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The Delhi Cloth and General Mills Co. Ltd. Vs. the Municipal Council, Kota - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtRajasthan High Court
Decided On
Case NumberCivil Second Appeal 126 of 1977
Judge
Reported inAIR1978Raj177; 1978(11)WLN265
ActsRajasthan Municipalities Act, 1959 - Sections 143(1); ;Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantThe Delhi Cloth and General Mills Co. Ltd.
RespondentThe Municipal Council, Kota
Appellant Advocate K.K. Mehrish and; S.R. Joshi, Advs.; S.K. Tiwari, A.
Respondent Advocate S.P. Tyagi, Adv.
DispositionAppeal dismissed
Cases Referred and Bata Shoe Co. v. City of Jabalpur Corporation
Excerpt:
.....or levy of (sic) be challenged. as a matter of fact, in the instant case, the plaintiff has already filed an appeal before the appellant authority that is, the collector.;i have no hesitation in holding that the jurisdiction of the civil courts is barred and the present suit filed by the plaintiff-appellant is totally misconceived.;appeal dismissed - - it was also contended that the notification issued on 13th may, 1968 does not in any way affect the special notification issued with respect to the individual or exceptional cases. (1) both the act and the rules contain provisions enabling the aggrieved party to effectively challenge an illegal assessment or levy for double duty. the provisions of the rajasthan municipalities act, 1959 clearly exclude the jurisdiction of the..........made a representation to the state government on which the state government on 14th feb. 1968, issued a notification under section 104 of the rajas-than municipalities act, 1959, declaring that the octroi payable by the plaintiff on coal would be .01 paise per quintal with effect from 1st july, 1964 and onwards. the municipal council, kota, however, issued a notice of demand at the rate of .95 paise per quintal. the plaintiff-appellant claimed that the notice of demand issued by the municipal council, kota is illegal and that the municipal council be restrained by means of an injunction from realising octroi at the rate of .05 paise per quintal instead of .01 paise per quintal.3. the municipal council, however, contended that the state government had no authority to issue a.....
Judgment:

P.D. Kudal, J.

1. This civil second appeal under Section 100, Civil P. C. is directed against the judgment and decree dated 30th April, 1977, of the learned Civil Judge, Kota, whereby the judgment and decree of the learned Munsiff Court No. 3, Kota dated 23rd April, 1973 were reversed.

2. The brief facts of the case, which are relevant for the disposal of this appeal are that the plaintiff-appellant filed a suit in the Court of the learned Munsiff and Magistrate Court No. 3, Kota on 22nd May, 1968 for a permanent injunction against the Municipal Council, Kota with the averments that the general rate for charging octroi on coal was .05 paise per quintal according to the notification of the Government under Section 104 of the Rajas-than Municipalities Act, 1959, issued in the year 1962. The plaintiff-appellant made a representation to the State Government on which the State Government on 14th Feb. 1968, issued a notification under Section 104 of the Rajas-than Municipalities Act, 1959, declaring that the octroi payable by the plaintiff on coal would be .01 paise per quintal with effect from 1st July, 1964 and onwards. The Municipal Council, Kota, however, issued a notice of demand at the rate of .95 paise per quintal. The plaintiff-appellant claimed that the notice of demand issued by the Municipal Council, Kota is illegal and that the Municipal Council be restrained by means of an injunction from realising octroi at the rate of .05 paise per quintal instead of .01 paise per quintal.

3. The Municipal Council, however, contended that the State Government had no authority to issue a notification specifying the rate of octroi to be charged from the plaintiff-appellant, on the representation made by the plaintiff. The State Government, however, on 13th May, 1968, issued another notification under Section 104 of the Rajas-than Municipalities Act superseding the previous notification and fixed octroi on the coal at the rate of .05 paise per quintal. It was also contended on behalf of the Municipal Council, Kota that when the plaintiff-appellant has already preferred an appeal before the Collector, Kota under Section 143 of the Rajasthan Municipalities Act, the Civil Courts have no jurisdiction to entertain a suit of this nature. It was, therefore, contended that the proceedings before the Civil Courts are patently without jurisdiction and deserve to be quashed.

4. The plaintiff-appellant, however, contended that the notification dated 14th Feb. 1968 directing the Municipal Council to realise octroi at the concessional rate of .01 paisa per quintal with effect from 1st July, 1964 on steam coal was within the competence of the State Government. It was also contended that though the notification purports to have been issued under Section 104 of the Act, yet the notification was issued under Section 107 (5) of the Act. It was also contended that once it is held that the notification was issued under Section 107 (5) of the Act, then the contention of the defendant that no representation was made by the Municipal Council, Kota before the State Government as envisaged under Section 104 of the Act, loses all significance. It was also contended that quoting of a wrong section in the notification cannot in any way invalidate the notification. Once it is held that the State Government held the authority to issue such notification the mere fact that the notification has been issued under Section 104 instead of Section 107 (5) of the Act would not render the notification invalid. It was also contended that the principle underlying the legal maxim 'omne majus continet in se minus' would apply to the facts of the present case. If the State Government has the authority to completely remove the levy of octroi on a particular article or commodity then it has also the power and authority to charge octroi at a concessional rate. It was also contended that perusal of the notification dated 14th Feb. 1968 would reveal that in the opinion of the State Government reasonable grounds existed for granting a partial exemption from payment of octroi duty on steam coal to the plaintiff-appellant. It was also contended that the learned lower Court has wrongly relied on the view taken in Municipal Board v. State of Rajasthan, 1975 WLN 530: (1976 Tax LR 1323 (Raj)). It was contended that the ratio decidendi of the ruling given in this case has been misunderstood and misinterpreted by the learned lower appellate Court. It was also contended that the notification issued on 13th May, 1968 does not in any way affect the special notification issued with respect to the individual or exceptional cases. The notification dated 13th May 1968 neither expressly nor impliedly repeals the notification dated 14th Feb. 1968. It was also contended that by virtue of Section 9 of the Civil P. C. a Civil Court is competent to entertain the suit of this nature wherein an injunction is sought against the Municipal Council realising octroi at enhanced rates.

5. As an important question of law pertaining to the interpretation of Section 104 and Section 107 of the Act was involved the Advocate General was also called upon to express the view on behalf of the State Government.

6. The contention of the learned Advocate General is that the notification has been correctly issued under the provision of Section 104 of the Act. It was contended that the notification has not been issued under the powers vested in the State Government under Section 107 (5) of the Act. It was, however, contended that such a notification could have been issued by the State Government under the provisions of Section 107 (4) of the Act. Reliance was placed on Chhagan Lal v. State of Rajasthan, 1964 Raj LW 494 and Johari Mal v. State, AIR 1969 Raj 146.

7. The learned counsel for the plaintiff-appellant placed reliance on Atma Ram v. State of Punjab AIR 1959 SC 519, B. N. Upadhyaya v. State AIR 1972 Pat 307, Jamnabai v. Suryabhan, AIR 1974 Bom 142, P. Balakotaiah v. Union of India, AIR 1958 SC 232, Afzal Ullah v. State of Uttar Pradesh, AIR 1964 SC 264 and Municipal Board v. State of Rajasthan 1975 WLN 530: (1976 Tax LR 1323 (Raj)).

8. The learned counsel for the defendant Municipal Council placed reliance on Bata Shoe Co. v. City of Jabalpur Corporation, 1977 (2) SCC 472: (AIR 1977 SC 955) and Kamala Mills v. Bombay State AIR 1965 SC 1942.

9. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused.

10. The learned trial Court framed Issue No. 2 as under:--

'2. Whether Civil Court has no jurisdiction to decide the suit in view of the provisions of the Rajasthan Municipalities Act?

Issue No. 3 reads as under:-- '3. Whether the judgment cannot be given in this case as matter regarding the assessment is pending before the Collector (Appellate Authority)?

11. Section 143 of the Rajasthan Municipalities Act, 1959 reads as under:--

'143. Bar to jurisdiction of civil and criminal Courts in matter of taxation:

(1) No objection shall be taken to a valuation or assessment nor shall the liability of a person to be assessed or taxed be questioned in any other manner or by any other authority than is provided in this Act.

(2) The order of the appellate authority confirming, setting aside or modifying an order in respect of valuation or assessment or liability to assessment or taxation shall be final; provided that it shall be lawful for the appellate authority, upon application or on its own motion, to review any order passed by it in appeal by a further order passed within three months from the date of the original order.'

12. Section 84(3) of the C. P. and Berar Municipal Act, 1922 reads as under:--

'No objection shall be taken to any valuation, assessment or levy 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.'

13. It would thus be seen that Sub-section (1) of Section 143 of the Rajasthan Municipalities Act, 1959 is in pari materia with Section 84 (3) of the C. P. and Berar Municipal Act. The provisions of Section 84(3) of the said Act of 1922 have been a subject-matter of interpretation by the Supreme Court in Bata Shoe Co. v. City of Jabalpur Corporation (AIR 1977 SC 955) in which it has been held as under (at p. 962):--

'Section 84(3), C. P. and Berar Municipalities Act, 1922, provides that no objection shall be taken to any assessment nor the liability of any person to be assessed be questioned, in any other manner or by any other authority than is provided in the Act.

The plaintiff company had paid octroi duty to the defendant Municipality at a certain rate under the C. P. and Berar Municipalities Act, 1922. The defendant reopened and revised the assessment and also levied double duty by way of penalty. After pursuing the remedies under the Act and getting some relief the plaintiff paid the amounts as finally decided under protest, and filed a suit for recovery on the ground that the defendant was not entitled to levy the amounts by way of octroi duty and penalty. The trial Court decreed the suit and the High Court modified the decree.'

In appeal to the Supreme Court, it was held as under (at pp. 963, 964):--

'The suit is barred from cognizance of the Civil Court.

(1) Both the Act and the Rules contain provisions enabling the aggrieved party to effectively challenge an illegal assessment or levy for double duty. By reason of the existence and availability of those special remedies, the ordinary remedy by way of a suit would be excluded on a true interpretation of Section 84(3).

(a) The first proposition in Dhulabhai's case refers to cases where the statute merely gives finality to orders of special tribunals, and in such cases, the Civil Court's jurisdiction would not be excluded if the provisions of the particular Act are not complied with. The instant case does not fall under this proposition because Section 84(3) does not merely give finality but expressly provides that the orders of the special tribunal shall not be questioned in any other manner or by any other authority than is provided in the Act. The serond proposition deals, in its first paragraph with cases where there is an express bar to the Civil Court's jurisdiction, and its second paragraph deals with cases where there is no express exclusion. The instant case falls under either of these, two paragraphs which renders it necessary to examine whether the Act creates special rights and liabilities, provides for their determination by laying down that such rights and liabilities shall be determined by the special tribunals constituted under it and whether remedies normally associated with actions in Civil Courts are prescribed by the Act.

(b) In the present case, not only does the Act provide an effective remedy to an aggrieved party to challenge the assessment of octroi duty and to claim refund of duty illegally paid or recovered, but the plaintiff, in fact, availed itself of those remedies. Having exhausted the remedies under the Act and having been benefited partly by the appellate decision, the respondent has turned to the Civil Court to claim refund. That is impermissible in view of Section 84(3).

(2) Section 66 (1) (b) and Rules 6 (b), 9 (a), (b) and (c), 10 (b), 12, 13 (a) and (b) and 14 (b) show that the appellant possesses the right and the power to assess and recover octroi duty and double duty on goods which are brought within the municipal limits for sale, etc. The circumstances that the appellant might have acted in excess of or irregularly in the exercise of that power cannot support the conclusion that the assessment or recovery of the tax is without jurisdiction. If the appropriate authority, while exercising its jurisdiction and powers under its relevant provisions of the Act, holds erroneously that an assessment already made can be corrected or that an assessee is liable to pay double duty, when Rule 14 (b), in fact, does not justify such an imposition, it cannot be said that the decision of the authority is without jurisdiction. Questions of the correctness of the assessment, apart from its constitutionality, are for the decision of the authorities set up by the Act and a civil suit cannot lie if the orders of those authorities are given finality.

(a) In the instant case there is no constitutional prohibition to the assessment. The argument that double duty was levied though not justified by the terms of Rule 14 (b) goes to the correctness of the levy and not to the jurisdiction of the assessing authority. That rule authorises the imposition of double duty if dutiable articles are imported (i) without paying the duty, or (ii) without giving the requisite declaration. It may be that neither of these two eventualities occurred and therefore there was no justification for imposing double duty. But the error could be corrected only in the manner provided in the Act and by the authority prescribed therein. The remedy by way of suit is barred.'

14. In Kamala Mills v. Bombay State (AIR 1965 SC 19421 it has been held as under (at pp. 1946, 1947, 1951, 1952) :--

'The normal rule prescribed by Section 9 of the Code of Civil Procedure is that the Courts shall (subject to the provisions contained in the Code) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. A claim by the dealers for the refund of sales tax which is alleged to have been paid by them through mistake is a claim of a civil nature. It should normally be triable by the ordinary courts of competent jurisdiction as provided by Section 9. But the jurisdiction of the civil courts to try suits of a civil nature can be excluded either expressly or impliedly. This is laid down in this section itself. The question about the exclusion of the jurisdiction of civil Courts either expressly or by necessary implication must be considered, in every case, in the light of the words used in the statutory provision on which the plea is rested, the scheme of the relevant provisions, their object and their purpose.

Whenever a plea is raised before a civil Court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. Where the exclusion of the civil Court's jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of remedies provided for by it may be relevant, it cannot, however, be decisive. But when exclusion is pleaded as a matter of necessary implication, such considerations would be very important and, in conceivable circumstances, might even become decisive. If a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it is pertinent to enquire whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.'

15. In the present case, the objection regarding the jurisdiction of the Civil Court to try a suit of this nature has been specifically raised in issues Nos. 2 and 3 as stated above. In view of the ratio decidendi laid down by the Supreme Court in Kamala Mills v. Bombay State (AIR 1965 SC 1942) and Bata Shoe Co. v. City of Jabalpur Corporation (AIR 1977 SC 955) there could be absolutely no hesitation in holding that a civil suit of the present nature is expressly barred by the pro-visions of Section 143 (1) of the Rajasthan Municipalities Act. Section 9 of the Code of Civil Procedure is of a general character, but the powers so conferred by Section 9 of the Civil P. C. in Civil Courts are subject to such exceptions as may be made by the special statute. The provisions of the Rajasthan Municipalities Act, 1959 clearly exclude the jurisdiction of the Civil Courts and have set up a forum whereby the assessment or levy of octroi could be challenged. As a matter of fact, in the instant case, the plaintiff has already filed an appeal before the appellate authority, that is, the Collector.

16. Having given my most anxious consideration to the arguments advanced by the learned counsel for the parties and the submissions made by the Advocate General, I have no hesi-tation in holding that the jurisdiction of the Civil Courts is barred and the present suit filed by the plaintiff-appellant is totally misconceived. In view of this finding on issues Nos. 2 and 3 it is not necessary to examine whether the notification issued under the provisions of Section 104 was validly issued by the State Government, or the said notification should have been issued under Section 107 of the Rajasthan Municipalities Act and also whether the State Government had the authority to issue such a notification. As a matter of fact, all these questions can be legitimately agitated before the appellate authority and it would be for the appellate authority to take a decision on merits. The observations made by the learned trial Court and the learned lower appellate Court shall not be taken into consideration by the appellate authority as the Civil Courts have no jurisdiction to entertain a suit of this nature.

17. For the reasons stated above, the appeal filed by the plaintiff is hereby dismissed. The plaintiff's suit shall stand dismissed. However, looking to the facts and circumstances of the case, the parties are left to bear their own costs.


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