FIRM SETH RADHA KISHAN (DECEASED) REPRESENTED BY HARI KISHAN AND OTHERS versus THE, ADMINISTRATOR, MUNICIPAL COMMITTEE, LUDHIANA

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 princi pal Act. The appeal therefore fails and is dismissed with costs.

1963

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

Das J.

;

A ppe-J l dismissed.

FIRM SETH R ADHA KI.SHAN (DECEASED) REPRESENTED BY HARI KISHAN AND OTHERS

1963

March 7

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

Firm R12aha Kishan (Dt:tas1d) Rtflre stnted 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 there fore 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 the suit. The contention Court has jurisdiction to entertain 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 impliea tlon bar the jurisdiction of Civil Courts in respect of a parti cular 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 in sui:h cases the civil Court's jurisdiction is not had. Even i\ ~uit in a civil Court 'will ahvays lie to completely ousted. 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 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)

'

~

1

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 Ad ministrator, 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 In a respect of the tax levied or the assessment under the Act. case where the Municipal Committee has undoubted power to respect of an levy article but it levies tax under a wrong entry not applic able to that article only commits a mistake or an error in fixing the rate (of tax payable) in res pect of the said article and no question of jurisdiction but only a question of detail is involved. Such a mistake can be correct ed only in the manner prescribed by the Act.

the said committee

a particular entry

tax under

in

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

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.

raises

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, Muni cipal Committ1e, J Ludhiana

SulJba JJ.e" J.

-

'J .......

1963

Ftlm Rad~a Kisha11 (Dtc!astd) Rrprt· 11r.lrd t;• lfcri KUhan •• Admini1t1atvr, Muni- ci/•:rl Commillu, I.udhiana

Subba Rao J.

276 SUPREKIE COURT REPORTS [1964] VOL.

tax

towards

the · said

business within the limits of the Ludhiana I\fonici pality. It imported Sambhar salt into the octroi limits of the Ludhiana Municipality. The l\fonici pal Committee, Ludhiana, imposed terminal tax on the appellant paid a sum of the said salt and Rs. 5,893/7/0 between October 24, 194 i and December 8, 1947. Under the Punjab Government Notification Xo. 26463, dated tax was payable under July 21, 1932, terminal 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 respon dent, inter alia, contended that Samliluir salt was not common salt and the Civil Court had no jurisdiction the suit. The Senior Subordinate to entertain 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 there It further held that, in any view, the suit under. 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.

1963

Firm Rai/11 ri,han (Dece '""J Repre· sented by Ho.ri Kishan v. Administrator, J.11uni- cipal Committee, Ludhiana

Suhba Rao J.

~

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 be half. 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 impor ted 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 than common salt" and the rate fixed is other As. /I 0/- per maund. Section 78 provides for a penalty if any person brings any article liable to the

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 provi sions 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 remedy to an of the Act. The Act also gives a 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 levying the tax or refusing to municipal committee is refund the same, but the appellate authority 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 It is said appeal in the light of the said opinion. that the reference provided to the High Court is in the discretion of the appellate authority and he can

1963

Firm Radha Kishan (Deceased) Reprr sented by Hari Ki,h111 v. Administrator, Atluni· cipal Commitiee, Ludhiana

Subba Rao J,

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. that an officer, though he It cannot be assumed 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 jurisdic- tion?

,

We shall now proceed to consider the relevant the said question. Willes, J., principles governing in Wolverhamton New Waterworks Oo. v. Hawkes ), describes as follows the three classes of cases in ford (1 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 Rat/ha X ishM (Dtctastd) Rep11- s1nud 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 Com- mittee in Secretary of State v. Jlas/,; and Co. ('). The High Courts in India also accepted the princi- ple and applied it to different situations : see Bhr1ishankar Nanablv.Ji v. The Jfunicipal Corporation of Bombay ('); 7-rimindtir of Rttayapuram. v. San- karappa ('). 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 liabi- lity and provided a remedy. Lord Macnaghten in Bast Fremantle Corporation v. Annois ('),states the principles thus :

-

'

-

in

"The law has been settled for last hundred years. If persons in the position of the appell ants, acting 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 injured cannot individual individual, maintain an action ...... In a word, the only question is, 'Has the power been exceeded?' Abuse is only one form of excess."

the

In Gaekwar Sarkar of Baroda v. Uandhi Kuchrabltai (') the defendants by the negligent construction of railway made in exercise of their powers under the (2) (1907) l.L.R. 31 &m. 60f. (4J (1902) A.C. 213.

(1) (1910) L.R. 67 I.A 222. t31 (1904) l.L.R. i7 Mad. 483, (5) (1903) LL.R. 27 .!!om. 3*.

1963

Firm Radha Kishau (Deceased) Repr1· sented by Hori Eisho v. Administrator, Mun; cipal Committee) Ludhiana

Subba Rao J.

-

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 dama ged. 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 deter mined 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 It was argued that though the statutory his field. 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 provi sions 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 &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 in junction 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 i\fonicipal Committee. Din '.lfohammad J., the 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 therefrom and may special remedies arising 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 there of, namely. 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."

the

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 sanc tion 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.

-

-

1963

Firm Radha Kishan (D1tta11d) Repre~ sented by Bari KiJhan v. AJministratoY, Muni· cipal Committer, Ludhiana

Subba R .. J,

-

-

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 jurisdic tion 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 con ferred 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 subject may be briefly stated thus :

is unnecessary. The law on the

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.

-

liability

the present case. The

Let us now apply the said principles to the facts of to pay terminal tax is created by the Act and remedy is the enforccm~nt of given to a party aggrieved in liability. As has that 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. Apply ing 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.

1963

Firm Radha Kishan (Dec1ased) Repre· stnted by Hari /\ ishan v. Administrator, Muni· cipa/. Committee Ludhiana

Si.·hba Rao J,

•.

2 S.C.R.

SUPREME COURT REPORTS 285

to

by

than

levy any

tax other

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) the Municipal of the Act specifically empowers Committee 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 Noti fication. 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 the State Government to impose the issued 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 tkat if a Act. The municipal committee levies terminal tax on an article to tax under the Act, a suit would lie not liable 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 in the former, the municipal these two illustrations : committee does not act under the Act, but in the a mistake or an error in latter it only commits fixing the rate of tax payable in respect of a parti cular 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

learned counsel

contends

196J

Firm Radha !\isl.an (Dttta.std1 RtPrt· stnttd by li~ri KisMn v. Admitiistralot, Muni tipal Commilttt, I.udhi1na

Subba Ran J.

286 SUPREME COURT REPORTS [1964] VOL.

the mistake,

present case 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.

1963

March 8

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 to 31.3.1958 had escaped assessment and from 1.4.1957 tax and penalty. The appellant assessed him to an additional contented that the Commissioner had delegated only his power under the duties and accordingly the Assistant Commiosioner could validly re-assess the a1.pellan1

'· 19 and not