# Lakshmi Achi v. T.V.V. Kailasa Thevar

- **Citation:** [1964] 2 S.C.R. 273
- **Court:** Supreme Court of India
- **Decided:** 1963-03-07
- **Case number:** Civil Appeal No. 45 of 1961
- **Bench:** K. SUBBA Ri1.o, Raghubar Dayal, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lakshmi-achi-v-t-v-v-kailasa-thevar-2925
- **Pages:** 14

## Headnote

Terminal Tax-Municipality-Collection of-Remedies by
way of appeal provided in the Act-Expre.s or implied exclusion
of Civil courts-Punjab Municipal Act, 1911 (Pnnj. I TI of 1911),
s.•. 61, 78, 84, 86-Punjab Government Notification No. 26443
dated July, 21, 1932-Items 68, 69 of the Scheditle-Code of
Civil Procedure, 1908 (Act 5 of 1908), s. 90.
The appellant is a firm carrying on business within the
octroi limits of Ludhiana Municipality. On the Sambhar salt
imported by it into the limits of the Municip:ility terminal tax
was imposed and the appellant made payment of the said tax.
Under item 68 of the Schedule to the relevant Govtrnment
Notificatinn the Municipality is entitled to impose a certain rate
of tax on common salt and under item 69 it is entitled to impose
a higher rate of tax in respect of salt of all kinds other than
common salt.
In the present case the higher rate was imposed.
The appellant filed a suit against the respondent in the civil
co11rt, Ludhina, for the refund of the amount paid by him,
1963
Lakshmi Achi
v.
T.V.V. Kailasa
Thevar
Das J.
1963
March 7
1963
Firm R12aha Kishan
(Dt:tas1d) Rtflrestnted hJ• J/11ri KiJM'I
••
Administrator, .\!uni·
.1'pal Cornmitltt,
Lu/Jiiana
274
SUPREME COURT REPORTS [1964] VOL.
The Civil Court held that
Sambhar salt was common salt
~ithin the meaning of item 68, that the imposition of tax on
it by the respondent under item 69 was illegal and that therefore the court had jurisdiction to entertain the suit. On appe;1l
the High Court p1oceeded on the assumption that Sambhar salt
was common salt but held that, even so, the Civil Court had no
jurisdiction to entertain the suit as the Act provi<led a remedy
by way of appeal against the wrong orders of the authorities
thereunder. The present appeal
is by way of certificate
granted by the High Court.
On behalf of the appellant it was contended that the
respondent had no power to impose terminal tax on comm<ln
salt under item 69 of the Schedule and therefore the tax having
been imposed contrary to the provisions of the Act, the Civil
Court has jurisdiction to entertain
the suit.
The contention
on behalf of the respondent was that the respondent has power
to impose terminal tax on comu1on salt under the provisions of
the :\ct, that the imposition of tax under a \vrong entry could
be rectified only in the manner P"5cribed by the Act and that
the CivU Court has no jurisdiction to entertain the suit for the
refuad of the tax collected when a specific remedy is available
under the Act.
Held, that a statute can expressly or by necessary implieatlon bar the jurisdiction of Civil Courts in respect of a particular matter.
The mere confirment of special _jurisdiction on a
tribunal in respect of the said matter does not in itself exclude
the jurisdiction of civil C'..ourts. The stat11te may specifically
provide for vesting the jurisdiction of civil Courts, even if
there was no such specific exclusion, if it creates a liability not
existing before and gives a special and particular remedy for the
aggrieved party, the remedy provided by it must be followed.
The same principle would apply if the statute had provided
for the particular forum in which the same remedy could be
had.
Even in sui:h cases the civil Court's jurisdiction is not
completely ousted. i\ ~uit in a civil Court 'will ahvays lie to
question the order of a tribunal created by a statute, even if
it<s order is, expressly or hy necessary implication, made final,
~
if the said tribunal abuses its power or dors l10: act 'clnder the
1
Act but in violation uf its provision.
ll"olt-erhamton New IJ'aterlDorl:. Co. v. Hdwkujor-1, (1859)
G G. B. (>I. S.) 336, Secretary of State v . .llast & Co., (1940)
L. R. 67 I. A. 222,
Bhai-<hankar Nanabhai v.
Municipal
Corporation of Bom.bay. (1907) I. L. R. 31 Born. 604, Zamituiar
of Etta11apnram v. Sankarappa, (1904) I. L. R. 27 M•d.3~83
East Fremar1tle Corporalion v, Annoia, [1902]
A. C.
"2)
'
-
'J
.......
2 S.C.R.
SUPREME COURT REPORTS
275
Gaekwar Sarkar

## Text

;
2 S.C.R.
SUPREME COURT REPORTS
273
We have, therefore, come to the conclusion that
the view expressed by the High Court is the correct
view and respondent No. 1 is entitled to the benefit
of sub-s. (2) of s. 19 read with cl. (iii) of s. 16 of the
amending Act of 1948, provided he establishes that he
is an agriculturist within the meaning of the principal Act.
The appeal therefore fails and is dismissed
with costs.
A ppe-J l dismissed.
FIRM SETH R ADHA KI.SHAN (DECEASED)
REPRESENTED BY HARI KISHAN
AND OTHERS
v.
THE, ADMINISTRATOR, MUNICIPAL
COMMITTEE, LUDHIANA
(K. SUBBA Ri1.o, RAGHUBAR DAYAL and
J. R. MuDHOLKAR, JJ.)
Terminal Tax-Municipality-Collection of-Remedies by
way of appeal provided in the Act-Expre.s or implied exclusion
of Civil courts-Punjab Municipal Act, 1911 (Pnnj. I TI of 1911),
s.•. 61, 78, 84, 86-Punjab Government Notification No. 26443
dated July, 21, 1932-Items 68, 69 of the Scheditle-Code of
Civil Procedure, 1908 (Act 5 of 1908), s. 90.
The appellant is a firm carrying on business within the
octroi limits of Ludhiana Municipality. On the Sambhar salt
imported by it into the limits of the Municip:ility terminal tax
was imposed and the appellant made payment of the said tax.
Under item 68 of the Schedule to the relevant Govtrnment
Notificatinn the Municipality is entitled to impose a certain rate
of tax on common salt and under item 69 it is entitled to impose
a higher rate of tax in respect of salt of all kinds other than
common salt.
In the present case the higher rate was imposed.
The appellant filed a suit against the respondent in the civil
co11rt, Ludhina, for the refund of the amount paid by him,
1963
Lakshmi Achi
v.
T.V.V. Kailasa
Thevar
Das J.
1963
March 7
1963
Firm R12aha Kishan
(Dt:tas1d) Rtflrestnted hJ• J/11ri KiJM'I
••
Administrator, .\!uni·
.1'pal Cornmitltt,
Lu/Jiiana
274
SUPREME COURT REPORTS [1964] VOL.
The Civil Court held that
Sambhar salt was common salt
~ithin the meaning of item 68, that the imposition of tax on
it by the respondent under item 69 was illegal and that therefore the court had jurisdiction to entertain the suit. On appe;1l
the High Court p1oceeded on the assumption that Sambhar salt
was common salt but held that, even so, the Civil Court had no
jurisdiction to entertain the suit as the Act provi<led a remedy
by way of appeal against the wrong orders of the authorities
thereunder. The present appeal
is by way of certificate
granted by the High Court.
On behalf of the appellant it was contended that the
respondent had no power to impose terminal tax on comm<ln
salt under item 69 of the Schedule and therefore the tax having
been imposed contrary to the provisions of the Act, the Civil
Court has jurisdiction to entertain
the suit.
The contention
on behalf of the respondent was that the respondent has power
to impose terminal tax on comu1on salt under the provisions of
the :\ct, that the imposition of tax under a \vrong entry could
be rectified only in the manner P"5cribed by the Act and that
the CivU Court has no jurisdiction to entertain the suit for the
refuad of the tax collected when a specific remedy is available
under the Act.
Held, that a statute can expressly or by necessary implieatlon bar the jurisdiction of Civil Courts in respect of a particular matter.
The mere confirment of special _jurisdiction on a
tribunal in respect of the said matter does not in itself exclude
the jurisdiction of civil C'..ourts. The stat11te may specifically
provide for vesting the jurisdiction of civil Courts, even if
there was no such specific exclusion, if it creates a liability not
existing before and gives a special and particular remedy for the
aggrieved party, the remedy provided by it must be followed.
The same principle would apply if the statute had provided
for the particular forum in which the same remedy could be
had.
Even in sui:h cases the civil Court's jurisdiction is not
completely ousted. i\ ~uit in a civil Court 'will ahvays lie to
question the order of a tribunal created by a statute, even if
it<s order is, expressly or hy necessary implication, made final,
~
if the said tribunal abuses its power or dors l10: act 'clnder the
1
Act but in violation uf its provision.
ll"olt-erhamton New IJ'aterlDorl:. Co. v. Hdwkujor-1, (1859)
G G. B. (>I. S.) 336, Secretary of State v . .llast & Co., (1940)
L. R. 67 I. A. 222,
Bhai-<hankar Nanabhai v.
Municipal
Corporation of Bom.bay. (1907) I. L. R. 31 Born. 604, Zamituiar
of Etta11apnram v. Sankarappa, (1904) I. L. R. 27 M•d.3~83
East Fremar1tle Corporalion v, Annoia, [1902]
A. C.
"2)
'
-
'J
.......
2 S.C.R.
SUPREME COURT REPORTS
275
Gaekwar Sarkar of Baroda v. Gandhi Kachrabhai, (1903) I.L.R.
27 Born. 344, Municipal Board, Banares v. Krishna & Go.,
(1935) I. L. R. 57 All. 916, Municipal Committee, Montgomery
v. Sant Singh,
A. I. R. 1940 Lah. (F B.)
377 and Administrator, Lahore v. Abdul Majid, A. I. R. 1945 Lah. 81.
In the present case the liability to pay terminal tax is
created by the Act and a remedy is given to a party aggrieved
in the enforcement of the liability. The party aggrieved can
only pursue the remedy provided by the Act and he cannot
file a suit in a civil court in that regard.
Provisions of ss. 84
and 86 oflhe Act exclude the jurisdiction of the Civil Court in
respect of the tax levied or the assessment under the Act. In a
case where the Municipal Committee has undoubted power to
levy tax under
a
particular
entry in
respect
of an
article but it levies tax under a wrong entry not applicable to that article the said
committee
only
commits
a mistake or an error in fixing the rate (of tax payable) in respect of the said article and no question of jurisdiction but only
a question of detail is involved.
Such a mistake can be corrected only in the manner prescribed by the Act.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 45 of 1961.
Appeal from the judgment and decree dated
April 16, 1959, of the Punjab High Court at
Chandigarh in Regular First Appeal No. 30 of 1952.
S. P. Verma, for the appellants.
B. P. Maheshwari, for respondent.
1963. March 7.
The Judgment of the Court
was delivered by
SUBBA R..i.o
J. -This appeal raises
the
question whether a suit would lie in a civil Court
claiming refund of the terminal tax collected by a
municipality under the provisions of the Punjab
Municipal Act, 1911 (Punjab Act III of 1911),
hereinafter called the Act.
The appellant is alleged to be a firm registered
under tlje Indian Partnership Act.
H carries on
1963
Firm Radha Kishan
(Deceased) Repre·
sented by Hari Kishars
v.
Administrator, Municipal Committ1e,
J Ludhiana
SulJba JJ.e" J.
1963
Ftlm Rad~a Kisha11
(Dtc!astd) Rrprt·
11r.lrd t;• lfcri KUhan
••
Admini1t1atvr, Munici/•:rl Commillu,
I.udhiana
Subba Rao J.
276
SUPREKIE COURT REPORTS [1964] VOL.
business within the limits of the Ludhiana I\fonicipality. It imported Sambhar salt into the octroi
limits of the Ludhiana Municipality. The l\fonicipal Committee, Ludhiana, imposed terminal tax on
the said salt and the appellant paid a sum of
Rs. 5,893/7/0
towards
the · said
tax
between
October 24, 194 i and December 8, 1947.
Under the
Punjab Government Notification Xo. 26463, dated
July 21, 1932, terminal tax was payable under
item 68 of the Schedule attached to the said ~otifi
cation at the rate of 3 pies per maund in rrspect of
salt common, and under item 69 at the rate of
As. i!O/-per maund in respect of salt of all kinds other
than common salt. The
Municipal Committee,
Ludhiana, collected terminal tax on the Sambhar
salt at the higher rate under item 6\J of the Schedule
on the ground that it did not fall under item 68 of
the Schedule. The appellant filed a suit against the
respondent in the Civil Court, Ludhiana, claiming
refund of the said amount with interest. The respondent, inter alia, contended that Samliluir salt was not
common salt and the Civil Court had no jurisdiction
to entertain the suit.
The Senior Subordinate
Judge, Ludhiana, held that Sambhar salt was
common salt within the meaning of item 68 of the
Schedule, that the imposition of tax on it by the
respondent under item 6!) of the Schedule was illegal
and that, therefore, the Court had jurisdiction to
entertain the suit. On appeal, the High Court of
Punjab proceeded on the assumption that Sambhar
salt was salt common, but held that, even so, the
Civil Court had no jurisdiction to entertain the suit
as the Act provided for a remedy by way of appeal
against the wrong orders of the authorities thereunder. It further held that, in any view, the suit
was premature as the appellant should have pursued
his remedies under the Act before coming to the Civil
Court. In the result, the decree of the Subordinate
Judge was set aside and the suit was dismissed.
The
2 S.C.R.
SUPREME COURT REPORTS 271
present appeal has been preferred by the appellant
by way of certificate issued by the High Court.
Mr. Varma, learned counsel for the appellant,
contends that the respondent has no power to impose
terminal tax on salt common under item 69 of the
~chedule to the said Notification and therefore the
tax having been imposed contrary to the provisions of
the Act, the Civil Court has jurisdiction to entertain
the suit.
On the other hand, Mr. Maheshwari, learned
counsel for the respondent, argues that the respondent
has power to impose terminal tax on common salt
under the provisions of the Act, that the imposition
of tax under a wrong entry could be rectified only in
the manner prescribed by the Act and that the Civil
Court has no jurisdiction to entertain a suit for the
refund of tax collected when a specific remedy is
available under the Act.
It would be convenient at the outset to notice
the relevant provisions of.the Act.
Under s. 61 (2)
the l\funicipal Committee has power to impose, with
the previous sanction of the State Government, any
~
tax which the State Legislature has power to impose
in the State, subject to any general or special orders
which the State Government may m_<ike m that behalf.
The State Government issued the Notification
No. 26463 dated July 24, 1932 to come into force
from November 1, 1932 empowering the Municipal
Committee to impose terminal tax at the rates shown
in Col. 3 of the Schedule attached thereto upon the
articles mentioned in Col. 2 thereof which are imported into or exported out of the municipal limits by rail
or by road. The relevant items are items 68 and 69.
Item 6S is "salt common" and the rate prescribed is
3 pies per maund; and item 69 is "salt of all kinds
other than common salt" and the rate fixed is
As. /I 0/- per maund. Section 78 provides for a
penalty if any person brings any article liable to the
1963
Firm Rai/11 ri,han
(Dece '""J Repre·
sented by Ho.ri Kishan
v.
Administrator, J.11uni--
cipal Committee,
Ludhiana
Suhba Rao J.
19t3
Firm Red ho K iJ"4rr
( Dee1a;1d) R1frr1·
mst1tl by Hari Ki.Jhan
v.
Administrator, J\1uni·
ciJal Committ11,
LuJhisna
s.1i. Ru 1.
.
278 SUPREMECOURTREPORTS[l964] VOL.
payment of terminal tax into the prescribed limits
without paying the said tax. Section 84 gives a
right of appeal against any levy or refusal to refund
any tax collected under the Act to the Deputy Com·
missioner or such other officer as may be empowered
by the State Government in that behalf; under
sub-s. (2) thereof, if on hearing of an appeal under
the section, any question as to the liability to, or
the principle of assessment of a tax arises, on which
the officer hearing the appeal entertains reasonable
doubt, he may, either of his own motion or on the
application of any person interested, state the case
and refer the same for the opinion of the High Court;
and after the High Court gives its opinion on the
question referred to it, the appellate authority shall
proceed to dispose of the appeal in conformity with
the decisions of the High Court. Under s. 86, the
liability of any person to be taxed cannot be ques·
tioncd in any manner or by any authority other than
that provided in the Act; under sub·s. (2) thereof,
no refund of any tax shall be claimed by any
person otherwise than in accordance with the provisions of the Act and rules thereunder. It will be
seen from the aforesaid provisions that the power to
impose a terminal tax and the liability to pay the
same is conferred or imposed on the municipal com·
mittee and the assessee respectively by the provisions
of the Act. The Act also gives a remedy to an
aggrieved party to challenge the correctness of the
leavy or to seek refund of the same. :\ot only an
appeal has been provided for against the order of
municipal committee levying the tax or refusing to
refund the same, but the appellate authority is
empowered to get an authoritative opinion of the
High Court on any question as to the liability or on
the principle of assessment; and on receiving such
opinion, the said authority is bound to dispose of the
appeal in the light of the said opinion. It is said
that the reference provided to the High Court is in
the discretion of the appellate authority and he can
-
2S.C.k.
stiPRE~ti cotJRT REPORTS
279
with impunity refuse to do so, even if any difficult
question is involved in the appeal.
The question is
not whether a particular officer abuses his power, but
whether a remedy is available under the Act or not.
It cannot be assumed that an officer, though he
entertains reasonable doubt on the question as to
liability or on the principle of assessment, he will
deliberately and maliciously refuse to do his duty :
if he does, other remedies may be available. The
Act also in specific terms debars any authority other
than that prescribed under the Act from deciding
the question of liability of any person to tax or his
right to get refund of a tax paid. In short, the Act
contains a self-contained code conferring a right,
imposing a liability and prescribing a remedy for
an aggrieved party. In such a situation, the question
arises whether a Civil Court can entertain a suit for
a refund of the tax wrongfully collected from an
assessee; and if so, what are the limits of its jurisdiction?
,
We shall now proceed to consider the relevant
principles governing the said question.
Willes, J.,
in Wolverhamton New Waterworks Oo. v. Hawkesford (1), describes as follows the three classes of cases in
which a liability may be established founded upon a
statute :
"One is, where there was a liability existing at
common law, and that liability ls affirmed by
a statute which gives a special and peculiar
form of remedy different from the remedy
which existed at common law : there, unless
the statute contains words which expressly or
by necessary implication exclude the common
law remedy the party suing has his election
to pursue either that or the statutory remedy.
The second class of case is, where the statute
gives the right to sue merely, but provides
no particular from of remedy : there, the party
{I) (1859) 6, C,B. (N,S.) 336, 356.
1963
Firm Radha Kishan
(Deceased) Reprrsented by Hari Ki,h111
v.
Administrator, Atluni·
cipal Commitiee,
Ludhiana
Subba Rao J,
1963
Firm Rat/ha X ishM
(Dtctastd) Rep11s1nud by Hari J(islian
v.
~timUrrstratm-, Alw11i•
rij>al c.m111it1e1,
Ludhiana
Sub6a Rll() J,
28o
SUPREME COuRTREPORTs [1964] VOL.
can only proceed by action at common law.
But there is a third class, viz., where a liability
not existing at common law is created by a
statute which at the same time gives a special
and particular remedy for enforcing it ....... ..
The remedy provided by the statute must be
followed, and it is not competent to the party
tr> pursue the course applicable to cases of the
second class."
It is clear from the said passage that in a case where
the liability is created by a statute, a party aggrieved
must pursue the special remedy provided by it and
he cannot pursue his remedy in a Civil Court.
This principle was approved by the .Judical Committee in
Secretary of State v. Jlas/,; and Co. (').
The High Courts in India also accepted the principle and applied it to
different situations : see
Bhr1ishankar Nanablv.Ji v. The Jfunicipal Corporation
of Bombay ('); 7-rimindtir of Rttayapuram. v. Sankarappa ('). But there is also an equally well settled
principle governing the scope of the Civil Court's
jurisdiction in a case where a statute created a liability and provided a remedy.
Lord Macnaghten in
Bast Fremantle Corporation v. Annois ('),states the
-
'
principles thus :
-
"The law has been settled for last hundred
years. If persons in the position of the appellants, acting in the execution of a public
trust and for the public benefit, do an act
which they are authorised by law to do, and
do it in a proper manner, though the act so
done works a special injury to a particular
individual,
the
individual
injured cannot
maintain an action ...... In a word, the only
question is, 'Has the power been exceeded?'
Abuse is only one form of excess."
In Gaekwar Sarkar of Baroda v. Uandhi Kuchrabltai (')
the defendants by the negligent
construction of
railway made in exercise of their powers under the
(1) (1910) L.R. 67 I.A 222.
t31 (1904) l.L.R. i7 Mad. 483,
(5) (1903) LL.R. 27 .!!om. 3*.
(2) (1907) l.L.R. 31 &m. 60f.
(4J (1902) A.C. 213.
-
2 S.C.R. SUPREME COURT REPORTS
281
Railways Act had caused the plaintiff's land to be
flooded in the rainy season and consequently damaged. The Railways Act provided that a suit shall
not lie to recover compcns;uion for damage caused
by the exercise of the powers thereby conferred, but
that the amount of such compensation shall be determined in accordance with the Land Acquisition Act,
1870. In spite of this bar the plaintiff brought a suit
for damages for injury alleged to have been caused to
his field.
It was argued that though the statutory
authority of the Act of 1890 might have been abused
or exceeded, the remedy of the aggrieved party was
only to proceed under the Land Acquisition Act and
not by a civil suit. Rejecting that plea the Judicial
Committee observed:
"It would be simply a waste of time to deal
seriously with such contentions as these. It has
been determined over and over again that if
a person or a body of persons having statutory
authority for the construction of works ......
exceeds or abuses the powers conferred by the
Legislature, the remedy of a person injured in
consequence is by action or suit, and not by a
proceeding for compensation under the statute
which has been so transgressed."
Indian Courts, in the context of Municipal Acts had
occasion to apply both the principles. In Municipal
Board, Benaras v. Krishna & Co. (1), it was held
that no suit for a refund of an octroi charge, which
has been assessed and levied by a municipality, lies
in a Civil Court on the ground that the goods were
not in fact assessable to octroi duty or that the
amount of assessment was excessive.
There, the
assessment was made h1 accordance with the provisions laid down in the Municipalities Act and the
rules made thereunder. In Municipal Committee,
Montgomery v. Sant Singh ('), a Full Bench of the
Lahore High Court had to consider the question
(I) (1935) I.L.R. 57 All. 916
(2) A.I,R. 1940 Lah. (F,B,J 377, 360,
1963
Firm Radha Kishau
(Deceased) Repr1·
sented by Hori Eisho
v.
Administrator, Mun;
cipal Committee)
Ludhiana
Subba Rao J.
1963
Firm &dha Kirlinn
( Dtttaudl' Ur/>re·
scnttd by f/a1i b:ishari
Y.
Arlmcni!ITator,
.\[~111i
cipal Commilltr,
LudhiuruJ
Subba Roa J.
2s2 SUPREME coUR. T REPORTS [1964j vol.
whether a suit would lie in a Civil Court for an injunction restraining a Municipal Committc from
realizing the tax rlemanded from a prrson on thr
ground that he was not the owner of the lorries
the subject matter of tax, and consequently the
demand made on him wa~ illegal and ultm vires of
the i\fonicipal Committee.
Din '.lfohammad J.,
speaking for the Court, elaborately considered th.:
case law on the subject and expressed his conclusion
in the following words :
"Any special piece of legislation may provide
special remedies arising therefrom and may
debar a subject from having recourse to any
other remedies, but that bar wi!I be confined to
matters covered by the legislation and not to
any extraneous matter.
A corporation is the
creature of a statute and is as much bound to
act according to law as the constituents thereof, namely.
the individuals
mlcd by the
corporation and if the corporation does an
act in disregard of its charter and intends to
burden any individual with the consequences
of its illegal act, an appeal by that individual
to the general law of the land can in no cir-
-
cumstances be denied."
-
This is a case where it may be said that the
Municipal Committee acted not under the Act but
outside the Act in as much as the tax on• vehicles
was payable by the ow11ers only but not by those
who did not own them.
Another Full Bench of the
Lahore High Coart, in Administrator, Lahore v.
Abdul JJ·ajid ('), had to deal with the jurisdiction of
a Civil Court to entertain a suit for an injunction
restraining a municipal committee from interfering
with the construction of the
plaintiff's proposed
building on the ground that its order refusing sanction under s. l!l3 (2) of the Punjab Municipal Act
was an abuse of its power.
Mahajan J., deliverinl!
(I) A. I. R, 1945 Lab. 81.
-
-
'
2 S.C.R.
stJi?REME couR.t REPORtS
283
the judgment on behalf of the Full Bench observed
at p. 84:
"The provisions of s. 225 which make the
decision of the Commissioner final can only
mean this that that decision is final only so far
as the proceedings under the Act are concerned.
But when an order is made which is outside
that Act, then the provisions of s. 225 can have
no application to such an order which itself is
outside the Act ....................................... .
In short the Bench laid down that in two
kinds of cases s. 225 was no bar to the jurisdiction of a civil court in examining the order of
the municipal committee passed under s. 193
( 2), Punjab Municipal Act. The first case i11
where a committee acts ultra vires and the
second case is where it acts arbitrarily or
capriciously. In other words, where it abuses
its statutory powers."
The learned Judge concluded thus, at p. 85 :
"The remedies given to the subject by a statute
are for relief against the exercise of power conferred by a statute but those remedies are not
contemplated for usurpation of power under
cover of the provisions of the statute. The
civil Courts are the proper tribunals in those
kinds of cases and their jurisdiction cannot be
held barred by reason of statutory remedies
provided for grievances arising in exercise of
statutory powers.
To cases of this kind the
rule that where a statute creates a right and
provides at the same time a remedy, that
remedy and no other is available, has no
application.
Further citation is unnecessary.
The law on the
subject may be briefly stated thus :
1963
Firm Radha Kishan
(D1tta11d)
Repre~
sented by Bari KiJhan
v.
AJministratoY, Muni·
cipal Committer,
Ludhiana
Subba R .. J,
1963
--.
Fi,,n RaJJ,a J:iJhon
(l.Jutastd) Ur/Jrt·
JtnttJ by fflHi /liJ/iQ'I
v.
Administrator, Muni·
cipal Commilltt,
Ludhi(llla
5U6ba Rao J.
284 stJPREME COURT REPORTS [1964] vot.
Under s. 9 of the Code of Civil Procedure
the Court shall have jurisdiction to try all suits of
civil nature excepting suits of \..l1ich cognizance is
either expressly or
impliedly barred.
A statute,
therefore, expressly or by necessary implication, can
bar the jurisdiction cif civil Courts in respect of a
particular matter. The mere conferment of special
jurisdiction on a tribunal in respect of the said
matter does not in itself exclude the jurisdiction of
civil Courts.
The statute may specifically provide
for ousting the jurisdiction of civil Courts ; even if
there was no such specific exclusion, if it creates a
liability not existing before and
gives a special
and particular remedy for the aggrieved party, the
remedy provided by it must be followed.
The same
principle would apply if the statute had provided
for the particular forum in which the said remedy
could be had.
Even in such cases, the Civil Court';
jurisdiction is not completely ousted.
A suit in a
civil Court will always lie to question the order of
a tribunal created by a statute, even if its order is,
expressly or by necessary implication, made final, if
the said tribunal abuses its power or docs not act
under the Act but in violation of its provisions.
Let us now apply the said principles to the
facts of the present case.
The liability to pay
terminal tax is created by the Act and remedy is
given to a party aggrieved in the enforccm~nt of
that
liability.
As
has
been
already indicated,
against the order of the municipal commirtee levying
terminal tax an appeal lies to the Deputy Commis.
sioner and a reference to the High Court. Applying one of the principles
stated supra, the party
aggrieved can only pursue the remedy provided by
the Act and he cannnot file a suit in a civil Court
in that regard. Provisions of ss. 84 and 86 of the
Act exclude the jurisdiction of the civil Court in
respect of the tax levied or the assessment made
under the Act.
-
•.
2 S.C.R.
SUPREME COURT REPORTS 285
But the learned counsel for the Appellants
contends that the impugned levy was not made under
the Act but in derogation of the provisions thereof.
There is no force in this contention.
Section 61 (2)
of the Act specifically empowers
the Municipal
Committee
to
levy any tax other
than those
specified therein with the previous sanction of the
State Government. The levy of terminal tax was
sanctioned by the Punjab Government by Notifica·
tion No. 26463 dated July 21, 1932, at the rates
shown in column 3 of the Schedule to the said Notification.
Under the said Notification, read with
s. 61 of the Act, the Municipal Committee is empo·
wered to levy terminal tax on salt whether it is
common salt or not. The Committee has, therefore,
ample power under the Act and the Notification
issued
by the State Government to impose the
said tax.
The only dispute was as regards the rate
of tax payable in respect of the salt brought by the
appellant into the limits of the Municipal Committee.
The rate depended upon the character of the salt.
The ascertainment of the said fact is a necessary
step for fixing the rate and it is not possible to say
that in ascertaining the said fact the authorities
concerned travelled outside the provisions of the
Act. The
learned
counsel
contends tkat if a
municipal committee levies terminal tax on an article
not liable to tax under the Act, a suit would lie
and, therefore, the same legal position should apply
even to a case where the municipal committee levie.~
the tax in respect of an article under an entry not
applicable to it. We do not see any analogy between
these two illustrations : in the former, the municipal
committee does not act under the Act, but in the
latter it only commits
a mistake or an error in
fixing the rate of tax payable in respect of a particular commodity ; one is outside the Act and the
other is under the Act ; one raises the question of
jurisdiction and the other raises an objection to a
matter of detail. We, therefore, hold that in the
1963
Firm Radha Kishan
(Dec1ased) Repre·
stnted by Hari /\ ishan
v.
Administrator, Muni·
cipa/. Committee
Ludhiana
Si.·hba Rao J,
196J
Firm Radha !\isl.an
(Dttta.std1 RtPrt·
stnttd by li~ri KisMn
v.
Admitiistralot, Munitipal Commilttt,
I.udhi1na
Subba Ran J.
1963
March 8
286 SUPREME COURT REPORTS [1964] VOL.
present case the mistake, if any, committed in
imposing the terminal tax can only be corrected in
the manner rrcscribed by the Act.
The appellants
have misconceived their remedy in filing the suit in
the civil Court.
The conclusion arrived at by the
High Court is correct.
In the result, thr appeal fails and is dismissed
with costs.
Appeal dismissed.
M/s. DALURAM PANNALAL MODI
v.
THE ASSISTANT COMMISSIONER OF
SALES TAX ETC.
(A. K. SARKAR, K. N. WANcnoo and
K. c. DAS G"CPTA JJ.)
SaU.. Tax-Escaptd As81W3ment-Re-assessmnt-Power8
and duties-Deltgation o/-Madh!fa Prade.h General Saks 1'ax
Act, 1!158 (M. P. 2 of /9.50), "· 19, 30.
Section 19 of the M, P. General Sales Tax Act, 1958
empowers the Commissioner, if he is
satisfied that any sale
or purchase of goods has em•ped assessment, to re.assess the
tax payable and to levy a penalty. Section 30 empowers the
Commissioner to "delegate any of hi! powers and duties
under this Act.'' The Commis,ioncr delegated to AS!istant
Commissioners his "powers and duties" to make an assessment
or reassessment of tax or penaJty and to exercise all other
powers under ss. 18, 19 and 20,
The A'5istant Commissioner
gave a notice to the appellant that he was sati<fied that sales
from
1.4.1957
to
31.3.1958 had escaped assessment and
assessed him to an additional tax and penalty. The appellant
contented that the Commissioner
had delegated only his
power under '· 19 and not the duties and accordingly the
Assistant
Commiosioner could validly re-assess the a1.pellan1