MOOL CHAND AND RAM PRASAD Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-appellant firm against the Municipal Board of Banda. The plaintiff's case was that between the 19 July 1920 and 23 of August 1920, 18,783 maunds of grain were exported by him by railway from Banda city station to different places, and that he was entitled under the rules regulating the payment of refund of octroi to a sum of Rs. 586-15-6 which the Municipal Board had refused to pay. The plaintiff accordingly claimed this sum with interest. The defence of the Municipal Board was that the plaintiff firm had failed to comply with the said rules and consequently had never under these rules become entitled to the refund of octroi claimed. The first Court, the Munsif of Banda decided that the plaintiff had failed to comply with the rules but he held that such failure was no bar to his maintaining a suit in the civil Court for the refund. On appeal to the Subordinate Judge of Banda it was held that compliance with the procedure enjoined by the rules for the making of a claim for refund and for establishing such a claim was obligatory on the plaintiff, and that his failure to comply prevented him from having any claim to the refund in a civil Court.

(2.) The plaintiff bases his claim to a refund on Rule 73 of the Municipal Account Code. The Code produced in Court was published in 1905 under the Municipal Act then in force (U.P. Act I of 1900). In 1916 a new Municipal Act was passed but under Section 24 of the U.P. General Clauses Act all rules made under the previous Act were to remain in force as if enacted under the new Act. It is admitted that the present octroi rules have never been re-enacted and still subsist in the form in which they appeared,(subject to certain minor corrections) in the Municipal Account Code.. Rule 73 runs as follows: A person who exports from a Municipality any goods on which if they were being imported octroi would be leviable shall be entitled to receive payment of a sum equivalent to that octroi. This payment shall be described as a refund.

(3.) Rule 79 in the form that it appeared after amendment in 1909, sets forth the procedure of an exporter in order that he may be in a position to claim a refund. The material portion of this rule for the purpose of the present case is as follows: In order to obtain payment of refund the exporter shall cause to be presented at the head octroi office an application in Form 13... The form shall be signed by the exporter or his representative authorized in writing in this behalf The application may then be presented by the exporter recognized in this behalf by the Board