Skip to content


Municipal Committee Vs. Shah Raisi Hirji and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 222 of 1958
Judge
Reported inAIR1960MP217
ActsConstitution of India - Article 226; Central Provinces and Berar Municipalities Act, 1922 - Sections 24B, 83 and 83(2); Evidence Act, 1872 - Sections 115
AppellantMunicipal Committee
RespondentShah Raisi Hirji and Co. and ors.
Appellant AdvocateR.S. Dabir, Adv.
Respondent AdvocateA.L. Halve and ;H.M. Thakkar, Advs. for Opposite Party Nos. 1 and 2
DispositionPetition allowed
Cases ReferredLtd. v. General Dairies Ltd.
Excerpt:
.....his innocence. conviction of appellant is liable to be set aside. - 1 and 2 were liable to pay octroi duty on foodgrains brought by them within the limits o the pandhurna municipal committee at 'the exceptional rates given in columns nos. the board took the view that the non-applicants were not liable to pay octroi duty at the alternative rate of four annas per maund as the goods were carried from the railway station by carts and the schedule prescribed an 'exceptional rate' in the case of goods transported by carts and that rule 19of the octroi rules only fixed the tax liability and not the 'mode of assessment''of the octroi tax. and berar municipalities act, 1922; that the petitioner failed to avail itself of that remedy; 5. on a true construction of the rules made by the municipal..........the rates by weights shown against each provided that any importer disputes the equivalence of the load rate to the rate by weight may claim to have the test of actual weighment applied : 1. head-load to be taken as equivalent to 30 seers. 2. kawar-load to be taken as equivalent to one maund. 3. pony, mule or ass-load to be taken as equivalent to 2 1/4 maunds. 4. bullock-load to be taken as equivalent to 2 1/2 maunds, 5. buffalo-load to be taken as equivalent to 3 1/2 maunds. 6. camel-load to be taken as equivalent to 7 1/2 maunds. 7. cart-load drawn by two animals to be taken as equivalent to 12 1/2 maunds. 8. cart-load drawn by three animals to be taken as equivalent to 18 maunds. 9. motor-lorry load will be taken according to its tonnage in calculating the number of.....
Judgment:

Dixit, C.J.

1. By this petition under Article 226 of the Constitution of India, the petitioner seeks the issue of a writ of certiorari or any other writ, order or direction to quash a decision of the Board of Revenue, Madhya Pradesh, whereby the Board declared that the non-applicants Nos. 1 and 2 were liable to pay octroi duty on foodgrains brought by them within the limits o the Pandhurna Municipal Committee at 'the exceptional rates given in columns Nos. 2 to 10 of the Schedule to the rules make by the Municipal Committee for the imposition of the octroi duty'' and that they could not be charged octroi duty under column 13 of the Schedule and directed the refund of the excess duty paid by them. The writ of certiorari is sought on the ground that there was an error of law on the face of the record in the decision of the Board of Revenue.

2. The circumstances leading to the making of the impugned order by the Board of Revenue are that the petitioner Municipal Committee made rules in 1954 (published in the Madhya Pradesh Gazette dated 6-8-1954 at page 425, Part II) for the imposition of actroi tax on animals and goods brought within the octroi limits of the Municipal Committee for sale, consumption or use within those limits. The rules became effective from 10-8-1954 and levied octroi duty on various commodities according to the Schedule to the rules. The Schedule classified various articles under eight heads. It levied octroi duty in the main on the basis of four standards, namely, (i) load with reference to the mode of transport, to wit, cart drawn by three or more animals, cart drawn by two animals; camel-load, buffallo-load, ass-load, bullock-load or pony-load, Kawar-load, head-load, motor lorry load; (ii) number,weight and standard packages; (iii) ad valorem rate per cent; and (iv) alternative rate per maund. It then proceeded to specify the rate of duty adopting the standard or standards appropriate to the commodity. For grains and pulses of all kinds, the Schedule provided the levy of octroi duty at the rate of four annas with reference to 'cart drawn by 'two animals' and an alternative rate of four annas per maund. The Schedule contained a Note which ran as follows :

'NOTE -- In applying maundage rate when no other rates are entered in the schedule, the following rate shall be taken as ordinary equivalent to the rates by weights shown against each provided that any importer disputes the equivalence of the load rate to the rate by weight may claim to have the test of actual weighment applied :

1. Head-load to be taken as equivalent to 30 seers.

2. Kawar-load to be taken as equivalent to one maund.

3. Pony, mule or ass-load to be taken as equivalent to 2 1/4 maunds.

4. Bullock-load to be taken as equivalent to 2 1/2 maunds,

5. Buffalo-load to be taken as equivalent to 3 1/2 maunds.

6. Camel-load to be taken as equivalent to 7 1/2 maunds.

7. Cart-load drawn by two animals to be taken as equivalent to 12 1/2 maunds.

8. Cart-load drawn by three animals to be taken as equivalent to 18 maunds.

9. Motor-lorry load will be taken according to its tonnage in calculating the number of cart-loads carried.

The seer shall be the seer of 80 tolas and the maund of 40 seers.'

The non-applicants Nos. 1 and 2 imported into the municipal limits certain quantities of grain and pulses by rail and motor-lorries. The Municipal Committee assessed them to octroi duty at the rate of four annas per maund. The non-applicants claimed that as after the import, the foodgrains actually crossed the octroi post in bullock carts, they were liable to pay octroi duty only at the rate of four annas per cart load according to the third column of the Schedule. This claim was rejected by the Executive Officer of the Municipal Committee. Thereupon the non-applicants preferred appeals before the Sub-divisional Officer, Sausar.

The appeals were dismissed by the Sub-divisional Officer who took the view that the alternative rate of four annas per maund was applicable when the foodgrain was brought within the municipal limits by rail or motor lorry; that under Rule 19 of the Octroi Rules made by the Municipal Committee, goods transported by rail were deemed to have entered the octroi limits when they reached the railway destination itself; and that for the purposes of imposition of octroi duty it made no difference whatsoever how the goods were transported subsequently from the railway station to any place in the town.

The non-applicants Nos. 1 and 2 then preferred revision petitions before the Board of Revenue against the decision of the Sub-divisional Officer. The Board took the view that the non-applicants were not liable to pay octroi duty at the alternative rate of four annas per maund as the goods were carried from the railway station by carts and the Schedule prescribed an 'exceptional rate' in the case of goods transported by carts and that Rule 19of the Octroi Rules only fixed the tax liability and not the 'mode of assessment'' of the octroi tax.

3. Mr. Dabir, learned counsel appearing for the petitioner, contended that the liability to pay octroi duty came into existence as soon as the goods entered the octroi limits; that under Rule 19 of the Octroi Rules goods arriving by rail were deemed to have entered the octroi limits where they reached the railway station; that as the Schedule did not specifically prescribe the rate of. octroi duty for goods transported by rail or motor lorry, such goods were liable to duty according to the alternative rate of four annas per maund; and that the liability to pay octroi duty at this rate could not be altered by the transport of goods from the railway station in a bullock cart to their place of destination in the town.

4. In reply, Mr. Thakkar, learned counsel appearing for non-applicants Nos. 1 and 2 commended to us for acceptance of the reasoning of the Board of Revenue. It was said that the alternative rate per maund could be applied only when no other rate was specified in the Schedule; that for the purposes of levy of octroi tax, what was material was the mode of transport used while crossing the octroi outpost; that Rule 19 was only intended to fix the point of time from which the liability to tax commenced; that it did not furnish the mode of assessment; and that therefore, the opponents were liable to pay octroi duty according to the rate prescribed for cart-load.

Learned counsel for the opponents also argued that another equally efficacious statutory remedy was available to the petitioner, namely, a reference to this Court under Section 83 (2), of C. P. and Berar Municipalities Act, 1922; that the petitioner failed to avail itself of that remedy; that the President of the Municipal Committee was not competent to Me this petition in the absence of any resolution of the Municipal Committee authorising him to take these proceedings; and that the Committee having levied in the past octroi duty at the rate of four annas per cart on goods imported by rail was now estopped from recovering octroi at the alternative rate of four annas per maund.

5. On a true construction of the rules made by the Municipal Committee for the imposition of octroi duty and on a careful examination of the Schedule, it will be seen that the decision of the Board of Revenue is clearly erroneous in law. It is true that in specifying the rates of duty in regard to many commodities the language of the Schedule is not free from confusion. But the rules and the Schedule leave no doubt that a person bringing commodities specified in the Schedule within the octroi limit of the Municipal Committee becomes liable to pay octroi duty the moment the goods are brought within the limits for sale, consumption or use, and the goods transported by rail are deemed to enter the octroi limits when they reach the railway destination, and that so far as grains and pulses of all kinds are concerned a person bringing them within the octroi limits becomes liable to pay to the municipality a sum calculated on the weight of the foodgrain he has brought.

The imposition of the liability is quite independent of the manner in which the commodity is brought within the octroi limits. Under Rule 1 of the Octroi Rules, articles subject to octroi duty become liable to the duty as soon as they enter the octroi limits. Under Rule 19 'goods arriving by rail are deemed to have entered the octroi limits.' The Schedule mentions against the item of grains and pulses of all kinds a rate of four annas under the head 'cart drawn by two animals' and an alternative rate of four annas per maund. The specification of a rate with reference to 'cart drawn by two animals' does not make the mode of transport or the number of carts used in the transport a foundation for the imposition of duty. This is clear from the fact that the words 'per cart' are not to be found in the Schedule, when it specifies 'four annas' under the head 'cart drawn by two animals'' in respect of grains and pulses, and that the Schedule contains a note giving the equivalent weight of the load carried by a cart drawn by two animals, namely, twelve and half maunds.

If the intention had been that in the case of grains and pulses brought within the octroi limits in carts drawn by two animals, the imposition of 3uty should be four annas per cart irrespective of the weight of the grains and pulses transported, the Schedule would have specified the rate of duty 'per cart' as in the case of item No. 55 of the Schedule, and it would have been wholly unnecessary to add a note in the Schedule giving the equivalent weight of the load carried by a cart drawn by two animals. By supplying the equivalent in maunds of the load carried by a cart drawn by two animals, the note only indicates that the imposition of duty is not on per cart basis but On the basis of weight of the load. The rate of four annas mentioned under the head 'cart drawn by two animals' must, therefore, be read as having a reference to the weight of grains and pukes.

The Schedule specifies an alternative rate of four annas per maund in the case of grains and pulses not transported by carts. Consistent with this rate, the specification of four annas under the head 'cart drawn by two animals' must also be taken as meaning that the octroi duty in the case of grains transported by cart is to be calculated at the rate of four annas per maund for a total weight of twelve and half maunds, the equivalent of the load carried by a cart drawn by two animals. It cannot be taken as conveying that duty in the case of food-grain transported by a cart drawn by two animals would be four annas for a total weight of twelve and half maunds. So to read, would be incongruous and inconsistent with the alternative rate of four annas per maund specified in the Schedule. The two rates cannot be construed so as to render one inconsistent and irreconcilable with another.

6. The Board of Revenue was no doubt right in holding that the alternative rate of four annas per maund was the basic rate for the imposition of octroi duty on foodgrains and pulses. But it went altogether wrong in assuming that the specification of four annas rate under the head 'cart drawn by two animals' was per cart, and on this assumption in arriving at the conclusion that in the case of foodgrains transported by cart an exception was made in the Schedule on account of the use of cart as a mode of transport. There is no warrant for making such an assumption. In coming to the conclusion that it did, the Board was also over-pressed by certain matters which ought not to have influenced its mind. It observed that if the rate prescribed in relation to carts drawn by two animals was not regarded as per cart and as an exception to the three basic rates mentioned in columns 11, 12 and 13 of the Schedule, then it would be difficult to reconcile the various rates prescribed in relation to other commodities.

This reasoning cannot be accepted. There is no justification for regarding the rate mentioned inany of the columns of the Schedule as an exception to another. The question as to the construction to be put on the rate specified under any column in relation to a particular commodity in case of an ambiguity, has to bo determined on a consideration of the nature of the commodity and the various rates specified in relation to it and the note to the Schedule, From the fact that the rate of four annas mentioned for 'cart drawn by two animals' in respect of grains has to be read as four annas per maund, it does not necessarily follow that in the case of every other commodity the rates specified under that head must be read as 'per maund'.

In other cases, in order to avoid incongruity and inconsistency, it may become necessary to read the rate as 'per cart' irrespective of the weight of the load or as for a total weight of twelve and half maunds. The Board also overlooked the fact that in this case the goods were brought within the octroi limits by rail, and the only rate that could be applied for imposition of duty was the alternative rate of four annas per maund.

This decision of the Board is thus on the face of the record erroneous in point of law and a writ of certiorari can issue to quash that decision. It is now authoritatively settled by tho decision of the Supreme Court in Nagendra Nath v. Commissioner of Hills Division, AIR 1958 SC 398, that a writ of certiorari to quash a decision of a tribunal lies not only where the tribunal has exceeded its jurisdiction but also where there is an error of law apparent on the face of record.

7. The objection of the non-applicants that the petitioner had another remedy open to it and that under Section 83 (2) of the C. P. and Berar Municipalities Act, 1922 the Committee could have applied to the Board of Revenue to refer the case to this Court, cannot stand. As pointed out by the Supreme Court in State of U. P. v. Mohammad Nooh, AIR 1958 SC 86, the existence of an alternative remedy is no bar, or at least not an absolute bar, to the issue of a writ of certiorari when the circumstances call for the issue of the writ, although the fact that such a remedy existed may be taken into consideration by the Court in arriving at a conclusion as to whether it should in exercise of its discretion issue a writ of certiorarf to quash the proceedings. The remedy in question must be a specific remedy at law which is not less convenient, beneficial and effective. Section 83 (2), to which a reference was made by the learned counsel for the non-applicants runs as follows :

'If, on the hearing of an appeal or revision under this section, any question as to the liability to, or the principle of assessment of a tax arises on which the authority hearing the appeal or revision entertains a reasonable doubt, he may, either of its own motion or on the application of any person interested, draw up a statement of the facts of the case and the point on which the doubt is entertained, and refer the statement with its own opinion On the point for the decision of the High Court.'

It will be seen that the above provision merely gives a discretion to the appellate or revising authority to refer to the High Court, either on his own initiative or on an application of the person interested any question as to the liability to or the principle of assessment of a tax on which the authority may entertain a reasonable doubt. The authority may or may not entertain a reasonable doubt on any question arising in an appeal or a revision, and the person interested may not know that the authority entertained such a doubt until after theauthority has made an order disposing of the appeal or revision before him.

No remedy is provided by Section 83 to the 'person interested' if the authority refuses to exercise its discretion under Section 83(2). The person interested cannot, therefore, ask for such a reference as a matter of right and consequently he cannot be said to have a convenient, beneficial and effective remedy. Besides, the question raised by the present petition is a question of considerable importance and concerns a large number of persons who bring every day foodgrains within the octroi limits of the municipality and it is desirable that the principle of assessment of octroi duty should be decided at the earliest opportunity. In these circumstances, it cannot be held that the alternative remedy under Section 83 (2) of the Act debars the petitioner from seeking its remedy under Article 226 of the Constitution.

8. The contention o the learned counsel for the non-applicants that the Committee having levied in the past octroi at the rate of four annas per cart on goods imported by rail was now estopped from recovering the duty at the alternative rate of four annas per maund cannot be accepted. It is an elementary principle that there is no estoppel, against law. Even if the Committee through some mistake charged octroi duty at a rate less than the legally prescribed rate, it cannot be estopped from recovering the amount that is legally clue. The Committee is under a statutory duty to realise and the assessee is under a legal obligation to pay the duty legally levied. In this connection, reference may be made to the decision of the Privy Council in Maritime Electric Co., Ltd. v. General Dairies Ltd., 1937 AC 610 : AIR 1937 PC 114.

That was a case in which a private company in New Brunswick, which was a public utility company within the meaning of a local Act, sold electric energy to a local dairy business but owing to a mistake in calculation over a period of twenty-eight months the dairy was charged for only one-tenth of the energy supplied. The Company was under a statutory duty to charge at the scheduled rates For the electric current supplied. When the Company sought to recover the amount remaining due from the dairy, it was pleaded by the defendant that the Company was estopped from recovering the amount claimed. The Privy Council held that the Company was not estopped from recovering the sum claimed and that a statutory duty was imposed on the Company to charge and on the dairy to pay at the scheduled rates for the electric current supplied and the defence of estoppel could not be availed of by the defendant to escape from the statutory obligation.

9. The answer to the objection that the President of the Committee was not competent to present this petition in the absence of a resolution of the Committee authorising him to do so is to be found in Section 24-B of the Municipalities Act 1922 which provides that the President of the Committee shall exercise the executive power for the purpose of carrying out the provisions of the Act and be responsible for the due fulfilment of the purpose of the Act. The Committee being under a statutory obligation to recover octroi duty at the scheduled rates, the President is clearly entitled to take all the steps that may be necessary for the fulfilment of the statutory obligation.

10. For the foregoing reasons, the petition is allowed and the order of the Board of Revenue dated 30th April 1958 is quashed and the Board of Revenue is directed to dispose of the revision petitions in accordance with what has been stated above. The non-applicants Nos. 1 and 2 shall pay the costs of the petitioner. Counsel's fee is fixed at Rs. 75/-.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //