Dismissed

Indian Bank, Chennai, Branch Office Nagpur v. N.M.C. Nagpur and Anr.

Bombay HC13 Jan 2011WP/1670/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a penal octroi duty bill issued by the Nagpur Municipal Corporation. The Court held that the specific remedy of appeal under Section 164 prevails over the general remedy under Section 387. The bill operates as a prima facie declaration of tax due.

What did the court decide?

The writ petition is dismissed in limine. The petitioner retains the right to file an appeal under Section 164 of the Act.

Indian Bank, Chennai, Branch Office Nagpur Vs N.M.C… — Writ and Judicial Review | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

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Writ Petition No. 1670/2010

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Indian Bank vs. Nagpur Municipal Corporation and another.

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----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders.

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Mr. A.S.Jaiswal, Advocate for petitioner. Mr. Ritesh Kalra, Advocate holding for Mr. S.K.Mishra, Advocate for R-1.

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CORAM : V.C.DAGA & A.B.CHAUDHARI,JJ DATE OF RESERVING : 16.12.2010 DATE OF PRONOUNCEMENT : 13.01.2011

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P.C.

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Perused petition.

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Heard the learned counsel for the parties.

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The petitioner, is challenging the bill for penal

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octroi duty issued under Section 154(1) and (2) read with section 374 of the City of Nagpur Corporation Act, 1948 (“the Act” for short) by the Nagpur Municipal Corporation, the respondent no.1 herein (“the Corporation” for short).

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The factual matrix reveals that the petitioner

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was served with show cause notice dated 16.12.2009

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calling upon it to show cause as to why penal octroi duty should not be imposed on it for importing gold within the limits of the Corporation from its head office and other branches without paying octroi duty. Petitioner did not reply to the said notice.

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The respondent no.1, finding no response to the show cause notice issued Bill with following endorsement.

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“ Please take notice that if the amount of this bill is not paid within 15 days from the date of its presentation, you will be liable for coercive action as described under chapter XII of the City of Nagpur Corporation Act, 1948 (II of 1950); you may, if you so desire, submit an objection to the said bill within 15 days from the date of its presentation to the Appellate Authority, Addl. Deputy Municipal Commissioner (1), Civil Lines, Nagpur.”

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According to the petitioner, no bill under section 154(1) of the Act can be issued unless there is a declaration of the amount determined under the provisions of the Act. According to the petitioner, in the instant case, there was no such declaration determining specified amount with reasons as such bill issued was bad and illegal.

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That the petitioner is deprived of the right of appeal available under section 387 of the Act, hence demand is vitiated.

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The petitioner further submits that no doubt the bill states at its footnote that an objection to the bill can be taken within 15 days from the date of its presentation. However, no such statutory provision is to be found in the Act or Rules made thereunder as such no objection could be raised to the Bill. According to the petitioner, such modus cannot be used to deprive the petitioner of its substantive right of appeal under section 387 of the Act. In the submission of the petitioner, the appeal provided under Section 164 cannot be a substitute to the appeal under section 387 of the Act because in an appeal under section 387 substantive findings adverse to the petitioner leading to the quantification of the amount can be challenged; whereas no such challenge can be set up in an appeal filed under Section 164 of the Act. According to the petitioner, the appeal under section 164 of the Act can

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only be in respect of any discrepancies or follies in the bill presented under section 155 and not against the reasoned order determining amount of octroi duty.

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On the above premises, the petitioner submits that the petitioner is deprived of its substantive right of appeal for want of reasoned order declaring its liability which could have been challenged under section 387 of the Act only. It is, thus, urged that the petitioner is prejudiced because of the action of the respondent no.1 Corporation as such the respondent no. 1 Corporation must be directed to withdraw or/and cancel the penal octroi duty bill dated 8.1.2010 with further direction to pass reasoned appellable order so as to enable the petitioner to avail the remedy of appeal under section 387 of the Act.

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CONSIDERATION

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Having heard the learned counsel for the petitioner on the above factual backdrop and having

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appreciated the legal submissions made, the contentions urged are misplaced.

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If one turns to the scheme of the Corporation Act, one would find that Chapter XII thereof deals with recovery of Corporations claims. Section 154 of the Act provides for presentation of bill for taxes and other demands. What the bill should specify under section 154 of the Act, is to be found under sub- section (2) thereof. Sub section 2(i) prescribes necessity to specify the liability incurred in default of payment; and (ii) the time within which an appeal may be preferred against such claim. Section 155 appearing thereafter provides that if the bill is not paid within fifteen days, notice of demand should be issued. Rule, providing the form of notice under section 155(1), made in exercise of powers conferred under sub section 1 of section 155 of the Act is to be found in the notification issued by the Local Self Government (Municipal) Department, Nagpur dated 20^th May, 1952. The said statutory rule prescribing the form of notice of demand

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carries note reading as under:

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“Note - Section 156(1)- If the person on whom a notice of demand is served under sub-section (1) of section 155 does not, within twenty one days of the service of such notice,a) pay the sum demanded in the notice; or

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b) show cause to the satisfaction of the Chief Executive Officer why he should not pay the same; or

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c) Prefer an appeal in accordance with the provisions of section 164 against the demand,

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such sum with all costs of recovery may be recovered under a warrant in the prescribed form signed by the Chief Executive Officer---

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(i) by distress and sale of the movable property belonging to such person, or

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(ii) by attachment and sale of the immovable property belonging to him;

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Provided that, where any precautionary or other measures in respect of any such property have been taken by the State Government for the recovery of any sum claimed by it, no proceedings shall be taken or continued under this chapter in respect of such property until the State Government's claim has been paid off. By order of the Governor, Madhya Pradesh.”

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Reverting back to the provisions of the Act, the

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next section 156 thereof provides for issuance of warrant, if the person on whom a notice of demand is

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served under sub-section (1) of section 155 does not within twenty one days of the service of such notice,(a) pay the sum demanded in the notice; or (b) show cause to the satisfaction of the commissioner, why he should not pay the same; or ( c) prefer an appeal in accordance with the provisions of section 164 of the Act against the demand, such demand with all costs is liable to be recovered by issuing warrant served in the manner prescribed duly signed by the Commissioner. Section 157 gives power to the Commissioner to remit certain fees; whereas Sections 158 to 163 provide for the mode of recovery. Section 164 provides an appeal to the Magistrate against any notice of demand issued under section 155(1). Section 374 of the Act prescribes recovery of certain dues by distress or sale in the manner provided by Chapter XII. The said provision specifically makes it clear that in any case not expressly provided for in this Act or in any rule or bye law made thereunder, any sum due to the Corporation on account of any change, cost or costs, expenses, fees, rates or rent or any other amount under this Act or under any

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such rule or bye-law, shall be recoverable by distress and sale of the movable property of the person from whom such sum is due, in the manner provided by Chapter XII. Chapter XII provides for presentation of bill, notice of demand and issuance of warrant for recovery followed by mode of recovery followed by appeal under section 164 to the Magistrate. Chapter XII is, thus, a self contained code. Section 164 thereof being a specific provision providing for appeal against any notice of demand, that remedy alone is a remedy available against the notice of demand and no other appellate remedy could be resorted to against the notice of demand under section 155. Section 387 provides for appeal as a general remedy; whereas Section 164 provides a specific remedy against the notice of demand. It is a settled principle of law that specific remedy will always prevail over the general remedy. This principle is expressed in the maxims Generalia specialibus non derogant , and Generalibus specialia derogant . If a special provision is made on a certain matter, that matter is excluded from the general

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provision. (See - Venkateshwar Rao v. Govt. of Andhra Pradesh, AIR 1966 SC 828)

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In the above view of the matter, the contention of the petitioner that it has lost its right to appeal under section 387 of the Act is misconceived.

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The Bill under 154 itself operates as declaration prima facie showing amount of tax due and recoverable in the opinion of the Corporation. No separate declaration prior to the Bill under section 154 is contemplated either under the Act or Rules framed thereunder. It is open for objection. No objection to the Bill or non-payment thereof results in issuance of notice of demand followed by recovery by adopting different modes prescribed under Chapter XII of the Act.

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The contention that there is no statutory provision available for raising objection to the Bill or right of appeal against the notice of demand is misconceived since the statutory form forming part of

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the Rules itself contains all statutory provisions providing for raising objection and consequent right of appeal. Needless to mention that Rule forms part of the Act.

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For the reasons recorded herein, none of the submissions advanced by the petitioner could be sustained. Petition is, thus, liable to be dismissed. However, if petitioner decides to file an appeal as held, this order shall not prejudice the appellate right of the petitioner. Appeal shall have to be decided on its own merits subject to Law of Limitation. All contentions on merits are kept open.

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In the result, the petition is dismissed in limine with liberty reserved with no order as to costs.

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patle

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JUDGE JUDGE

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Indian Bank, Chennai, Branch Office Nagpur v. N.M.C. Nagpur and Anr.

Case brief

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Indian Bank, Chennai, Branch Office Nagpur v. N.M.C. Nagpur and Anr.

Case brief

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