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Firm Seth Radha Kishan (Deceased) Represented by Hari Kishan and ors. Vs. the Administrator, Municipal Committee, Ludhiana - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1963SC1547; (1963)65PLR912; [1964]2SCR273
ActsCode of Civil Procedure (CPC), 1908 - Sections 90; Punjab Municipal Act, 1911 - Sections 61, 78, 84 and 86
AppellantFirm Seth Radha Kishan (Deceased) Represented by Hari Kishan and ors.
RespondentThe Administrator, Municipal Committee, Ludhiana
Cases ReferredLahore v. Abdul Majid A.I.R.
Excerpt:
.....way of appeal against wrong orders of authorities - appellant misconceived their remedy in filing suit in civil court. - sections 9: [s.b.sinha & dr.mukundakam sharma,jj] jurisdiction of civil court held, mentioning of wrong provisions or non-mentioning of any provision of law would by itself be not sufficient to take away jurisdiction of court if it is otherwise vested in it in law. limitation act (36 of 1963)sections 5 & 14: [s.b.sinha & dr.mukundakam sharma,jj] applicability - court will not apply beneficent provisions like sections 5 and 14 in a pedantic manner. sections 14(2), 5 & 2(1): [s.b.sinha & dr.mukundakam sharma,jj] revision application - limitation delay in filing revision application - exclusion of time taken for proceeding bona fide in wrong forum - held,..........theremedy of the aggrieved party was only to proceed under the land acquisitionact and not by a civil suit. rejecting that plea the judicial committeeobserved : 'it would be simply a waste of time to dealseriously with such contentions as these. it has been determined over and overagain that if a person or a body of persons having statutory authority for theconstruction of works.... exceeds or abuses the powers conferred by thelegislature, the remedy of a person injured in consequence is by action orsuit, and not by a proceeding for compensation under the statute which has beenso transgressed.' 9. indian courts, in the context of municipal acts had occasion to apply boththe principles. in municipal board, benares v. krishna & co. (1935) i.l.r. 57 all. 916, it was held that no suit for.....
Judgment:

Subba Rao, J.

1. This appeal raises the question whether a suit would lie in a civil Courtclaiming refund of the terminal tax collected by a municipality under theprovisions of the Punjab Municipal Act, 1911 (Punjab Act III of 1911),hereinafter called the Act.

2. The appellant is alleged to be a firm registered under the IndianPartnership Act. It carries on business within the limits of the LudhianaMunicipality. It imported Sambhar salt into the octroi limits of the LudhianaMunicipality. The Municipality Committee, Ludhiana, imposed terminal tax on thesaid salt and the appellant paid a sum of Rs. 5,893/7/0 towards the said taxbetween October 24, 1947 and December 8, 1947. Under the Punjab GovernmentNotification No. 26463, dated July 21, 1932, terminal tax was payable underitem 68 of the Schedule attached to the said Notification at the rate of 3 piesper maund in respect of salt common, and under item 69 at the rate of As. /10/-per maund in respect of salt of all kinds other than common salt. The MunicipalCommittee, Ludhiana, collected terminal tax on the Sambhar salt at the higherrate under item 69 of the Schedule on the ground that it did not fall underitem 68 of the Schedule. The appellant filed a suit against the respondent inthe Civil Court, Ludhiana, claiming refund of the said amount with interest.The respondent, inter alia, contended that Sambhar salt was not common salt andthe Civil Court had no jurisdiction to entertain the suit. The SeniorSubordinate Judge, Ludhiana, held that Sambhar salt was common salt within themeaning of item 68 of the Schedule, that the imposition of tax on it by therespondent under item 69 of the Schedule was illegal and that, therefore, theCourt had jurisdiction to entertain the suit. On appeal, the High Court ofPunjab proceeded on the assumption that Sambhar salt was salt common, but heldthat, even so, the Civil Court had no jurisdiction to entertain the suit as theAct provided for a remedy by way of appeal against the wrong orders of the authoritiesthereunder. It further held that, in any view, the suit was premature as theappellant should have pursued his remedies under the Act before coming to thecivil Court. In the result, the decree of the Subordinate Judge was set asideand the suit was dismissed. The present appeal has been preferred by theappellant by way of certificate issued by the High Court.

3. Mr. Verma, learned counsel for the appellant, contends that therespondent has no power to impose terminal tax on salt common under item 69 ofthe Schedule to the said Notification and therefore the tax having been imposedcontrary to the provisions of the Act, the Civil Court has jurisdiction toentertain the suit.

4. On the other hand, Mr. Maheshwari, learned counsel for the respondent,argues that the respondent has power to impose terminal tax on common saltunder the provisions of the Act, that the imposition of tax under a wrong entrycould be rectified only in the manner prescribed by the Act and that the CivilCourt has no jurisdiction to entertain a suit for the refund of tax collectedwhen a specific remedy is available under the Act.

5. It would be convenient at the outset to notice the relevant provisions ofthe Act. Under s. 61(2) the Municipal Committee has power to impose, with theprevious sanction of the State Government, any tax which the State Legislaturehas power to impose in the State, subject to any general or special orderswhich the State Government may make in that behalf. The State Government issuedthe Notification No. 26463 dated July 24, 1932 to come into force from November1, 1932 empowering the Municipal Committee to impose terminal tax at the ratesshown in Col. 3 of the Schedule attached thereto upon the articles mentioned inCol. 2 thereof which are imported into or exported out of the municipal limitsby rail or by road. The relevant items are items 68 and 69. Item 68 is'salt common' and the rate prescribed is 3 pies per maund; and item69 is 'salt of all kinds other than common slat' and the rate fixed isAs. /10/- per maund. Section 78 provides for a penalty if any person brings anyarticle liable to the payment of terminal tax into the prescribed limitswithout paying the said tax. Section 84 gives a right of appeal against anylevy or refusal to refund any tax collected under the Act to the DeputyCommissioner or such other officer as may be empowered by the State Governmentin that behalf; under sub-s. (2) thereof, if on hearing of an appeal under thesection, any question as to the liability to, or the principle of assessment ofa tax arises, on which the officer hearing the appeal entertains reasonabledoubt, he may, either of his own motion or on the application of any personinterested, state the case and refer the same for the opinion of the High Court;and after the High Court gives its opinion on the question referred to it, theappellate authority shall proceed to dispose of the appeal in conformity withthe decisions of the High Court. Under s. 86, the liability of any person to betaxed cannot be questioned in any manner or by any authority other than thatprovided in the Act; under sub-s. (2) thereof, no refund of any tax shall beclaimed by any person otherwise than in accordance with the provisions of theAct and rules thereunder. It will be seen from the aforesaid provisions thatthe power to impose a terminal tax and the liability to pay the same isconferred or imposed on the municipal committee and the assessee respectivelyby the provisions of the Act. The Act also gives a remedy to an aggrieved partyto challenge the correctness of the levy or to seek refund of the same. Notonly an appeal has been provided for against the order of municipal committeelevying the tax or refusing to refund the same, but the appellate authority isempowered to get an authoritative opinion of the High Court on any question asto the liability or on the principle of assessment; and on receiving suchopinion, the said authority is bound to dispose of the appeal in the light ofthe said opinion. It is said that the reference provided to the High Court isin the discretion of the appellate authority and he can with impunity refuse todo so, even if any difficult question is involved in the appeal. The questionis not whether a particular officer abuses his power, but whether a remedy isavailable under the Act or not. It cannot be assumed that an officer, though heentertains reasonable doubt on the question as to liability or on the principleof assessment, he will deliberately and maliciously refuse to do his duty : ifhe does, other remedies may be available. The Act also in specific terms debarsany authority other than that prescribed under the Act from deciding thequestion of liability of any person to tax or his right to get refund of a taxpaid. In short, the Act contains a self-contained code conferring a right,imposing a liability and prescribing a remedy for an aggrieved party. In such asituation, the question arises whether a Civil Court can entertain a suit for arefund of the tax wrongfully collected from an assessee; and if so, what arethe limits of its jurisdiction

6. We shall now proceed to consider the relevant principles governing thesaid question. Willes, J., in Wolverhampton New Waterworks Co. v. Hawkesford(1859) 6. C.B. (N.S.) 336, describes as follows the three classes ofcases in which a liability may be established founded upon a statute :

'One is, where there was a liability existing atcommon law, and that liability is affirmed by a statute which gives a specialand peculiar form of remedy different from the remedy which existed at commonlaw : there, unless the statute contains words which expressly or by necessaryimplication exclude the common law remedy the party suing has his election topursue either that or the statutory remedy. The second class of case is, wherethe statute gives the right to sue merely, but provides no particular form ofremedy : there, the party can only proceed by action at common law. But thereis a third class, viz., where a liability not existing at common law is createdby a statute which at the same time gives a special and particular remedy forenforcing it. ..... The remedy provided by the statute must be followed, and itis not competent to the party to pursue the course applicable to cases of thesecond class.'

7. It is clear from the said passage that in a case where the liability iscreated by a statute, a party aggrieved must pursue the special remedy providedby it and he cannot pursue his remedy in a Civil Court. This principle was approvedby the Judicial Committee in Secretary of State v. Mask and Co. L.R. (1940) IndAp 222.. The High Courts in India also accepted the principle and applied itto different situations : see Bhaishankar Nanabhai v. The Municipal Corporationof Bombay I.L.R. (1907) Bom. 604.; Zamindar of Ettayapuram v. SankarappaI.L.R. (1904) Mad. 483.. But there is also an equally well settledprinciple governing the scope of the Civil Court's jurisdiction in a case wherea statute created a liability and provided a remedy. Lord Macnaghten in EastFremantle Corporation v. Annois (1902) A.C. 213., states the principles thus:

'The law has been settled for last hundred years.If persons in the position of the appellants, acting in the execution of apublic trust and for the public benefit, do an act which they are authorised bylaw to do, and do it in a proper manner, though the act so done works a specialinjury to a particular individual, the individual injured cannot maintain anaction. ....... In a word, the only question is, 'Has the power been exceeded?' Abuse is only one form of excess.'

8. In Gaekwar Sarkar of Baroda v. Gandhi Kachrabhai (1903) I.L.R. 27 Bom.344. the defendants by the negligent construction of railway made in exerciseof their powers under the Railways Act had caused the plaintiff's land to beflooded in the rainy season and consequently damaged. The Railways Act providedthat a suit shall not lie to recover compensation for damage caused by theexercise of the powers thereby conferred, but that the amount of suchcompensation shall be determined in accordance with the Land Acquisition Act,1870. In spite of this bar the plaintiff brought a suit for damages for injuryalleged to have been caused to his field. It was argued that though thestatutory authority of the Act of 1890 might have been abused or exceeded, theremedy of the aggrieved party was only to proceed under the Land AcquisitionAct and not by a civil suit. Rejecting that plea the Judicial Committeeobserved :

'It would be simply a waste of time to dealseriously with such contentions as these. It has been determined over and overagain that if a person or a body of persons having statutory authority for theconstruction of works.... exceeds or abuses the powers conferred by theLegislature, the remedy of a person injured in consequence is by action orsuit, and not by a proceeding for compensation under the statute which has beenso transgressed.'

9. Indian Courts, in the context of Municipal Acts had occasion to apply boththe principles. In Municipal Board, Benares v. Krishna & Co. (1935) I.L.R. 57 All. 916, it was held that no suit for a refund of an octroi charge, whichhas been assessed and levied by a municipality, lies in a Civil Court on theground that the goods were not in fact assessable to octroi duty or that theamount of assessment was excessive. There, the assessment was made inaccordance with the provisions laid down in the Municipalities Act and therules made thereunder. In Municipal Committee, Montgomery v. Sant Singh A.I.R. 19 40 Lah. 377, a Full Bench of the Lahore High Court had toconsider the question whether a suit would lie in a Civil Court for aninjunction restraining a Municipal Committee from realizing the tax demandedfrom a person on the ground that he was not the owner of the lorries thesubject matter of tax, and consequently the demand made on him was illegal andultra vires of the Municipal Committee. Din Mohammad J., speaking for theCourt, elaborately considered the case law on the subject and expressed hisconclusion in the following words :

'Any special piece of legislation may providespecial remedies arising therefrom and may debar a subject from having recourseto any other remedies, but that bar will be confined to matters covered by thelegislation and not to any extraneous matter. A corporation is the creature ofa statute and is as much bound to act according to law as the constituentsthereof, namely, the individuals ruled by the corporation and if the corporationdoes an act in disregard of its charter and intends to burden any individualwith the consequences of its illegal act, an appeal by that individual to thegeneral law of the land can in no circumstances be denied.'

10. This is a case where it may be said that the Municipal Committee actednot under the Act but outside the Act in as much as the tax on vehicles waspayable by the owners only but not by those who did not own them. Another FullBench of the Lahore High Court, in Administrator, Lahore v. Abdul Majid A.I.R. 1945 Lah. 81., had to deal with the jurisdiction of a Civil Court to entertaina suit for an injunction restraining a municipal committee from interferingwith the construction of the plaintiff's proposed building on the ground that itsorder refusing sanction under s. 193(2) of the Punjab Municipal Act was anabuse of its power. Mahajan J., delivering the judgment on behalf of the FullBench observed at p. 84 :

'The provisions of s. 225which make the decision of the Commissioner final can only mean this that thatdecision is final only so far as the proceedings under the Act are concerned.But when an order is made which is outside that Act, then the provisions of s.225 can have no application to such an order which itself is outside theAct.................................

In short the Bench laid down thatin two kinds of cases s. 225 was no bar to the jurisdiction of a civil court inexamining the order of the municipal committee passed under s. 193(2), PunjabMunicipal Act. The first case is where a committee acts ultra vires and thesecond case is where it acts arbitrarily or capriciously. In other words, whereit abuses its statutory powers.'

The learned Judge concluded thus, at p. 85 :

'The remedies given to the subject by a statute arefor relief against the exercise of power conferred by a statute but thoseremedies are not contemplated for usurpation of power under cover of theprovisions of the statute. The civil Courts are the proper tribunals in thosekinds of cases and their jurisdiction cannot be held barred by reason ofstatutory remedies provided for grievances arising in exercise of statutorypowers. To cases of this kind the rule that where a statute creates a right andprovides at the same time a remedy, that remedy and no other is available, hasno application.'

Further citation is unnecessary. The law on the subject may be brieflystated thus :

Under s. 9 of the Code of Civil Procedure the Courtshall have jurisdiction to try all suits of a civil nature excepting suits ofwhich cognizance is either expressly or impliedly barred. A statute, therefore,expressly or by necessary implication, can bar the jurisdiction of civil Courtsin respect of a particular matter. The mere conferment of special jurisdictionon a tribunal in respect of the said matter does not in itself exclude thejurisdiction of civil Courts. The statute may specifically provide for oustingthe jurisdiction of civil Courts; even if there was no such specific exclusion,if it creates a liability not existing before and gives a special and particularremedy for the aggrieved party, the remedy provided by it must be followed. Thesame principle would apply if the statute had provided for the particular forumin which the said remedy could be had. Even in such cases, the Civil Court'sjurisdiction is not completely ousted. A suit in a civil Court will always lieto question the order of a tribunal created by a statute, even if its order is,expressly or by necessary implication, made final, if the said tribunal abusesits power or does not act under the Act but in violation of its provisions.

11. Let us now apply the said principles to the facts of the present case.The liability to pay terminal tax is created by the Act and a remedy is givento a party aggrieved in the enforcement of that liability. As has been alreadyindicated, against the order of the municipal committee levying terminal tax anappeal lies to the Deputy Commissioner and a reference to the High Court.Applying one of the principles stated supra, the party aggrieved can only pursuethe remedy provided by the Act and he cannot file a suit in a civil Court inthat regard. Provisions of Sections 84 and 86 of the Act exclude the jurisdiction ofthe civil Court in respect of the tax levied or the assessment made under theAct.

12. But the learned counsel for the Appellants contends that the impugnedlevy was not made under the Act, but in derogation of the provisions thereof.There is no force in this contention. Section 61(2) of the Act specificallyempowers the Municipal Committee to levy any tax other than those specifiedtherein with the previous sanction of the State Government. The levy ofterminal tax was sanctioned by the Punjab Government by Notification No. 26463dated July 21, 1932, at the rates shown in column 3 of the Schedule to the saidNotification. Under the said Notification, read with s. 61 of the Act, theMunicipal Committee is empowered to levy terminal tax on salt whether it iscommon salt or not. The Committee has, therefore, ample power under the Act andthe Notification issued by the State Government to impose the said tax. Theonly dispute was as regards the rate of tax payable in respect of the saltbrought by the appellant into the limits of the Municipal Committee. The ratedepended upon the character of the salt. The ascertainment of the said fact isa necessary step for fixing the rate and it is not possible to say that inascertaining the said fact the authorities concerned travelled outside theprovisions of the Act. The learned counsel contends that if a municipalcommittee levies terminal tax on an article not liable to tax under the Act, asuit would lie and, therefore, the same legal position should apply even to acase where the municipal committee levies the tax in respect of an articleunder an entry not applicable to it. We do not see any analogy between thesetwo illustrations : in the former, the municipal committee does not act underthe Act, but in the latter it only commits a mistake or an error in fixing therate of tax payable in respect of a particular commodity; one is outside theAct and the other is under the Act; one raises the question of jurisdiction andthe other raises an objection to a matter of detail. We, therefore, hold thatin the present case the mistake, if any, committed in imposing the terminal taxcan only be corrected in the manner prescribed by the Act. The appellants havemisconceived their remedy in filing the suit in the civil Court. The conclusionarrived at by the High Court is correct.

13. In the result, the appeal fails and is dismissed with costs.

14. Appeal dismissed.


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