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Municipal Board Vs. Abdul Aziz Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All795; 152Ind.Cas.792
AppellantMunicipal Board
RespondentAbdul Aziz Khan
Excerpt:
.....competent jurisdiction. there shall be for each municipality a municipal fund, and there shall be placed to the credit thereof, all fines realized on conviction under the provisions of this act (as well as some other named acts). 9. thus, the municipal board can in a very speedy manner get much more than the octroi duty remaining unpaid and also succeed in getting a heavy penalty imposed on the person who evaded sueh payment. the octroi duty is leviable on goods brought within the municipal limits for purposes of consumption and use and would clearly not be leviable if the goods had not been consumed or used, but are exported......the suit did not lie.2. on behalf of the board it is contended that the claim for recovery of the octroi duty is a claim for recovery of money and therefore the suit is of a civil nature within the meaning of section 9, civil p.c., and that accordingly the suit is cognizable by the civil court unless it is expressly or by necessary implication barred by the municipalities act. on the other hand, it is contended on behalf of the defendants that the liability to pay the octroi duty was imposed by the municipalities act itself and did not exist independently of it and that inasmuch as the municipalities act itself provides for a penalty and according to the rules made thereunder provides the methods for collecting such dues, a civil suit does not lie. had it been the intention that there.....
Judgment:

Sulaiman, C.J.

1. This is an application in revision by the Municipal Board of Bareilly through its Chairman against the defendants from a decree of the Munsif of Bareilly to whom the case had been transferred from the Court of Small Causes and who under Section 24(4), Civil P.C., is deemed to be a Court of Small Causes on that account. The Board claimed recovery of certain octroi dues alleged to be payable by the defendants on account of their introducing within the Municipal limits cart-loads of bricks without paying the proper duty. The defendants took the plea that a suit of this nature is not maintainable in the civil Court at all. It appears that the Municipal Board first proceeded under Section 155, Municipalities Act, 2 of 1916, in the Magistrate's Court, but the complaint for some reason or other failed. The Board then instituted the present suit which has been dismissed by the Court below on the ground that the suit did not lie.

2. On behalf of the Board it is contended that the claim for recovery of the octroi duty is a claim for recovery of money and therefore the suit is of a civil nature within the meaning of Section 9, Civil P.C., and that accordingly the suit is cognizable by the Civil Court unless it is expressly or by necessary implication barred by the Municipalities Act. On the other hand, it is contended on behalf of the defendants that the liability to pay the octroi duty was imposed by the Municipalities Act itself and did not exist independently of it and that inasmuch as the Municipalities Act itself provides for a penalty and according to the rules made thereunder provides the methods for collecting such dues, a civil suit does not lie. Had it been the intention that there would be a further remedy by civil suit, it would have been very easy to add a sub-section to Section 155, similar to Section 176.

3. The question mainly is one of an interpretation of the sections of the Municipalities Act. The general principle seems to be well settled. There can be three classes of cases in which a liability is imposed by a statute. If the liability existed previously to the Act and independently of it and that liability is merely affirmed by the statute which gives a special and peculiar form of remedy different from the ordinary remedy, then, unless a contrary intention appears from the statute, a party has the option to pursue either remedy. Where the statute gives the right to sue in express terms and provides mo particular form of remedy, then the party can proceed in the ordinary way prescribed for actions. But in cases where a liability which did not exist prior to the enactment is created by the statute which at the same time gives a special land 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 : vide Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 C.B. (n.s.) 336. This principle which is well recognized in England has been accepted by the Indian Courts. In Ramayyar v. Vedachalla (1891) 14 Mad. 441, a Full Bench of the Madras High Court accepted the principle laid down in Beckford v. Hood (1798) 7 T.R. 620, that the general rules is that:

where a statute creates a new offence or gives a new right and prescribes a particular penalty or special remedy, no other remedy can, in the absence of evidence of a contrary intention, be resorted to but where a statute is confirmatory of a pre-existing right, the new remedy is presumed as cumulative or alternative, unless an Intention to the contrary appears from some other part of the statute.

4. This observation was quoted with approval by another Full Bench of the Madras High Court in Zamindar of Ettayapuram v. Sankarappa Reddiar (1904) 27 Mad. 483 (F.B.). In our own High Court in the case of Abdur Rahman v. Abdur Rahman : AIR1925All380 , the Full Bench at p. 532 (of 47 All), remarked:

The ordinary rule is that where the statute which creates the right also prescribes a specific remedy the person aggrieved is limited to the remedy so prescribed.

5. The remarks of Sir Lawrence Jenkins, Chief Justice of the Bombay High Court in Bhaishankar Nanabhai v. Municipal Corporation of Bombay (1907) 81 Bom. 604, I.L.R. 31 Bom. 604, p. 609, were quoted in which the learned Chief Justice had observed that:

In such a case there is no ouster of the jurisdiction of the ordinary Courts, for they never had any there is no change of the old order of things; a new order is brought into being.

6. The Learned Counsel for the applicant has relied very strongly on the case of Shuttrughon v. Hokna Showtal (1889) 16 Cal. 159. That case was for compensation for wrongful seizure of cattle and the suit was brought in the Civil Court. It was held that the suit lay because the right to recover compensation on account of wrongful seizure of one's cattle existed independently of the Cattle Trespass Act which also provided a summary remedy for compensation. It was held by the Bench that the summary remedy did not take away the ordinary remedy which an aggrieved person has under the ordinary law. It is also noteworthy that the amount of compensation which can be awarded under that Act to the aggrieved party is subjected to a maximum of Rs. 100 and may in some cases not be an adequate compensation for the injuries suffered. That case is therefore distinguishable. Chap. 5, Municipalities Act, deals with imposition and alteration of taxes. Section 128 confers the right of Municipal Boards to impose taxes including 'an octroi on goods or animals brought within the Municipality for consumption or use therein.' Section 153 confers power on the Board to make rules in order to regulate certain matters including assessment, collection or composition of taxes and, in the case of octroi or toll, the determination of ootroi or toll limits. Section 154 confers power to fix octroi limits. Then Section 155 provides that:

A person introducing or attempting to introduce within octroi limits, or abetting the introduction within octroi limits, any goods or animals liable to the payment of octroi for which the octroi due on introduction has neither been paid nor tendered, shall be punished with a fine which may extend either to ten times the value of such octroi or to Rs. 50, whichever is greater, and which shall not be leas than twice the value of such octroi.

7. It is important to note that the words, 'with the intention to defraud the Board' which occurred in the corresponding section of the Municipalities Act of 1900, have been deleted. In the exercise of its powers the Municipal Board has framed rules contained in Chap. 10, Municipal Account Code, regulating how octroi duties are to be assessed and collected and how there have to be octroi barriers. The general scheme of these rules is that the goods imported into the Municipality which are liable to payment of octroi are assessed at the barriers or in case of dispute, taken to the head octroi office or the octroi may be compounded for. The rules provide for the payment forthwith of the amount due at the barrier, or in case of dispute, for the taking of the goods to the head office. If the importer be still dissatisfied with the demand of the head octroi office, he is to pay the octroi forthwith, but he may appeal to the Board within a prescribed time. Then there are rules provided for a refund of the octroi duty when the goods are again exported. In particular, Rule 179 lays down that no proof whatever of the previous payment of octroi shall be demanded, but the fact that the goods were in the Municipality and are being taken out would be accepted as sufficient proof that a refund is admissible. On the other hand, there is provision for recovery of certain other Municipal claims. There is a separate Chap. 6 which provides how a demand has to be made in the first instance by presentation of a bill followed by an issue of a warrant with authority to Municipal Officers to have forcible entry for purposes of executing the warrant and ultimate seizure of the goods and their sale. Section 176 then lays down:

Instead of proceeding by distress and sale, or in case of failure to realize thereby the whole or any part of the demand, the Board may sue the person liable to pay the same in any Court of competent jurisdiction.

8. Thus, in these other cases, although a special procedure is prescribed for the recovery of the municipal claims which are speedy and effective, the Legislature has taken care to provide that instead of proceeding in that way, the Board may sue the person liable to pay the same in any Court of competent jurisdiction. It is important to note that nowhere in the Act there is any mention that in case of non-realization of the penalty for the non-payment of the octroi duty under Section 155 or instead of proceeding under that section, the Board would have a right to sue for the amount. The omission is certainly significant. The reason is not far to seek. So long as the goods are stopped at the barrier or detained, the question of the assessment of the octroi duty and insistence of its payment can be easily settled without any complications. On the other hand, if goods are allowed to come within the Municipal limits and time elapses, there would be considerable difficulty in finding out the exact quantity or description of the goods imported and the amount of octroi duty payable. A far more effective remedy in cases of a defiance of the Act is the penalty impesed under Section 155, under which the minimum penalty that can be imposed is twice the value of the octroi and the maximum can go up to 10 times the value of such octroi or to Rs. 50, whichever is the greater. Then there is Section 114 which prescribes that:

There shall be for each municipality a municipal fund, and there shall be placed to the credit thereof, all fines realized on conviction under the provisions of this Act (as well as some other named Acts).

9. Thus, the Municipal Board can in a very speedy manner get much more than the octroi duty remaining unpaid and also succeed in getting a heavy penalty imposed on the person who evaded sueh payment. There is therefore no real need for the Board to bring a suit in the ordinary Civil Court for the recovery of this amount. The circumstance that the rules provide for a refund of the octroi duty in case of exports and dispense with the proof that octroi duty had been previously paid when the goods were imported does not in any way create any serious difficulty. The octroi duty is leviable on goods brought within the Municipal limits for purposes of consumption and use and would clearly not be leviable if the goods had not been consumed or used, but are exported.

10. Similarly, the mere fact that the rate at which the octroi duty is to be charged is fixed by the rules and is not prescribed under the Act creates no insurmountable difficulty. The fact remains that the right to make the demand and recover the octroi dues has been conferred on the Municipal Board by the Municipalities Act and did not exist independently of it. The legislature has prescribad a penalty for non-payment of such dues. Although it is expressly laid down that a suit would lie for recovery of other taxes, there is no such express mention as regards octroi duties. In some sections octroi and toll dues are treated on a somewhat separate footing, obviously because there is no question of the presentation of a bill in their case. It therefore seems to us that having regard to the general scheme of the Municipalities Act, it was not intended by the legislature that apart from the special penalty imposed for the non-payment of the dues the right to recover which has been created by the Act itself, there should be a further and an additional right to recover the same by suit.

11. The case of octroi dues comes within the purview of the general principle laid down in the cases mentioned above, and we must hold that, in the absence of any clear indication reserving the right of a separate suit, such a suit is barred. The case therefore does not fall under Section 9, Civil P.C., which makes an exception in case of suits of which cognizance is either expressly or impliedly barred. The application is accordingly dismissed with costs.


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