CITY MUNICIPALITY Vs. HINDUSTAN CONSTRUCTION COMPANY

JUDGEMENT

(1.) THIS is a second appeal from a decree of the learned Assistant Judge of Jalgaon. It arises from a claim of the City Municipality of Bhusaval to recover Rs. 364-12-3 as octroi duty from the respondent-defendant. It is common ground that the defendant, who is a railway contractor, brought certain goods between January 15, 1936, to December 3, 1936, into the limits of the municipal district which were liable under the rules of the Municipality to pay octroi duty. They were brought without passing the "import Nakas" fixed by the Municipality for collection of such dues. The main defence which prevailed in the Courts below was that under Section 203 of the Bombay Municipal Boroughs Act (Bom. XVIII of 1925) the Municipality could not institute a suit for the recovery of octroi duty in a civil Court. Accordingly the plaintiff's suit was dismissed. The plaintiff-Municipality has therefore filed this second appeal.

(2.) SECTION 203 of the Act upon which the defendant relies is as follows:- In lieu of any process of recovery allowed by or under this Act or in case of failure to realise by such process the whole or any part of any amount recoverable under the provisions of chap. VIII, or of any compensation, expenses, charges or damages payable under this Act, it shall be lawful for a municipality to sue in any court of competent jurisdiction the person liable to pay the same.

(3.) CLAUSE (5) deals with the return of the surplus. Section 99 permits the Standing Committee, if it thinks fit, instead of requiring payment of octroi due from any person, mercantile firm or public body to be made at the time when the animals or goods in respect of which octroi is leviable are introduced within the octroi limits of the municipal borough, to direct that an account-current shall be kept on behalf of the Municipality of the octroi so due from such person, firm or body. Then the section provides that "any amount so due shall, for the purposes of chapter VIII, be deemed to be, and shall be recoverable in the same manner as, an amount claimed on account of any tax recoverable under the said chapter", that is by process as expressly provided by Section 104(1) (b) in chap. VIII. There can be no doubt having regard to the provisions of Section 203 that if a current account has been kept as required by Section 99, a suit will lie for the recovery of the municipal dues. It is common ground that no such current account has been kept and that the only process for recovery which the Municipality could issue was under Section 98. That process the Municipality has not issued in this case. The question is whether the alternative remedy by suit is barred to the Municipality and that the only remedy of recovery is by process.