Full Judgment Text
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PETITIONER:
KIRPAL SINGH DUGGAL
Vs.
RESPONDENT:
MUNICIPAL BOARD, GHAZIABAD
DATE OF JUDGMENT:
26/03/1968
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
RAMASWAMI, V.
MITTER, G.K.
CITATION:
1968 AIR 1416 1968 SCR (3) 551
CITATOR INFO :
R 1990 SC 47 (11)
D&E 1992 SC 53 (4)
RF 1992 SC 645 (27)
ACT:
U.P. Municipalities Act, 1916-Exemption under s. 157(3)-
Rules requiring application for refund within six months of
payment-Application for refund beyond six months-Suit for
recovery-Jurisdiction of Civil Court, if barred.
HEADNOTE:
The appellant transported, between August 1953 and March
1955 certain materials in execution of a contract to supply
goods for use by the Government of India. The respondent
Municipality collected toll while the appellant’s trucks
were passing through the toll barrier. The appellant
obtained in June 1955 a certificate from the authority
concerned that the goods transported were "meant for
Government work and had become the property of the
Government". The appellant then applied to the Municipality
for refund of the amount paid pursuant to the exemption
granted by the Government Order under s. 157(3) of the U.P.
Municipalities Act, 1916. The respondent declined to refund
the amount. In an action against the respondent the trial
court decreed the claim. In appeal the Civil Judge decreed
the claim only for the amount paid after December 13. 1954.
The High Court affirmed the order of the Civil Judge. Both
the Civil Judge and the High Court took the view that by the
Rules framed under the Act an application for refund within
six months from the date of actual payment is a condition
precedent for refund of the toll. - Allowing the appeal,
this Court,
HELD : The Civil Judge and the High Court exalted, what were
merely matters of procedure which the Municipality was
entitled to require compliance with in granting refund, into
conditions precedent for the exercise of the jurisdiction of
the Civil Court. The rules framed by the Government
relating to the procedure to be followed in giving effect to
the exemptions on April 15, 1939, do not purport to bar the
jurisdiction of the Civil Court if the procedure is not
followed. If these procedural requirements are not
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fulfilled, the Municipality may decline to refund the toll
and relegate the claimant to a suit. It would then be open
to the party claiming a refund to seek the assistance of the
Court, and to prove by evidence which is in law admissible,
that the goods transported by him fell within the order
issued under a. 157(3) of the Act. [555 B-F].
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No.725 of
1965.
Appeal by special leave from the judgment and order dated
February 3, 1964 of the Allahabad-High Court in F.A.F.O. No.
122 of 1961.
Bishan Narain and Harbans Singh, for the appellant.
Rameshwar Nath, for the respondent.
The Judgment of the Court was delivered by
Shah, J. Between August 1, 1953 and Match 28, 1955, the
appellant transported 521 truck-loads of "stone-grit" and
other
552
materials from Delhi to Muradnagar in execution of a
contract to supply goods for use by the Government of India.
The trucks of the appellant had to pass through the toll
barrier of the Municipality of Ghaziabad, and toll at the
rate of Rs. 8 per truck was collected from the appellant.
The appellant obtained a certificate from the Garrison
Engineer, M.E.S., Meerut, on June 10, 1955, that the goods
transported by the appellant "were meant for Government work
and had become the, property of the Government". The
appellant then applied on June 14, 1955, to the Municipality
of Ghaziabad for refund of the amount of toll paid pursuant
to the exemption granted by Government Order under s. 157(3)
of the U.P. Municipalities Act, 1916, and the Municipality
having declined to refund the amount, the appellant served
the statutory notice and commenced an action ;Against the
Municipality in the Court of the Munsif at Ghaziabad on
February 11,1956, for a decree for Rs. 4,300. The trial
court decreed the claim. In appeal, the IInd Civil Judge,
Meerut, upheld the claim of. the appellant only for the
amounts paid after December 13, 1954. The High Court of
Allahabad affirmed the order of the Civil Judge. The
appellant has appealed to this Court.
The relevant provisions of the Act, the rules and the orders
issued by the Government may first be noticed. Under s. 128
of them U.P. Municipalities Act, 1916, the Municipal Board
is, subject to any general rules or special orders of the
State Government in that behalf, competent to impose in the
whole or part of a municipality the taxes specified in that
section and one of the taxes specified is "a toll on
vehicles and other conveyances, animals, and laden coolies
entering the’ municipality". Under,s. 157 (3) of the Act
the State Government may, by order, exempt from the payment
of a tax, or any portion of a tax, imposed under the Act any
person or class of persons or any property or description of
property. Pursuant thereto the Government of U.P. issued an
order on April 15, 1939, which, insofar as it is material,
provides
"....the Provincial Government
are......pleased to issue an order under
section, 157(3) of the U.P. Municipalities
Act, 1916, exempting those goods which are the
property of Government or which become so sub-
sequent to their entry within a Municipality,
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from the payment of terminal tax or toll.
2.The procedure to be followed in giving
effect to the exemption sanctioned above shall
be as follows :-
’When goods are imported by a private person
for supply to Government in fulfillment of a
contract, or otherwise intended for the use of
’Government a written intimation to that
effect shall be given to the officer col-
553
lecting terminal tax/terminal toll who would
immediately forward it to the Terminal Tax
Superintendent. The tax/toll on goods shall
then be paid but if subsequently they actually
become the property of Government, it shall be
refunded on a certificate of the officer
authorised to receive the goods on behalf of
Government’
The State Government is authorized by s. 296 to make rules
consistent with the Act in respect, amongst others, of
matters described in s. 157 "generally for the guidance of a
board or any Government officer in any matter connected with
the carrying out of the provisions of this or any other
enactment -relating to municipalities". The State
Government framed rules relating to assessment and
collection of toll in the Ghaziabad Municipality. Rules I
and 5 are material:
"1. No person shall bring within the limits of
the Ghaziabad Municipality any laden vehicle
or other laden conveyances or laden animal in
respect of which a toll is leviable, until the
toll due in respect thereof has been paid to
such persons and at such. barriers or such
other places as the board may from time to
time appoint.
Explanation.- . . . . . . . . "
"5. When goods are imported by a private
person for supply to Government in fulfillment
of a contract or otherwise intended for the
use of Government, a written intimation to the
effect shall be given to the officer col-
lecting that tax who would immediately forward
it to the Toll Tax Superintendent. The tax on
goods shall then be paid, but if subsequently
they actually become the property of
Government, it shall be refunded on a
certificate of the officer authorised to
receive the goods on behalf of Government.
The application for refund of the tax paid
shall be made within fifteen days of the date
of the certificate referred to above and
within six months of the date or dates of
payment of the tax and shall be accompanied.
by the original toll, receipts.
Note :--. . . . ."
The Civil Judge was of the opinion that toll is immediately
payable in all cases, but where goods are for the use of the
Government, it becomes refundable when the, property becomes
the property of the Government, and a certificate is issued
by the officer concerned to that effect. He further held
that the application for refund must be made within fifteen
days of the date- of the certi-
554
ficate and within six months of the date of payment -and an
application for refund within six months from the date of
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actual payment is a condition precedent to the refund of the
toll and .,even though a certificate by the prescribed
authority is issued beyond six months of actual payment.
The High Court agreed with that view.
Under tile order issued by the Government under s. 157(3)
,of the Act the amount of toll paid by the appellant became
refundable to him. The appellant was therefore entitled to
claim against the Municipality that the amount be repaid.
The right to enforce that claim was a right of a civil
nature, and could be enforced in a civil suit, unless the
suit was barred by the law of limitation or the right was by
reason of some statutory provision extinguished, .or the
jurisdiction of the civil court was barred expressly or by
necessary implication, or that the enforcement of the right
depended upon the fulfillment of a condition precedent or
upon existence of some fact collateral to the actual matter
which the Court had to try and which was not shown to exist.
It was held by the Civil Judge, and rightly, that the claim
was not barred by s. 326 .of the U.P. Municipalities Act,
1916, because the suit was not in respect of any act done or
purported to have been done in the official capacity. There
is nothing, in the order issued by the State Government, or
any other provision of the law, that on the expiry of any
particular period or on the happening of a contingency, the
claim stands extinguished. The jurisdiction of the civil
court to entertain a suit for refund of tax levied under s.
128 of the Act is also -not barred by express enactment or
by necessary implication, arising out. of the provisions of
ss. 153(c), 160, 162 and 164 .of the Act. Section 153(c)
merely provides for framing of the rules regulating the
system on which refunds shall be allowed and paid. Section
160 makes provisions for appeals relating to taxation and
the authorities to which the right to appeal may be exer-
cised. Section 162 provides for a reference to the High
Court .where a question of liability to, or the principle of
assessment of, ,a tax arises on which the officer hearing
the appeal entertains reasonable doubt. Section 164 bars
the jurisdiction of civil and criminal courts in matters of
valuation or assessment or about the liability of a person
to be assessed or taxed. But the dispute in this case does
not relate to valuation or assessment, or liability to be
taxed or assessed. When the goods in respect of which toll
was paid became the property of the Government, the toll
paid by the appellant became refundable and the jurisdiction
of the civil court to entertain a claim for refund of toll
arising by virtue of an order under s. 157(3) was not
excluded. It was not contended either in the trial court,
the first appellate Court or even the High Court that the
jurisdiction of the civil court to entertain a suit was
excluded. The first appellate Court has in fact granted
,refund of a part of the amount paid and the right of the
civil
555
court to direct refund in appropriate cases has not been
challenged in this Court.
But counsel for the respondent contended that the rules
framed by the Government regarding the procedure constituted
a condition precedent to the exercise of the right to claim
refund and recourse to the civil court being conditionally
strict compliance with the procedure prescribed the civil
court was incompetent to decree the suit unless the
condition was fulfilled. We are unable to agree with that
contention. The rules framed by the Government merely set
up, the procedure to be followed -in preferring an
application to the Municipality for obtaining refund of the
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tax paid. The Municipality is under a statutory obligation,
once the procedure followed is fulfilled, to grant refund of
the toll. The application for refund of the toll must be
made within fifteen days from the, date of the issue of the
certificate and within six months from the date of payment
of the toll. It has to the accompanied by the original
receipts. If these procedural requirements are not
fulfilled, the Municipality may decline to refund the toll
and relegate the, claimant to a suit. It would then be open
to the party claiming a refund to seek the assistance of the
court, and to prove by evidence which is in law admissible
that the goods transported by him fell within the order
issued under s. 157(3) of the Act. The rules framed by the
Government relating to the procedure to be followed in
giving effect to the exemptions on April 15, 1939, do not
purport to bar the jurisdiction of the civil court if the
procedure is not followed. In our judgment, the Civil Judge
and the High -Court exalted what were merely matters of
procedure, which the Municipality was entitled to require
compliance with in granting refund, into conditions
precedent to the exercise of jurisdiction of the civil
court. It is impossible on a bare perusal of the order
issued -by the Government and the rules framed by it to give
to the order and the rules that effect.
The appeal is therefore allowed and the decree passed by the
High Court is set aside and the decree passed by the trial
court is restored with costs throughout.
Y.P. Appeal allowed.
p. C.I./68
556