1. The plaintiffs in this case are a firm of timber merchants trading in Madras. They claimed from the Corporation of Madras refunds of timber-tax on a large number of lots of timber, on which they alleged that they had paid timber-tax when importing them into Madras, and which they alleged they had afterwards exported from Madras. The Corporation, who are the defendants in this case, refused to make the refunds. The plaintiffs then sued the Corporation for the total of the refunds claimed by them. The suit was heard by the learned Chief Justice, as Mr. Justice Beasley, and he dismissed it. The plaintiffs appeal.
2. In their written statement the defendants maintain that the plaintiffs did not satisfy them that these lots of timber were timber on which tax had been paid when imported into Madras, and that the plaintiffs did not comply with certain bye-laws made by the Corporation, and that, therefore, they were not entitled to the refunds claimed. Under Section 98 of the Madras City Municipal Act the Corporation may levy a tax on timber brought into the City. Under Section 129 of that Act the tax shall be levied at such rates and in such manner as may be determined by the Council of the Corporation, provided that the rates shall not exceed Rs. 5 a ton, and provided that, when any timber in respect of which tax has been paid is exported beyond the city, nine-tenths of the tax levied thereon shall be refunded. The plaintiffs, as I have said, applied for these refunds on the ground that they had exported timber on which they had already paid tax when it was imported. The ground of refusal on the part of the Corporation which occupied attention at the trial of the suit and at the hearing of this appeal is that the plaintiffs did not make their application for refund 48 hours before the timber was exported, as required by a certain bye-law made by the Corporation. That bye-law is Bye-law No. 8, published in a notification with other bye-laws in the Fort St. George Gazette on the 27th September, 1921. It runs:
Such application (that is an application for refund of timber tax) shall be made at least 48 hours before the date of the intended export beyond the limits of the city and shall be accompanied by the original receipt granted on import thereof.
3. That last word 'thereof' is a little peculiar; but we need not spend any time on that. The defendants say that they can enforce that bye-law, which according to them is a valid bye-law, by refusing to give the refund if it is not complied with. The plaintiffs contend that the bye-law, in the sense in which the defendants wish to enforce it, is beyond the power of the Corporation to make.
4. Now that bye-law with the other bye-laws in the notification I have mentioned purports to have been made under Sections 129(3) and 349(2) of the Madras City Municipal Act. I think it is quite clear that that bye-law cannot have been made and could not be made under Section 129(3) of the Act, which runs:
The Council may make bye-laws for the seizure and sale of timber in respect of which the tax due is not paid.
5. Could it have been made under Section 349(2)? The learned Chief Justice is of opinion that it could be made validly under that section. With respect I feel bound to differ from him on that point. Subsidiary legislation by bye-law, if it is to be valid, must come clearly within the powers given to the body making it by their controlling statute. Section 349(2) of the Act runs:
The Council may make bye-laws, not inconsistent with this Act or with any other law, to provide for the regulation of the time and mode of collecting the taxes, duties and tolls under this Act.
6. The learned Chief Justice, says in his judgment:
In my view the words 'collecting the taxes, duties' and tolls under this Act' must include the question of refunds of the tax so collected.
7. With that opinion I am unable to agree. The collection of taxes to my mind is one thing: the refund of taxes is quite another thing. In respect of many taxes which are collected there is no right in anybody to claim a refund. If the Legislature gives any subordinate body the power to impose a tax, that is a power to require some person to pay the tax. The duty in that case is upon the tax-payer. If the Legislature gives the tax-payer the right to claim a refund in certain circumstances, then the duty is upon the other party, upon the body which collects the tax. And to give power to make bye-laws regarding the collec-. tion of taxes, the time and manner in which they are to be paid by those persons from whom they are due, appears to me an entirely different thing from giving power to make bye-laws about the conditions on which the Corporation or other body concerned is required to perform its duty of refunding the tax. I cannot find any authority in Section 349(2) empowering the Corporation to make bye-laws in regard to the refund of taxes.
8. Then could the Corporation make this bye-law under any other section of the Act? It has been suggested for the plaintiffs, that, as the Corporation purported to make these bye-laws under Sections 129(3) and 349(2) of the Act, it is of no interest to us whether they could have made Bye-law No. 8 under any other section of the Act and that they must be confined to the power to which they themselves have appealed and under which they have purported to make the bye-law. On the other hand Mr. Mockett for the defendant has contended that, if a bye-law-making body quotes, when promulgating a bye-law, some provision which is inapplicable, that bye-law may yet be quite valid, provided the bye-law-making body had authority to make it under some other provision of law: misquoting their authority by oversight or mistake does not take away any authority given by law. On that question I agree with Mr. Mockett's contention. That is clearly the view which was taken by a Full Bench of this Court in Rajam Chetty v. Seshayya : (1895)5MLJ114 and it is the view which was adopted and applied by Mr. Justice Krishnan in Secretary of State for India v. Appa Rao : (1923)45MLJ156 . No authority to the contrary has been quoted before us.
9. Let us see then whether this bye-law could have been made by the Corporation under any other provision of the Act. The learned Chief Justice is of opinion that it could have been made by the Corporation under Section 129(1) of the Act That Sub-section provides:
The tax on timber brought into the City shall be levied at such rates and in such manner as may be determined by the Council.
10. There again I must differ from the learned Chief Justice. I do not think that out of a power of fixing the rates at which, and the manner in which, the tax must be paid you can get a power to regulate the refund of that tax. But Mr. Mockett has urged before us, what does not appear from the record or from the learned Chief Justice's judgment to have been urged before him, that this bye-law could have been made by the Corporation under Section 349(29) of the Act. That runs:
The Council may make bye-laws, not inconsistent with this Act or With any other law, to provide in general for securing cleanliness, safety and order and the good government and well-being of the city and for carrying out all the purposes of this Act.
11. Mr. Mockett contends that these words 'for carrying out all the purposes of this Act' are wide enough to give the Corporation power to make this bye-law. On the other hand it is contended for the plaintiffs that we must regard the words 'for carrying out all the purposes of this Act' as controlled by the earlier words in that sub-section 'securing cleanliness, safety and order and the good government and well-being of the city' and it is contended that making refunds of tax would not come within these expressions. Here again I agree with Mr. Mockett's contention. I do not think this is a case in which we can apply the rule in regard to the interpretation of generic words following specific words. The words here are not 'and other' or 'the other' purposes of the Act. They are much wider than that. They are 'for carrying out all the purposes of this Act.' That appears to me to be a general and residual provision to cover all the purposes of the Act which have not been specifically mentioned in the earlier paragraphs of the section. The making of refunds of timber tax may be legitimately said, I think, to be one of the purposes embraced in the Act.
12. But does it follow that the Corporation can make such a bye-law as they have made in this case regarding refunds of timber tax? I agree with Mr. Mockett's contention that, even if there is--and I think there clearly is--a duty imposed by Section 129 on the Corporation to make these refunds, we need not read the Act in so unreasonable a way as to suppose that it is the duty of the Corporation officials to run round the town to find exporters of timber and thrust refunds upon them. The reasonable way of interpreting the provision regarding refunds is that the Corporation must pay refunds when properly applied for by those who are entitled to them. I think we may go further and agree with Mr. Mockett that the Corporation may reasonably require exporters who claim refunds to show to their satisfaction that refunds are due to them. Indeed I did not understand that this was seriously contested by the other side. It would be perfectly reasonable in my opinion for the Corporation to issue a notification inviting exporters who claim refunds to apply at a certain office or in a certain form or at a certain time, provided the invitation and its details were reasonable. If an exporter claiming refund did not comply with those details, I think the Corporation might well do nothing in the matter and leave it to the exporter to sue them, if he thought fit; and in such a case it is probable that, if the exporter's conduct had been unreasonable in not applying in the way he was invited to do or not giving proper information to the Corporation officials, he would lose his costs and he might perhaps have to pay the Corporation's costs, even if he succeeded in getting his refund decreed. But all that is a very different thing from making a bye-law such as has been made in this case. A bye-law, as Lord Russell said in Kruse v. Johnson (1898) 2 Q.B.D. 91 is:
An ordinance ... imposed by some authority clothed with statutory powers ordering something to be done or not to be done and accompanied by some sanction or penalty for its non-observance.
13. Now here we have a duty imposed by the Act on the Corporation to make refunds of nine-tenths of the tax paid on timber, if it is exported from the City. Can the Corporation make a bye-law, enforced by a penalty, compelling the person who has the corresponding right of demanding the performance of that duty to apply for it in a particular way or at a particular time? If we look at the penalty ostensibly imposed in this group of bye-laws, we find that under Bye-law 14 any person offending against any of these bye-laws shall be punishable with a fine which may extend to fifty rupees. To apply that to Bye-law 8 appears to me on the face of it absurd, and Mr. Mockett has agreed that that penalty cannot really be applicable to Bye-law 8. Here we have an exporter, who has a right to claim a refund under the Act, and this Bye-law 14 imposes upon him a penalty up to Rs. 50 if he does not apply at a particular time. Supposing he does not think it worth while to apply at all, how can the Corporation have the power to impose a penalty in that way? Realising that that would be absurd, the Corporation has not attempted to impose that penalty on the breach of this Bye-law 8. What; they claim to do is to enforce another penalty, namely, if the application is not made 48 hours before the time of export, to penalise: the exporter by not giving him the refund at all. It is worth noticing that the power to impose penalties for infringing bye-laws is given under Section 351 of the Act, and that only provides for penalties of fine. Then where does the Corporation get this power to impose an entirely different' penalty, the loss of the refund? To my mind, if the Corporation could make a bye-law ordering the applicant for a refund to make his application in a certain way or at a certain time, they could not impose this particular penalty, that, if he did not comply with that bye-law, he should lose his right to the refund altogether. And I may go further and say that in my opinion the Corporation has no power in this matter, in which they have a duty to perform and the exporter has a right to claim, to promulgate any bye-law, enforceable by a penalty, compelling an exporter to do some particular thing.
14.That would, I think, be enough for the disposal of this appeal. But several other matters have been discussed at length before us, and I shall just say a few words about them. The learned Chief Justice was of opinion that at any rate this Bye-law 8 was a reasonable bye-law, that there was nothing unreasonable in requiring an exporter to give 48 hours' notice of his export, if he wanted to get a refund. With that view I am unable to agree. I think it can easily be shown that quite apart from any question of the power of the Corporation to make this bye-law, as it stands, without qualification, without provision for exceptional circumstances, it would be an unreasonable bye-law. Suppose that a Government Engineer or a private person sends an order to Madras to-day from some place a few miles outside the City for the urgent supply of some timber required to prevent the collapse of a bridge or a factory. If this bye-law stands good, no one from Madras could send out timber either to-day or to-morrow, however, urgently it might be required (other than timber grown in Madras, of which we all know there is comparatively little) except on pain of losing all right to the refund of nine-tenths of the tax, to which he is entitled under the Act. That appears to me to show that' we cannot say that this bye-law, as it stands, without qualification and without provision for exceptional circumstances, is even a reasonable bye-law.
15. But, reasonable or not in itself, if it is enforced, does it not obviously curtail, the 'right of the exporter to get his refund? In effect the Corporation say by this bye-law:
Though we are bound to give the refund of this tax by the Act, we will not do so in certain circumstances, that is, unless you give us 48 hours' notice before export.
16. Mr. Mockett has contended that the bye-law, in that sense, can be regarded as carrying out the purposes of the Act. To my mind it could more properly be described as defeating, or at any rate restricting, the purposes of the Act in respect of refunds.
17. A large number of cases have been quoted before us; but 1 do not think it necessary now to refer to more than one or two of them. In Queen v. Pawlett (1873) L.R.8Q.B.491 there was a right of appeal to the Quarter Sessions, given by the statute. The Court of Quarter Sessions added by a rule of practice an additional condition that such an appeal must be entered so many days before the Sessions began. That additional condition, though regarded by the Divisional Court as very convenient, was held to be invalid. A still more instructive case is that of Queen v. Bird (1898) 2 Q.B. 340. Mr. Mockett suggested that that case was not applicable here. To my mind it is both very instructive and applicable. By the Licensing Act of 1872 a provisional licence granted by the Lincensing Justices had to be confirmed by the County Licensing Committee, before whom a person who had opposed the licence before the Lincensing Justices might appear and oppose its confirmation; and under the Act the Justices in Quarter Sessions had to make regulations for the meetings of the Committee and the transaction of its business and proceedings. The Justices in Quarter Sessions for the County of London made rules that any one intending to oppose the confirmation of a provisional licence must give notice within seven days after the grant of the provisional licence and must enter into recognizances in the sum of 20. The Divisional Court held that, though the rule about notice was reasonable and proper in itself, the rules were ultra vires, because they imposed fresh condi-tions on the objector's right to oppose the confirmation, which had been given to him by the Act. Mr. Justice Wills declared it:
a principle too clear to need the support of authority that, when a power to make regulations is given to a public body by statute, no regulations made under it can abridge a right conferred by the statute itself.
18. Is not that what the Corporation has attempted to do in this case? The exporter has a right to claim this refund, if he exports timber. The Corporation has in effect attempted to abridge that right by saying that it shall not have effect unless a further condition is fulfilled, unless the application is made 48 hours before the export. The learned Chief Justice at the close of his judgment said that in his opinion the effect of this bye-law is only this: 'Prove to our satisfaction that it is the same timber and you will get a refund.' With respect, in my opinion, that is a serious under-statement of the effect of this bye-law, as the defendants contend they are entitled to enforce it. Surely it would be more correct to say that what the defendants maintain is the effect of this bye-law is:
Pove to us by giving us notice 48 hours before you export the timber that it is the same timber on which you have paid tax: otherwise we will not make the refund.
19. In my opinion this bye-law, in the sense in which the defendants maintain they have a right to enforce it, is entirely beyond the power of the Corporation to make.
20. There was another aspect of the case which was put before us, namely, that the Act gives the exporter a certain right to nine-tenths of the tax which he has paid and that, if the Corporation take away that right to the nine-tenths, as they claim they may do in certain circumstances, they are working a forfeiture of the exporter's right. On that point Kirk v. Nowill and Butler (1786) 1T.R.118 : 99 E.R.1006 was quoted before us, in which Lord Mansfield said that a bye-law could not impose a penalty of forfeiture unless the power to make it was expressly given, and Mr. Justice Buller said that the invalidity of a bye-law to that effect was made more clear by the fact that the power to impose a penalty by fine was expressly given in that case. That case also is in teresting in connection with the present case and shows that there is another defect in this bye-law. But I do not think in the circumstances it is necessary to discuss that any further.
21. I may add that the defendants raised a plea of limitation; but, so far as the record goes, nothing appears to have been said about that at the trial, and nothing has been said about it before us.
22. In my opinion this appeal must be allowed. The result of that is that the plaintiffs' claim to these refunds has still to be disposed of. The learned Chief Justice said that, if he had agreed with the plaintiffs that this bye-law was beyond the power of the Corporation to make, he would have referred the case to the Official Referee in order that he might report on which of these lots of timber import tax had been paid, as that was disputed by the defendants and had not yet been made out by the plaintiffs. Mr. Mockett suggested that the proper course would be rather to send the case back to the Corporation in order that they might now satisfy themselves whether the tax had been paid on these lots of timber. Now that the case has come before the Court, I think that cannot be done. The question what is due to the plaintiffs must be decided by the Court. And, if the case is not to go back to the Corporation, the defendants, I understand, do not object to its being referred to the Official Referee, to which the plaintiffs also agree, But, before that is done, it has been suggested before us that the parties should be given an opportunity to see whether they cannot agree that import tax was paid on all or any of these lots of timber. It appears to me very reasonable that they should be given an opportunity to do that, and in my opinion the most convenient course will be to make an order that this matter should be referred to the Official Referee, as the learned Chief Justice suggested, for a report by him which of these lots of timber have been actually exported and on which of them import tax was paid, but with the qualification that the matter will be adjourned for a month in order that the parties may have an opportunity of seeing whether they cannot agree in respect to all or some of the items on this part of the case. For the purpose of the proposed settlement documents produced by either party may be delivered to them out of Court on application.
23. In regard to costs the proper order in my opinion will be that the defendants shall pay the plaintiffs the costs of this appeal. Costs in the suit will remain to be dealt with when the final hearing of the suit is completed. The case should now go back to the Original Side for further proceedings.
24. I agree. In my opinion the Corporation bye-laws, even assuming they are intra vires, do not justify what the Corporation has done. There is no rule in the bye-laws which in terms empowers the Corporation to penalise an applicant by refusing a refund of tax because he has not complied with the bye-laws. Rule 8 on which the Corporation relies simply says this:
Such application (that is, an application for refund) shall be made at least 48 hours before the date of the intended export beyond the limits of the city, and shall be accompanied by the original receipt granted on import thereof.
25. Neither this rule nor any other rule says that, on non-compliance with these requirements, the applicant is liable to forfeit the refund. The only penalty fixed by the bye-laws for a breach of them is that contained in Rule 14, namely, liability to a fine of Rs. 50 on conviction. If, therefore, it is an offence against the bye-laws not to give the Corporation at least 48 hours' notice of an intended export of timber as a condition to an application for refund, the utmost penalty to which the offender is exposed by the bye-laws is a fine of Rs. 50. The bye-laws do not empower the Corporation to penalise him further by forfeiting his right to get a refund; and the Act confers no such power.
26. But apparently Rule 8 is intended to mean a good deal more than what it says, and the Corporation claims that it is entitled by this rule to refuse a refund of the tax if the application for refund is not made within the prescribed time. That is the claim asserted in paragraph 5 of the written statement. Whether this is a valid claim depends upon whether the bye-law is valid. I do not think that the bye-law in question has any relation to Section 129(3) which confers the power to make bye-laws for the seizure and sale of timber which has been imported without paying the tax. Nor do I think it necessary to decide whether the power given by Section 349(2) to make bye-laws 'for regulating the time and mode of collecting the taxes' is wide enough to include a power to make bye-laws for regulating the time and mode of refund. In my view, Section 349(29), with its power to make bye-laws 'in general for carrying out all the purposes of the Act,' is comprehensive enough to include the power to make regulations governing the refund of tax. But all bye-laws made under Section 349 are subject to the restriction imposed by the section itself, that 'the council may make bye-laws not inconsistent with the Act or with any other law.'
27. Now, Section 129(1), second proviso, definitely enacts that when any timber in respect of which tax has been paid is exported beyond the city, nine-tenths of the tax shall be refunded. An unqualified right to a refund is given by the Act. But no one could suppose that a refund of the tax is to be had from the Corporation simply for the asking. The Corporation has obviously the right to require that it shall be satisfied by proper evidence that a refund can be claimed. It is only right and reasonable, therefore, that the Corporation should have the power to make bye-laws for regulating the procedure to be followed in applications for a refund of tax; and, as I have said, I think Section 349(29) gives the Corporation power to make bye-laws for this purpose. But a bye-law which professes to take away or abridge the right to a refund given by Section 129 would be clearly inconsistent with the Act; and if it is inconsistent, it is ultra vires. The authorities which have been referred to by my learned brother leave no doubt on that point. I will only supplement those authorities with a reference to a passage from the judgment of Shephard, J., in Rajam Chetti v. Seshayya : (1895)5MLJ114 .
Now it is a recognised principle of law that the rules made in pursuance of a delegated authority to that effect must be consistent with the Statute under which they came to be made. The authority is given to the end that the provisions of the Statute may be the better carried into effect, and not with the view of neutralising or contradicting those provisions.
28. Rule 8 of the Corporation bye-laws undoubtedly does neutralise and contradict the right to refund given by Section 129(1), because, as interpreted by the Corporation, it means that the Corporation can refuse to allow an applicant to prove his right to a refund, unless he has given with his application 48 hours' notice of the intended export of timber; and for that reason, in my opinion this rule is ultra vires.
29. I agree with my learned brother in the proposal to refer the matter to the Official Referee.
Attorney for respondent: S. Rajamanikkam.