TMI Blog1963 (3) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... a firm registered under the Indian Partnership Act. It carries on business within the limits of the Ludhiana municipality. It imported Sambhar salt into the octroi limits of the Ludhiana municipality. The Municipal 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, 1947, and December 8, 1947. Under the Punjab Government Notification No. 26463, dated July 21, 1932, terminal tax was payable under item 68 of the Schedule attached to the said notification at the rate of three pies per maund in respect of salt common, and under item 69 at the rate of annas 10 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 69 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 Sambhar salt was not common salt and the civil court had no jurisdiction to entertain the suit. The Senior Subor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or by road. The relevant items are items 68 and 69. Item 68 is " salt common " and the rate prescribed is three pies per maund ; and item 69 is " salt of all kinds other than common salt " and the rate fixed is annas ten per maund. Section 78 provides for a penalty if any person brings any article liable to the 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 Commissioner or such other officer as may be empowered by the State Government in that behalf ; under sub-section (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 decision of the High Court. Under section 86, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be established founded upon a statute : " One is, where there was a liability existing at common law, and that liability is 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 form of remedy : there, the party 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 to 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 princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, in the context of Municipal Acts, had occasion to apply both the principles. In Municipal Board, Benares v. Krishna Co., 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 in 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 whether a suit would lie in a civil court for an injunction restraining a Municipal Committee from realizing the tax demanded from a person on the ground that he was not the owner of the lorries, the subject-matter of tax, and consequently, the demand made on him was illegal and ultra vires the Municipal Committee. Din Mohammad J., speaking for the court, elaborately considered the 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 subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held barred by reason of statutory remedies provided for grievances arising in the 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 : Under section 9 of the Code of Civil Procedure the court shall have jurisdiction to try all suits of a civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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