C. V. K. Rao v.

Dtntu Bhaskara

Rao

Bidayatullah J.

May 5

SUPREME COURT REPORTS

serves a notice on him stating the quantity pre-empted and the time within which the supply is to be made. The clause, however, does not make it obligatory on Government to prC-empt any quantity of mineral or at all.

There is no obligation to buy nor is there any compulsion on the pan ot the lessee to sell unless asked.

In these circumstances, the clause does no -more than to keep intact a right of the Government to obtain the minerals or their products as and when Government requires in preference to others.

Till Government makes up its mind and serves a notice there is no obligation to make any deliveries and even though the word 'subsists' is a word of wide import, it cannot be said that a contract for the sale of goods subsists because a contract requires an offer and its acceptance and is not a mere reservation of a right.

Taking the most liberal view of the matter it is clear that

cl. 21 did not bring into being a contract for the supply of goods. All that it did was to reserve to the Government the right to prior purchase of the minerals raised by the respondent.

The rese11; ation of such rights docs not amount to a contract for the supply of goods which can be said to subsist between the parties. The High Court was, therefore, right in reversing the decision of the Election Tribunal. The appeal fails and is dismissed with costs.

Appeal dismissed.

UNION OF INDIA v.

ABDUL JALIL AND ORS.

(M. HIDAYATULLAH AND N. RAJAGOPALA AYYANGAR, JJ.)

Forest Act-"Reserved forest"-Tripura Act replaced by Indian Forest Act-No preliminaries prescribed under Tripura Act-Notification under it whether can he deemed to be under Indian Forest Art-

Tripura Act and Indian Forest Act, object and purpose-Corresponding provisions-Indian Forest Act, 1927 (Act 16 of 19271,

Ch:J. II and IV, Tripura Forest Act, 1257 (1297?) T.E. (Tripura Act 2 of 1251 T.E. 1297?) s. 5.

The respondents in these appeals were convicted by Magistrates for offiences under s. 26(1) of the Indian Forest Act.

Appeals were filed to the Sessions Judge, where the respondents raised the contention that the forest areas in which the alleged offences were committed were not "Reserve forests" within the meaning of the Act.

For establishing that these "reserves" were "reserved forests" within the Indian Act, the appellant relied on two circumstances.

First, there 'vas a Forest Act promulgated by the Ruler of Triptira .State (Act 2 of 1257 T.E. 1297 T.E. ?) which contained provisions somewhat analogous to those contained in the Indian Act. Next, s. 5 of the Tripura Act enabled the State Government to declare by notifications published in the State

Gazette, the boundaries of the forest areas to be governed by the State Act. Such notifications were published by which the boundaries of the reserves of the forests in question \Vere defined. The appellant urged that the Tripura Act was replaced by the Indian Forest Act by reason of legis4 lative provisions upon the merger of the native State of Tripura with the Dominion of India, and that the notifications under the Tripura Act which were continued in force by these same provisions rendered these re'5ervcs "Reserved forests" under the Indian Forest Act. The Sessions Judge held that by reason of these notifications the forest areas became .. reserved forests" under the relevant provisions of the Indian Forest Act and dis missed the appeals. Thereafter, revisions were filed before the Judicial Commissioner, who tliffering from the Sessions Judge held that they were not "reserved forests" and directed the acquittal of the respondents. On ap:Jeal by special leave:

HELD: (i) From the prov1s1ons of the Indian Forest Ac.t, 1t wouid be seen that it is the notification under s. 20 after complying with the procedure prescribed by the other sections of Chapter II commencing with s. 4 that constitutes a forest area "a reserved forest'' within the Act.

(ii) The fact that under the Tripura Act there \\'ere no preliminaries prescribed before a forest could be notified as a reserved forest does nor detract from such a notification being a notification under the Indian Forest Act.

(iii) In substance the object and purpose of the Tripura Act was the protection of particular trees-the seven types of trees specified in s. 4.

The notification under s. 5 is for the purpose of constituting areas where these types would be protected.

The penal provisions enacted are for ensuring the protection of these trees.

'iv) Tne prime purpose of Chapter II of the Indian Forest Act is the constitution of reserved forests in which ( !) all private rights within the reserved area are completely eliminated by their being bought up where these arc ascertained to exist by payment of compensation, (2) the entire

area being devoted to siviculture, every tree in the forest being protected

Union of Illd;.

from lnJUfY and within the scope of the penal provision contained in s. 26.

In other wvords, the reservation here is to the "forest ar-...a" as such and not tbe protection of the particular specified trees or species of trec,, in such a forest.

(v) The object of Ch. IV of the Indian Forest Act is the protection of particular trees and the setting apart of particular area1 as protected forests for the purpose of ensuring the gtowth and maintenance of such trees. The object sought to be achieved by the reservation in Ch. IV is exactly similar to that which is sought to be achieved by the Tripura Act.

Only t.h..:- Tript:ra Act makes the cutting of protected trees even outside a for~:.t tn cff!ncc, whereas there is no such provision under the Indian Forest A.ct.

(vi) fhe notification under s. S of the Tripura Act would constitute the area in question only a.'i a "protected" fort under Ch. IV of tbie

lndi~; i Forest Act and not as a "reserved" forest under s. 20 contained in Ch. !l of the Act.

(vii) The Judicial Commissioner was right in considering that the provis!on in the !; idian Fori!st Act "corresponding .. to the Tripura Forest Act under which the notifications fixing the boundaries of these forests in question \Yere issued was that as regards "a protected forest" under Ch. IV and not "reserved forest" within s. 20 contained in Ch. Il.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal

~OS. 39, 49 of 1962.

Appeals by special leave from the judgment and order dated August 26, 1960 of the Court of Judicial Commissioner of Tripura at Agartala in Criminal Revision Nos. 9, 8, 16, 22, 21, 32, 23, 18, 20, 24 and 17 of 1960.

C. K. Daphtary, Attorney-General, D. N. Mukerjee and R. H. Dhebar, for the appellant (in all the appeals).

P. K. Chauerjee, for the respondents (in Appeals Nos. 39, 42, 23, 46. 43 and 49 of 1962).

May 5, 1964. The Judgment of the Court was delivered by:

Ayyan1ar I.

AYYANGAR, J.-The respondents in these several appeals were prosecuted before Magistrates in Tripura for offences under s. 26 (I) of the Indian Forest Act, 1927 and were convicted and sentenced to terms of imprisonment and fine.

Their appeals to , the learned Sessions Judge, Tripura having been dismissed, they preferred Criminal Revision Petitions to the Judicial Coou-niMiOD.er, Tripura. The learned Judicial

Commissioner allowed their revisions by a common judgment and directed their acquittal. From these orders of acquittal the Union of India has filed these appeals by virtue of special leave granted by this Court under Art. 136 of the Constitution.

Before proceeding to narrate the facts which have led to these appeals it is necessary to mention that three of these 11 appeals----Criminal Appeals 40, 41 and 45 of 1962 have become infructuous.

The notices issued to the respondents in Appeals 40 and 45 of 1962 of the filing of the appeals could not be served on them as it was reported that they had left for Pakistan.

The appeals could not accordingly prosecuted. In regard to Criminal Appeal 41 of. 1962 it is reported that the accused died pending the hearing of the appeals and hence the appeal has abated. We are, therefore, concerned only with the other 8 appeals.

The material clauses of s. 26 (1) of the Indian Forest Act, 1927 for contravention of which the respondents in the several appeals were prosecuted read:

"26. ( 1) Any person who-

(a) makes any fresh clearing prohibited by section 5. or who, in a reserved forest- ( d) trespasses or pastures cattle, or permits cattle to trespass:

(e) (f)

(g) (h)

51 S.C.-11.

fells, girdles, lops, taps or burns any tree or strips off the bark or leaves from. or otherwise damages, the same:

clears or breaks up any land for cultivation or any other purpose;

shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, in addition to such com-

Unio11 of lndi'-

v, Abdul lalil

Ayya11gar /.

Union of India v.

Abdul Jalil

Ayyangar 1.

pensation for damage done to the forest as the convicting Court may direct to be paid."

The magistrate convicted some of the accused respondents of offences under els. (a) and ( d) others of offences under els. (d) & (h). '

It is common ground that in order to constitute an offence under s. 26 (I ) the acts specified in the clauses of the sections should be committed in an area which is a. "reserved forest" under the Act. We might point out that if the area concerned was a reserve forest, the guilt of the respondents would practically be made out and their conviction by the Magistrates, confirmed by the Sessions Judge, Tripura might have to be upheld. The principal, if not the sole question for consideration in the appeals, however, i; whether the forest area where the respondents were held to have committed the acts alleged against them was such a "reserve forest".

Before, however, dealing with that question, it would be convenient to set out very briefly the facts which have given rise to these prosecutions. The forests wherein the several respondents are stated to have committed the offences set out in the clauses of s.26 ( 1) of the Act quoted above are comprised in three distinct areas in the former Indian State of Tripura. These three areas are known," respectively, as the Garjichhera reserve, Chandrapur reserve and the North Sonamura reserve. In April, 1958 an officer of the Forest Department went on circuit duty in these forest areas and found that the several accused had cleared the forests, reclaimed some land and had dug tanks for the purpose of cultivation and had made homesteads there. On . the averment that these acts on the part of the several accused who are respondents in the several appeals constituted offences under s. 26(1 )(a) and (h) and in some cases under s. 26(1)(a), (d) and (h) and in still some others under s. 26(1 )(d), (f) and (h), the accused were produced in the courts of the Magistrates having jurisdiction. The accused admitted that they had made homesteads and were living in structures constructed at the places where they were found and the only defence then raised was that they were entitled

to do so under a claim of jote rights on the lands. No evidence was, however, produced by any of the accused to substantiate their claim to trespass on and plough-up and cultivate and erect homesteads on the lands on which they were found squatting and the learned Magistrates holding that while the prosecution had made out their case, the accused had not established their defence, found tnc accused guilty and passed appropriate sentences on them. Appeals were filed against these convictions by the several accused to the learned Sessions Judge of Tripura. At that stage the accused raised the contention that the forest areas comprised in the Garjichhara, Chandrapur and North Sonapurn reserves were not "Reserve forests" within the meaning of the Act. For establishing that these three "reserves" were "reserved forests" within the Indian Act, the prosecution relied on two circumstances. First, there was a Forest Act promulgated by the Ruler of the Tripura State (Act 2 of 1257 TE 1297 T.E.?) which contained provisions somewhat analogous to those contained in the Indian Act. Next, s. 5 of the Tripura Act enabled the State Government te> declare by notifications published in the Stule Gazette, the boundaries of the forest areas to be governed by the State Act.

There were three such notifications published in the Tripura State Gazette in 1346 and 1349 T.E. corresponding to 1936 and 1938 by which the boundaries of the three reserves of the Garjichhera, Chandrapnr and North Sonamura forests were defined.

The contention urged by the prosecution was that the Tripura Act was replaced by the Indian Forest Act by reason of legislative provisions to which wrc: shall advert later and that the notifications under the Tripura Act which were continued in force by these same provisions rendered these three reserves "Reserved forests" under the Indian Forest Act. We shall have to sot out the terms of the Act as well as of the notifications later but it i> sufficient to mention at this stage that the places where thQ respondents cleared the forests and built their homeste.li!s were admittedly within one or other of these three reserves.

The respondents in Appeals 39, 43, 47 and 49 had trespassed into the Garjichhera re.erve, while those concerned in appeals 42, 46 and 48 had trespassed into the Chandrapur reserve, and the respondent in appeal 44 was found to have

Union of India v.

Abdul Jalil

Ayyangar J.

196'

Union of lntiia

V. 11.oaut 1a1n

Ayyangar I.

ommitted a similar offence in respect of the forest described as the North Sonamura reserve. When these three notifications were produced before the learned Sessions Judae he 0 held that by reason of these notifications the three forest areas became "reserved forests" under the relevant provisions of the Indian Forest Act and he therefore upheld the order of the Magistrate convicting the accused and dismissed the appeals of the several accused. Thereafter revisions were filed to the Judicial Commissioner, Tripura.

The same question of law viz., whether having regard to the terms and provisions of the Tripura Forest Act, the notifications setting out the boundaries of the three reserves constituted these "reserves" "reserve forests" within the Indian Forest Act, was again debated before the learned Judicial Commissioner. the learned Judicial Commissioner differing from the Sessions Judge held that they were not, and on this finding, directed the acquittal of the several accused.

It is the correctness of this conclusion of the learned Judicial Commissioner that is challenged in these appeals.

It would be seen from the above narrative that the question for consideration is whether the areas where the offences are said to haye been committed were within "reserve forests" within the meaning of the Indian Forest Act.

On the terminology employed by the Indian Forest Act, "reserve forests" are those areas of forest land which are constituted as "reserve forests" under Ch. II of the Act.

Chapter II comprises ss. 3 to 27 and is headed "Of Reserved Forests". Section 3 empowers the State Government tn constitute "any forest land or waste land which is the prow..rty of Government or over which the Government has proprietary rights or to the whole or in part of the forest produce to which the Government is entitled, a reserved forest in the manner hereinafter provided". Section 4 requires that the State Government, when it has decided to constitute any land as a "reserved forest", should notify by the issue of a notification in the Official Gazette specifying the situation, limits, etc. of that land and declare its decision to constitute the land as "a reserved forest". Section 6 makes

provision for a proclamation of the notification issued under s. 4 by publication in several places, so that persons who might be affected by the issue of the notification may prefer objections thereto. Section 7 directs an enquiry by a Forest Settlement Officer of all claims made by persons in response to the publication of the notification under s. 6. Section 9 provides generally for the extinction of rights in respect of which no claim has been preferred under s. 6. Where claims are preferred and are found to be made out s. 11 provides for the acquisition of such rights or of lands in respect of which the rights are claimed in the manner provided by the Land Acquisition Act.

The next succeeding provisions of the Act enable appeals to be filed against the orders and for their hearing by the appellate authorities.

These are followed by s. 20 under which, after the stage of enquiry and decisions on claims made is completed, the State Government is directed to issue a notification in the Official Gazette "specifying definitely, according to boundary-marks erected or otherwise the limits of the forest which is to be reserved, and declaring the same to be .reserved from a date fixed by the notification. Sub-section (2) of the section enacts:

"20.(2) From the date so fixed such forest sl1all be deemed to be a reserved forest."

Section 21 provides for the translation of the notification and its publication in every town or village in the neighbourhood of the forest.

The next relevant provision is s. 26 which prohibits the doing of certain acts in "a reserved forest" and provides for punishment for these contraventions the material parts of which we have already set out.

From these provisions it would be seen that it is the notification under s. 20 after complying with the procedure prescribed by the other sections of the Chapter commencing with s. 4 that constitutes a forest area "a reserved forest" within the Act.

The forests in the former State of Tripura were not declared "reserved forests" under a notification issued uncier s. 20 of the Indian Forest Act after following the procedun prescribed by Ch. II. We have, therefore, to examine tne steps by which this result is said to have been reached. We have already referred to the existence of the Tripura Forest

Abdul Jalll

Ayyangar J.

1964 u,..,,,. of India v.

Abdul lalil

Ayyangar J.

Act 1257 (1297?) T.E. enacted by the Ruler of Tripura under which certain provisions were made for the preservation of Forest areas in the State and the notifications issued thereunder constituting the three areas as "reserve forests" for the purpose of that Act.

It would be necessary to examine the details of these provisions, but this we shall defer till we complete the narration of the constitutional changes which brought the State of Tripura into the Indian Union and the legislation which accompanied and accomplished these changes. Tripura was a native State and the ruler by a merger agreement with the Governor-General of India merged his State with the Dominion in the year 1949.

By para 5 of the Tripura Administration Order, 1949 issued on October 15, 1949 under the powers conferred in that behalf by the Extra Provincial Jurisdiction Act, 194 7 all the laws in force in the State of Tripura immediately before the c0mmencement of the said Order were continued in force until they were repealed or amended by a competent legislature or authority. Then came the Constitution which was operative from January 26, 1950 and under it Tripura became a Part C State of the Union of India.

By virtue of Art. 372 of the Constitution ihe laws in force in the territory of India which would have included the Tripura Forest Act in so far as it applied to the territory of the former Tripura State, were continued in force until repealed or amended by competent legislation.

Next, came the Part C States (Law<) Act, 1950 enacted by Parliament.

By its s. 3 the Acts and Ordinances specified in the Schedule to the Merged States (Laws) Act, 1949 were extended to and directed "to be in force in the State of Tripura ...... as they were genernlly m force in the territories to which tney extended immediately

rn:fore the commencement of that Act".

One of the enactments specified in the Schedule to the Merge a States (Laws) Act, 1949 (Act LIX of 1949) was the Indian Forest Act, 1927.

The Indian Forest Act was thus extended to the T ripura State.

Section 4 of the Part C States (Laws) Act,

1~50 :provided that "any law which immediately before the r,0nunencement of the Act (April 15, 1950) was in force m anv of the St1ts which included Tripura and corresponded to a~ Act extended to that State by the Act was therehy repeale, l''.

The operation of the repeal was subject to two

8 S.C.R SUPREME COURT lZEPORTS 167

provisos and it is the second of these provisos that calls for construction in these appeals. This proviso ran:

Provided further that, subject to the preceding proviso, anything done or any action taken, including any appointment or delegation made, notification, order, instruction or direction issued, rule, regulation, form, bye-law or scheme framed, certificate, patent, permit or licence granted or registration effected, under such law shall be deemed to have been done or taken under section 2 or, as the case may be, under the corresponding provision of the Act or Ordinance as now extended to the State by section 3, and shall continue in force accordingly, unless and until superseded by anything done or any action taken under the said section 2 or, as the case may be, under the said Act or Ordinance."

Shortly stated, the question for consideration in these appeals is whether as a result of the operation of ss. 3 and 4 of the Part C States (Laws) Act read in the light of the proviso above-quoted the three reserved forests which were notified under the Tripura Act of 1257 (T.E.) could be deemed to be "reserved forests" under Ch. II of the Indian Forest Act, 1927.

Stopping here, it would be convenient to notice a few matters. In the first place, when the Indian Forest Act, 1927 was extended to the State of Tripura in 1950 it would have been open to Government to have taken steps to constitute "reserved forests" within the State by following the procedure prescribed by Ch. II to which we have already adverted.

But this was not done and the Government seem to have proceeded on the basis that the areas notified as "reserved forests" under the Tripura Act were "reserved forests" under the Indian Forest Act.

Next, it is common ground that the Tripura Act which was continued by the Tripura Administration Order, 1949 did not survive

Union of India v.

Abdul Jali/

Ayyangar J.

Union of India v.

Abdul Jalil

.tyysngar J.

the Part C States (Laws) Act, 1950 because the Indian Forest Act being "a corresponding law" to the Tripura Forest Act stood repealed by the operation of s. 4 of that enactment.

Besides, the provisions of the Tripura Forest Act under which the notifications constituting these forests as "reserved forests" were issued were under the proviso to s. 4 "deemed to have been done under the corresponding provision of the Act as now extended to the State by s. 3". The position, however, is that the Indian Forest Act whose extension to the Tripura area effected the repeal of the Tripura Act, contains provisions of two distinct types or kinds for the exercise of control over forests and forest areas and the question then arises as to which of the provisions of the Indian Act, "correspond" to those of the Tripura Act, to enable one to say that the notifications under the latter Act should be deemed to have been issued. On a consideration of the relevant provisions of the Tripura Forest Act the learned Judicial Commissioner held that at the most the corresponding provision of the Indian Forest Act to which the Tripura notification could be related was as a "protected forest" under Ch. IV of the Indian Forest Act and not a "reserved forest" under Ch. II of the Act. He, therefore, decided that as the offence for which the accused were being prosecuted was one under s. 26 the accused could not be held guilty since there was no legal or effective notification of the forest area as a "reserved forest" within s. 20 of the Indian Forest Act and accordingly directed the acquittal of the accused. The appeals challenge the correctness of this. last conclusion.

The principal submission of the learned Attomey- General who appeared for the Union of India in support of the appeals was directed to establish that the notification constituting the three forests as reser ; ed forests under the repealed Tripura Forest Act II of 1257 (1297?) T.E. must be deemed to have been taken under Ch. II of the Indian Forest Act, 1927 which, it was contended, was the provision corresponding to the repealed Tripura Act. It is the validity of this submission that now calls for consideration.

Before entering on a discussion of this question we might dispose of a minor consideration which might be urged in

order to show that the notification under the Tripura Act could not be deemed to be a notification under s. 20 of the Indian Forest Act. One of the submissions under this head, and this was one 0f the points that appears to have appealed to the learned Judicial Commissioner, was that Ch. II of the Indian Forest Act prescribes an elaborate procedure which is mandatory and is required to be complied with, before any land 'could be constituted into a "reserved forest" under that Act.

The Tripura Act admittedly does not make provision for any such procedure being followed before an area is notified as "a reserved forest" or is constituted into one.

The argument based on this was that in the absence of identity between the procedural requirements of the two Acts, a notification under the repealed Act could not be deemed to be one under a "corresponding provision" of the Act extended to the territory, the emphasis being on the words "corresponding provision".

We are unable to accept the correctness of this submission.

The scheme of the Part C States (Laws) Act is this.

In the first place, by reason of s. 3 certain enactments are extended to these State5. If there is no law in that State which was in force on the date of the extension of a particular enactment under s. 3' which is in pari materia and covers the same field as the law that is extended, s. 4 does not come into play and consequently there is no question of the repeal of any pre-existing law. If such were the case the law in force in the native State of Tripura would have first continued by reason of the provision contained in s. 5 of the Administration of Tripura (Laws) Order, 1949, already referred to which was promulgated on October, 15, 1949 !ind later by reason of Art. 372 of the Constitution.

To the extent to which there was no repeal by virtue of s. 4 of the Part C States (Laws) Act, 1950 the Tripura law would have continued in force. It is only on the basis that the Indian Forest Act whose operation was extended to that territory by s. 3 was "a corresponding law" that the Tripura_ Act can stand repealed.

For the purpose of effecting the repeal under s. 4 the only consideration is whether any existing law of that State "corresponded" to a law which was extended by reason of s. 3.

19U

Union o/ Indi.'

Ayyangar I.·

\ A.yyangar J.

As stand earlier, it is common ground that the Tripura Forest Act "corresponded': to the Indian Forest Act, 1927 and that the former therefore stood repealed on the extension to Tripura of the latter enactment. If then the extension of the Indian Forest Act to the State effected a repeal of the Tripura Forest Act we have next to consider whether the notification under the Tripura Act could be deemed to be a notification under "the corresponding provision" of the Indian Forest Act. For that purpose the preliminaries to the notification or the procedure which must precede a notification are not of any relevance but only whether the particular notification could be held to be under a corresponding provision under the extended enactment, viz., the Indian Forest Act. If the notifications had been issued after complying with the formalities prescribed by the State law and they are kept alive by the proviso to s. 4, the notifications would necessarily have to be deemed to have validly been made under the latter Act.

Judged by this test it appears to us that the fact that under the Tripura law there were no preliminaries prescribed before a forest could be notified as a reserved forest does not detract from such a notification being a notification under the Indian Forest Act, 1927.

We have next to consider whether the notification under the Tripura Act could be deemed to be a notification under Ch. II or under s. 20 of the Indian Forest Act for that is the basis upon which the entire prosecution case rests. For this purpose it is necessary to analyse the provisions of the Tripura Act and also examine the corresponding provisions of the Indian Forest Act. We sha!J first take up the Tripura Act.

Its preamble, after reciting that some clas:, es of trees are regarded as protected ones from times immemorial, goes on to state that it was expedient to consolidate the law with a view to bring order in the matter of the supervision of the protected trees and also to place the same on a sound footing.

This would appear to indicate that the Act was designed for the protection of particular trees as distinguished from the reservation of an area as a forest for the purpose of protecting all the trees within that forest. We shall in ue course have to refer to the provisions of Ch. IV of the Indian

Forest Act headed "Of Protected Forests" under which also the aim of the law is to afford protection to certain trees in particular areas.

To revert to the Tripura Act, its s. 3 provides for the repeal of the earlier laws and saves only rules or customs not inconsistent with the Act.

Section 4 is one of the key provisions of the Act and under it are specified seven classes of trees which shall be deemed to be protected within the independent State of Tripura.

The Act is divided into seven chapters of which the first one is headed "Of protection of Rakshita Bana" which, as stated earlier, has bem transla1ed as "Protected Forests". Section 5 under which the three notifications to which we have already referred were issued reads:

"The boundaries of 'Rakshita Bana ', shall be fixed and publication of the same shall be made in all police stations, offices, markets, ports and other public places within this independent State".

Section 6 runs:

"No person shall be entitled to carry out any 'Jhum' cultivation (shifting cultivation) within half a mile radius of a Rakshita Bana".

Sections 9 to 11 specify the acts which are prohibited in the notified forest areas.

These enact:

"9. No person shall set fire to the hills in such a manner which may cause damage to a Rakshita Bana in any way".

"10. No person shall enter into a Rakshita Bana carrying fire."

"11. No person shall enter into a Rakshita Bana carrying axe or other weapons which may be used for cutting trees without permission."

Chapter II with which s. 12 opens is headed "Of Gradual Development of Rakshita Banas." The relevant sections of this Chapter are ss. 12 to 17 and they read:

"12. In each year protected trees like sal etc. and other valuable trees shall be grown either by sowing seeds or otherwise.

Union of lnditl

Ayyangar ],

'" Abdu.I Jo/ii

AyyaJJgar J.

"13. In order to give effect to the provisions of section 12, suitable sites will be selected at regular intervals after taking sanction for the same." "14. If there are other trees in a Rakshita Bana than those mentioned in section 4, and if it is considered expedient that such other trees are harmful to the growth of the protected trees, then such trees shall be cut." "15. In case any old tree referred tt> in section 4 is cut, then a new tree shall be grown in its place." "16. No person on any account shall be allowed to cut any tree within the reserved forest in a manner which might cause any damage ti:J the block." "17. If there be dense growth of any specific type of tree as mentioned in section 4 and if such growth is mutually detrimental to the general growth of the trees then to facilitate growth of the species some may be cut according to necessity."

Chapter III i~ headed "Of Penalties" and of the sections comprised in it is sufficient to refer to s. 18 under which any person kindling fire in a forest is made punishable with imprisonment, s. 19 on which much stress was laid which ran:

"Whoever fells any tree within the limits of a Rakshita Bana shall be punished with rigorous imprisonment which may extend to three months or with fine which may extend to Rs. SOOJor with both".

and s. 20 which ran:

"20. Any person who cuts any tree as specified under section 4 outside the limits of a reserved forest shall be punished with rigorous imprisonment which may extend to two months or with fine which may extend to Rs. 200/ - or with both."

1n this connection it'is necessary to point out that under s.20

the cutting of the protected trees specified in s. 4 is made an offence even if the cutting were to take place beyond the limits of the forest notified under s. 5. The only point of difference brought in y the cutting being within the bounJaries of the forest is that in that case the punishment is heavier.

The other chapters relate to the officials and the manner in which they should perform their duties and have not much relevance for the purposes of these appeals.

From the above summary of the provisions it would be seen that in substance the object and purpose of the Tripurn

Act was the protection of particular trees-the seven types of trees specified in s.4.

The notification uncl 'r s. 5 is for the purpose of constituting areas where these types of trees would be protected.

The penal provisions enacted are for ensuring the protection of these trees.

No doubt, s. 16 enacts a ban against the cutting of any tree within a forest so as to cause damage to any block and s. 19 penalises the cntting of any tree within the area of a forest, but it is obvious that in the context of the other provisions of the Act and the purpose which the enactment is intended to subserve, these prohibitions under penal sanctions were designed primarily and essentially to ensure more effective protection to the trees specified in s.4.

Now, let us see whether Ch. IT of the Indian Forest Act r.ould be said to be a provision which corresponds to the Tripura Act, so that the notification under s. 5 of the latter enactment could be deemed to be a notification under Ch. II or s. 20 of the India~ Forest Act. We have set out the several provisions of Ch. IT and their object.

The prime purpose of that Chapter is the constitution of reserved forests in which ( 1) all private rights within the reserved

uea are completely eliminated by their being bought up where these are ascertained to exist by payment of compen sation, (2) the entire area being devoted to siviculture, every tree in the forest being protected from injury am!

within the scope of the penal provision contained in s. 26 In other words, the reservation here is to the "forest area"

as such and not the protection of particular specified trees or species of trees in such a forest.

.-t yyrutgar J.

Union of lndio ...

Abdul Joli!

Ayyongor J.

In this connection some point was sought to be made from the terms of the notification under s. 5 of the Tripura Act by which the boundaries of the several forests were specified.

The three notifications were substantially in the same form and it is, therefore, sufficient to set out the one setting out the boundaries of the Garjichhera reserve. The relevant conditions are:

"2. Jhum cultivation will not be permissible in this

forest area.

3. The land previously settled within this forest area shall remain valid.

Plough cultivation will be permissible in that area.

4. The fallow Taluka land falling within .this area shall be deemed as not being within this reserve.

5. Until further orders, cutting of all kinds of trees are prohibited within this Reserve.

Cutting and export of unclassified forest products ....... . will be prmissible.

6. Except in the settled area, grazing of all kinds of animals elsewhere within this Reserve will be prohibited.

7. All kind of hunting within this Reserve is prohibited."

In regard to these conditions stress was laid principally on condition no. 5 under which all cutting of trees was forbidden.

The provision here appears to be a reproduction of s. 16 of the Act and to have no futther or more extended operation. We are therefore unable to accept the submission that by reason of this clause the area which is notified as the reserved forest is constituted a reserved forest of the same type as under Ch. II of the Indian Forest Act. In the first place, as the notification was issued under the Tripura Act it would be reasonable to construe it with reference to the prolu"bition against cutting of trees contained in the Act itself and we have already adverted to the terms of s. 16 which we have held was designed for the purpose of protecting the trees set out in s. 4. But that apart, clause 5

itself pennits the cutting oi certain forest produce which it was evidently thought would not interfere with the functioning of the forest as a place for the protection of the protected trees.

The other two notifications do not permit the cutting of BambOo etc. without Gove~-nment permit, bllt this in our opinion makes no difference.

If one now turns to the provisions of Ch. IV of the Indian Forest Act the correspondence between the Tripura Act and the provisions of Ch. IV would become clear.

Section 30, corresponding to s. 4 of the Tripura Act, in Ch. Il enables the State Government by notification in the Official Gazette-

(a) to declare any trees or class of trees in a protected forest to be reserved from a date fixed by the notification;

(b) declare that any portion of such forest .specified in the notification shall be dosed for such term, not exceeding thirty years, as the State Government thinks fit, and that the rights of private persons, if any, over such portion shall be suspended during such term, provided that the remainder of such forest be sufficient, and in a locality reasonably convenient, for the due exercise of the rights suspended in the portion so closed; or ( c) prohibit, from a date fixed as aforesaid, the quarrying of stone, or the burning of lime or charcoal, or the collection or subjection to any manufacturing process, or removal of, any forest-produce in any such forest and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest."

Section 31 provides for the publication of a notification under s. 30 and s. 32 for the regulations which may be made for protected forests i.e., areas in which particular trees are protected and s. 33 provides for penalties for acts in contravention of a notification under s. 30 or of rules, under s. 32.

This section enacts:

A.yyangar h

. v.

Abdul Jalll

Ayyangar ].

"33. (I) Any person who commits any of the following offences, namely:-

( a) fells, girdles, lops, taps or bums any tree reserved under section 30, or strips off the bark or leaves from, or otherwise damages, any such tree;

(b) contrary to any prohibition under section 30,

quarries any stone or burns any lime or charcoal, or collects, subjects to any manufacturing process, or removes any forestproduce;

( c) contrary tp any prohibition under section 30, breaks up or clears for cultivation or any other purpose any land in any protected forest;

( d) sets fire to such forest. kindles a fire without taking all reasonable precautions to prevent its spreading to any tree reserved under section 30, whether standing, fallen or felled, or to any closed portion of such forest;

( e) leaves burning any fire kindled by him in the vicinity of any such tree or closed portion;

(f) fells any tree or drags any timber so as to damage any tree reserved as aforesaid;

(g) permits cattle to damage any such tree; ( h) infringes any rule made under section 32;

shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

It would thus be clear that the obiect of Ch. TV is the protection of particular trees and the setting apart of particular areas as protected forests for the purpose of ensuring the growth and maintenance of such trees.

The obiect

sought to be achieved . by the re&ervation in Ch. IV of the Indian Forest Act is thus seen to be exactly similar to that which is sought to be achieved by the Tripura Act.

Only the Tripura Act makes the cutting of protected trees even outside a forest an offence, whereas there is no such provision under the Indian Forest Act. If, therefore, one has to seek a prpvision "corresponding" to the repealed Tripura Forest Act that provision will be found not in Ch.

II of the Indian Forest Act but only in Ch. IV.

As the present prosecutions have been launched for offences under s. 26 the learned Judicial Commissioner was right in holding that the prosecution has not been able to establish that the accused had committed an offence in respect of the provision under which they were charged since the three forests were not notified as reserved forests under a provision corresponding to Ch.

II of the Indian Forest Act.

We, therefore, hold that the learned Judicial Commissioner was right in considering that the provisi("n in the Indian Forest Act "corresponding" to the Tripura Forest Act under which the notifications fixing the boundaries of these three forests were issued is that as regards "a protected forest" under Ch. IV and. not a "reserved forest" within s. 20 contained in Ch. II. The order acquitting the several respondents was therefore right and the appeals fail.

In the view that we have taken of the main question argued before us, we do not find it necessary to consider whether there were any other legal defences open to the several accused.

For instance, it will be noticed that the accused in these cases were held guilty of offences under s. 26(1)(a), (d) and (h). As regards the offence under cl.

(a) the learned Attorney-General conceded that it was a prerequisite for a person being held guilty of an offence under that clause that there should be a notification under s. 4 because s. 5 which is referred to in s. 26(1) (a) reads:

"5. After the issue of a notification under section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into bv ot on behalf of the Government or some prson in whom

51 S.C.-12

Union of lndla

"· Abdul lalll

'47141114' 1.

Union of India v.

Abdul la/ii

Ayyangar 1.

May 5

such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as ma;: be made by the State Government in this behalf."

in the absene, therefore, of such a notification the accused could not have been held guilty of a contravention of s. 26(1)(a). Coming next to els. (d) and (h), the question for consideration would be whether if these were not offences under the Tripura law, the accused could be prosecuted by reason of (a) the extension of the Forest Act to the Tripura State and (b) the notification. under th_e Tripura law being "deemed to be a notification" under the corresponding provision of the Indian Act. We consider it unnecessary to examine this problem or to express any opiniOll on this matter in view of the conclusion that we have reached that the notification under s. 5 of the Tripura Act would constitute the area in question only as a protected forest under Ch. IV of the Indian Forest Act and not as a

"reserved" forest under s. 20 contained in Ch.

II of that Act.

The appeals fail and are dismissed.

The appellant had undertaken to pay the cgsts of the respondents at the time of the admission of the appeals. In accordance with that undertaking the appellant will pay the costs to the respondents. One hearing fee.

Appeals dismissed.

POONA CITY MUNICIPAL CORPORATION

DATTATRAYA NAGESH DEODHER

(P. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH,

K. C. DAS GUPTA, J. C. SHAH AND RAGHUHAR DAYAL, JJ.)

Octroi-Tax on refund-/lnposition if valid-Tax, if becon1es fee-Who can clain1 refund-Suit for recovery-Limitation-Avaflability of

cl. 21

UNION OF INDIA

ABDUL JALIL AND ORS

N. RAJAGOPALA AYYANGAR

Indian Forest Act

Indian Forest Act

Tripura Forest Act, 1257

s. 5

s. 26(1)

Indian Forest Act

s. 5

Tripura

Indian Forest Act

Dominion of India

Indian Forest Act

Indian Forest Act

s. 20

s. 4

Indian Forest Act

s. 4

s. 5

s. 26

IV of the Indian Forest Act

s. 20

s. 20

C. K. Daphtary

D. N. Mukerjee

R. H. Dhebar

P. K. Chauerjee

Ayyan1ar I.

AYYANGAR

s. 26

Indian Forest Act, 1927

Judicial Coou-niMiOD.er, Tripura

Union of India

Art. 136

Pakistan

s. 26

Indian Forest Act, 1927

section 5

Abdul Jalil

s. 26

Sessions Judge, Tripura

Chandrapur

s. 26(1 )(a)

s. 26(1)(a)

s. 26(1 )(d)

s. 5

Chandrapnr

Indian Forest Act

Indian Forest Act

Ayyangar

Indian Forest Act

Indian Forest Act

Indian Forest Act

ss. 3 to 27

Section 3

Section 4

Section 6

s. 4

Section 7

s. 6

Section 9

s. 6

s. 11

s. 20

Section 21

s. 26

s. 20

s. 4

s. 20

Indian Forest Act

Abdul Jalll

State of Tripura

India

October 15, 1949

January 26, 1950

Art. 372

Parliament

s. 3

Indian Forest Act, 1927

Indian Forest Act

Section 4

April 15, 1950

Act extended to that State by the Act

S.C.R SUPREME COURT lZEPORTS 167

section 2

section 3

section 2

ss. 3 and 4

II of the Indian Forest Act, 1927

Indian Forest Act, 1927

Indian Forest Act

Indian Forest Act

s. 4

s. 4

s. 3

Indian Forest Act

Indian Forest Act

IV of the Indian Forest Act

s. 26

s. 20

Indian Forest Act

Tripura Forest Act

II of the Indian Forest Act, 1927

s. 20

Indian Forest Act

II of the Indian Forest Act

s. 3

s. 3

s. 4

s. 5

October, 15, 1949

Art. 372

s. 4

Indian Forest Act

s. 3

s. 4

s. 3

A.yyangar

Indian Forest Act, 1927

Indian Forest Act

Indian Forest Act

Indian Forest Act

s. 4

Indian Forest Act, 1927

s. 20

Indian Forest Act

Indian Forest Act

Forest Act

To revert to the Tripura Act

s. 3

Section 4

Section 5

Section 6

Sections 9 to 11

s. 12

Rakshita Banas

ss. 12 to 17

section 12

section 4

section 4

section 4

s. 18

s. 19

s. 20

section 4

s. 4

s. 5

Act

s. 5

s. 16

s. 19

Indian Forest Act

s. 5

s. 20

s. 26

yyrutgar

Ayyongor

s. 5

s. 16

II of the Indian Forest Act

s. 16

s. 4

clause 5

Section 30

s. 4

Section 31

s. 30

s. 32

s. 33

s. 30

s. 32

A.yyangar

Abdul Jalll

section 30

section 30

section 30

section 30

section 32

Indian Forest Act

Only the Tripura Act

Indian Forest Act

Tripura Forest Act

II of the Indian Forest Act

s. 26

II of the Indian Forest Act

Indian Forest Act

s. 20

s. 26(1)(a)

s. 4

s. 5

s. 26(1)

section 4

Union of lndla

s. 26(1)(a)

s. 5

IV of the Indian Forest Act

s. 20

POONA CITY MUNICIPAL CORPORATION

P. B. GAJENDRAGADKAR

M. HIDAYATULLAH

K. C. DAS GUPTA

C. SHAH

RAGHUHAR DAYAL


Union of India v.

Abdul la/ii

Ayyangar 1.

May 5

SUPREME COURT REPORTS

such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as ma;: be made by the State Government in this behalf."

in the absene, therefore, of such a notification the accused could not have been held guilty of a contravention of s. 26(1)(a). Coming next to els. (d) and (h), the question for consideration would be whether if these were not offences under the Tripura law, the accused could be prosecuted by reason of (a) the extension of the Forest Act to the Tripura State and (b) the notification. under th_e Tripura law being "deemed to be a notification" under the corresponding provision of the Indian Act. We consider it unnecessary to examine this problem or to express any opiniOll on this matter in view of the conclusion that we have reached that the notification under s. 5 of the Tripura Act would constitute the area in question only as a protected forest under Ch. IV of the Indian Forest Act and not as a

"reserved" forest under s. 20 contained in Ch.

II of that Act.

The appeals fail and are dismissed.

The appellant had undertaken to pay the cgsts of the respondents at the time of the admission of the appeals. In accordance with that undertaking the appellant will pay the costs to the respondents. One hearing fee.

Appeals dismissed.

POONA CITY MUNICIPAL CORPORATION

DATTATRAYA NAGESH DEODHER

(P. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH,

K. C. DAS GUPTA, J. C. SHAH AND RAGHUHAR DAYAL, JJ.)

Octroi-Tax on refund-/lnposition if valid-Tax, if becon1es fee-Who can clain1 refund-Suit for recovery-Limitation-Avaflability of

benefit-Bo1nbay Provincial Municipal Corporation Act, 1949 (Bom. 59 of 1949), SS. 127, 487.

The respondent. who had been carrying on the business of securing refund of octroi duty on behalf of persons who had paid duty and \'1ere entitled to refund, claime'd the refund of money paid as octroi duty by his principals in respect of the period commencing from February 15, 1950, the date from which the appellant became a Municipal Corporation under the Provincial hfunicipal Corporation, Act, 1949. i\fter deducting ten percient of the amount in accordance with r. 18(3) of the Octroi Rule~. framed by the Municipal Authorities, the ap pellailt-Corporation paid the balance to the respondent.

The representation of the respondent that from the date from which the Corporation had come into existence, the deduction had become invalid in law. was turneO down by the appellant. , Thereupon the respondent filed a suit for retovery of the balance with interest. The defence was that the deduction was valid; that in any case, the respondent who was not the person who paid the amount, was not entitled to bring the suit, and that the su; t was bc.rred by limitation. The trial court held the resM pendent was entitled to bring the suit and also that it was not barred by limitation but the deduction was valid and it dismissed the suit. On appeal, the District Court disagreeing with the trial court, held that the deduction \\'as not valid in law, but the plaintiff was not entitled to bring such a suit and that the suit was barred by limitation and it dismissed the appeal.

On a further appeal the High Court found in favour of the resPondent on all the three points and allowed the appeal.

HELD:-(i) A tax on octroi refund is not one of the taxes which the Bo1nbay Municipal Corporation could impose. Apart from the absence of power to impose such a tax, which is clear from the earlier parts of s. 127 of the Bombay Act of 1949 there is the categorical prohibition in sub-s. ( 4) against the imposition of any such tax by the Corporation.

(ii) Assuming, without deciding, that such a levy can be validly made hy way of fees under s. 466, since no standing order was made under s. 466 prescribing any fee, it is not passible to justify the deductions as a levy of fee.

(iii) The tax did not become a fee merely because the new Act (Born.

Act 59 of 1949), prohibited the imposition of such a tax.

(iv) Cl. 5(a) of Appendix IV furnishes no justification for the levy of te, n percent Ueduction after Feb1uary 15, 1950 when the Act S9 of 1949 with its categorical prohibition in s. 127(4) against the imposition by the Corporation of a tax which the State Legislature had no power to impose under the Constitution became applicable.

(v) The respondent having made the claim in accordance with the rules was the person entitled to receive what amount was legally refundable, and so he was also entitled to bring the suit.

Poona Mnicipal Corporation

D. N. Deodher

(vi) The suit was not barred by !imitation. The benefit of s. 487 - . . of Act 59 of 1949 would be available to the Corporation only if it was Poot/' M';'!u:ipal held that this deduction was "an act done or purported to be done in

orpo;_a .wn pursuance or execution or inten'ded execution of the Act." D. N. Deodh.r

Das •1~/110 J.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 582 Qf 1961.

Appeal from the judgment and decree dated August :!5, 1959 of the Bombay High Court in Appeal No. 774 of 1956.

S. G. Patwardhan, S. B. Tarkunde, J. B. Dadachanji,

0. C. Mathur and Ravinder Narain, for the appellant.

A. V. Vishwanatha Sastri, M. R. Kotwal and Naunit

Jal, for the intervener.

May 5, 1964. The Judgment of the Court was delivered by

DAS GUPTA J.-This appeal is by te defendant, the Municipal Corporation for the City of Poona, in a suit for recovery of money. The Poona Municipality was formerly a Municipality under the Bombay District Municipal Act of l901 (Act 3 of 1901). In 1925 it became a Municipal :Borough under the Bombay Municipal Boroughs Act of 1925 (Act XVIII of 1925). Later, under the Bombay P.rovincial Municipal Corporation Act, 1949, Municipal Authority for the City of Poona became a Corporation known by the name of Municipal Corporation for the City •>f Poona.

It appears that from the time when the City was a Municipality under Act 3 of 1901, an octroi duty was being levied on goods imported within the Municipal limits of the City. When such goods were exported out of the city municipal limits within specified periods, refund used to be given in respect of the duty so recovered.

The respondent has for many years been carrying on business of securing refund of octroi duty on behalf of persons who had paid the duty and were entitled to refund.

Tn respect of the period from the 15th February, 1950 to the 14th September, 1950, the respondent made a claim on behalf of his principals, for the refund of Rs. 73,650/- to

8 S.C.R.

SUPREME COURT RERORTS 181

which, according to him, they were entitled.

The Munici- 1964 pality however paid to him only 90 per cent of this amount. Poona Municipal The remaining 10 nr cent was deducted inaccordance Corporation - with Rule 18C'1 . '. .e :__.ctroi Rules which had been D. N. Deodher framed by the .¥-u, ii~; p,,; Authorities.

The respondent then represented to tlie Corporation that with effect from the 15th February, 1950, the date from which the Corporation came into existence under the Provincial Municipal Corporation Act, 1949, this deduction of 10 per cent had become invalid in law and claimed that this amount should be paid to him.

The Corporation however refused to concede this claim.

The respondent then brought this suit for recovery of Rs. 7,364\15\- (being

10 per cent of Rs. 73,650/- the amount alleged to have been illegally withheld) with interest.

The main defence raised by the Corporation to the plaintiff's claim was that the deduction of 10 per cent was legally valid.

It was further urged that, in any case, the plaintiff who was not the person who paid the amount. was not entitled to bring the 5uli. Lastly, it was contended that the suit was barred by limitation.

The trial Court held that the plaintiff was entitled to bring the suit and also that it was not barred by }imitation. lt held however that the deduction of 10 per cent from what was paid as tax was valid. Accordingly, it dismissed the suit.

On appeal by the plaintiff, the District Court, Poona, held, disagreeing with the trial Court, that the deduction of 10 per cent of what had been realised was not valid in law.

It was however of opinion that the plaintiff was not 1intitled to bring such a suit. It was also of opinion that the suit was bared by limitation. In this view, it dismissed the appeal.

The plaintiff then appealed to the High Court of Judicature at Bombay. The High Court has found in favour of the plaintiff on all the three points raised. It held that the deduction of 10 per cent was invalid in law, that the plaintiff was entitled to sue, and that the suit was not barred

Das ·.Jupta J.

1964 by limitation. Accordingly, the High Court allowed the Poona Municipal appeal, and made a decree in favour of the plaintiff for Corporation Rs. 7,364/ 15/- with interest thereon at 4 per cent from D. N. eodher the date of the suit and interest at the same rate from the date of the judgment, with costs throughout.

Das Gupta J.

The appellant Corporation challenges the correctness of the High Court's decision on all the three points.

The principal question for decision in this appeal is whether the deduction or" 10 per cent as provided for in Rule 18(3) is invalid at least from the 15th February, 1950.

The Rule runs thus:-

"A deduction of ten per cent shall in all cases be made before refunding the amount of octroi duty on exportation of goods either in transit as per rule 13 or otherwise under rule 11(2)."

It is necessary to mention here that the legality of such a deduction prior to February 15, 1950 is not in controversy before us.

We shall proceed on the basis tliat this provision in Rule 18 (3) was valid in law prior to the 15th February, 1950.

The question is whether even though valid then, it has ceased to be valid in law. To find the correct answer to this question it is necessary to be clear first as to the legal basis on which this levy by way of deduction was being made prior to 15th February, 1950.

It appears from Ex. D 72, the copy of the Government resolution dated the 6th March, 1922, that the Poona Municipality started this practice of levying this 10 per cent deduction from February 1921.

The question of its legality appears to have been raised quite early. The Legal Remembrancer to the Government of Bombay expressed his view on this question in these words:-

"The special powers conferred in the last sentence of clause (f) of section 48 ( 1) of the Bombay District Municipal Act see111s to negative the power of the Municipality (of Shirpur) to make any deduction from the refunds by means

of rules regulating the system, for making 1964 refunds referred to in the earlier part of the Poona -;;; micipal clause.

The charge on refunds appears, how- Corporation ever, to be a kind of tax which may be imposed D. N. vDeodher under s. 59(b) (xi) of the Act."

On this, the Councillors of the Municipality passed a resolution that a 10 per ent tax shouJd be levied on all octroi refund, under section 59 (b) (xi). This proposal was submitted to the Government of Bombay for sanction and was duly approved. It may be mentioned here that s. 59 (b )(xi) of Act 3 of 1901 which deals with the question of a Municipality's powers to impose taxes s.ets out in the els. ( i) to ( x) various taxes which the Municipalities can impose and then mentions in cl. (xi) the words "any other tax". The Government appears to have accepted the view of the Legal Remembrancer that the levy by way of deduction of 10 per cent from the amount to be refunded should be authorised as a tax on octroi refund, this being "any other tax" within the meaning of s. 59(b)(xi). It is no longer open to dispute that after Government's sanction was received, the Municipality could under the old Act legally levy such tax. It is also not disputed that the deductions that continued to be made under Rule 18 ( 3) were all along made under $is authority, as a tax levied under s. 59(b )(xi) of the Bombay District Municipal Act,

1901. The levy of the tax continued even after Act 3 of 1901 ceased to be applicable to Poona and it became a Municipal Borough under the Bombay Municipal Boroughs Act, 1925. The validity of such continuation does not also appear to have been challengeg: The Bombay Provincial Municipal Corporation Act 1949 was applied to Poona on the 15th February, 1950. From that date therefore the powers of taxation of the municipality became governed by s. 127 of the Act.

This section first authorises a Corporation under the Act to impose, (a) property taxes; (b) a tax on vehicles, boats and animals. It then mentions in the second sub-section certain other taxes which the Corporation may impose. Jn els. (a) to (f)-(a) is octroi, (b) a profession tax, ( c) a tax on dogs, ( d) a theatre tax, ( e) a toll on animals and vehicles and ( f) mentions "any other

Das Gupta J.

1964 tax which the State Legislature Poona M:.nicipal Constitution to impose in the Corporation provides:-

has power under the

State". Sub-section ( 4)

D. N. Deodher

Das Gupta I.

"Nothing in this section shall authorise the imposition of any tax which the State Legislature has no power to impose in the State under the Constitution."

A tax on octroi refund is not thus one of the taxes which the Bombay Municipal Corporation could impose.

It is not one of the specified taxes. Nor is it a tax which the State Legislature has power under the Constitution to impose in the State. Apart from this absence of power to impose such a tax, which is clear from the earlier parts of s. 127, we have the categorical prohibition in sub-section 4 against the imposition of any such tax by the Corporation.

Mr. Patwardhan next tried to persuade us that even if this levy could not be made under the new Act as a tax, it could be made as a fee.

In support of his argument he. drew our attention to s. 14 7 and s. 466 of the new Act.

The first sub-section of section 466 provides that the Commissioner of the Corporation may make standing orders consistent with the provisions of the Act and the rules and bye-laws in respect of the matters specified.

One of the matters specified is "determining the supervision under which, the routes by which and the time within which the goods intended for immediate exportation shall be conveyed out of the City and the fees payable by persons so conveying the goods." [s. 466(1)A(f)]. Section 147 dealing with a controversy, that may arise, whether the importation of some goods into the City has been for the purpose of consumption, use or sale therein, says: "Until the contrary is proved any goods imported into the City shall be presumed to have been imported for the purpose of consumption, use or sale therein, unless such goods are conveyed from the place of import to the place of export by such routes. within such time, under such supervision and on payment of such fees therefor as shall be determined by .the standing orders."

It is obvious that reference to fees in this section is to such fees as may be prescribed by standing orders under

the provisions of s. 466(1 )A(f). It is unnecessary for us 1964 to decide for the purpose of the present appeal, whether the Poona Municipal provision of s. 466 for determination of fess payable by Corporntion persons conveying goods imported into the City is valid D. N. vDeodher in law or not. Assuming, without deciding, that such a Das Gupta 1. levy can be validly made by way of fees under s. 466, what we find is that in fact there has been no standing order prescribing any fees.

It may be mentioned in this connection that sub-section 2 of s. 466 lays down that no order made by the Commissioner under cl. A of sub-section ( 1 ) shall be valid unless it is approved by the Standing Committee and confirmed by the State Government. It is not the case of the appellant Corporatfon that any Standing Order was made at all under s. 466 prescribing any fees. It is not possible therefore to justify the deductions that were made in the present case as a levy of fee.

The appellant relied next on cl. 5 (a) of Appendix IV to the Act read with s. 493.

Section 493 provides that provisions of Appendix IV shall apply to constitution of the Corporation and other matters specified therein. Appendix IV is headed "Transitory Provisions" and is plainly intended to deal with the position that arose as a result of the repeal of the old Act. (s. 490). The relevant portion of

cl. S(a) is in these words:-

"Save as expressly provided by the provisions of this Appendix or by a notification issued under paragraph 22 or order made under paragraph 23,

(a) any appointment, notification, notice, tax, order, scheme, licence, permission, rule, byelaw, or form made, issued, imposed or granted under the Bombay District Municipal Act, 1901 or the Bombay Municipal Boroughs Act, 1925 or any other law in force in any local area constituted to be a City immediately

befor~ the appointed day shall, in so far as it is not inconsistent with the provisions of this Act, continue in force until it is superseded by

Poo~ .Municipal Corporation

any appointment, notification, notice, tax, order, scheme, licence, permission, rule, byelaw, or form made, issued, imposed or granted v.

D. N. Deodher under this Act or any other law as aforesaid as the case may be;" Das Gupta J.

Mr. Patwardhan readily conceded that the 10 per cent deduction, as a tax on octroi refund could not get the protection of cl. 5 (a) for the simple reason that such taxation is on the face of it inconsistent with s. 127 ( 4) of the Act.

He asked us, however, t£> regard this levy as a fee, and on that basis, argued that this should continue in force under

cl. (a) of s. 5 of Appendix IV since the levy of such a fee is consistent with the provisions of s. 466 of the. Act. If in fact a fee was being realised under the old Act, it may be that levy of such fees could continue in force until superseded by any order under the new Act as coming under an order issued "under the District Municipal Act, 1901, or the Bombay Municipal Boroughs Act,

1925". In fact, however, this was not levied as a fee, but was levied as a tax.

Tqe_ tax did not become a fee merely because the new Act (Act LIX of 1949) prohibited the imposition of such a tax. We are clearly of opinion therefor that cl. 5 (a) of Appendix IV furnishes no justification for the levy of the ten per cent deduction, after the 15th February, 1950 when the Act LIX of 1949 with its categorical prohibition in s. 127 ( 4) against the imposition by the Corporation of a ta£ which the State legislature had no power to impose under the Constitution became applicable. The defence that the deduction of 10 per cent of the amount collected as octroi was legally valid has thus been rightly rejected by the High Court.

We also agree with the High Court's conclusion that the plaintiff was entitled to bring the present suit.

The Poona City Municipality's octroi Rules and Bye-laws under which the claim for refund can be made define "a claimant" as a person "who produces the duly receipted import bill and the corresponding export certificates." [Rule 2, cl. (g)]. It is not disputed tkat for the several cases in respect of which this deduction of ten per cent had been made by the Corporation the plaintiff was the person

who produced "the duly receiptd import bill and the 1964 corresponding export certificate." Indeed, it is on that Poona Municipal basis that 90 per cent of the amount paid by different Corporation exporters was refunded by the Corporation to the claimant. D. N. "neodher It is .difficult to understand how if the plaintiff was entitled Das Guvta 1. to claim and obtain refund ill respect of 90 per cent of the amount paid, he was not entitled to make the claim with respect to the remaining 10 per cent.

It may be pointed out that as the receipted import bill and the corresponding export ce1tificates in respect of the goods in question have already been made over by the plaintiff to the defendant Corporation, it will not be possible for the merchants who actually imported the goods and then exported them, to make any fresh claim.

For, no claim would be accepted without the receipted import bill and the corresponding export certificates. Mr. Patwardhan faintly argued that the definition of a claimant in the Rules is only in respect of 90 per cent of the octroi refund. There is obviously no substance in this argument. Rule 11 deals with the procedure of claims to refund and requires that claimant should produce a duly receipted import bill and an export certificate relating to such goods. [Rule 11 (2) (iv)]. These provisions are entirely independent of Rule 18 (3) which lays down that a deduction of ten per cent shall in all cases be made before refunding the amount of octroi duty in certain cfrcumstances. It is, in our opinion, clear that the plaintiff having made the claim in accordance with the rules was the persqn entitled to receive what amount was legally refundable. , As we have found that the deduction of ten per cent could not legally be made, in other words, the entire amount paid was refundable, it follows that the plaintiff was the person entitled to obtain the refund and so he was also entitled to bring the suit.

There remains for consideration the appellant's plea of limitation. For this plea, the appellant relies on s. 487 of Act LIX of 1949.

The material part of the section runs thus:-

( 1) No suit shall be instituted against the Corporation or against the Commissioner, or the

Poona Municipal

Corporation

Transport Manager, or against any municipal officer or servant in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act:-

....

D, N. Deodher

Dtu Gupta J.

( a) until the expiration of one month next after notice in writing has been, in the case of the Corporation, left at the chief municipal office and, in the case of the Commissioner or of the Transport Manager or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney, advocate, pleader or agent, if any, for the purpose of such suit, or

(b) unless it is commenced within six months next after the accrual of the cause of action."

The benefit of this section would be available to the Corporation only if it was held that this deduction of ten per cent was "an act done or purported to be done in pursuance or execution or intended execution of this Act." We have already held that this levy was not in pursuance or execution of the Act. It is equally clear that in view of the provisions of s. 127(4) (to which we have already referred) the levy could not be said to be "purported to be done in pursuance or execution or intended execution of the Act." For, what is plainly prohibited by the Act cannot be claimed to be purported to be done in pursuance or intended execution of the Act. Our conclusion is that the High Court has rightly held that the suit was not barred by limitation.

All the points raised in the appeal fail. The appeal is accordingly dismissed.

Appeal dismissed.

s. 26(1)(a)

s. 5

IV of the Indian Forest Act

s. 20

POONA CITY MUNICIPAL CORPORATION

DATTATRAYA NAGESH DEODHER

P. B. GAJENDRAGADKAR

M. HIDAYATULLAH

K. C. DAS GUPTA

J. C. SHAH

RAGHUHAR DAYAL

SS. 127, 487

Bo1nbay Municipal Corporation

s. 127

s. 466

s. 466

Cl. 5(a)

Feb1uary 15, 1950

s. 127(4)

Poona Mnicipal Corporation

D. N. Deodher

s. 487

D. N. Deodh.r

G. Patwardhan

S. B. Tarkunde

B. Dadachanji

C. Mathur

Ravinder Narain

A. V. Vishwanatha Sastri

M. R. Kotwal

Naunit

Jal

DAS GUPTA

Poona Municipality

Municipal Corporation Act, 1949

15th February, 1950

14th September, 1950

District Court, Poona

High Court of Judicature at Bombay

Das ·.Jupta

D. N.

Das Gupta

February 15, 1950

6th March, 1922

Poona Municipality

Government of Bombay

section 48

Shirpur

s. 59(b)

section 59

s. 59

s. 59(b)(xi)

s. 59(b )(xi)

Bombay District Municipal Act

s. 127

D. N. Deodher

Bombay Municipal Corporation

s. 127

section 4

Patwardhan

s. 14

s. 466

section 466

s. 466(1)

Section 147

s. 466(1 )

Poona Municipal

s. 466

D. N. vDeodher

Das Gupta

s. 466

section 2

s. 466

Corporatfon

s. 466

cl. 5

Appendix IV to the Act

s. 493

Section 493

s. 490

Bombay District Municipal Act, 1901

Bombay Municipal Boroughs Act, 1925

D. N. Deodher

cl. 5

s. 127

s. 5

s. 466

District Municipal Act, 1901

Bombay Municipal Boroughs Act

cl. 5

the Bombay Municipal Boroughs Act,

1925

the Bombay Municipal Boroughs Act,

1925

s. 127

Poona City Municipality

s. 487

Poona Municipal

Corporation

D, N. Deodher

Dtu Gupta

s. 127(4)