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Municipal Council Vs. Pukhraj - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Second Appeal No. 360 of 1971
Judge
Reported in1982WLN(UC)95
AppellantMunicipal Council
RespondentPukhraj
DispositionAppeal dismissed
Cases ReferredThis Court Pukh Raj. v. Municipal Council Jodhpur
Excerpt:
rajasthan municipalities act, 1959 - section 143--finding of recovery of octroi duty based on material--receipt of amount of octroi never disputed--held, judgment & decree call for no intereference.;it is a second appeal and the finding of the learned lower court that a sum of rs. 2770 36 p. was recovered as octroi duty by the municipal council, jodhpur from the respondent is based on the material. secondly, because so far as the receipt of the aforesaid amount as octroi by the appellant is concerned this fact was never disputed. a look at the pleadings of the parties will show that averments of the plaint wherein base was set up that the above sum has been recovered were never denied in the written statement. in para 2 of the plaint, it was clearly stated that in between the period..........was also charged. during the aforesaid period a sum of rs. 2770.36. was charged as octroi by the excise department under the authority of the appellant. because mandore distillery is situated within the municipal limits of municipal council, jodhpur no octroi can be charged. thus octroi has been illegally charged when the respondent before filing the suit approached the appellant for refund of octroi duty of rs. 2770.36p., a plea was raised by the appellant that it had not charged any octroi and it had informed the excise department not to charge any octroi on country liquor meant for consumption within the municipal limits of jodhpur. inspite of notice the amount charged as octroi was not refunded. the suit was contested by the appellant inter-alia on the ground that it had informed.....
Judgment:

M.B. Sharma J.

1. This is a defendant's second appeal against the judgment and decree dated March 19, 1971 of the Additional Civil Judge, Jodhpur by which the learned Judge allowed the appeal plaintiff-respondent and decreed the suit for a sum of Rs. 2770. 36p. along with costs.

2. Briefly stated that facts of the case cut of which this appeal arises ase these: The respondent filed a suit for Rs. 2770.36p. against the appellant in the court of Munsif City, Jodhpur and a case was set up that respondent was a licencee of country liquor for the period April 1, 1963 to March 31, 1964. The practice was that during the aforesaid period the liquor used to be brought from the Mandore Distillery situated within the Municipal limits of Municipal Council, Jodhpur. That on the basis of price of the country liquor octroi on behalf of the appellant was also charged. During the aforesaid period a sum of Rs. 2770.36. was charged as octroi by the Excise Department under the authority of the appellant. Because Mandore distillery is situated within the Municipal limits of Municipal Council, Jodhpur no octroi can be charged. Thus octroi has been illegally charged When the respondent before filing the suit approached the appellant for refund of octroi duty of Rs. 2770.36p., a plea was raised by the appellant that it had not charged any octroi and it had informed the Excise Department not to charge any octroi on country liquor meant for consumption within the Municipal limits of Jodhpur. Inspite of notice the amount charged as octroi was not refunded. The suit was contested by the appellant inter-alia on the ground that it had informed the Excise Department under the letter dated July 29, 1960 cot to recover any octroi duty and as such the authority giving right to the Excise Department for recovering octroi on behalf of the Municipal Council, Jodhpur had been withdrawn, therefore, no octroi duty would be recovered. It was further stated that the suit was not maintainable under Section 143 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as the Act) and it was not within limitation. According to the appellant octroi duty was recovered without authority of the Municipal Council, Jodhpur and, therefore, remedy if any of the respondent lay with the Excise Department.

3. The learned trial Court on the pleadings of the parties framed as many as four issues and after trial it held:

(i) Only a sum of Rs. 1527.20q. was paid by the respondent by way challans as octroi duty to the Excise Department on behalf of Municipal Council, Jodhpur.

(ii) The suit of the respondent was within limitation.

(iii) The suit was barred under Section 143 of the Act.

The trial court dissmissed the suit. The respondent preferred an appeal which, as already stated earlier was allowed by the Additional Civil Judge, Jodhpur and the suit of the respondent was decreed. The learned Additional Civil Judge recorded following findings: (1) That a sum of Rs. 2270.36p. was received by the Municipal Council, Jodhpur as octroi duty on the liquor supplied to the respondent by Mandore Distillery for consumption within Municipal limits of Jodhpur and because no octroi duly could be charged the respondent was entitled for its refund. (2) That the liability of the person to be assessed or taxed only arises when the goods enter the limits of Municipal Council and Section 143 of the Act is not a bar because the act of recovery of octroi duty was not an act committed within the the powers conferred on the Municipal Council, Jodhpur under the Act.

4. I have heard learned advocates for the parties and perused the record of the case. The learned Counsel for the appellant has not challenged the findings of the learned court below that the suit is within limitation and that it is not barred under Section 143 of the Act and rightly so in view of the provisions of Section 143 and 271 of the Act. Section 143 of the Act reads as under:

143. Bar to Jurisdiction of civil and criminal court 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 of 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.

A perusal of Section 143 of the Act makes it clear that what it bars is taking of an objection to a valuation or assessment and also provides that the liability of a person to be assessed or taxed shall not be questioned in any other manner or by any other authority than provided under the Act. The case of the appellant through o it was that no octroi duty was leviable and in the year 1963 itself the Excise Department had been informed that no octroi duty should be charged. It was not the case of the appellant that respondent was liable to be assessed to octroi duty or the octroi duty was leviable with regard to supply of liquor from Mandore Distillery to the respondent for consumption within the limits of Municipal Council, Jodhpur. Thus, section 143 of the Act was hardly attracted in this case. This Court Pukh Raj. v. Municipal Council Jodhpur, a case between the same parties relating to other shops during the period from April 1, 1963 to March 31, 1964 while dealing with section 271 of the Act observed that collection of the octroi duty from a person within the Municipal limits was not an act done or purported to have been done under the Act. It also held that on the facts of that case, which facts were similar to the present case, Section 143 of the Act was not attracted.

5. The only contention o-f the learned Counsel for the appellant in this appeal is that there was absolutely no matrial on record o show that a sum of Rs. 2770.36 p. was recovered as octori duty from the respondent by the excise department on behalf of the Municipal Council, Jodhpur and the same was received b) the appellant, He submits that the learned trial court rightly came to the conclusion that only a sum of Rs. 1527.20 p. was recovered as octori duty. But, I do not find any force in this submission. Firstly because it is a second appeal and the finding of the learned lower court that a sum of Rs. 2770.36 p was recovered as octroi duty by the Municipal Council, Jodhpur from the respondent is based on the material. Secondly because so fir the receipt of the aforesaid amount as Octroi by the appellant is concerned as this fact was never disputed. A look at the pleadings of the parties will show that averments of the plaint where in a case was set up that the above sum has been recovered were never denied in the written statement. In para 2 of the plaint it was dearly stated that in between the period from April 1, 1963 to March 31, 1964 a sum of Rs. 2770.36 p was recovered as octroi duty by the Municipal Council, Jodhpur In the written statement in para 2, the receipt of the amount was not what to say of being specifically denied, was not even denied. It was mentioned in para 2 of the written statement that if inspite of the withdrawal of the authority from the Excise Department to recover octroi on behalf of the Municipal Council, Jodhpur the same has been recovered, the plaintiff can file a suit against the Excise Department and not against the Municipal Council, Jodhpur. Thus, it cannot be said that the judgment and decree of lower appellate court under which the suit of respondent for Rs. 2770.36 p was decreed calls for any interference. There is no force in this appeal and it is dismissed with costs.


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