MUNICIPAL BOARD Vs. ABDUL AZIZ KHAN

JUDGEMENT

(1.) This is an application in revision by the Municipal Board of Bareilly through its Chairman against the defendants from a decree of the Munsif of Bareilly to whom the case had been transferred from the Court of Small Causes and who under Section 24(4), Civil P.C., is deemed to be a Court of Small Causes on that account. The Board claimed recovery of certain octroi dues alleged to be payable by the defendants on account of their introducing within the Municipal limits cart-loads of bricks without paying the proper duty. The defendants took the plea that a suit of this nature is not maintainable in the civil Court at all. It appears that the Municipal Board first proceeded under Section 155, Municipalities Act, 2 of 1916, in the Magistrate's Court, but the complaint for some reason or other failed. The Board then instituted the present suit which has been dismissed by the Court below on the ground that the suit did not lie.

(2.) On behalf of the Board it is contended that the claim for recovery of the octroi duty is a claim for recovery of money and therefore the suit is of a civil nature within the meaning of Section 9, Civil P.C., and that accordingly the suit is cognizable by the Civil Court unless it is expressly or by necessary implication barred by the Municipalities Act. On the other hand, it is contended on behalf of the defendants that the liability to pay the octroi duty was imposed by the Municipalities Act itself and did not exist independently of it and that inasmuch as the Municipalities Act itself provides for a penalty and according to the rules made thereunder provides the methods for collecting such dues, a civil suit does not lie. Had it been the intention that there would be a further remedy by civil suit, it would have been very easy to add a sub-section to Section 155, similar to Section 176.

(3.) The question mainly is one of an interpretation of the sections of the Municipalities Act. The general principle seems to be well settled. There can be three classes of cases in which a liability is imposed by a statute. If the liability existed previously to the Act and independently of it and that liability is merely affirmed by the statute which gives a special and peculiar form of remedy different from the ordinary remedy, then, unless a contrary intention appears from the statute, a party has the option to pursue either remedy. Where the statute gives the right to sue in express terms and provides mo particular form of remedy, then the party can proceed in the ordinary way prescribed for actions. But in cases where a liability which did not exist prior to the enactment is created by the statute which at the same time gives a special land particular remedy for enforcing it, then unless a contrary intention appears, the remedy provided by the statute has to be followed and it is not competent to a party to pursue other forms of remedy : vide Wolverhampton New Waterworks Co. V/s. Hawkesford (1859) 6 C.B. (n.s.) 336. This principle which is well recognized in England has been accepted by the Indian Courts. In Ramayyar V/s. Vedachalla (1891) 14 Mad. 441, a Full Bench of the Madras High Court accepted the principle laid down in Beckford V/s. Hood (1798) 7 T.R. 620, that the general rules is that: where a statute creates a new offence or gives a new right and prescribes a particular penalty or special remedy, no other remedy can, in the absence of evidence of a contrary intention, be resorted to but where a statute is confirmatory of a pre-existing right, the new remedy is presumed as cumulative or alternative, unless an Intention to the contrary appears from some other part of the statute.