JUDGMENT

V.G. Oak, C.J. - These two connected first appeals from orders raise a common question whether a civil suit lies for recovery of municipal toll tax. The Municipal Board of Muzaffarnagar filed in the Court of the Munsif, Muzaffarnagar two separate suits against Brij Bhushan Lal and Satya Prakash for the recovery of two sums as toll tax. In each case the defendant pleaded that no suit lies for the recovery of municipal toll tax. This contention raised in defence was accepted by the learned Munsif. He held that the civil suits were incompetent. Both the suits were, therefore, dismissed.

2. The plaintiff appealed against the decision of the trial court. The two connected appeals were allowed by the II Additional Civil Judge, Muzaffarnagar. He was of the opinion that a civil suit for the recovery of toll tax is competent. The suits were, therefore, remanded to the trial Court for decision on merits. The present first appeals are directed against the two orders of remand passed by the II Additional Civil Judge, Muzaffarnagar.

3. The trial court relied upon a decision of Allahabad High Court in Municipal Board Bareilly v. Abdul Aziz Khan, 1934 A.L.J. 739. In that case it was held that a suit for the recovery of octroi dues does not lie in a civil Court.

4. Mr. K.C. Agrawal appearing for the plaintiff respondent pointed out that in Abdul Aziz Khan's case, 1934 A.L.J. 739 the suit related to octroi, whereas the present suits relate to toll tax. The position of the two taxes under the U.P. Municipalities Act (hereafter referred to as the Act) is not identical. Sec. 155 of the Act provides for penalty for evasion of octroi dues. There is no similar provision in the Act for imposing penalty for evasion of toll tax.

5. In Abdul Aziz Khan's case, 1934 A.L.J. 739 the Court relied upon Section 114 of the Act. Formerly, Sec. 114 ran thus :-

"There shall be for each Municipality a Municipal fund, and there shall be placed to the credit thereof all fines realised on conviction under the provisions of this Act."

The Court noticed that all suns realised as penalty under Section 155 of the Act were ultimately payable into the municipal fund. The Court, therefore, concluded that there was ample provision for the recovery of octroi dues. But Section 114 of the Act has now been amended. Sec. 114 no longer lays down that amounts realised as penalty have to be credited to the municipal fund. For these reasons, the appellants can derive little assistance from the decision in Abdul Aziz Khan's case, 1934 A.L.J. 739.

6. Mr. N.D. Ojha appearing for the appellants, however, relies upon Section 153 of the Act. Sec. 153 deals with rules as to assessment, collection and other matters. Sec. 153 states :-

"The following matters shall be regulated and governed by rules except, in so for as provision therefor is made by this Act, namely:-

(a) the assessment collection or composition of taxes, and, in the case of octroi, or toll, the determination of octroi or toll limits;

(b) ............

Mr. N.D. Ojha has drawn our attention to certain rules framed by the Competent Authority for assessment and collection of terminal toll in Muzaffarnagar Municipality. Sub-rule (2) of rule 4 provides for serving a written notice demanding toll dues. This is a rule as contemplated by Section 153 of the Act.

7. Mr. K.C. Agrawal suggested that, in view of the language of clause (a) of Section 153, the clause is applicable to toll tax as regards limits only. Now, clause (a) of Section 153 has been divided into two parts. The first part relates to assessment, collection and composition of taxes. The second part deals limits for octrai and toll tax. It is true that the second part of clause (a) is limited to octrai and toll tax. But it does not follow that octroi and toll have been excluded from the first part of clause (a) . The first part of clause (a) is general. The first part of clause (a) relates to assessment, collection and composition of all taxes including octroi and toll t