1. This rule is directed against a judgment and decree of the Small Cause Court Judge, Ludhiana, where a suit was successfully brought for the recovery of terminal-tax which the plaintiffs had paid by mistake.
2. On the 8th of December 1948, Gurdev Singh, a driver, brought a truck containing 300 tins of vegetable ghee to the Octroi Post and there he paid Rs. 90/- as terminal tax and obtained a receipt. After about half an hour Gurdev Singh and Des Raj, who was a Munib of the importers, went to the Octroi Post and told the clerk there that the goods were not to be taken into the city and that the amount had been paid under a mistake. The Octroi clerk, however, was unable to refund the tax, but he gave a receipt Exhibit P. 2, in which he mentioned the circumstances under which the tax was paid.
3. On the same day the firm applied for refund, the Municipal Committee after making an inquiry dismissed the application for refund and rejected the prayer. On the 6th of February 1950, a suit was brought by the alleged importers for the return of this money. The Municipal Committee objected to the refund on the grounds: (1) that the goods had been imported into the Municipal limits and (2) that the civil Courts had no jurisdiction to go into the matter, but the learned Judge, Small Cause Court, held in favour of the plaintiffs and decreed the suit. Against this decree the Municipal Committee has come up in revision to this Court.
4. Mr. Fakir Chand Mital for the Municipal Committee has, in the first instance, submitted that the goods were brought info the Municipal limits and therefore had become liable for payment of tax. He has particularly relied on the evidence of Lorinda Ram P.W. 1, the Municipal Octroi clerk, who was produced by the plaintiffs, The finding of the learned Judge, however, was that the goods were never taken into the Municipal limits. After going through the evidence, which Mr. Fakir Chand Mital has taken me through, I am not prepared to differ from the finding of the Judge, Small Cause Court.
5. If that was the finding, the question arises as to whether a civil Court has jurisdiction to entertain a suit of this kind. Mr. Mital has relied upon Section 86 of the Punjab Municipal Act and submits that this section excludes the jurisdiction of the civil Courts from entertaining sujts of this kind. Section 86 is as follows :
'(1) No objection shall be taken to any valuation or assessment, nor shall the liaoility of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act.
(2) No refund of any tax shall be claimable by any person otherwise than in accordance with the provisions of this Act and the rules thereunder.'
6. The important words of this section are contained in Section 86 (1):
'nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act.'
The submission is that this was a tax under this Act and therefore the civil Court had no jurisdiction to try the case. Reliance is placed by Mr. Mital on 'Municipal Committee, Ambala v. Mohander Singh', 38 Pun Re 1911, and on a judgment of; the Allahabad High Court, 'Municipal Board, Benares v. Krishna & Co.', AIR 1935 All 760, but in my opinion neither of these cases apply. It has been held by the Lahore High Court in 'Municipal Committee, Montgomery v. Sant Singh', ILR (1940) Lah 707 (FB), that the exclusion of the civil Court is only where the tax is under the Act.
7. In the present case, in my opinion, if the truck containing the goods never entered the Municipal limits it had not made itself liable to terminal tax, and if that is so, there was no tax under the Act.
8. Din Mohammad J., in the Lahore Full . Bench case at p. 720 observed:
'If, therefore, a demand made by a Committee is not authorised by the Act and the person affected thereby objects to the payment on the ground that in mailing the demand the Committee was exercising a jurisdiction not vested in it by law. it can, by no stretch of language, be said that he is objecting to his liability to be taxed under the Act.....'
The learned Judge goes on to observe at the same page:
'If, therefore, it is found that the plaintiff was not an owner of the lorries during the period in respect of which the tax is demanded from him, the demand will not be under the Act but outside the Act, inasmuch as a tax on vehicles is payable by the owners only and not by those who do not own them.'
That was a case where Sant Singh who was taxed objected that as he was not the owner of the lorries he could not be taxed. In the present case, the objection of the plaintiff was that they never took the goods into the Municipal limits of the Ludhiana Municipal Committee, and therefore, they had never become liable to pay tax. On that finding the terminal tax was without the Act and not within the Act. I, therefore, hold that the civil Court had jurisdiction in his case and the learned Small Cause Court Judge came to a correct conclusion on the point.
9. In the result, this revision is dismissed. The opposite party will have their costs in this Court as well as in the Court below. Counsel's fee 2 G. Ms., i.e., Rs. 32/-.