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1976 Supreme(AP) 72
Andhra Pradesh High Court
Judges : RAMACHANDRA RAJU
Secunderabad Canton meat Board represented by the Cantonment Executive Officer, Secunderabad - Appellant
Versus
Allied Trading Corporation - Respondent
Decided On : 04-16-76
A Cantonment Board has the power to impose any tax that the concerned Municipality is entitled to impose under any enactment in force, irrespective of whether the Municipality actually imposed and collected the tax.
Headnote:
CANTONMENT BOARD - POWER TO LEVY OCTROI DUTY - SECUNDERABAD CANTONMENT BOARD - POWER TO LEVY OCTROI DUTY DURING THE PERIOD FROM 1ST MAY, 1965 TO 30TH APRIL, 1966 - CANTONMENTS ACT, 1924, SECTION 60(1) - HYDERABAD MUNICIPAL CORPORATIONS ACT, 1955, SECTION 197(1) - ORDER 41, RULE 33 OF THE CODE OF CIVIL PROCEDURE.
Fact of the Case:
The Secunderabad Cantonment Board (appellant) filed an appeal against the dismissal of a suit filed by M/s. Allied Trading Corporation (plaintiff) for recovery of Octroi duty from the Secunderabad Club (first defendant) for the period from 1st May, 1965 to 30th April, 1966. The lower court had found that the Cantonment Board had no jurisdiction to levy Octroi duty during that period.
Finding of the Court:
The court held that the Secunderabad Cantonment Board had the power to levy Octroi duty during the relevant period, as per Section 60(1) of the Cantonments Act, 1924, which allows Cantonment Boards to impose any tax that can be imposed by the concerned Municipality under any enactment in force. The court interpreted that the expression "may be imposed" in Section 60(1) means all or any of the taxes which the Municipality concerned is entitled to impose and collect, and not just the taxes actually imposed and collected.
Issues: 1. Whether the Secunderabad Cantonment Board had the power to levy Octroi duty during the period from 1st May, 1965 to 30th April, 1966? 2. Whether the plaintiff, despite not appealing against the dismissal of the suit, could be granted relief in the appeal under Order 41, Rule 33 of the Code of Civil Procedure?
Ratio Decidendi: 1. The court interpreted Section 60(1) of the Cantonments Act, 1924, and held that a Cantonment Board has the power to impose any tax that the concerned Municipality is entitled to impose under any enactment in force, irrespective of whether the Municipality actually imposed and collected the tax. 2. The court held that Order 41, Rule 33 of the Code of Civil Procedure, which allows appellate courts to pass decrees in favor of non-appealing parties, is not applicable in this case because the appeal was not filed against a decree passed against anyone, but rather against a finding of the lower court.
Final Decision: The appeal was allowed, setting aside the finding of the lower court that the Cantonment Board could not continue imposing and collecting Octroi duty within its area due to the discontinuation of the same by the Municipal Corporation, Hyderabad. However, the court declined to pass a decree in favor of the plaintiff under Order 41, Rule 33 of the Code of Civil Procedure.
( 2 ) AGAINST the dismissal of the suit, the plaintiff itself did not file any appeal. It is only the second defendant, Cantonment Board filed the appeal against the finding that it had no jurisdiction to levy Octroi duty during the relevant period, making the plaintiff as the first respondent and the Secunderabad club (first defendant) as the second^ respondent.
( 3 ) DURING the course of the arguments in the appeal it is contended on behalf of the plaintiff-first respondent that if it is to be found in the appeal that duing" the relevant period, the Cantonment board had jurisdiction to levy Octroi duty and that inspite of the plaintiff not having preferred any appeal against the Secunderabad Club against the dismissal of the suit, as provided under order 41, rule 33 of the Code of Civil procedure, still the plaintiff-first respondent would be entitled to a decree, for the amount claimed in the suit
( 4 ) AS argued by the parties the two points that arise for consideration in the appeal are ;- (1) Whether the Cantonment Board,, secunderabad had, during period from 1st May, 1965 to 30th April, 1966 power to levy Octroi duty? (2) If the first point is to be held in favour of the Cantonment Board, whether inspite of the plaintiff not having preferred any appeal against the dismissal of the suit, it is entitled to a decree as claimed in the suit?
( 5 ) POINT No. 1.- as provided under section 60 (1) of the Cantonment Act, the Cantonment Board may impose any tax which under any enactment for the time being in force may be imposed in any municipality in the State wherein such cantonment is situated. Under section 197 (1) of the Hyderabad municipal Corporations Act, which is the iclevant enactment the Secundera- ba. d Cantonment Board having been situated within Hyderabad Municipality, taxes to be imposed by the Municipality are mentioned. Octroi is one of the taxes which are mentioned therein. Therefore, Octroi duty is one of the taxes which the Hyderabad Municipal corporation could impose. But during the period from 1st May, 1965 to 30th april, 1966 it appears that the Hyderabad Municipal Corporation itself did not impose any Octroi. By a resolution dated 20th April, 1965 the General body of the Municipal Corpoiation, hyderabad , approved to discontinue the levy and collection of Octroi duty with effect from 1st May, 1965. Basing on this circumstance it is contended on behalf of the Secunderabad Club that is the Hyderabad Municipal Corporation itself has not collected the Octroi during the relevant period, the Secunderabad Cantonment Boa. rd also has no power to collect the same for that period. This contention was accepted by the lower Court. It is, however, argued on behalf of the Secunderabad cantonment Board that it is not relevant whether Hyderabad Municipal Corporation itself collected Octroi duty during the relevant period and what is relevant is whether Octroi duty is one of the taxes which the Hyderabad Municipal corporation was entitled to impose and collect and if it is one of the taxes -which the Hyderabad Mun
