JUDGMENT
P.P.Naolekar, J.
1. The brief facts of the case are that the plaintiff-appellant filed a suit for recovery of Rs. 25,394.27 + interest thereon of Rs. 6602.51 total Rs. 31,996.78 on the allegations that the plaintiff-appellant is a Company registered under the Companies Act and . has its registered office at Calcutta. The plaintiff has a factory at Kankroli. The plaintiff Company carries on business of manufacture of tyres and tubes and import coal for the said purposes. The Municipal Board of Rajsamand realised import duty by way of octroi, tax on the imported coal. Previously tax leviable on the coal was Rs. 5/-per metric tonne, later on the State Govt. by notification dated 30-3-1976 had reduced the octroi duty on the coal w.e.f. 6-5-1976 @ Rs. 1.80 per metric tonne, but somehow in spite of the notification issued by the State Govt. reducing the octroi duty on coal, the Company has paid the octroi duty at the old rate of Rs. 5/-per metric tonne on coal imported for the period Nov., 1976 to Oct., 1977 and the same was also recovered by the defendant-respon- dent Municipal Board. On detection of the mistake, the Company informed the Board about the irregularities committed in deposit and recovery of the octroi duty at the old rate and thereafter of the octroi duty was depo-sited and recovered @ Rs. 1.80 per metric tonne from Nov. 1977. The Company had written to the Municipal Board requesting refund of the amount wrongly paid and recovered by the Municipal Board for the
period Nov., 1976 to Oct., 1977. A letter was sent to the Municipal Board dated 7-12-1978, which was received by the Municipal Board on the same day giving the details of the octroi duty of Rs. 25,394.27 paid and recovered in excess by the Municipal Board. On 8-8-1978, a letter was written by the Executive Officer of the Municipal Board, Rajsamand, addressed to the Regional Assistant Director, Local Bodies, Rajasthan ‘Udaipur, copy to the Company that in fact an excess of Rupees 25,394.27 was recovered from the Company as octroi duty and on sanction being given by the Regional Assistant Director, Local Bodies Rajasthan, Udaipur, the amount shall be refunded back to the Company. The Municipal Board has not refunded the amount paid and recovered in excess, the plaintiff gave notice under Section 271 of the Rajasthan Municipalities Act, 1959 (for short ‘the Act’ hereinafter) on 8-3-1978 and thereafter a suit was filed on 18-1-1980.
2. The Municipal Board filed its written statement admitting all the allegations made in the plaint, only contending that as the previous rate of octroi on coal was Rs. 5/-per metric tonne, the octroi was rightly recovered at the same rate, which cannot be said to be without any authority. Further in para No. 11, it is stated that the plaintiff and the defendant are residing within the jurisdiction of the Court but the civil court has no jurisdiction to adjudicate the dispute raised in the plaint.
3. The trial court dismissed the suit on two counts: (i) that the civil court has no jurisdiction to try the suit in view of Section 139 of the Rajasthan Municipalities Act, 1959; and (ii) the suit is barred by limitation under Section 271(2) of the Rajasthan Municipalities Act, 1959.
4. From the written statement, it is apparent that the Municipal Board has admitted the fact that it had no jurisdiction to recover the octroi duty @ Rs. 5/- per metric tonne from 6-5-1976 and it has recovered the octroi duty on coal illegally from the Company @ Rs. 5/- per metric tonne for the period November, 1976 to October, 1977 i.e. Rs. 25,394.27. It is also admitted that on 8-8-
1978 a letter was sent by the Executive Officer of the Municipal Board admitting extraction of octroi duty of Rs. 25,394.27.
5. Normally under Section 9 of Civil Procedure Code, the civil court has jurisdiction to try all suits of civil nature unless barred by specific provision of law or by implication. One of the basic principles of law is that every right has a remedy Every civil wrong is cognizable by civil Court unless it is barred. There is an inherent tight in every person to bring a suit of a civil nature in civil court and unless the suit is barred by statute one may, at one’s peril, bring a suit in the Court of one’s choice The words used in Section 9 are very explicit that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The explanation to this section says that a suit in which the right to property or to an office is in contest, it will be it suit of civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Thus, it is for the defendant to show how the suit of civil nature is not triable by the civil Court. A suit for refund of the amount paid by mistake and recovered illegally is a suit of civil nature and, therefore, it would be for the defendant to demonstrate, as to how the suit is not maintainable in a civil Court.
6. The trial Court has relied upon Section 139 of the Act for ousting the jurisdiction of the civil Court. Section 139 reads as under:-
“139. Appeals relating to taxation. -In the case of a tax assessed upon the annual letting value of buildings or lands or both an appeal against an order passed under Sub-section (4) of Section 117 or under Sub-section (2) of Section 118, and, in the case of any other tax, an appeal against an assessment, or any alteration of an assessment, and, in all cases in which no appeal has been made as aforesaid an appeal against a notice of demand under Section 149, may be made to the Collector or such other officer as may be empowered by the State Government in this behalf.”
Section 139 provides an appeal to the
Collector or such other officer as may be empowered by the State Govt. in that behalf, in case of a tax assessed upon the annual letting value of buildings or lands or both against the order passed under Sub-section (4) of Section 117 or under Sub-section (2) of Section 118 of the Act and in case of any other tax, the appeal lies against the assessment of tax or any alteration of an assessment. In case where no appeal is filed as provided in the first part appeal shall lie even against the notice of demand under Section 149 on plain reading of this section for the purposes of other tax unless there is an assessment or alteration of an assessment or a notice of demand under Section 149, an appeal is not provided under Section 139 of the Act. It is not the case of the Municipal Board that the amount recovered @ Rs. 5/- per metric tonne was as per the assessment made or that there was a demand under Section 149 for octroi duty by the Municipal Board from the plaintiff. The word “assessment” has a definite connotation and a meaning i.e. a computation of income, the determination of the amount of tax payable by applying the procedure provided under the Act. The Municipal Board has nowhere said in its written statement that there was a determination of the amount of octroi tax payable by the Company. In the absence of any specific pleading or evidence brought before the Court, there is nothing on record that the octroi duty was assessed and recovered as per the assessment made against the Company. In the absence of assessment, no appeal is provided under Section 139 of the Act. As there is nothing on record to show that there was an assessment of tax against the Company or that there was a notice of demand made under Section 149 for payment of octroi duty, remedy is not provided under Section 149 of the Act to oust the jurisdiction of the civil court as barred by necessary implication. The trial court has committed an error of law in holding that the civil court has no jurisdiction to try the suit of the nature filed by the plaintiff-appellant.
7. I now come to the question of limi-tation. Section 271 of the Act lays down that no suit shall be instituted against a board or
against the chairman, vice-chairman, member, officer or servant of board or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice thereof in writing has been given. Sub-section (2) of Section 271 provides that no action as described in Sub-section (1) shall be commenced otherwise than within six months next after the accrual of the cause of action. The exception to this is that if it is an action in respect of recovery of immovable property or for a declaration of title, the limitation provided in the section of six months shall not apply. On plain and simple reading of Sub-sections (1) and (2) of Section 271, the suit has to be filed within six months of accrual of cause of action against Municipal Board, chairman, vice-chairman, member, officer or servant of the board or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity. Thus, the limitation of six months shall only apply if the act or action complained of is done or purported to have been done by the Municipal Board or its officer in his official capacity, that is to say within the permissible limits in which the officer or Municipal Board is clothed with the powers to act under the provisions of the Municipality Act or the Rules framed thereunder or under any notification, bye-laws, instructions issued thereunder.
8. Chapter VII of the Act is in regard to imposition of taxes. Section 104 therein provides that every board shall levy, at such rate and from such date as the State Govt. may in each case direct by notification in the official Gazette and in such manner as is laid down in this Act and as may be provided in the rules made by the State Govt. in this behalf, the following taxes;-
“(1)……………………………………
(2) An octroi on goods and animals brought within the limits of the municipality for consumption or use or sale therein.
Explanation 1. – For the purpose of this sub-section meaning of the word ‘Consumption’ shall, with reference to goods and animals brought within the limits of the municipality, include the goods brought inside the area by any person to be delivered to another for using them up whether or not that other person is the ultimate consumer of the goods or animals so delivered in that area.
Explanation II. – For the purpose of this sub-section meaning of the word ‘Use’ shall, with reference to goods and animals brought within the limits of the municipality include the goods brought inside the area for use of any other person whether or not that other person ultimately consumes or uses up the goods or animals.
Explanation III. – For the purpose of this sub-section ‘Sale’ of goods or animals shall be deemed to have taken place within the muni-ciapl limits if these were brought by the seller within the municipal limits and a contract of sale as contemplated by Section 5 of the Sale of Goods Act, 1930 has taken place between the buyer and seller within the municipal limits whether or not the delivery or payment was deferred at the time of entering into the contract. Deferment of such delivery or payment or both shall be deemed to be an act of postponement of the delivery or payment or both as contemplated by the said Section 5 of the said Act of 1930; and
(3)………….,………………………………
Thus, the levy of octroi duty at the rate thereof shall be according to the directions of the State Govt. as notified in the official Gazette.
It is the admitted case of the parties that the octroi duty on the coal imported from 6-5-1976 was the rate fixed under notification issued by the State at Rs, 1.80 per metric tonne only. The Act does not provide for charging or recovery of octroi duty in excess of Rs. 1.80 per metric tonne. The Municipal Board has admitted the recovery of octroi duty at the old rate of Rs. 5/- per metric tonne, which is clearly beyond the permissible limit prescribed under the notification issued under Section 104 of the Act. The recovery thus made was illegal, having not made in
exercise of the powers vested under the Act.
Recovery of octroi duty @ Rs.5/-per metric tonne on the coal imported by the Company for the period Nov. 1976 to Oct. 1977, was illegal and a suit for refund of that amount would not be governed by the limitation prescribed under Section 271(2) of the Act of six months from accrual of cause of action. The act of Municipal Board or its officials not authorised under the Act or the Rules, bye-laws framed thereunder, cannot be said to be an act done or purported to have been done in the official capacity. The illegal recovery of the octroi tax could not be said to be a thing done or purported to have been done under the official capacity.
9. The counsel for the respondent has strongly relied on a decision of the Supreme Court reported in Bata Shoe Co. Ltd. v. Jabalpur Corporation, AIR 1977 SC 955 and has submitted that the suit had fallen within the ambit of Sub-section (2) of Section 271 of the Act and the suit having not been filed within six months, the suit was rightly held to be time barred. A decision turns on its own facts as may be noted from para 20 of the judgment wherein the apex Court says that these provisions show in the first place that the defendants indubitably possess the right and the power to assess and recover octroi duty and double duty on goods which are brought within the municipal limits for sale, consumption or use therein. The circumstance that the defendants might have acted in excess of or irregularly in the exercise of that power cannot support the conclusion that the assessment or recovery of the tax is without jurisdiction. Thus, in that case, powers were vested In the Municipal Board to so recover the octroi duty and double duty on goods which are brought within the municipal limits. Therefore, in that case the jurisdiction of the civil court was held to be ousted under the Act. If there is a power, the wrong exercise of power cannot be said to be without authority but when the authority exercised is without a vestige or semblance of the authority under the Act it cannot be said that the authority has been exercised under the Act. Thus, the Supreme Court decision is distinguishable on its own facts. Therefore, I am of the view that the suit as it was filed was within limitation. The limitation prescribed under Section 271(2) of the Act shall not apply and suit shall be governed by the general law of limitation. There was an acknowledgment of the liability by letter dated 8-8-1978, the civil suit filed on 18-1-1980 was within limitation. The trial court has erred in non-suiting the plaintiff-appellant on the ground of limitation.
10. When the Municipal Board in all fairness has admitted the excess recovery of the octroi duty, it should have refunded he excess amount recovered immediately on coming to know about it on the receipt of the letter from the Company on the principle of good governance but instead of acting fairly the defendant-respondent has taken shelter under technicalities and rigmarole. The excess payment made by the plaintiff, in fact was in trust of the Municipal Board and was liable to be refunded immediately. The Board is expected to act fairly and not to take undue advantage of the mistake committed by the parties in depositing the amount which they were not liable to deposit.
11. For the reasons stated hereinabove, the appeal is allowed. The judgment and decree of the trial court is set aside. The respondent shall pay to the plaintiff the amount of Rs. 31,996.78. The defendant shall also pay interest @ 6% p.a. on the aforesaid amount from the date of the suit till the disposal of this appeal and further interest at the rate of 12% p.a. from the date of the judgment till realisation on the amount for which the suit was filed. The appeal is allowed with cost. Counsel’s fee Rs. 500/-, if certified