- (1.)THIS appeal arises out of the judgment, passed by the Additional district Judge, Indore, decreeing the plaintiff-respondent's suit against the appellant for an amount of Rs. 10,586. 06 P.
(2.)THE facts giving rise to this appeal are that the plaintiff-respondent is the proprietor of the shop M/s Shewaram and Sons. He filed a suit against the Indore Municipal Corporation for refund of illegally realised octroi duty amounting to Rs. 10,236. 06. This duty was recovered on liquor imported by the plaintiff-respondent within the municipal limits of Indore. He also claimed interest of Rs. 350 at six per cent per annum, and also claimed an amount of Rs. 150 which was awarded as costs in a writ petition filed by the plaintiff (M. P. No. 22 of 1962) which was allowed.
(3.)THE admitted facts in the case are that under bye-law No. 9 of the bye-laws published in the Holkar State Gazette dated the 14th July 1947, octroi duty on goods brought within the municipal limits was calculated by the Indore City Municipality on the value made up of the cost price of the goods plus carriage and other incidental charges, less the trade discount mentioned in the Bijak. Later the Municipality started collecting octroi duty on the amount made up of the price as per invoice plus the excise duty paid on the goods imported within the municipal limits. A representative suit was filed on behalf of the wine merchants, including the plaintiff-respondent, against the Municipality for a permanent injunction restraining the Municipality from collecting octroi duty on the price plus the excise or customs duty paid for the goods. This suit (No. 1131 of 1949) was decreed by the Additional Civil judge on 29th March 1950. In consequence of this decree, the Municipality started recovery of the octroi-duty on liquor on the basis of the price and freight without including the amount of excise or customs duty paid on the liquor. This continued upto 15th December 1961 as the bye-laws framed in 1947 continued to be in force. Subsequently the Madhya Bharat Municipal corporation Act came into force, and ultimately the M. P. Municipal Corporation Act, 1956 was applicable to the Indore Municipal Corporation from 20th may 1961. On 15th December 1961, the Indore Municipal Corporation framed bye-laws for octroi, and they were called 'indore Municipal Corporation cess Bye-laws, 1961'. These bye-laws came into force from 15th December 1961. The Bye-law No. 19 (a) of these bye-laws authorised the Municipal corporation to include excise or customs duty on liquor for purposes of ascertaining the price, and on that the duty was charged. Aggrieved by this, the plaintiff-respondent filed M. P. No. 222 of 1962 (decided on 13th December 1962) before this Court under Articles 226 and 227 of the Constitution. That petition was allowed and bye-law No. 19 (a) was declared to be illegal, ultra vires and totally ineffective. Consequently the Municipal Corporation was directed not to collect octroi duty after adding the excise duty in the price of liquor for purposes of assessment of octroi duty. But during the period this writ petition was pending, that is from 15-12-1961 to 13th December 1962 the appellant-Corporation had collected octroi duty on the basis of bye-law No. 19 (a), and it is not disputed that in this manner, by adding excise duty in the price, the appellant-Corporation collected from the plaintiff-respondent rs. 10,236. 06 as octroi duty, which in view of the order of the High Court could not be collected. This amount was not refunded, and consequently the present suit was filed.