipal Board to bring this matter to the knowledge of the District Magistrate when the appeal came up for hearing on 31st October 1946. Later, however, three applications for review were tiled before the District Magistrate under Section 164 (2), Municipalities Act, against the orders in the three appeals passed on 31st October 1946. While dealing with these review applications, the learned District Magistrate has made these three references to this Court under Section 162 (1), Municipalities Act.
4. A preliminary objection has been taken on behalf of the opposite party to the effect that the District Magistrate had no jurisdiction to make these references under Section 162 (1), Municipalities Act, and therefore, these references should be returned.
5. We are of opinion that this preliminary objection must prevail. Section 162 (1) 01 the Act reads as follows:
If, during the hearing of an appeal under Section 160, a question as to the liability to, or the principle of assessment of, a tax arises on which the officer hearing the appeal entertains reasonable doubt, he may, either of his own motion or on the application of a person interested, draw up a statement of the facts of the case and the point on which doubt is entertained and refer the statement with his own opinion on the point for the decision of the High Court.
It is obvious from a perusal of this provision that a reference under Section 162 (1) can only be made during the hearing of the appeal under Section 160. The present reference has been made during the hearing of the review applications under Section 164 (2), Municipalities Act. In view of the plain language of Section 162 (1), we are of opinion that no reference can be made at the stage when the District Magistrate is considering a review application under Section 164 (2), Municipalities Act. The reason for this is very clear. The scheme of the Act is that when an appeal is being heard under Section 160, Municipalities Act, and a point of importance arises on which the District Magistrate entertains doubt, he should stay the hearing of the appeal and make a reference to this Court under Section 162 (1) for resolving the doubt that has arisen in his mind and after this Court gives its opinion on the point referred to it, the District Magistrate should proceed to hear the appeal and decide the matter in accordance with the opinion of this Court. We may point out that there is no specific provision to this effect in Section 162. But it is obvious that that must have been the intention of the Legislature, as otherwise there is no-sense in making a reference to this Court. If however, a reference is made at the stage of the review under Section 164 (2), Municipalities Act, the position would be very anomalous. Section 164 (2) provides that the order of the appellate authority, which includes the District Magistrates confirming, setting aside or modifying an order under Section 160, Municipalities Act, shall be final, provided that it shall be lawful for the appellate authority, upon application or his own motion, to review any order passed by him in appeal by a further order passed within three months from the date of his original order. Thus an order passed by the District Magistrate becomes final, if it is not substituted by another order within three months. Now if the District Magistrate merely makes a reference at the stage of the review and the matter comes up to this Court, more than three months are bound to pass before this Court can give its opinion. This Court cannot pass an order in substitution' of the order of the District Magistrate under Section 160. The District Magistrate himself cannot, after getting the opinion of this Court, pass an order reviewing his order under Section 160 because more than three months would in every case have elapsed before he can get the opinion of this Court. The result, therefore, would be that the opinion of this Court would be useless to-one party or the other. It could not be the intention of the Legislature that this Court should be asked to give an opinion which would be useless to the parties before it. We are, therefore, of opinion that the reference contemplated by Section 162 must be at the stage when the District Magistrate is hearing an appeal under Section 160v Municipalities Act, and it is the duty of the District Magistrate when making a reference under Section 162 of the Act to stay the further hearing of the appeal and eventually to pass an-order, in conformity with the opinion of this Court, in the reference. We are supported in this view by two decisions of the Oudh Chief Court, namely, Messrs. Chhokmal Ram Chandra v. Notified Area Committee, Bargaon A.I.R. (27) 1940 Oudh 400 and Municipal Board, Unao v. Yagdutt A.I.R. (27) 1940 Oudh 432. We may respectfully say that we are in entire agreement with the view taken in these two-cases.
6. These references are, therefore, incompetent and are hereby returned. In view of the circumstances of the case, the parties will bear their own costs of these references.