1. This is a reference by the Second Additional Sessions Judge, Indore, recommending that the conviction of the petitioner under Section 103, Sub-section (2) of the Cantonments Act and the sentence to pay a fine of Rs. 20/- passed by the Sub-Divisional Magistrate, First Class, Mhow, in criminal case No. 53 of 50 of his file be set aside.
2. The facts are that the petitioner is the proprietor of the Modern Radio House at Mhow. The Cantonment Executive Officer served on him a notice (Ex. P/1) dated the 19th November 1949, which is as follows:
You are hereby required to furnish the following information to me within 10 days of receipt hereof namely:
(a) A statement of the entire Radio goods and other goods with quantity and description, imported by you Into this Cantonment during the month of April 1949, giving the dates of import and value of the goods.
(b) Place or places from where imported and the names and addresses of the persons or firms from whom you purchased the goods with their corresponding invoices.
(c) Routes and conveyance (such as by rail, motor, cart, post, etc.) by which the goods were brought into this Cantonment and through which Naka or Octroi Post.
3. The petitioner did not furnish any information and the Cantonment Board, Mhow, lodged a complaint against him in the Court of Sub-Divisional Magistrate, Mhow Cantonment. The petitioner was convicted as stated above.
4. Section 103 of the Cantonments Act, 1924, runs as follows:
The Executive Officer may, by written notice, call upon any inhabitant of the Cantonment to furnish such information as may be necessary for the purpose of ascertaining:
(a) Whether such inhabitant is liable to pay any tax imposed under this Act;
(b) At what amount he should be assessed; or
(c) The annual value of the building or land which he occupies and the name and address of the owner or lessee thereof.
(2) If any person, when called upon under Sub-section (1) to furnish information, neglects to furnish it or furnishes information which is not true to the best of his knowledge or belief, he shall be punishable with fine which may extend to one hundred rupees.
5. Mr. Sanghi, on behalf of the petitioner, contends that the object of Section 103 is to ascertain whether any inhabitant of the Cantonment is liable to pay any tax imposed under the Cantonments Act. Mr. Sanghi lays emphasis on the words 'is liable to pay'; and, he argues that it is the present liability to pay any tax which is to be ascertained and not any past liability of the inhabitant who, in the past, might have imported some articles in the Cantonment area without paying octroi duty. He puts an important question in this way: Whether the Executive Officer can call upon any inhabitant in 1951 to furnish information what articles he had been importing since 1939 Mr. Sanghi then argues that Section 103 is a general provision dealing with general taxes and Sections 81, 82 and 83 of the Cantonments Act deal with octroi duties and Mr. Sanghi contends that where there are special sections about octroi then it should be presumed that the general Section 103 does not apply to octroi.
6. Mr. Maharshi, on behalf of the Cantonment Board, has drawn my attention to chapter 5 of the Cantonments Act which deals with taxes. Section 60 deals with general powers of taxation; Section 61 with framing of preliminary proposals; Section 62 with objections and disposals; Section 63 with imposition of tax. Then Section 64 defines what annual value is and Section 65 deals with incidence of taxation. Sections 66 to 74 deal with assessment list; Sections 75 to 79 with remission and refund and Section 80 with charge on immovable property. Sections 81 to 83 deal with Octroi, Terminal tax, and Toll. Then there is a procedure about appeals in Sections 84 to 88 and about payment and recovering of taxes in Sections 89 to 96. Then there is a heading 'Special provisions relating to taxation' and Sections 97 to 105 cover this subject.
7. Mr. Maharshi contends that Section 103 is not a general provision but is a special provision relating to taxation. He urges, and in this, is supported by the Government Advocate that 'liable to pay any tax imposed under this Act' covers a very wide ground and the Executive Officer is empowered to ascertain liability of inhabitant in the Cantonment area to pay any tax imposed under the Act. According to him, the words 'any tax' are of very wide import and include octroi duty. He is, therefore, of the opinion that the Executive Officer was empowered under Section 103 to ascertain from the petitioner the entire Radio goods and other goods imported by him into the Cantonment area in April 1949, giving the dates of import and value of the goods. Mr. Maharshi, therefore, contends that inasmuch as the petitioner did not furnish information when demanded under Section 103 he has rightly been convicted.
8. There is no doubt that the word 'tax' in its widest sense includes all money raised by taxation and it may include rates, octroi duties and other charges levied by the Cantonment Board. Neither 'tax' nor 'octroi' has, however, been defined in the Cantonments Act of 1924. 'Octroi' is the French name of local duty levied upon goods entering a town or district as distinguished from custom duties which are those levied at the front. In Chapter V of the Cantonments Act 'Octroi' has been included in the general subject 'Taxation' and it can be taken to be a kind of tax imposed by the Act; but from the scheme of this Chapter it appears that the subject of 'Octroi', terminal tax or tolls is a special one dealt with separately under Chapter V. The collection of octroi, terminal tax and toll can be leased by the Board for one year under Section 83. If the contractor makes default in payment of the contract amount, he can be sued for money due under the contract-Mohamad Ibrahim v. Municipality of Anakapalli 16 Cri LJ 702 (Mad). Apparently this is not applicable to other taxes. Section 81 then authorises inspection of goods by an Officer of the Board who can inspect, examine, or weigh goods, vehicles, or animals brought or received within the limits of the Cantonment area. The Officer authorised by the Board can demand any information, any bill, invoice or document which such person may possess relating to such goods, vehicles or animals. This section in fact, enjoins upon the person bringing or receiving such goods within the limits of Cantonment area to disclose liability to pay octroi. Section 103 similarly enjoins upon an inhabitant of the Cantonment to disclose liability to pay any tax. It is suggested that Section 103 deals with duties and obligations of an inhabitant of a Cantonment; and the latter has double obligation to disclose liability to pay octroi; first, as receiver or bringer of goods under Section 81; and, then, as an inhabitant of the Cantonment area under Section 103. I do not think the Legislature intended to differentiate between the obligation in this respect of an inhabitant of the Cantonment area and an outsider; or intended to impose a double obligation on the inhabitant of the Cantonment area as suggested above. It has to be borne in mind that octroi is imposed on the article as soon as it is brought or received within the limits of a town. The bringer of the goods, or the receiver of the goods, after paying octroi, can sell the imported goods in the town and go outside the town taking the price with him and making a profit by the transaction. Once octroi duty is paid, the goods can be sold within the Cantonment area again and again, no further octroi can be levied. Any evasion of octroi, terminal tax, or toll, or any attempt at evasion is especially dealt with under Section 82 and is made punishable with fine which may extend either to ten times the value of such octroi, terminal tax or toll, or to fifty rupees, whatever is greater, but which shall not be less than twice the value of such octroi, terminal tax or toll, as the case may be. In Sub-clauses (3) and (4) of Section 82, the duties and powers of Executive Officer of the Board in this respect are also dealt with. It will thus be seen that octroi as a form of indirect taxation or a form of nonrecurring taxation has received special treatment at the hands of the legislature in the Cantonments Act of 1924, Having bestowed its attention to this particular subject and provided for it, the Legislature is reasonably presumed not to intend to alter this special provision by a subsequent general Section 103. The general Section 103 can then be read as silently excluding from its operation the cases which have been provided for by Sections 81 to 83. Generalia Specialibus Non-Derogant.
9. Section 103 also cannot be regarded as one meant for demanding information which may enable the Executive Officer to detect an evasion of a tax. The only object of this section is to enable the Executive Officer to ascertain the liability of any particular inhabitant of the Cantonment to pay any tax.
10. In this view of the matter, I accept the reference, and would set aside the conviction and sentence passed by the Sub-Divisional Magistrate, First Class, Mhow, on the petitioner on 30.9.50 and would acquit him.