JUDGMENT : ( 1. ) THIS revision raises a question of jurisdiction of civil Courts to entertain a suit challenging an assessment of octroi made under the Madhya pradesh Municipal Corporation Act, 1956, and the rules continued thereunder. ( 2. ) THE facts are that the plaintiff brought within the limits of the city of Jabalpur certain goods, which according to it were cotton yarn and were exempt from octroi. The goods were, however, assessed to octroi at rs. 3,945. 70, which the plaintiff paid under protest. Thereafter, the plaintiff instituted the suit, in which this revision arises, for recovery of the amount paid as octroi. The Corporation authorities levied octroi on the basis that the goods were mill thread and not cotton yarn. The case of the plaintiff in the suit is that this view of the authorities was wrong and the goods were in fact cotton yarn and thus exempt from tax. A preliminary objection was raised by the Corporation that the suit was not triable by the civil Court as the authorities functioning under the Act and rules have final authority to determine the nature of the goods brought within the Corporation limits for assessing octroi. The objection succeeded in the trial Court, which returned the plaint for presentation to the proper authority. In appeal, the Fourth Additional District Judge, Jabalpur, came to the conclusion that the suit was maintainable in civil Court. Against the order passed in appeal this revision has been filed by the Corporation. ( 3. ) THE authority to impose octroi is found in section 132 (1) (e) of the madhya Pradesh Municipal Corporation Act, 1956. Under that provision the Corporation has been given the power to impose "a cess on animals or goods brought within the city for sale, consumption or use therein". Section 132 (5) provides that the municipal taxes shall be assessed and levied in accordance with the provisions of this Act and the rules and bye-laws made thereunder. In the context of octroi only three other sections of the Act are relevant. They are sections 169, 170 and 171. Section 169 confers power on an officer or servant of the Corporation, duly authorised by the Commissioner, to inspect, examine, weigh and otherwise deal with the articles imported within the limits of the city in respect of which a cess on import is payable. They are sections 169, 170 and 171. Section 169 confers power on an officer or servant of the Corporation, duly authorised by the Commissioner, to inspect, examine, weigh and otherwise deal with the articles imported within the limits of the city in respect of which a cess on import is payable. The person so importing the goods is also liable to communicate to the officer or the servant of the Corporation any information and exhibit to him any bill, invoice or document of a like nature relating to the article. Any person not permitting the inspection and examination of the goods or not furnishing the required information makes himself liable to be punished under section 170. Evasion of payment of octroi is also made punishable under section 171. ( 4. ) THE Act is silent as to the mode or manner of assessment. These matters are governed by the rules framed under the Central Provinces Municipalities Act, 1922, which have been continued under the Corporation Act. The. relevant rules in this connection are rules 9, 13 and 14. They read as under: 9. (a) A person in charge of articles subject to octroi duty shall as soon as they are brought within the octroi limits take them to the nearest outpost, to be dealt with according to these rules. (b) An official on duty at an outpost or branch outpost or any other person authorised by the Committee in this behalf may call upon a person carrying any articles, after they have entered the octroi limits to take them to the nearest outpost, if such official or person has reason to think that such articles are liable to octroi duty and thereupon they shall be so taken, and if found on examination liable to duty shall be dealt with according to these rules. Drivers of Vehicles and pack animals shall stop at the octroi post for examination of the goods and animals shall not leave the octroi post until duty on the goods and animals has been paid. They shall assist the octroi officials and carry out their orders in connection with the assessment and collection of octroi duty on the goods and animals in their charge and shall fill up the registers kept at the octroi post and sign it. They shall assist the octroi officials and carry out their orders in connection with the assessment and collection of octroi duty on the goods and animals in their charge and shall fill up the registers kept at the octroi post and sign it. (c) On the arrival of the dutiable articles at an outpost the Moharrir on duty shall call upon the person in charge:- (i) To declare whether they are intended- (a) For consumption,. sale or use within the Cantonment or the Municipality of jubbulpore. (b) For immediate export beyond the limits of Cantonment and Municipality of jubbulpore. (c) For temporary detention within the limits of the Cantonment or Corporation of the City of Jubbulpore and eventual export. (ii) To give their description, number, quantity, weight and where duty is leviable ad valorem, their value including cost of carriage. Every person incharge shall be bound to make a true declaration concerning them to the best of his knowledge and belief. " 13 (a) If the Moharrir sees reason to doubt a declaration made under rule 9 or his assessment is disputed, he shall accept such duty as the person in charge agrees to pay, and shall then cause the articles to be taken to the Central office by the person in charge of the articles with a report of the circumstances. It shall be the duty of the person in charge of articles to take the goods with the report of the Moharrir to the Central Octroi Post. Provided that if the Moharrir finds that the weight, description, number, quantity or the value of the article exceeds more than 15 percent, as the case may, of the declared weight, description, number, quantity or the value, he shall charge double duty on the whole consignment subject to the limitation that the amount of double Octroi duty does not exceed Rs. 2 and shall grant a receipt in the prescribed form for the same. On the payment being made the Moharrir shall immediately release the goods to the person in charge of it. 2 and shall grant a receipt in the prescribed form for the same. On the payment being made the Moharrir shall immediately release the goods to the person in charge of it. " (b) In case, where duty has been paid under rule 8, if in the judgment of the Moharrir the articles brought do not correspond with the entries in the pass granted under rule 8 he shall cause such articles to be taken to the Central office by the person in charge of the articles with a report of the circumstances. It shall be the duty of the person in charge of articles to take the goods with the report of the Moharrir to the Central Octroi Post. " "14. (a) In cases dealt with, under rule 13, if the Superintendent or Assistant Superintendent finds that the weight or description or number or quantity or the value of the articles exceeds the declared weight, description, number, quantity or the value as the case may be, he shall recover the extra duty payable. Should the excess be more than 15% double duty shall be realized on the whole consignment, and a receipt is given for the same. This rule will not prevent a criminal prosecution in any case in which it may appear desirable. The superintendent shall keep a separate register of the payment of such double duties and shall make note of any case in which the octroi officer have unnecessarily sent goods to the central office for examination. (a-1) In the absence of the Invoice, or, if correctness of the Invoice or declaration is in doubt or if assessment is disputed or for other sufficient reason, if the goods are kept or detained at the Central octroi office or at any other octroi post, a fee of one anna per day per package shall be charged after three days. In case of any dispute in respect of the levy of the fee, the committees decision shall be final. If the goods kept in the bond are not removed by the importers or exporters within seven days, from the date of its deposit or detention the Octroi Superintendent shall give fifteen days notice of the intended sale of the goods in question to the owner, if known or to the person who was in charge of the said goods at the time when it was deposited or detained. A copy of the notice shall also be affixed on the notice board of Central Octroi Office. If the owner or the person in charge of the goods at the time of deposit or detention is not served with the notice personally, the affixing of the notice on the notice board of the octroi office will be considered as sufficient service for the purpose of this rule. The goods will then be sold by public auction on the date and time specified in the notice. Provided, however, if the value of the goods exceed Rs. 100 the intended sale shall be published at least once, in one of the local newspapers. The discretion of the Octroi Superintendent, in this connection shall be final. The sale proceeds will be applied to the payment of the amount due on account of octroi duty, bond fees and other charges, if any, in connection with the publication and sale and the balance of the sale proceeds shall be held in deposit for the owner of the goods for three months from the date of the confirmation of the sale and if no claim is made within that period the deposit shall lapse to the Municipal Committee. Provided that when the goods in the bond are subject to speedy, and natural decay they shall be taken forthwith by the octroi Superintendent to the President or such officer as may be authorized in this behalf and the President or such officer shall proceed to sell it forthwith. (b) Any person importing or bringing any dutiable articles within the Octroi limits of the municipality without paying the duty or without giving declaration to the Octroi Moharrir shall render himself liable to pay double the duty. Provided, however, if the importer is able to prove to the satisfaction of the committee that he had no intention to evade the payment of octroi duty and that he has taken all reasonable precautions to prevent short payments the committee may charge single duty. Provided further that the payment of double duty shall not prevent criminal prosecution in any case in which it may appear desirable. Note:-For the purpose of those rules the importer shall be held liable for the neglect acta or omission of his servant, agent or manager as the case may be. " ( 5. Provided further that the payment of double duty shall not prevent criminal prosecution in any case in which it may appear desirable. Note:-For the purpose of those rules the importer shall be held liable for the neglect acta or omission of his servant, agent or manager as the case may be. " ( 5. ) THE specifications of articles which are subject to octroi duty are contained in a schedule to the rules. Entry 63 of this schedule, which is relevant for this case, reads as follows : The effect of the above entry is that mill thread and sewing thread of all kinds except cotton yarn are dutiable. It has already been stated that the plaintiffs contention was that the goods brought by it within the city were cotton yarn ; whereas, the Corporation authorities assessed the goods as mill thread. ( 6. ) IN accordance with the rules that I have already quoted, it is the official on duty at the outpost who assesses the goods brought within the city to octroi. The rules do not provide for any comprehensive enquiry. Under rule 9 (b) if the articles brought are "found on examination liable to duty" they are to be dealt with according to the rules and duty is recovered. In case of disputed assessment, rule 13 (a) applies and the articles are to be forwarded to the Central Office. The Superintendent or the Assistant Superintendent then under rule 14 (a) recovers the extra duty, if any, payable. Here also the rules do not provide as to what type of enquiry the Superintendent or the assistant Superintendent would hold. So far as these rules are concerned, it appears that the only enquiry contemplated is the examination of goods and the documents pertaining to them which are invoice, bill or documents of a like nature. ( 7. ) AGAINST every order passed by any officer subordinate to the Commissioner an appeal is provided under the Act under section 403 (1 ). An order of assessment made by the octroi Moharrir or by the Octroi Superintendent or Assistant Superintendent will, therefore, be appealable under this provision. A second appeal may also lie under section 403 (2) (c), if the bye-laws so provide. The first appeal is heard by the Commissioner and the second appeal is heard by an Appeal Committee. An order of assessment made by the octroi Moharrir or by the Octroi Superintendent or Assistant Superintendent will, therefore, be appealable under this provision. A second appeal may also lie under section 403 (2) (c), if the bye-laws so provide. The first appeal is heard by the Commissioner and the second appeal is heard by an Appeal Committee. The appeal committee has power to remand any case for further enquiry or decision or to pass any other order as may be deemed just and proper. No further appeal or revision lies against the decision of the appeal committee. The learned counsel for the Corporation has not produced before me any bye-laws making an appellate order of the commissioner, in the matter of octroi, appealable to the appeal committee. I have, therefore, to proceed on the basis that no such appeal is competent. ( 8. ) SECTION 189 of the Act creates a bar for questioning any assessment. The section, so far relevant, reads as follows : "s. 189. Taxation not to be questioned except under this Act- (1) No objection shall be taken to any valuation or assessment, nor shall the liability of any person to be assessed or taxed be questioned in any other manner or by any other authority than as provided in this Act. " The provision for suits against the Corporation and its officers is made under section 401, which is as under : "s. 401. " The provision for suits against the Corporation and its officers is made under section 401, which is as under : "s. 401. Notice, limitation and tender of amends in suit against Corporation, etc.- (1)No suit shall be instituted against the Corporation, the Standing Committee, or any Corporation officer or servant, or any person acting under the direction of the Corporation, the Standing committee or any municipal officer or servant, in respect of any act done or purporting to have been 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 or any rule or bye-law made thereunder until the expiration of one month next after notice in writing has been delivered or left at the chief Corporation Office or at the residence of such officer, servant or person standing with adequate particulars,- (a) the cause of action; (b) the name and residence of the intending plaintiff and of his advocate, pleader or agent, if any, for the purpose of the suit; and (c) the relief which he claims. (2) Every such suit shall be commenced within six months next after the accrual of the cause of action, and the plaint therein shall contain a statement, that a notice has been delivered or left as required by sub-section (1 ). (3) If the Corporation or any person to whom any notice is given under sub-section (1)has tendered sufficient amends to the plaintiff before the suit is instituted, the suit shall be dismissed. (4) If the defendant in any such suit is the Commissioner or any other Corporation officer or servant, payment of any sum or part thereof payable by him in or in consequence of the suit may, with the sanction of the Standing Committee, be made from the Municipal Fund. " ( 9. ) IT may be conceded that when a question is merely of the appropriate rate of duty and not of a complete exemption, the Corporation authorities have jurisdiction to determine finally whether the dutiable article falls within one entry or the other; see, Firm Radha Kishan v. Ludhiana Municipality ( AIR 1963 SC 1547 ). " ( 9. ) IT may be conceded that when a question is merely of the appropriate rate of duty and not of a complete exemption, the Corporation authorities have jurisdiction to determine finally whether the dutiable article falls within one entry or the other; see, Firm Radha Kishan v. Ludhiana Municipality ( AIR 1963 SC 1547 ). The problem in the present case is, however, different, for here the plaintiff claims that the goods being cotton yarn, were totally exempt and the Corporation authorities, by wrongly holding these goods to be mill thread, realised octroi when no duty was payable. To put it briefly, the question is, whether the finding of the authorities that the goods were mill thread and not cotton yarn can be challenged in a civil Court. ( 10. ) NOW, the rule is that civil Courts have jurisdiction to entertain and decide all suits of a civil nature unless their jurisdiction is expressly or by clear implication barred. The provisions of the Act and the rules have, therefore, to be examined from this point of view. ( 11. ) THE learned counsel for the Corporation referred to me section 189 (1) of the Act, which I have already quoted, as creating an express bar. I have also quoted section 401 of the Act which shows that normally a suit is maintainable against the Corporation and its authorities for anything done or purported to be done under the Act after the suit or complies with certain conditions. As to section 189 (1) creating an express bar for challenging an assessment in a civil Court, it may be at once noticed that the section is not drafted on the lines as section 67 of the Income Tax Act, 1922 (now section 293 of the 1961 Act) or similar sections in the various Sales Tax Acts (for example, see section 21 of the C. P. and Berar Sales Tax Act, 1947, and section 37 of madhya Pradesh General Sales Tax Act, 1958 ). These sections in the Income tax Act and Sales Tax Acts, with which the Legislature must have been familiar, expressly refer to civil Courts and oust their jurisdiction in plain terms, but section 189 of the Corporation Act makes no express reference to a civil Court. These sections in the Income tax Act and Sales Tax Acts, with which the Legislature must have been familiar, expressly refer to civil Courts and oust their jurisdiction in plain terms, but section 189 of the Corporation Act makes no express reference to a civil Court. The words be questioned in any other manner or by any other authority than as provided in the Act"-are no doubt wide words, but having regard to the language normally used by the Legislature in taxing Acts for expressly ousting the jurisdiction of civil Courts as also to the principle that provisions excluding jurisdiction of civil Courts are strictly construed, it is more reasonable to infer that the Legislature did not intend to create an express bar for maintainability of a suit in a civil Court for challenging an assessment made under the Act and the words in section 189 only exclude a challenge to an assessment so far as the authorities under the Act are concerned except in the manner provided and by the authority empowered in that behalf under the Act. Construing similar provisions of C. P. Municipalities Act, 1922, the supreme Court in B. K. Bhandar v. Dhamangaon Municipality ( AIR 1966 SC 249 , p. 260) observed : "it would be pertinent to advert also to the provisions of section 84, sub-section (3) of which deals with "bar of other proceedings". Sub-section (1) provides for the period of limitation for an appeal under section 83 (1 ). Sub-section (2) empowers the appellate authority to require the assessee to deposit the tax before the hearing or the decision of the appeal. Sub-section (3) is in the following terms: "no objection shall be taken to any valuation, assessment, or levy, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act. " it will be seen that there is no express mention of a civil Court in this sub- section as there was in section 67 of the Indian Income-tax Act, 1922. In fact section 48 of the Municipalities Act contemplates the institution of a suit subject to fulfilment of certain conditions and thus indicates that it was not the intention of the Legislature to make the machinery provided by the Act exclusive. In fact section 48 of the Municipalities Act contemplates the institution of a suit subject to fulfilment of certain conditions and thus indicates that it was not the intention of the Legislature to make the machinery provided by the Act exclusive. " [section 84 (3) and section 48 of the C. P. Act correspond to section 189 and section 401 of the Corporation Act]. These observations support the view that the language employed in section 189 read with section 401 cannot be construed to bar the maintenance of a civil suit for challenging an assessment of a tax levied under the Corporation act. ( 12. ) AS regards the point that the Act by necessary implication bars a challenge to an assessment in a civil Court, certain principles have to be kept in view. First, that the creation of a tax liability is not regulation of a common law right and, therefore, normally the remedies provided in a taxing Act for challenging an assessment of tax imposed by the Act are construed as exclusive. Secondly, that if remedies provided in the Act do not provide for a full investigation of a question, the jurisdiction of civil Courts on that question cannot be held to be barred. And thirdly, that a challenge to an assessment may be open when the assessment is without jurisdiction or otherwise a nullity. ( 13. ) I have already referred to the rules relating to the assessment of octroi and I do not find in these rules any machinery for a complete investigation of a question whether the goods brought into the city are of such a description that they come within a total exemption making them wholly exempt from octroi. The octroi Maharrir at the outpost and the Assistant Superintendent at the central office, to whom the case is referred in case of disputed assessment, are only concerned with the examination of the goods or documents such as bill or invoice etc. relating to the goods. The enquiry by these authorities is in the nature of a summary enquiry. The appeal to the Commissioner will also normally be on the basis of the enquiry held by the Octroi Moharrir or the Assistant Superintendent. No provision has been shown empowering the Commissioner to make further enquiry in appeal. relating to the goods. The enquiry by these authorities is in the nature of a summary enquiry. The appeal to the Commissioner will also normally be on the basis of the enquiry held by the Octroi Moharrir or the Assistant Superintendent. No provision has been shown empowering the Commissioner to make further enquiry in appeal. I have already said that the learned counsel for the appellant has failed to produce before me the bye-laws showing that a second appeal could lie to the Appeal Committee. In my opinion, the Act and the Rules do not provide any adequate machinery for the investigation of a question whether a particular commodity brought within the city is liable to tax at all. Such a question, therefore, can be raised in a civil Court, although merits of an assessment cannot be challenged. ( 14. ) THERE is another way of looking at the problem. Having regard to the provisions of the Act and the Rules, the question whether a commodity brought into the city falls within the description of an exemption is a jurisdictional question and the Corporation authorities have not been conferred authority to determine this question finally. In other words the authorities cannot by wrongly determining the character of a commodity hold that it is subject to duty when, in fact, the commodity is of the nature covered by an exemption and thus entirely free from duty. Jurisdiction to tax, where none exists, cannot be assumed by wrongly determining the nature and character of a commodity. The order of assessment in such a case would be a nullity. The House of Lords in Anisminic v. Foreign Compensation etc. (1969 1 All ER 208 (HL)) considered the question as to when an order is a nullity. Relying upon that case and other cases a Division Bench of the High Court (of which I was a member) in rao Bhupendra Singh v. Smt. Gopal Kunwar ( 1970 0 MPLJ 16 ) summed up the legal position as follows : " (1) An Exclusionary Clause using the formula "an order of the tribunal under this act shall not be called in question in any Court"- is ineffective to prevent the calling in question of an order of the tribunal if the order is really not an order under the Act but a nullity. (2) Cases of nullity may arise when there is lack of jurisdiction at the stage of commencement of inquiry e. g. when (a) authority is assumed under an ultra vires statute, (b) the tribunal is not properly constituted, or is disqualified to act, (c) the subject-matters or the parties are such over which the tribunal has no authority to inquire, and (d) there is want of essential preliminaries prescribed by the law for commencement of the inquiry. (3) Cases of nullity may also arise during the course or at the conclusion of the inquiry. These cases are also cases of want of jurisdiction if the word "jurisdiction" is understood in a wide sense. Some examples of these cases are : (a) when the tribunal has wrongly determined a jurisdictional question of fact or law, (b) when it has failed to follow the fundamental principles of judicial procedure, e. g. has passed the order without giving an opportunity of hearing to the party affected, (c) when it has violated the fundamental provisions of the Act e. g. when it fails to take into account matters which it is required to take into account or when it takes into account extraneous and irrelevant matters, (d) when it has acted in bad faith, and (e) when it grants a relief or makes an order which it has no authority to grant or make. " The question with which I am concerned in this case falls under proposition no. (3) set out above from Rao Bhupendra Singhs case. That proposition so far as relevant is that an order is a nullity if it proceeds on a wrong determination of a jurisdictional question of law or fact. In the context of a total exemption, the question as to nature of a commodity is a jurisdictional question and a wrong determination of that question will make the order of assessment a nullity. The Anisminics case (supra) has recently been approved by the Supreme Court in Union of India v. Tarachand ( 1971 1 SCC 486 ) while dealing with the Sea Customs Act, 1878. The Anisminics case (supra) has recently been approved by the Supreme Court in Union of India v. Tarachand ( 1971 1 SCC 486 ) while dealing with the Sea Customs Act, 1878. The inference that, when octroi is imposed by wrongly determining the nature of a commodity which according to its true nature is not liable to octroi at all, a civil suit lies to challenge the imposition, also follows from certain observations in Firm Radha Kishans case (supra), which are as follows : "the learned counsel contends that if a municipal committee levies terminal tax on an article not liable to tax under the Act, a suit would lie and, therefore, the same legal position should apply even to a case where the municipal committee levies the tax in respect of an article under an entry not applicable to it. We do not see any analogy between these two illustrations, in the former, the municipal committee does not act under the Act, but in the latter it only commits a mistake or an error in fixing the rate of tax payable in respect of a particular commodity; one is outside the Act and the other is under the Act; one raises the question of jurisdiction and the other raises an objection to a matter of detail. " ( 15. ) THE learned counsel for the Corporation relied upon Union of India v. Narsimhalu ( 1969 2 SCC 658 ). In that case it was held that the question whether certain reels of news print which were imported fell within item 44 of the customs tariff or whether being less than 15" in width they were exempt from duty was a question which could not be agitated in a civil Court. The decision was reached in the context of the special machinery provided in the Sea customs Act, 1878 and cannot be applied for determining the nature of jurisdiction conferred on the authorities functioning under the Corporation Act. Even orders made under the Sea Customs Act, which are nullities in the sense explained in Anisminics case (supra), can be challenged in a civil Court. This legal position is fully recognised in Union of India v. Tarachand (supra ). ( 16. ) FOR these reasons, my conclusion is that the suit instituted by the plaintiff was maintainable in civil Court. ( 17. ) THE revision fails and is dismissed. This legal position is fully recognised in Union of India v. Tarachand (supra ). ( 16. ) FOR these reasons, my conclusion is that the suit instituted by the plaintiff was maintainable in civil Court. ( 17. ) THE revision fails and is dismissed. There shall, however, be no order as to costs. Revision dismissed.