ORDER
Achhru Ram, J.
1. This is a petition for revision of the decree of the learned Senior Subordinate Judge of Ferozepore affirming, on appeal, the decision of the Subordinate Judge of Muktsar dismissing, the plaintiff's suit for recovery of a sum of Rs. 300 alleged to consist of tax illegally recovered from the plaintiff and penalty imposed on him without any lawful authority by the Municipal Committee of Muktsar and interest on the afore-said amounts.
2. The facts giving rise to this petition for revision may be briefly stated as follows. The plaintiff is carrying on business in oils etc., within the limits of the Municipal Committee of Muktsar. He imported a wagon of deisel oil from Karachi which contained one hundred barrels of that oil. A dispute arose between the plaintiff and the officials of the Municipal Committee as to the terminal tax chargeable in respect of the aforesaid oil. The plaintiff contended that it was mineral oil and as such fell within category 68 of the Schedule of terminal tax whereas the contention of the officials' of the Municipal Committee was that it was crude oil and, therefore, fell under category 27 of the aforesaid Schedule. Finding himself unable to accept the contention of the officials of the Municipal Committee, the plaintiff appears to have imported a certain portion of the oil within the municipal limits. The Municipal Committee served the plaintiff with a notice requiring him to pay Rs. 18-12-0 as terminal tax calculated with reference to category 27 and Rs. 187-8-0 as penalty for having carried the goods inside the municipal limits without payment fit terminal tax. The plaintiff paid the amount demanded from him under protest and later brought the suit which has given rise to the present petition. He alleged that deisel oil was in fact mineral oil and not crude oil, that, therefore, tax in respect thereof could only be levied at the rates applying to goods falling within category 68 of the Schedule and not with reference to the rates applying to category 27 of the said Schedule, and that the imposition of the penalty was ultra vires of the Municipal Committee which did not possess any legal power to impose the same. The suit was resisted by the defendant on a number of pleas on which the following issues were framed by the learned trial Judge:
1. Whether the suit was barred by time?
2. Whether a proper notice under Section 49 had been served on the defendant? If not, whether the suit could prooeed?
3. Whether the plaintiff cannot allege that the defendant committee could not charge the tax at annas 2 per maund?
4. Whether the civil Court has no jurisdiction?
5. Whether the tax on deisel oil was at 9 pies per maund?
6. Whether the defendant committee was not entitled to charge the penalty when it is admitted that the plaintiff imported the oil without payment of the tax?
7. Whether the plaintiff is entitled to the interest claimed, i.e,, at annas 15 per cent, per mensem?
8. Belief.
3. The learned Judge decided the first issue the plaintiff's favour. On issues Nos. 3 to 5 he held that the civil Court had no jurisdiction to go behind the order of the Municipal Committee levying tax on the goods in question as crude oil, and that, in any case, the plaintiff had failed to prove that the deisel oil was mineral oil as alleged by him and not crude oil. Issue 6 was decided against the plaintiff, it being held that the Committee was clearly entitled to levy the penalty when the plaintiff admitted that he had refused to pay the tax and had imported the goods within the municipal limits without payment of tax. Issue 7 was also decided against the plaintiff, and, in the result, his suit was dismissed. On appeal by the plaintiff the learned Senior Subordinate Judge upheld the decision of the learned trial Judge on the question of the jurisdiction of the civil Court to give relief in the circumstances alleged by the plaintiff. He also held that deisel oil had not been proved by the plaintiff to be mineral oil rather than crude oil. On these findings the plaintiff's appeal was dismissed. He has come up in revision to this Court.
5. In my opinion the Courts below have approached the consideration of the question of the jurisdiction of the civil Court to grant relief to the plaintiff, in case his allegation as to the deisel oil being mineral oil had been found to have teen established, from a wholly erroneous point of view. The plaintiff in the present case does not contest his liability to tax, nor does he question the right of the Municipal Committee to levy tax on the goods imported by him within the municipal limits according to rates mentioned in the Schedule. His only allegation is that the oil imported by him was not, as the officials of defendant imagined, crude oil but was in fact mineral oil. I do not see how a civil Court is debarred from deciding whether the goods imported by the plaintiff fell within one or the other category of the Schedule. If the view of law taken by the two Courts below be held to be correct it will amount to this that if in a particular case what is actually brass is regarded by the officials of the Municipal Committee as gold, and they decide to levy tax on its importation within the municipal limits at the rate at which, according to the schedule of taxes framed by it, tax is leviable on gold, the civil Courts have no power to give relief to the party aggrieved and cannot decide that what the Municipal Committee regards as gold is in fact brassl No authority was cited by the learned Counsel for the respondent in support of the view taken by the Courts below except a Single Bench judgment of Hilton, J., reported in Municipal Committee Amritsar v. Huhum Ghand Kanshi Ram A.I.R. 1934 Lah. 200. With great respect I find myself unable to agree with the view taken by the learned Judge. However, although I am of the view that the Courts below were wrong in holding that they could not go into the question whether deisel oil had been rightly treated by the defendant as crude oil for the purpose of levying terminal tax, I agree with their concurrent decision that the plaintiff has signally failed to prove in this case that the oil was mineral oil as alleged by him. The onus of proving it to be mineral oil or something different from crude oil evidently lay on him and he has signally failed to discharge that onus.
6. For the reasons given above, while disagreeing with the view of law taken by the Courts below, in view of the plaintiff's failure to prove the oil in question to be mineral oil, I hold that he is not entitled to claim any refund of tax.
7.As regards the amount recovered from the plaintiff by way of penalty, the plaintiff came into Court alleging that the Municipal Committee had no power under the law to impose any penalty. Issue 6 as framed by the learned trial Judge did not embody this plea which seems to have been either overlooked or not to have been properly appreciated at the time the issues were framed. In dealing with issue 6, also, the learned Judge did not say anything about the averment contained in the plaint as to the Municipal Committee possessing no power to levy penalty in case of default in payment of, or any attempted evasion of, tax. The plea does not appear to have been pressed when the appeal was refused before the learned Senior Subordinate Judge, and it is at best doubtful if it can be deemed to have been pressed in the grounds of revision to this Court.
8. However, in arguing the petition for revision Mr. Shamair Chand laid very considerable stress on this plea. The learned Counsel for the respondent contended that the power to impose penalty in case of evasion of tax had been given to Municipal Committees under rules framed under Section 240, Clause (r), Punjab Municipal Act. He, however, was unable to produce the relevant rules and I have not otherwise been able to discover the same. It is unquestionable that if the Municipal Committee did not possess, under the Statute or under the rules framed thereunder, the power to impose penalty, the imposition of penalty must be held to be ultra vires, and in that event a civil Court can give relief to the plaintiff against such imposition. Inasmuch as the question goes to the very root of the matter and can be finally and effectively answered one way or the other by looking at the rules framed by the Provincial Government under Section 240, I have deemed it fit to allow Mr. Shamair Chand to raise it before me. Inasmuch as the grounds for revision did not give any clear indication that this point was likely to be raised at the hearing, the counsel for the respondent could not reasonably be expected to be ready with the relevant rules today. I accordingly adjourn this case to 14th April 1948 when the learned Counsel for the respondent shall produce those rules.
9. The facts of this petition for revision are given at length in my order dated 18th Maroh 1948. The learned Counsel for the respondent expresses his inability to produce any rules framed under Section 240, Clause (r), Punjab Municipal Act, empowering the Municipal Committee to impose a penalty in case of default in payment of octroi. In the circumstances, I must hold the imposition of the penalty by the respondent Municipal Committee to be ultra vires and illegal. This petition is accordingly allowed and the plaintiff is granted a decree for recovery of Rs. 187-80 unlawfully recovered by the defendant Committee from him by way of penalty with proportionate costs of this Court only. Costs in the Courts below will be borne by the parties.