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Sardar Man Mohan Singh Nagpal Vs. Government of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 79 of 1954
Judge
Reported inAIR1957Raj396
ActsProvincial Small Cause Courts Act, 1887 - Schedule - Articles 19 and 43; Rajasthan Excise Act; Limitation Act, 1908 - Schedule - Articles 16, 62 and 120
AppellantSardar Man Mohan Singh Nagpal
RespondentGovernment of Rajasthan
Appellant Advocate P.N. Datt, Adv.
Respondent Advocate B.C. Chatterjee, Assistant Government Adv.
DispositionRevision allowed
Cases ReferredArticle The State of Madras v. A. M. N. A. Abdul Kadar Tharaganar Firm
Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect -..........section 40 of the rajasthan excise act, the excise re-venae is no doubt recoverable as arrears of land revenue, but such realisation can only be made by a revenue officer. the land revenue' act then in force in jaipur state was the jaipur land revenue act, and the only authority entitled to take action for recovery of arrears of revenue was the nazim (later designated as sub-divisional officer). article 43 of the second schedule to the small cause courts act would only be applicable in case the claim was made by a revenue authority on account of an arrear of land revenue or a demand recoverable as an arrear of land, revenue. in the present case, the claim was made not by any revenue authority but by an officer of the customs and excise department. the powers of the officers of the.....
Judgment:
ORDER

Bapna, J.

1. This is a revision against the decision of the Judge, Small Cause Court, Jaipur, dated 20th January, 1954.

2. The petitioner filed a suit against the Government of Rajasthan in the Court of Small Causes on the 10th Of February, 1953, for recovery of Rs. 375/- on the allegation that he was a licensee for the sale of foreign liquors in respect of a Ear and Restaurant situated at Prem Prakash Cinema, and he used to pay a licence fee of Rs. 150/- per year to the Customs and Excise Department. It was alleged the on the 6th April, 1950, the Customs and Excise Department of Rajasthan asked the plaintiff licence-holder to pay a fee of Rs. 1500/- per year instead of the previous fee of Rs. 150/- a year.

The plaintiff declined to pay the amount, but he was told that if he did not pay up the amount his Bar and Restaurant would be closed by force. It was then that the plaintiff paid Rs. 375/- for three months under protest to the Customs and Excise Authorities on the 7th October, 1950. It was contended that the paid fee of Rs. 375/- was an imposition unauthorised by law, and, therefore, the plaintiff was entitled to receive back the amount from the Government of Rajasthan.

3. The Government of Rajasthan by a written statement pleaded that the fee of Rs. 1500/-per year demanded of the plaintiff was a vaid demand, the Court had no jurisdiction, and the suit was barred by limitation.

4. The learned Judge, Small Cause Court, held that the suit came within Article 43 of the Second Schedule to the Small Cause Courts Act and consequently decided that the suit was beyond the jurisdiction of the Court. He also held that Article 16 of the Limitation Act was applicable to a suit of this nature, for which the period of limitation was one year, and consequently the suit was barred by time. The plaintiff has come in revision.

5. In my opinion the decision of the lower Court on both the points is not correct. Under Section 40 of the Rajasthan Excise Act, the excise re-venae is no doubt recoverable as arrears of land revenue, but such realisation can only be made by a revenue officer. The Land Revenue' Act then in force in Jaipur State was the Jaipur Land Revenue Act, and the only authority entitled to take action for recovery of arrears of revenue was the Nazim (later designated as Sub-Divisional Officer).

Article 43 of the Second Schedule to the Small Cause Courts Act would only be applicable in case the claim was made by a revenue authority on account of an arrear of land revenue or a demand recoverable as an arrear of land, revenue. In the present case, the claim was made not by any revenue authority but by an officer of the Customs and Excise Department. The powers of the officers of the Customs and Excise Department do not include, according to the Act, issue of process for recovery of any excise revenue. Article 43, therefore, is not applicable.

6. The learned Assistant Government Advocate, urged that in case Article 43 was not, applicable, another Article 19 would be applicable. Article 19 becomes applicable 'when the suit is for a declaratory decree, not being a suit instituted under Order XXI. Rules 63 and 103 of the Code of-Civil Procedure. In the present case, the plaintiff has obviously not claimed any declaratory relief, and, therefore, the Article was not per se applicable.

7. The learned Assistant Government Advocate contended that the Court will have to declare the demand of the fee of Rs. 1500/- by the Excise Department as invalid before any relief could be granted to the plaintiff, and, therefore, the suit was indirectly for declaration. The contention has no force. As stated above, the suit was obviously for recovery of money wrongly realised from the plaintiff, and the Court will incidentally have to go into the merits of the demand. The main relief is the recovery of the money wrongly realised, and in such cases the addition of the prayer for declaration even if made does not prevent the suit from being of a nature cognizable by a Small Cause Court. Reference may be made to Raman Chetti v. The Taluk Board, Sivaganga. AIR 1932 Mad 226 (A). I, therefore, hold that the suit as framed was cognizable by the Small Cause Court.

8. The next reason for throwing cut the suit; Is equally untenable. As held above, the amount was not recoverable by any revenue authority, and for that reason Article 16 of the Limitation Act also does not apply by the very language used in that Article The State of Madras v. A. M. N. A. Abdul Kadar Tharaganar Firm, AIR 1953 Mad 905 (B). The correct Article applicable to a suit of this nature is Article 62 or Article 120, and in either case the suit will be within limitation.

9. The revision is, therefore, allowed, the judgment and decree of the Judge, Small Cause Court, dated 20th January, 1954, are set aside, and the case will go back to that Court for trial according to law. The respondent will pay the costs of the petitioner in this Court.


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