{"id":181876,"date":"1966-12-16T00:00:00","date_gmt":"1966-12-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-sholapur-municipal-vs-malkarjun-kalyanappa-vajirkar-on-16-december-1966"},"modified":"2016-06-13T17:57:08","modified_gmt":"2016-06-13T12:27:08","slug":"the-sholapur-municipal-vs-malkarjun-kalyanappa-vajirkar-on-16-december-1966","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-sholapur-municipal-vs-malkarjun-kalyanappa-vajirkar-on-16-december-1966","title":{"rendered":"The Sholapur Municipal … vs Malkarjun Kalyanappa Vajirkar on 16 December, 1966"},"content":{"rendered":"
Bombay High Court<\/div>\n
The Sholapur Municipal … vs Malkarjun Kalyanappa Vajirkar on 16 December, 1966<\/div>\n
Equivalent citations: AIR 1967 Bom 424, (1967) 69 BOMLR 454<\/div>\n
Bench: Patel<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 (1) This  is  an  appeal  by  the   Sholapur   Municipal   Corporation   against  a  decree of  injunction   granted  by   the Courts  below in  favour  of   the plaintiff. <\/p>\n
  (2)  The  plaintiff  filed  the  suit   under  the  following circumstances:  The   plaintiff-respondent  is  a shop  at  Sholapur  dealing  in   coconut  and   safety  matches.  As  such   dealer,  it  used  to import  both  these  articles   and  at   the time  of  import  paid  octroi  duty   for the  same  and   got  import  octroi   bills on  such   payment, that  from  time  to time   it  exported  the  very   articles  that  it    had imported  outside  municipal  limits  of  Sholapur  Municipal  Corporation, and that   after  making   such  export,   it  applied  for refund of     the  octrois  paid  by  it. Its  allegation  is  that it  attached  the  receipted import   bill   and   an  export   certificate   relating  to  the  goods   signed   by  the Naka  Karkun  along with   its  application  for  refund. The  Commissioner,  however, insisted  on the plaintiff’s  furnishing   further   particulars  as  per  a   general  circular  Ex.   615,   issued by  the  Municipal  Corporation  on  August   24,   1954.  By   this  circular,  readers  were  required  to  furnish   some  other  extra    material  along with their   application  for  refund.  When the   plaintiff  was  called upon to  furnish  this extra   material  in  proof  of  its  claim  he protested  by  serving    a  notice  and    informing   the Municipal  Corporation  that  under   the  existing  rules,  it  had not  right  to  call for  additional  evidence  in  support of   its  application.  As  the   corporation did not  agree   with  its  contention  and  required  the plaintiff   to  produce  that    material,  the plaintiff   ultimately   filed   the present  suit.\n<\/p>\n
  (3)  The plaintiff  claims  in   the plaint   that  the   circular  published   by  the Municipal  Corporation, and which  is  at Ex.  615,  is  illegal  and  unwarranted  under  the  existing   rules  and  it  further   asked   for  an  injunction  against   it   restraining  it  from   insisting  upon  furnishing  the  sales    and   the   purchase   bills  along  with   the   refund    application.  It  also   claimed   refund  of   Rs. 3,460-9-0 for  which  it   had  submitted  a    refund    application  as  required  by the  rules.  The  suit  was resisted   by  the  Municipal  Corporation. According   to it,  under   rule  11(C)  of  the  Sholapur   City  Municipality  Octroi  Rules,   1958  the Chief  Officer   before    making   an   order   for  refund  was required  to  be  satisfied  that  the  claim   was  just    and  proper,  and  it  was   within   his poswers  to  require  the  additional  evidence  in support  of  the refund application.  It, is   therefore,  contended  that  the   circular,   Ex. 615,  issued  by  it   was in compliance  with  the    existing  rules  and  was not illegal  and\/or  unwarranted.  It  also  contended  that   the notice  under   Section  206A  of the  Bombay  Municipal  Boroughs Act.   1925,  was  illegal   and  that  the suit was,  therefore,   untenable.  The  trial  Court held   that  the circular  was illegal.  But  ordered  refund  regarding   the  claim  which fell within  six  months   of  the filing   of  the  suit.  The Corporation  filed    an  appeal  in   the District  Court   and  the plaintiff,  in  so  far  as  the decree was against  him,  filed   cross-objections,  the   learned  Assistant Judge,  who  heard  the  appeal,  dismissed  the  appeal  of  the  defendant  Corporation  and  allowed   the  cross-objections.  The    appellate  court  granted  a  perpetual  injunction  to  the plaintiff   and also  ordered  the  refund   of  the  entire  amount  which  it  had paid    as octroi.  The  defendant  Corporation   appeals   to  this  Court.\n<\/p>\n
  (4)  In order  to  consider  whether  the circular  issued   by  the Chief  Officer  falls  within   his  powers  or not,   one  has  to consider  the  scheme   of the octroi     rules   framed  by  the  Corporation. Though  the defendant-appellant  is  not  a  Corporation  under   the  Provincial  Municipal  Corporation  Act,  it  is  still  governed,  so far    as the  present   tax is  concerned,   by  the   rules  framed    under   the  Bombay  Municipal  Boroughs  Act.   1925.  Section  58   of  that  Act   requires  the  Municipal  Authority   to make   rules not   inconsistent   with  the  Act, and   among other  things,  clause  (j)  requires   prescribing    the taxes  to  be levied   in the  Municipal  Borough   for  municipal    purposes,  circumstances   in  which     exemption   will  be   allowed,  the  conditions   under which  and    the extent   to which   remissions  will   be  allowed   and  paid,  in respect  of such   taxes . . . . . . .There  is    a  proviso   to  the     section,  and  it  is   that,   “no rule  or  alteration  or  rescission of  a  rule  made  under  this  section    shall have  effect   unless   and  until  it   has  been  approved   by  the State Government.”  It  is    under  this   provision   that the  Sholapur   City  Municipality   Octroi  Rules.  1958,  have   been   framed.\n<\/p>\n
  (5) Rule  3  of  these   Rules  defines  the  Octroi  limits   of  the  Municipality  and provides  for  import   and export   Nakas   for  the  same.  Rule  4  provides  that  a tax on  all  goods   as provided  by    Schedule  A  shall,  on import  thereto,  be  payable  to  the   Municipality  at  the rates  specified   in Schedule (2).  It  also   makes  certain exemptions  in the   imposition  of  tax,   Rule  4(c)   provides  that  except   in those   cases where   a  current account   is    maintained the   tax shall  be   payable   to  the  Import  Naka  Karkun  at the  time of  the  import  of  the  goods,  and  Rule   5 provides  for maintaining   of  accounts  in respect of  this   tax  regarding  large  business houses  by   arrangement .  Rule   6  provides   for  arrangements  to  be  made  by  the Chief  Officer   Rule  7  provides for  preparation   and  issue  of  an import   bill which  has  to   contain several  particulars  prescribed   in  the  rule   and  also  dues  in  respect  of  the  collection of  the tax .  Rule 8   provides  for refunds.  The  main  part of  the rule  provides  that  except  in  the case  of   grain  which cannot  be  recognised  if  the   bulk   is  broken,  refund   of  octroi   shall  be   made  subject   to  the  conditions   of  the  rules   even  if  the  bulk  has  been  broken  or  the  goods  have   changed   hands.  Rule 8(1)  provides  for  refund   on  goods   vesting  in  public   authority   and  rule  8(2)  provides   for refunds  on exported  goods.  Rule  8(2)   reads  as  follows:-\n<\/p>\n
  “Rule   No   8(2)   Except   as aforesaid  no refund   shall   be  made  in respect   of   goods,  unless- <\/p>\n
\n\n   \n\n  (a)  the  goods   have  been  exported   within  three months   next after  the  date  of  import   and   \n\n \n\n  (b)  a  claim   has not   later  than  seven  days  next  after the   export   thereof   been made  for  such refund  in  the  prescribed   manner  to  the  prescribed   officer    or  authority,   and   \n\n \n\n  (c)  the  claimant   has  if   so   required  by such   officer   or  authority   produced:-  \n\n   \n\n  1. a  receipted   import  bill. \n\n \n\n  2.  and    an   export   certificate relating to  such  goods  \n \n \n\n  (d)  when  the  ownership of  the   goods  to  be  exported  is  to  be   changed   the   receipted  import  bill  must   bear     an  endorsement  from  the  first owner  under  the  signature  indicating  the fact of  his   having  relinquished  the ownership   in  respect  of   goods   mentioned in   the  import   bill. \n\n \n\n  (e)  no  refunds  shall  be   granted   when  it  is  found  that  the  goods  do  not   correspond  with  those  mentioned   in  the  import  bill.\"   \n\n \n\n<\/pre>\n
 It  is   not  necessary  to  refer  to  Rule  9  which  concerns   itself  for   goods in transit.  Rule   10  provides  for  export   certificate  to   be granted   on demand   for  exported  goods  not   in  transit  and Rule  11   relates  to  the  procedure  for   refunding   of  octroi  on an  application.  These  rules  are as   follows;-\n<\/p>\n
  “Rule   No.  10(1)  <\/p>\n
  Export   certificate  to  be  granted  on   demand   for exported goods  not in   transit.\n<\/p>\n
  Every   Export  Naka  Karkun   whenever  goods   are brought   to  his   naka   which  are not    declared  to  be  goods  in  transit  or  as  to   which  he is   unable  to  satisfy  himself  as  required  by  rule  9(1)  of   these  Rules  and  by-laws, shall  if  the  person in   charge   of  the   goods  so requires     furnish   to such  person  an   export  certificate by  ascertaining   and   noting  in  the  export  certificate  book  in  the  consecutive    order  of  the  pages  both   on the  foil   and   counter-foil.\n<\/p>\n
  (A)  The  description  of  the     goods  according   to  Schedule  A  hereto   annexed. \n\n \n\n  (B)  The  weight   or  quantity  of    the   goods. \n\n \n\n  (C) The  name  of  the  person  exporting  the   goods. \n\n \n\n  (D)  The  time    and date  of  the export  and  after   signing   the  foil   shall  detach  it  and  deliver  it to  the person  exporting    the  goods  and  shall  retain  the  counterfoil   undetached  in  his  export   certificate book.  \n\n \n\n  (2)  Before  issuing    the  export  certificate   the export  naka   karkun  shall, \n\n \n\n  (A)  Require  the production   of  the   receipted  import  bill  relating   to  the  same   \n\n  \n\n (B)   Examine   such   receipted   import  bill   if  produced  and  shall  satisfy   himself.  \n\n \n\n  1.  That   the  import  bill is in   due  form  and  is  signed  by  an   Import  Naka  Karkun   \n\n \n\n  2.  That  the  goods  so  brought   for  export    are identical  with  or  included   in   the  goods   specified   in the   import   bill. \n\n \n\n  3.  That  the  goods   have been   brought   for  export  within  three months  from  their   import. \n\n \n\n  Rules  11(1):- \n\n   \n\n  Refund   by  the Chief  Officer  to  person   producing   export   certificate  \n\n \n\n  Refunds shall  be  made    by  the Chief  Officer  without  reference  to  other  authority  subject  to  the   following  conditions:- \n\n   \n\n  (A)  That  an  application  in  writing   is made to  the  Chief   Officer   or  the Standing   Committee within  7  days    from  the date  of  the  export   of  the  goods in respect  of  which  the  refund  is  claimed. \n\n \n\n  (B) That  the  claimant  produces  with  the  application   \n\n \n\n  1.  That  receipted   import   bill. \n\n \n\n  2.  An  export    certificate   relating   to such   goods. \n \n \n\n  (C) That  the  Chief   Officer   satisfies  himself  that  the  claim    is  just   and  proper. \n\n \n\n  (D)   That   the export of  such   goods  have  taken  place within  three months   next   after   the   date of    their  import.  \n\n \n\n  (2)   At   the end  of  each  month  the Chief   Officer   shall  report   to  the Managing  Committee  every   case  of  refund   made by   him  during   that   month. \n\n \n\n  Rule  No.  12:-  All  claims  under  No. 8(1)  of  these    rules  and  bye-laws   shall be  at once  allowed  on the  genuineness of  the certificate   therein referred to  having  been  ascertained.  The   gravamen  of  the   reasoning  of  the Court below   is  that  inasmuch  as Rule  8(2)   does  not   refer  to   any  additional   evidence  for  the purpose  of  the  satisfaction  of   the Chief   Officer   being  required  to  be   furnished by  the  applicant  and  as Rule  10  requires  the  Naka  Karkun  to take  elaborate   care in  the  issue  of   certificate,  the  issue  of   the certificate   itself  is  satisfactory   proof   of  the  identity  of   the goods  in the import  bill  and export    certificate.  The  learned   appellate   Judge in  para  12  says:- \n\n   \n\n<\/pre>\n
 “From this it seems that the satisfaction of the Chief Officer is a double satisfaction which means that the Chief Officer wants to satisfy that export naka clerk white giving the export certificate has acted correctly and properly and even honestly.  This the Chief Officer can achieve only through his inspecting or checking staff  personally going to both import and export naka clerks and verifying their registers and vouchers or counterfoils or by surprise cheks or inspections of the actual issuing of exports certificates.”  I fail to understand how such checks can yeild any results after the goods have been removed by the importer.  It is also difficult to see from what provision in the Act and the rules this inference could be drawn.  The learned Judge again because of the provisions of Rules 8(2)(c),  8(2)(d).  11(1)(A)  and 11(1)(B), says:-\n<\/p>\n
  “The sme provision is repeated in Rule 11(1)(A) and (B) the complaince of which by the claimant obliges the prescribed officer or authority namely, the Cheif Officer, to grant refund without reference to other authority.  I have already observed in the preceding paragraph that the issue of export certificate by the export naka clerk, is a sufficient proof of the identity of the goods imported and exported.  This legal position thus makes it clear that no additional burden of manner of proof can be placed upon the claimantof refund to prove the identity of the goods imported and exported than the one prescribed above under existing rules.”  The question is whether the rules takes as a whole are capable of being so construed.\n<\/p>\n
  (6)  I have already reproduced the wordings of Rule 8(2) which relates to refund on exported goods.  It is cast in a negative form and prevents refunds unless, (1) the goods have been exported within three months next  after the date of the import.  (2)  a claim has been made within 7 days of such export in respect of the same to the prescribed officer.  and  (3)  the claimant furnishes before  the authoruty if so required a receipted import bill and export certificate relating to the goods.  and if the have changed hands.  The import bill bears an endorsement from the first owner under his signature indicating the fact of his relinquishment of the ownwership.  While constructing Rule 8, one cannot forget that this rule is intended to lay down priciples for refund.  It does not lay down the procedure for proving whether the consitions of refunds are satisfied.  In view of the fact that the rule is not worded in affirmative that refund shall be made on production of the two things.  (1)  receipted import bill, and (2) theexport certificate, it cannot be construed as has been done by the Courts below.  Such paraphrasing is not permissable.\n<\/p>\n
  (7)  Coming to Rule 10(1). It is indeed true that the naka Karkun has to be satisfied in respect of several items mentioned in Rule 10.  He has to ascertain and note in the export certificate book in the order of pages both on the foil and counterfoil the description of the goods.  The weight or quantity of the goods, the name of the person exporting the goods, the time and date of the export, and then deliver it to the exporting party.  He is further required to examine the receipted import bill relating to the same and satisfy himself that the import bill is in the due form and is signed by an Import Naka Karlun, that the goods are identical and are included in the goods specified in the import bill, and that the goods have been brought for export within three months from their import.  This Rule also does not state that merely because an export certificate has been given by the Export Naka Karkun, the party claiming refund shall be entitled to the refund of the amount due.  Moreover, it is followed by Rule 12, which I will consider later.  The refunding authority is entirely a different authority and the procedure for the actual refund is prescribd by Rule 11.\n<\/p>\n
  (8)  Rule 11, in the first instance,  lays down a condition that the application must be made within 7 days.  The second condition is that along with the application, the applicant must produce the receipted imported bill relating  to the goods.  The third condition is that the Chief Officer is satisfied that the claim is just proper and that export of such goods has taken place within three months next after the date of the import  Rule 12 is very important in this context.  It requires that the claims must be allowed on the genuineness of the certificate being ascertained.  This necessarily indicates that certificate is not conclusive as supposed by the Court below.  The lower Courts do not seem to have even considered Rule 12 at all.\n<\/p>\n
  (9)    Merely because in some measure the rules overlap and certain duties are imposed on the Naka Karkun.  It is impossible to accept the suggestion that condition (C) of Rule 11(1) “that the Chief Officer satisfies himself that claim is just and proper”.  Is merely a redundant condition. as the learned Judges below seem to think.  All the rules must be construed as a whole and in their proper context.  There is no limitation on the powers of the Cheif Officer on the manner in which he shall be satisfied about the claim being just and proper and the certificate genuine.  The reasoning of the learned appellate Judge is somewhat curious.  In para 12, he poses a question as to the method adopted by the Chief Officer on the question whether the claim is established to his satisfaction.  He says that because the Naka Karkun has under Rule to carry out certain duties in respect of the export of goods and is required to note all the particulars mentioned therein has to be satisfied about the matters prescribed therein, “the  necessary details about the goods are ready provided in the receipted import bill which has ro conform with the provisions in Rule 10(1).  Only after satisfying  on all thses points that the export naka clerk issues the export certificate”, and then he draws the conclusion that no further  proof of the identity of the goods in the import bill and the export certificate is required by the Cheif Officer, but he must depend on his private investigating machinery for doing this.  As I have already pointed out  above there  is not a single rule which  anywhere provides that merely  on production of these two documents, the claimant would be  entitled to a refund of octroi tax which has already paid.  An important condition in Rule 11 is that the Cheif Officer must be satisfied about the justness and about the propriety of the claim and uder Rule 12 about the genuiness of the certificate.  He is an authority who is entirely different and independent of the Naka Karkun and this has been made evidently in order that no dealer should be enabled to collude with a nake Karkun and make false applications for refund.  If the meaning that is sought to be made out by the Court below were really intended by the farmers of the rules, the simplest provision would have been that as soon as these documents were produced by the claimant, a refund shall be made.  As I have stated above earlier, Rule 8 cannot be paraphrased to mean that refund shall  be made on the production of the receipted import bill and an export certificate relating to the goods.  So far as  Rule 8 is concerned, it lays down the principle of refund and has nothing to do with the proof of the fact whether or not the conditions are satisfied.\n<\/p>\n
  (10)  If the Cheif Officer has to be satisfied as above, then it is evidently within his power to call upon the dealer to produce such other evidence as he got in his possession to satisfy him that the goods were actually exported.  The Chief Officer in each individual case  can call down the dealer to do so.  It is only for the sake of convenience  and for earlier disposal of claims of refund that a general circular has been issued by the Chief Officer of the Municipality.  It is as follows.\n<\/p>\n
  “In order that the work of refund of the amount paid for octroi may be easy, it is requested  that persons claiming refund should observe the following suggestions:\n<\/p>\n
  (1)  When asking for export certificate on the basis of import receipr, the following information should be noted and signed.\n<\/p>\n
  (a)   Number of export articles, weight and if import duties paid on the basis of price,then its actual price.\n<\/p>\n
  (b) To whom the goods are sent, his name,address and name of the town.\n<\/p>\n
  (2)  Similar information must be furnished while preparing transit receipt.\n<\/p>\n
  (3)  At the time of making refund application, copies of bills of purchase and sales should be produced along with the application.\n<\/p>\n
  (4)  As far as possible, for every export certificate a separate application for refund should be sent.”\n<\/p>\n
 If these directions are carefully examined they cantain nothing except production of such material as would satisfy the Cheif Officer about the actual export of the goods.  I do not see anything extraordinary  in this circular which would necessitate amendment of the rules.\n<\/p>\n
  (11)  Accordingly, in my view, having regards to the rules, the Cheif Officer was within his rigthts in requiring the plaintiff to produce the evidence required by him.  The plaintiff is thus not entitled to the injunction sought.\n<\/p>\n
  (12)  As to the claim for refund of the octroi which it has already paid, the Cheif Officer has yet to determine the question.  The plaintiff rushed to the Court and asked the Court to direct the refund of the amount which is really not the function of the Court under the Act.  If the plaintiff now furnishes proof  as required by the Commissioner, the Commissioner will decide and determine upon the claim of the plaintiff.\n<\/p>\n
  (13)  In the result, I allow the appeal, set aside the decrees made by the Courts below and dismiss the suit with costs throughout, subject to the observations in the previous para.\n<\/p>\n
HK\/BNP\/D.V.C.\n<\/p>\n
 (14) Appeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The Sholapur Municipal … vs Malkarjun Kalyanappa Vajirkar on 16 December, 1966 Equivalent citations: AIR 1967 Bom 424, (1967) 69 BOMLR 454 Bench: Patel JUDGMENT (1) This is an appeal by the Sholapur Municipal Corporation against a decree of injunction granted by the Courts below in favour of the plaintiff. (2) The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-181876","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe Sholapur Municipal ... vs Malkarjun Kalyanappa Vajirkar on 16 December, 1966 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-sholapur-municipal-vs-malkarjun-kalyanappa-vajirkar-on-16-december-1966\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Sholapur Municipal ... vs Malkarjun Kalyanappa Vajirkar on 16 December, 1966 - 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