LexPOONA CITY MUNICIPAL CORPORATION versus DATTATRAYA NAGESH DEODHER
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
1964 Union of India v. Abdul la/ii Ayyangar 1. 1964 May 5 SUPREME COURT REPORTS such right was vested when the notification was issued; and no fresh clearings for culti- vation or for any other purpose shall be made in such land except in accordance with such rules as ma;: be made by the State Govern- ment in this behalf." in the absen~e, therefore, of such a notification the accused could not have been held guilty of a contravention of s. 26(1)(a). Coming next to els. (d) and (h), the question for consideration would be whether if these were not offen- ces under the Tripura law, the accused could be prosecut- ed by reason of (a) the extension of the Forest Act to the Tripura State and (b) the notification. under th_e Tripura law being "deemed to be a notification" under the corres- ponding provision of the Indian Act. We consider it un- necessary to examine this problem or to express any opi- niOll on this matter in view of the conclusion that we have reached that the notification under s. 5 of the Tripura Act would constitute the area in question only as a protected forest under Ch. IV of the Indian Forest Act and not as a "reserved" forest under s. 20 contained in Ch. II of that Act. The appeals fail and are dismissed. The appellant had undertaken to pay the cgsts of the respondents at the time of the admission of the appeals. In accordance with that undertaking the appellant will pay the costs to the respon- dents. One hearing fee. Appeals dismissed. POONA CITY MUNICIPAL CORPORATION v. DATTATRAYA NAGESH DEODHER (P. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH, K. C. DAS GUPTA, J. C. SHAH AND RAGHUHAR DAYAL, JJ.) Octroi-Tax on refund-/lnposition if valid-Tax, if becon1es fee-Who can clain1 refund-Suit for recovery-Limitation-Avaflability of 8 S.C.R SUPREME COURT REPORTS 179 benefit-Bo1nbay Provincial Municipal Corporation Act, 1949 (Bom. 59 of 1949), SS. 127, 487. The respondent. who had been carrying on the business of securing refund of octroi duty on behalf of persons who had paid duty and \'1ere entitled to refund, claime'd the refund of money paid as octroi duty by his principals in respect of the period commencing from February 15, 1950, the date from which the appellant became a Municipal Corporation under the Provincial hfunicipal Corporation, Act, 1949. i\fter deducting ten percient of the amount in accordance with r. 18(3) of the Octroi Rule~. framed by the Municipal Authorities, the ap· pellailt-Corporation paid the balance to the respondent. The representation of the respondent that from the date from which the Corporation had come into existence, the deduction had become invalid in law. was turneO down by the appellant. , Thereupon the respondent filed a suit for retovery of the balance with interest. The defence was that the deduction was valid; that· in any case, the respondent who was not the person ·who paid the amount, was not entitled to bring the suit, and that the su;t was bc.rred by limitation. The trial court held the resM pendent was entitled to bring the suit and also that it was not barred by limitation but the deduction was valid and it dismissed the suit. On appeal, the District Court disagreeing with the trial court, held that the deduction \\'as not valid in law, but the plaintiff was not entitled to bring such a suit and that the suit was barred by limitation and it dismissed the appeal. On a further appeal the High Court found in favour of the resPondent on all the three points and allowed the appeal. HELD:-(i) A tax on octroi refund is not one of the taxes which the Bo1nbay Municipal Corporation could impose. Apart from the absence of power to impose such a tax, which is clear from the earlier parts of s. 127 of the Bombay Act of 1949 there is the categorical pro- hibition in sub-s. ( 4) against the imposition of any such tax by the Cor- poration. (ii) Assuming, without deciding, that such a levy can be validly made hy way of fees under s. 466, since no standing order was made under s. 466 prescribing any fee, it is not passible to justify the deductions as a levy of fee. (iii) The tax did not become a fee merely because the new Act (Born. Act 59 of 1949), prohibited the imposition of such a tax. (iv) Cl. 5(a) of Appendix IV furnishes no justification for the levy of te,n percent Ueduction after Feb1uary 15, 1950 when the Act S9 of 1949 with its categorical prohibition in s. 127(4)
Excerpt shown. Read the full judgment & AI analysis in Lexace.