MUNICIPAL COUNCIL Vs. PUKHRAJ

JUDGEMENT

(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giving right to the Excise Department for recovering octroi on behalf of the Municipal Council, Jodhpur had been withdrawn, therefore, no octroi duty would be recovered.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.) 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: