JUDGMENT
Kanhaiya Lal, J.
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 19th July 1920 and 23rd 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
4. Then follows Rule 80. This provides that
on receiving an application under the preceding rule the verifying officer appointed by the Board in this behalf, after satisfying himself that the goods agree with the details in the application shall calculate the refund to be paid, After filling in certain columns on the application he shall sign the certificate at the foot of this portion of the form etc.
5. Then follows Rule 4 for presentation of the application at the octroi barrier through which the goods are to be taken at the moment of export.
6. One ground of appeal by the appellant is that his failure even if proved to comply with the procedure required by Rr. 79 and 80 would not justify the Board in refusing to pay a refund if the grain was proved to have been exported. This indeed was the finding of the first Court. This ground may be at once rejected. It is quite clear that the refund rules beginning with Rule 73 of the Municipal Account Code must be read together. Rule 73 must be read with Rr. 79 and 80. So read the right of an exporter to refund of octroi cannot be regarded as an absolute right. It is a qualified right dependent upon his adopting the procedure prescribed for obtaining a refund. It does not appear necessary to enter into the question whether these rules have the force of law, because if Rr. 79 and 80 have not the force of law it is obvious that Rule 73 on which the plaintiff relies also would not have the force of law. As a matter of fact however it is quite clear under Section 153 and Section 296 of the Municipalities Act (II of 1926) that these rules have as much the force of law as the Municipal Act itself. The main argument on which this appeal has been based is that any want of compliance by the plaintiff with the rules was not one due to the plaintiff’s fault but was occasioned by the improper action of the verifying officer mentioned in Rule 80. The facts are as follows:
7. The present claim is in respect of no less than 28 separate consignments of grain. The plaintiff in such case when applying under Rule 79 for a certificate of refund at the head octroi office asked the verifying officer to proceed to the station in order to satisfy himself that the goods agreed with the details in the application. The verifying officer refused in each case to accede to these requests, On several occasions he replied that he was not required by the rules to inspect goods unless they were produced before him at the head octroi office. Now Rule 80 makes no provision as to the place where the goods are to be inspected. This uncertainly has produced much difference of opinion in the past in Banda. At the time when the events, which are the subject-matter of this case took place, there was in force a resolution dated the 24th November 1916, of the Municipal Board of Banda that Rule 80 meant the goods to be produced for verification at the head octroi office. Relying on this resolution the verifying officer refused to accede to the plaintiff’s request to verify the goods at the railway station. Now we may observe that it was not within the powers of the Banda Municipal Board to amend or alter Rule 80 by any resolution. There solution in question clearly only meant that the officers of the Board were to take a certain view of the meaning of the rules. Rule 80 certainly does not preclude the verifying officer from verifying goods at some place other than the head octroi office if he so elects. It is in fact in evidence that this practice had been common up to the date of the resolution just mentioned and was indeed the reason for that resolution being passed.
8. On the other hand it would clearly be unreasonable to regard it as obligatory on the verifying officer to go to any spot in the Municipality that an applicant for refund might choose for inspection of his goods. In our opinion the proper construction to be placed on Rule 80 is that goods must be ordinarily produced at the head octroi office unless the persons applying for refund can show to the verifying officer a sufficient reason for their being inspected elsewhere. Indeed Rule 80 means that the verifying officer may exercise his discretion but that discretion must be governed by consideration of the particular facts of each case. The decision of the verifying officer in any case can only be challenged on the ground that it was capricious or dictated by a dishonest motive co based on a mistaken view of what was required of him in law. In this appeal we are not prepared to examine in detail circumstances of each of the 28 consignments. The plaintiff’s object in bringing the present suit is clearly to vindicate that in the rainy season the verifying officer is bound in every case to inspect at the railway station if so requested by the exporter. This is a wrong view of law. It is equally true that the verifying officer’s view that in no case could he inspect otherwise than at the head office was equally wrong. But it is for the plaintiff to make out this case. The suit as brought is based on a non-existent alleged cause of action, namely that the absence of a covered shed at the head octroi office makes it incumbent on the verifying officer invariably in the rainy season to inspect at the railway station and not at the head octroi office. To hold that this is correct would be to deprive the verifying officer of a discretion vested in him by the rule as we construe it.
9. We would state that as the railway station yard is beyond the railway octroi barrier, the plaintiff could in no case ask for inspection in the railway yard, unless close by, though he might ask for it at the railway octroi barrier. We should however be prepared to read his applications as requests for inspection at the latter place, if the suit was not open to objection on any other score. For the above reasons we see no reason to interfere with the finding of the lower appellate Court, and we dismiss this appeal with costs.
