POONA CITY MUNICIPALITY Vs. RNPARANJPE AND SONS

JUDGEMENT

(1.) This is an application to the Court to review an order made by the Small Causes Court Judge of Poona. The plaintiffs who are the Municipality of Poona City are suing to recover a sum of Rs. 34-8-0 which they say is due to them in respect of octroi on certain goods which belonged to the defendants. It appears that the plaintiffs purchased certain chemicals in casks from the defendants and they delivered to the defendants a bill in respect of the octroi payable on those chemicals making an allowance in respect of the weight of the casks, but by an error too big an allowance was made ; that is to say, the weight of the casks was inaccurately ascertained, and in the result the plaintiffs charged octroi less by this sum of Rs. 34-8-0 than they were entitled to charge, and they sue the defendants for the balance. The learned Small Causes Court Judge held that the suit did not lie, and we are asked to review that order.

(2.) In my opinion the learned Judge was right in holding that the suit does not lie. The question turns on the construction of Section 203 of the Bombay Municipal Boroughs Act, 1925. To appreciate that section it is necessary to look at a few of the earlier sections. Section 73 gives a right to the Municipality to charge an octroi on animals or goods brought within the octroi limits. Section 98 provides that in case of non-payment on demand of any octroi leviable by a Municipality, any person appointed to collect such octroi may seize the goods, and then power is given to sell the goods. Section 99 provides that 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 the octroi is leviable are introduced within the octroi limits of the Municipal borough, may at any time direct that an account current shall be kept on behalf of the Municipality of the octroi so due from such person, firm or body ; and then it is provided that any amount due on the current account 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. Then Chapter VIII deals with the recovery of various taxes, but having regard to Section (1) (b) the chapter does not apply in respect of a sum leviable under sub-section (1) of Section 98 or payable on demand on account of an octroi. So the result is that unless there is a current account kept under Section 99 the provisions for payment contained in Chapter VIII do not cover an octroi payable on demand.

(3.) Then Section 203, which is the one relied on by the plaintiffs as entitling them to sue, reads 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 Chapter 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. The only jurisdiction to sue given to the Municipality by that section is to sue a person liable to pay, and, as far as I can see, there is no liability imposed on these defendants to pay any octroi since the Municipality have failed to prove that a current account was kept under Section 99, and that, therefore, the powers of recovery conferred by Chapter VIII apply in this case. That being so, I think the learned Judge was right in holding that Section 203 does not apply, and in the absence of any statutory authority to that effect it seems to me that there is no right in the Municipality to sue to recover this sum. That being so, I think we must decline to interfere with the learned Judge's order and dismiss the application with costs. Baker, J.