# [1968] 3 S.C.R. 551

- **Citation:** [1968] 3 S.C.R. 551
- **Court:** Supreme Court of India
- **Decided:** 1968-03-26
- **Case number:** Civil Appeal No. 725 of 1965
- **Bench:** J. C. Shah, V. Ramaswami, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1968-3-s-c-r-551-4449
- **Pages:** 5

## Headnote

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U.P. Municipalities Act, 191&-Exemption under s. 157(3)-Rule.•
requiring application for refund within six months of payment-Application for refund beyond six montlis-S11i1 for recovery.-lurisdictlon of
CivU Court, if barred.
The appellant transported, between
August
1953 and March 1955
certain materials in execution of a contract to supply goods fdr use by
the Government of India.
The respondent Municipality
collected toll
while the appellant's trucks were passing through the toll barrier. The
appellant obtained in June 1955 a certificate from the aitthority concerned
that the goods transported were "meant for Government work and had
become the property of the Government". The appellant then applied to
the Municipality for refund of the amount paid pursuant to the exemption granted by the Government Order under s.
157(3) of the U.P.
Municipalities Act, 1916. The respondent declined to refund the amount.
In an action against the respondent the trial court decreed the claim. In
appeal the Civil Judge decreed the claim only for the amount paid after
December 13. 1954.
The High Court affirmed the order of the Civil
Judge. Both the Civil Judge and the High Court took the view that bi•
the Rules framed under the Act an application for refund
\Vithin six
months from the date of actual payment is a condition precedent for
rcf\lnd of the toll. Allowing the appeal. this Court,
HELD : The Civil Jbdge and tho High Court exalted, what were
merely matters of procedure which the Municipality \\'as c°:titled to
require compliance \Vith in granting rcfunJ, into conditions precedent for
the exercise of the jurisdiction of the Civil Court. The rules framed by
the Government relating to the procedure to be followed in giving effect
to the exemptions on April 15, 1939, do not purport to bar the jurisdiction
of the Civil Court if the procedure is not followed.
If these procedural
requirements are not fulfilled, the Municipality may decline to refund
the toll and relegate the claimant to a suit. It would then be open to the
party claiming a refund to seek the assistance of the Court, and to prove
by evidence which is in law admissible that the goods transported by him
fell within the order issued under s. 157(3) of the Act. [555 B-FJ.

## Text

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KIRPAL SINGH DUGGAL
v,
MUNICIPAL BOARD, GHAZIABAD
March 26, 1968
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[J. C. SHAH, V. RAMASWAMI AND G. K. MITTER, JJ.J
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U.P. Municipalities Act, 191&-Exemption under s. 157(3)-Rule.•
requiring application for refund within six months of payment-Application for refund beyond six montlis-S11i1 for recovery.-lurisdictlon of
CivU Court, if barred.
The appellant transported, between
August
1953 and March 1955
certain materials in execution of a contract to supply goods fdr use by
the Government of India.
The respondent Municipality
collected toll
while the appellant's trucks were passing through the toll barrier. The
appellant obtained in June 1955 a certificate from the aitthority concerned
that the goods transported were "meant for Government work and had
become the property of the Government". The appellant then applied to
the Municipality for refund of the amount paid pursuant to the exemption granted by the Government Order under s.
157(3) of the U.P.
Municipalities Act, 1916. The respondent declined to refund the amount.
In an action against the respondent the trial court decreed the claim. In
appeal the Civil Judge decreed the claim only for the amount paid after
December 13. 1954.
The High Court affirmed the order of the Civil
Judge. Both the Civil Judge and the High Court took the view that bi•
the Rules framed under the Act an application for refund
\Vithin six
months from the date of actual payment is a condition precedent for
rcf\lnd of the toll. Allowing the appeal. this Court,
HELD : The Civil Jbdge and tho High Court exalted, what were
merely matters of procedure which the Municipality \\'as c°:titled to
require compliance \Vith in granting rcfunJ, into conditions precedent for
the exercise of the jurisdiction of the Civil Court. The rules framed by
the Government relating to the procedure to be followed in giving effect
to the exemptions on April 15, 1939, do not purport to bar the jurisdiction
of the Civil Court if the procedure is not followed.
If these procedural
requirements are not fulfilled, the Municipality may decline to refund
the toll and relegate the claimant to a suit. It would then be open to the
party claiming a refund to seek the assistance of the Court, and to prove
by evidence which is in law admissible that the goods transported by him
fell within the order issued under s. 157(3) of the Act. [555 B-FJ.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
725
of 1965.
Appeal by special leave from the judgment and order dated
February 3, 1964 of the Allahabad High Court in F.A.F.O. No.
122 of 1961.
Bishan Narain and Harbans Singh, for the appellant.
Rameshwar Nath, for the respondent.
H
The Judgment of the Court was delivered by
Shah, J. Between August 1, 1953 and March 28, 1955, the
appellant transported 521 truck-loads of "stone-grit" and other
552
SUPREME COURT REPORTS
(1968] 3 S.C.R.
materials from Delhi to Muradnagar in execution of a contract to
A
supply goods for use by the Government of India. The trucks of
the appellant had to pass through the toll barrier of the Municipality of Ghaziabad, and toll at the rate of Rs. 8 per truck was
collected from the appellant. The appellant obtained a certificate
from the Garrison Engineer, M.E.S., Meerut, on June 10, 1955,
that the goods transported by the appellant "were meant for Gov·
B
ernment work and had become the property of the Government".
The appellant then applied on June 14, 1955, to the Municipality
of Ghaziabad for refund of the amount of toll paid pursuant to
the exemption granted by Government Order under s. 157(3) of
the U.P. Municipalities Act, 1916, and the Municipality having
declined to refund the amount, the appellant served the statutory
notice and commenced an action against the Municipality in the
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Court of the Munsif at Ghaziabad on February 11, 1956, for a
decree for Rs. 4,300. The trial court decreed the claim. In
appeal, the Ilnd Civil Judge, Meerut, upheld the claim of the appellant only for the amounts paid after December 13, 1954. The
High Court of Allahabad affirmed the order of the Civil Judge.
The appellant has appealed to this Court.
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The relevant provisions of the Act, the rules and the orders
issued by the Government may first be noticed.
Under s. 128
of th~ U.P. Municipalities Act, 1916, the Municipal Board is, subject to any general rules or special orders of the State Government in that behalf, competent to impose in the whole or part of
a municipality the taxes specified in that sEction and one of the
E
taxes specified is "a toll on vehicles and other conveyances, animals, and laden coolies entering the municipality". Under s. 157
(3) of the Act the State Government may, by order, exempt from
the payment of a tax, or any portion of a tax, imposed under the
Act any person or class of persons or any property or description
of property. Pursuant thereto the Government of U.P. issued an
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order on April 15, 1939, which, insofar as it is material, provides:
" .... the Provincial Government are . . . pleased
to issue an order under section 157(3) of the U.P. Municipalities Aet, 1916, exempting those goods which are
the property of Government or which become so subG
sequent to their entry. within a Municipality, from the
payment of terminal tax or toll.
2. The procedure to be followed in giving effect to
the exemption sanctioned above shall be as follows :-
'When goods are imported by a private person for
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supply to Government in fulfilment of a contract, or
otherwise intended for the use of Government a Written
intimation to that effect shall be given to the officer col-
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K, S. DUOOAL v. MUNICIPAL BOARD (Shah,/,)
553
lecting terminal tax/terminal toll who would immedia·
tely forward it to the Terminal Tax Superintendent.
The tax/ toll on goods shall then be paid but if subsequently they actually become the property of Government, it shall be refunded on a certificate of the offi·
cer authorised to receive the goods on behalf of Government' " •
The State Government is authorized by s. 296 to make rules ~o~
sistent with the Act in respect, amongst others, of matters descnbed in s. 157 "generally for the guidance of a board or any Government officer in any matter connected with the carrying out of
the provisions of this or any other enactment relat~g to munici·
palities". The State Government framed rules relating to assessment and collection of toll in the Ghaziabad Municipality. Rules
1 and 5 are material :
"!. No person shall bring within the limits of the
Ghaziabad Municipality any laden vehicle or other laden
conveyances or laden animal in respect of which a toll
is leviable, until the toll due in respect thereof has been
paid to such persons and at such barriers or such other
places as the board may from time to time appoint.
Explanation.- .
"5. When goods are imported by a private person
for supply to Government in fulfilment of a contract or
otherwise intended for the use of Government, a written
intimation to the effect shall be given to the officer collecting that tax who would immediately forward it to
the Toll Tax Superintendent. The tax on goods shall
then be paid, but if subsequently they actually become
the property of Government, it shall be refunded on a
certificate of the officer authorised to' receive the goods
on behalf of Government.
.
.
.
The application for refund of the tax paid shall be
made within fifteen days of the date of the certificate
referred to above and within six months of the date or
dates of payment of the tax and shall be accompanied
by the original toll receipts.
,Note:-
"
The Civil Judge was of the opinion that toll is immediately payable in all cases, but where goods are for the use of the GovernH
ment. it becomes refundable when the property becomes the prop~rty of the Government, and a certificate is issued by the officer
concerned to that effect. He further held that the application for
refund must be made within fifteen days of the date of the certi-
-554
SUPll.l!MB COVRT llllPOll.TS
[1968) 3 S.C.11..
Jicate and within six months of the date of payment, and an apA
_plication for refund within six months from the date of actual
payment is a condition precedent to the refund of the toll and
even though a certificate by othe prescribed _authority
is issued
beyond six months of actual paymenl.
The High Court a.greed
with that view.
Under the order issued by the Government under s. I 57(3)
-of the Act the amount of roll paid by the appellant became refundable to him. The appellant was therefore entitled to claim against
the Municipality that the amount be repaid. The right to enforce
that claim was a right of a civil nature, and could be enforced ;n
a cfvil suit, unless the suit was barred by the law of limitation or
the right was by reason of some statutory provision extinguished,
,or the jurisdiction of the civil court was barred expressly or by
necessary implication, or that the enforcement of the right de·
pended upon the fulfilment of a condition precedent or upon existence of some fact collateral to the actual matter which the Court
had to try and which was not shown to exist. It was held by the
Civil Judge, and rightly, that the claim was not barred by s. 326
of the U.P. Municipalities Act, 1916, because the suit was not in
respect of any act done or purported to have been done in the
official capacity. There is nothing in the order issued by tl;e State
Government, or any other provision of the law, that on the expiry of any particular period or on the happening of a contingency,
the claim stands extinguished. The jurisdiction of the civil court
to entertain a suit for refund of tax levied under s. 128 of the Act
is also not barred by express enactment or by necessary implication, arising ouu of the provisions of ss. 153(c), 160, 162 and 164
of the Act.
Section 153(c) merely provides for framing of the
rules regulating the system on which refunds shall be allowed and
paid. Section 160 makes provisions for appeals relating to taxation and the authorities to which the right to appeal may be exercised.
Section 162 provides for a reference to the High Court
where a question of liability to, or the principle of assessment of,
a tax arises on which the officer hearing the appeal entertaim reasonable doubt. Section 164 bars the jurisdiction of civil and cri·
minal courts in matters of valuation or assessment or about the
liability of a person to be assessed or taxed. But the dispute in
this case does not relate to valuation or assessment, or liability to
be taxed or assessed. When the goods in respect of which toll was
paid became the property of the Government, the toll paid by
the appellant became refundable and the jurisdiction of the civil
court to entertain a claim for refund of toll arising by virtue of an
order under s. 157(3) was not eXcluded.
It was not contended
either in the trial court, the first appellate Court or even the
High Court that the jurisdiction of hte civil court to entertain a
miit was excluded.
The first appellate Court has in fact granted
refund of a part of the amount paid and the right of the civil
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court to direct refund in appropriate cases has not been challenged in this Court.
But counsel for the respondent contended that the rules framed
by the Government regarding the procedure constituted a condition precedent to the exercise of the right to claim refund and recourse to the civil court being conditionally strict compliance with
the procedure prescribed the civil court was incompetent to decree
the suit unless the condition was fulfilled. We are unable to agree
with that contention. The rules framed by the Government merely set up the procedure to be followed in preferring an ap,l'lication
to the Municipality for obtaining refund of the tax paid.
The
Municipality is under a statutory obligation, once the procedure
followed is fulfilled, to grant refund of the toll. The application
for refund of the toll must be made within fifteen days from the
date of the' issue of the certificate and within six months from the
date of payment of the toll. Jt has to be accompanied by the original receipts. If these procedural requirements are not fullillcd,
the Municipality may decline to refund the toll and relegate the
claimant to a suit. It would then be open to the party claiming
a refund to seek the assistance of the court, and to prove by evidence which is in Jaw admissible that the goods transported by him
fell within the order issued under s. 157(3) of the Act. The rules
framed by the Government relating to the procedure to be followed in giving effect to the exemptions on April 15, 1939, do not
purport to bar the jurisdiction of the civil court if the procedure is not followed. Jn our judgment, the Civil Judge and the
High Court exalted what were merely matters of procedure, which
the Municipality was entitled to require compliance with in granting refund, into conditions precedent to the exercise of juri,diction of the civil court. It is impossible on a bare perusal of the
order issued by the Government and the rules fram~d by it to give
to the order and the rules that effect.
The appeal is therefore allowed and the decree passed by the
High Court is set aside and the decree passed by the trial coun
is restored with costs throughout.
Y.l'.
Appeal allowed.
7Sup. C.T.168