BINAYAK SABATHOM SONS Vs. MUNICIPAL COUNCIL BERHAMPUR

JUDGEMENT

(1.) Plaintiff is the appellant against the judgment and decree of the Additional Subordinate Judge, Berhampur, in a suit for realisation of a sum of Rs. 48,926.59 illegally collected from it by the defendant No. 1-Municipality as octroi tax and for permanent injunction against the defendants not to collect octroi tax in future.

(2.) According to the plaintiff, turmeric and cereals were not notified as articles approved by the State Government on which there could be imposition of octroi. But notwithstanding the same, the Municipality levied octroi on these articles and forcibly collected octroi tax on different dates to the extent of Rs. 37,022.09, as shown in the schedule appended to the plaint, from the plaintiff. Since the Municipality had no jurisdiction to levy octroi on turmeric and cereals, the amount illegally realised by it along with interest must be refunded to the plaintiff. It is the further case of the plaintiff that the Bye-laws notified in. April, 1964 and Dec. 1964, purporting authorisation of levy of octroi were draft bye-laws and did not clothe the Municipality with any authority to impose the octroi on the basis of the same and on that score also the levy of octroi had been made without jurisdiction. The cause of action for the suit is said to have arisen on 14-2-1966 and 27-7-1968 when the claims in appeal were rejected. The different periods in respect of which the alleged illegal levy had been collected from the plaintiff have been indicated in Annexure B to the plaint ranging from 18-7-1963 to June, 1968.

(3.) Two sets of written statements were filed - one by defendants 1 and 2 and the other by defendant No. 3. Defendants 1 and 2 denied the allegations made in the plaint and took the definite stand that the levy of octroi had been made pursuant to resolution of the Municipality dt. 19-4-1963 and sanctioned by the State Government in their order dt. 13-6-1963. It was further stated that the Schedule given under the Government order included the articles and the rates. It was admitted in the written statement that the Bye-laws were draft-Bye-laws and were not final, but it was asserted that the octroi was levied not under any Bye-laws, but in accordance with the resolution of the Municipal Council dt. 19-4-1963 which was approved and sanctioned by the State Government in their letter dt. 18-6-1963. The defendants further took the stand that the suit was barred by time and that cereals and turmeric were included under serial I of the Classes of Articles mentioned in the Schedule and notified to the public and, therefore, there had been no illegality in levying tax on turmeric and cereals. The State (defendant No. 3) in its counter only reiterated the stand of the other two defendants, namely, the Berhampur Municipal Council passed resolution on 19-4-1963 and the same was approved by the State Government in their letter dt. 18-6-1963. Thereafter the District Magistrate in charge of Berhampur Municipal Council passed another resolution to collect tax with effect from 15-7-1963.