JUDGMENT : ( 1. ) THIS appeal arises out of the judgment, passed by the Additional district Judge, Indore, decreeing the plaintiff-respondents 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. 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. ( 4. ) ACCORDING to the plaintiff-respondent, the fact that bye-law No. 19 (a) has been declared illegal-came to his knowledge only when a decision in the writ petition was pronounced on 13th December 1962, and thereafter he filed the present suit for refund of this amount. ( 5. ) THE appellant Corporations defence in the trial Court was that this octroi duty was collected by the corporation on their bona fide interpretation of M. P. Municipal Corporation Act, 1956, and bye-law No. 19 (a), and, therefore, the appellants authorities having acted bona fide, under the provisions of section 401 of the M. P. Municipal Corporation Act they were protected. It was also contended that in this view of the matter a suit for refund of the amount could not be filed beyond the statutory period of limitation provided for in the M. P. Municipal Corporation Act. ( 6. ) AGAINST the decision of the High Court in the writ petition, an appeal was preferred to the Supreme Court, and the Supreme Court maintained that bye-law No. 19 (a) was not enacted as no resolution had been passed to bring it into operation and so it was ineffective. But the Supreme Court held that the conclusion arrived at by the High Court that the bye-law was ultra vires or illegal was not justified. ( 7. ) IN this appeal, Shri Jhanjaria, learned counsel for the appellant, contended that when the decision of the High Court in the writ petition was not maintained by the Supreme Court and it was held by the Supreme Court that the levy of octroi duty on the basis of the bye-law No. 19 (a) could not be said to illegal or ultra vires, a suit for refund could not be maintained. According to the learned counsel, the assessment of tax on the basis of the bye-law in force since 1947 could at the most be said to be erroneous as the taxing Officer added excise duty also in order to determine the price on the basis of which duty was chargeable, and consequently the Corporation authorities were acting or purporting to act under the provisions of the M. P. Municipal Corporation Act, 1956, and, therefore, section 401 of the Act would be applicable and as the suit has not been filed for refund of the amounts as contemplated in sub-section (2) of section 401, it deserves to be dismissed on that short ground. Learned counsel also contended that the M. P. Municipal corporation Act provides a scheme for refund of the octroi tax and consequently the civil Court had no jurisdiction to entertain the suit. In support of his contentions, learned counsel relied on B. K. Bhandar v. Dhamangaon municipality (1966 MPLJ 201= air 1966 SC 249 ), Distt. Council, Bhandara v. Kishorilal (1918 NLJ 533 = AIR 1949 Nag. 190) and Amraoti Municipality v. Bhikan (AIR 1938 Nag. 5 ). In support of his contentions, learned counsel relied on B. K. Bhandar v. Dhamangaon municipality (1966 MPLJ 201= air 1966 SC 249 ), Distt. Council, Bhandara v. Kishorilal (1918 NLJ 533 = AIR 1949 Nag. 190) and Amraoti Municipality v. Bhikan (AIR 1938 Nag. 5 ). He also referred to the decisions in S. R. Goel v. Municipal Board, kanpur ( AIR 1958 SC 1036 ) and Sales Tax Officer v. Kanhaiyalal ( AIR 1959 SC 135 ). ( 8. ) SHRI G. M. Chaphekar, learned counsel for the respondent, contended that although on appeal the Supreme Court did not maintain the conclusion of the High Court that the bye-law was illegal and ultra vires, still in substance what was held was that bye-law No. 19 (a) was not validly brought into operation and, therefore, no tax could be collected on that basis, and in this view of the matter it could not be said that when the appellant collected octroi duty from the respondent by adding excise duty to the price of liquor imported, it was because of some error of assessment and the excise duty was added to the price, but it was charged on the basis of bye-law No. 19 (a ). He also contended that in the Court below the plea raised by the appellant was that they charged octroi duty under the provisions of bye-law No. 19 (a), and this bye-law having been found not to have been brought into force in accordance with law, it could not be said that the Corporation-authorities were acting or purporting to act under the provisions of the Act, and so the provisions of section 401 of the Act would not be applicable. According to the learned counsel, the provisions for refund in the Act only pertain to refund in certain special circumstances, and there are no provisions for refund of a tax collected as in the present case. He contended that at the same time there is no specific provisions which bars the jurisdiction of the civil Court on the question of refund of octroi duty collected, and consequently the contention of the learned counsel for the appellant could not be accepted. He contended that at the same time there is no specific provisions which bars the jurisdiction of the civil Court on the question of refund of octroi duty collected, and consequently the contention of the learned counsel for the appellant could not be accepted. Shri Chaphekar also contended that the suit was in fact based on the question of collection of tax under a mistake of law, and that being a specific plea, it could not be said that a suit for refund would not be maintainable. He referred to Dhulabhai v. State of m. P. (1969 MPLJ1= air 1969 SC 78 ) in support of his contentions. He also referred to the decisions of this court in M/s Shewaram and Sons v. Indore Munpl. Corpn. , and others (M. P. No. 9 of 1969 decided on 14-10-1969 ). ( 9. ) SHRI Jhanjaria for the appellant, however, contended that the question of mistake of law was not specifically raised. He also referred to certain decisions to contend that a tax collected under a mistake of law could not be refunded. ( 10. ) IN the writ petition filed in this Court by the plaintiff-respondent, it was found that:- ". . . the rate of tax is in effect and substance enhanced. Bye-law 19 (a) thus varied the rate of octroi duty on liquor without there being any effective resolution of the Corporation under section 133 for the variation. As the method of valuation embodied in bye-law 19 (a) was adopted by the Corporation without complying in substance and in effect with section 133, that bye-law-cannot be held to be valid. " (1963 MPLJ 179)It was in this view of the matter that it was observed in the order disposing of this writ petition that "bye law No. 19 (a) is declared to be illegal, ultra vires and totally ineffective". When this matter went up to the Supreme Court, their Lordships in Indore Munpl. Corpn. v. Shewaram and Sons (C. A. No. 227 of 1965 decided on 8th November 1967), observed as under :- "we agree with the High Court that bye-law 19 (a) read with bye-!aw 5 and the Schedule could only be made effective by a resolution passed by the Corporation under section 133 of the Act, but we are unable to hold that bye-law 19 (a) was illegal and ultra vires. " These observations, therefore, indicate that so far as the conclusion about bye-law 19 (a) being ineffective is concerned, the view taken by this Court was upheld by the Supreme Court. It was only the terminology which was not accepted. Consequently in substance what was held was that bye-law 19 (a) was not brought into force as required under the provisions of section 133 of the M. P. Municipal Corporation Act and accordingly it cannot be given effect to. This position cannot be disputed, and in fact is not disputed before us. What the learned counsel for the appellant wanted to contend was that as the phrase illegal and ultra vires has not been accepted by the Supreme Court, it would only mean an erroneous assessment. He, therefore, referred to the following passage in the judgment of the Supreme court :- "as already observed, the liability to pay octroi duty was imposed by the resolution of the year 1957 and under that resolution importers of liquor are liable to pay octroi duty at the rate of 25% on the price. The expression price has not been defined either in the Act or the bye-law. What the price of any particular consignment of liquor imported by a dealer importing it within the limits of the Corporation of Indore may be, must depend upon the terms of the contract between him and the supplier. " It is on this basis that the learned counsel for the appellant contended that when the taxing officers collected octroi from the respondent, they were entitled to collect upto 25% of the price and on price they included the excise duty as well, and consequently it could only be said to be an erroneous assessment of octroi duty. Looking to the written statement of the appellant, this does not appear to be the case with which they came to the Court. In paragraph 17 of the written -statement, it was stated as under :- ". . . the opponent Corporation was under bona fide belief that the Municipal Corporation has lawful authority to recover octroi duty in the manner shown in rule no. 19 (a) of the octroi bye-laws. " It was also further pleaded that as soon as bye-law 19 (a) was struck down by the High Court, the appellant stopped recovering octroi duty on that basis. 19 (a) of the octroi bye-laws. " It was also further pleaded that as soon as bye-law 19 (a) was struck down by the High Court, the appellant stopped recovering octroi duty on that basis. In the whole written statement, it is no where pleaded that the taxing officers of the Corporation, for purposes of assessment of tax, were assessing the price of liquor and in that assessment they erroneously added excise duty although they were assessing under the old bye-law under which they were entitled to collect octroi duty upto 25%. In this view of the matter, it cannot be doubted that what the learned counsel for the appellant was trying to contend was not the case of the Corporation before the Court below. Even in the memorandum of appeal filed before this Court, this question has not been urged in the manner as followed by the learned counsel during the course of the arguments. Apparently it appears that when this case was decided the matter was pending in the Supreme Court and it is only after the decision of the Supreme Court, where the terminology used by this Court holding the bye-law to be illegal and ultra vires was not accepted, that the learned counsel has built up this line of argument on the basis of the decision of the Supreme Court. In any event, as discussed above, even the judgment of the Supreme Court does not alter the position. The fact remains that the tax, which was collected under a particular bye-law, could not be so collected as the bye-law has been found to be ineffective because it was not brought into force in accordance with the provisions of the M. P. Municipal Corporation Act. Consequently it cannot be doubted that the tax was not collected under any error of assessment. This part of the contention of the learned counsel for the appellant cannot, therefore, be accepted. ( 11. ) AS regards the question of maintainability of a suit for refund, the decision in Dhulabhai v. State of M. P. is a complete answer to it. This part of the contention of the learned counsel for the appellant cannot, therefore, be accepted. ( 11. ) AS regards the question of maintainability of a suit for refund, the decision in Dhulabhai v. State of M. P. is a complete answer to it. In that decision, after considering all the case-law on the subject, the Supreme court ruled that where there is no express bar on the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court. It was also held in this decision that where a particular Act contains no machinery for refund of the tax collected illegally, a suit will be competent. Similar view has been expressed in state of M P. v. Khoda Bhai ( 1971 0 mplj 658 ), where a Full Bench of this Court held that a suit for refund of lax, which was declared illegal, is maintainable. In this context, if we examine the scheme of the M. P. Municipal Corporation Act, we find that section 189 of the Act provides as under :- "189. (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. (2) The Government may make rules under this Act regulating the refund of taxes and such rules may impose limitation of such refunds. (3) No refund of any tax shall be claimed by any person otherwise than in accordance with the provisions of this Act and the rules and the bye-laws made thereunder. " This provision clearly indicates that objection to any valuation or assessment or to the liability of any person to be assessed or taxed are the only questions which can be raised in the manner provided in the Act before the authority prescribed under the Act. Where the question is about the legality of a particular tax itself, it will fall within the ambit of section 189, and it cannot be said that such a question cannot be raised in a civil Court. As regards the refund of tax, sub-section (2) of section 189 authorizes the Government to make rules for that purpose. Where the question is about the legality of a particular tax itself, it will fall within the ambit of section 189, and it cannot be said that such a question cannot be raised in a civil Court. As regards the refund of tax, sub-section (2) of section 189 authorizes the Government to make rules for that purpose. The rules for refund are given in bye-laws 35 to 41. A perusal of these bye-laws clearly indicate that there is no provision whatsoever for refund of tax collected on the basis of a bye-law which is ultimately found to be ineffective. Consequently under the scheme of the act, the refund as claimed by the plaintiff-respondent in this case cannot be granted. It is, therefore, clear that a suit is clearly maintainable because there is no provision in the Act under which such a refund can be claimed ; nor is there any provision restricting the jurisdiction of the civil Court in regard to the determination of questions as arise in the present case. ( 12. ) THE tax of which refund is sought in the case was a tax collected on the basis of bye-law 19 (a) which ultimately has been found to be ineffective. As discussed earlier, it is not a case where there was any error of assessment. Consequently it cannot be said that the provisions of section 401 of the Act would be attracted. Section 401 of the Act provides that- "401. (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 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. " Sub-section (2; no doubt fixes limitation for suits falling within this section, and it is six months. It is not disputed that if section 401 applied to the present suit, then it would be barred by time. Shri Jhanjaria for the appellant contended that although the tax was recovered under a mistaken belief, still the authorities of the Corporation were acting or purporting to act under the provisions of the M. P. Municipal Corporation Act. In Amraoti Municipality v Bhikan, it was held as under- "the distinction is pointedly expressed by a learned Judge of an English Court in (1864), 16 C. B. 568 cited at page 9 in the Streets Doctrine of ultra vires. It is as follows: though in one sense unlawful it is still a thing done within the general scope of the authority of the Board. The act was intra vires as it was within the scope but doing the act without complying with a statutory condition was ultra vires. the present case, unlike those of Madras and Allahabad referred to above, falls within this principle. The enhancement of the tax was intra vires, as being within the scope of the Act, but became ultra vires only because the Committee did not comply with certain statutory conditions. In enhancing the tax and collecting it the Municipal Committee was certainly exercising, although irregularly, the power conferred on it by section 68 and to that extent it appears to me that the contention that they were not acting under the statute is untenable. In enhancing the tax and collecting it the Municipal Committee was certainly exercising, although irregularly, the power conferred on it by section 68 and to that extent it appears to me that the contention that they were not acting under the statute is untenable. " And on this basis Shri Jhanjaria emphatically contended that although bye-law 19 (a) is held to be ineffective, still the authorities had the power to collect the tax and consequently it would fall within the ambit of section 401 of the Act. He also referred to Distt. Council, Bhandara v. Kisorilal where it was observed as under- "now I can understand it being said that an act which is within the scope of an official duty cannot be taken out of that category simply because it is carelessly or negligently performed, but 1 cannot see how an act which is expressly prohibited by law can be said to lie there. If a Magistrate directed to supervise a sentence of whippling duly imposed by a competent Court has the wrong man whipped by mistake or imposes more lashes than warranted, I can understand him being protected. He is there acting within the scope of his duty, But if, instead of having the man whipped, he has him branded with a hot iron he would not, in my opinion, be able to claim the protection. In the same way I cannot see how a Municipal Committee can be said to be acting under the act when it does that which is expressly prohibited by the Legislature. Say it purported to tax salt. Its action would not be covered by section 73 because the Constitution act makes that an exclusively central subject. Say also a Municipality attempted to tax marriages or births, that would be completely beyond its province and it could not be heard to say that because it has been given certain limited powers of taxation, therefore, it purports to act under the Act whatever, the nature of the tax it attempts to impose. In the same way, if the Legislature limits the authority of the committee to a maximum of Rs. 50, I do not think it can be said it purports to act within the scope of the Act if it travels beyond its limited provisions. In the same way, if the Legislature limits the authority of the committee to a maximum of Rs. 50, I do not think it can be said it purports to act within the scope of the Act if it travels beyond its limited provisions. " In Poona Municipality v. Dattatraya ( AIR 1965 SC 555 ) it was held that- "the benefit of this section would be available to the Corporation only if it was held that this deduction of ten percent 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 section 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. " In view of this pronouncement, it cannot be doubted that the tax, which was collected under bye-law 19 (a), which was held to be ineffective, could not be collected by the Corporation. Hence, in absence of the bye-law, the corporation-authorities had no power whatsoever to collect octroi on the import of liquor on the basis of adding excise duty to the price. In this view of the matter, the recoveries made by the Corporation authorities are completely without jurisdiction and, therefore, it cannot be said that the Corporation-authorities were purporting to act under the M. P. Municipal Corporation act ; and the provisions of section 401 of the Act will have no application. ( 13. ) IT cannot also be disputed that any tax paid under a mistake of law is refundable. In Sales Tax Officer v. Kanhaiya Lal, it was laid down as under-"we are of opinion that this interpretation put by their Lordships of the Privy council on section 72 is correct. ( 13. ) IT cannot also be disputed that any tax paid under a mistake of law is refundable. In Sales Tax Officer v. Kanhaiya Lal, it was laid down as under-"we are of opinion that this interpretation put by their Lordships of the Privy council on section 72 is correct. There is no warrant for ascribing any limited meaning to the word mistake as has been used (herein and it is wide enough to cover not only a mistake of fact but also a mistake of law. f here is no conflict between the provisions of section 72 on the one hand and sections 21 and 22 of the Indian Contract Act on the other and the true principle enunciated is that if one party under a mistake, whether of fact or law, pays to another party money which is not due by contract or otherwise that money must be repaid. The mistake lies in thinking "that the money paid was due when in fact it was not due and that mistake, if established, entitled the party paying the money to recover it back from the party receiving the same. " In the Division Bench decision of this Court in Mahendra Kumar v. Stated (1963 MPLJ Note 238=1963 JLJ 79), following the above decision of the Supreme Court, it was held that a tax is recoverable, and Article 96, Limitation Act, applies to such suits. In this view of the matter, therefore, it cannot be doubted that the provisions of section 401 of the M. P. Municipal Corporation Act will have no application and the suit will be governed by Article 96 of the Limitation Act, and consequently the present suit is clearly within time. ( 14. ) IN the light of the discussion above, the appeal is without any substance and it is, therefore, dismissed The respondent shall be entitled to the costs of this appeal. Counsels fee as per schedule, if certified. Appeal dismissed.