GRAM PANCHAYAT KAUDIA v. DATTOLAL — 1961 DIGILAW 72 (MP)

ORDER P.K. Tare, J.—This is an appeal against the order, dated 14-11-1960, passed by Shri B. R. Dube, Additional District Judge, Narsimhapur. in Civil Appeal No. 5 of 1960, reversing the order dated 2-4-1960, passed by Shri S. Sanyal Civil Judge. Class II, Narsimhapur, in execution proceedings arising out of the decree in Civil Suit No. 19 B of 1957, dated, 4-11-1958. 2. The respondent took a contract from the appellant, whereby the appellant's right to recover registration tax and Bakkhar tax from the villagers during the period from 1-4-1955 to 31-3-1956 was auctioned in favour of the respondent for an amount of Rs. 15175/-, Out of the said amount the respondent paid only Rs. 7785/-, leaving a balance of Rs. 7390/-. Therefore, the Gram Panchayet filed the present suit for recovery of the said amount with interest. 3. We are not concerned with the defence raised by the present respondent in the suit as the decree for Rs. 7600/- inclusive of interest became final 4. However, in the execution proceedings the judgment-debtor respondent objected to the execution of the decree on the ground that the Civil Court had no jurisdiction to pass the decree, as a suit was barred by express provisions of the C. P. Panchayats Act, 1947. Further, it was alleged that the Gram Panchayat had no right or authority to file a suit, as there were no rules authorising the Gram Panchayat to levy the taxes or to recover or to lease but the right by auction. 5. The learned Judge of the executing Court rejected the judgment-debtor's objection and held that the decree was executable. Howover, the learned appellate Judge reversed that order land held that Section 46 of the C. P. Panchayats Act, 1947 read with Section 143 (c) and Section 236 of the M. P. Land Revenue Code, 1954 was a bar to the tenability of the suit. Therefore, it was that the decree passed was without jurisdiction, which could be challenged at the stage of execution. 6. Section 40 of the C. P. Panchayat Act, 1947 empowers a Gram Panchayat to levy acess. Section 41 provides for imposition of compulsory taxes, while Section 42 provides for imposition of optional taxes. Therefore, it was that the decree passed was without jurisdiction, which could be challenged at the stage of execution. 6. Section 40 of the C. P. Panchayat Act, 1947 empowers a Gram Panchayat to levy acess. Section 41 provides for imposition of compulsory taxes, while Section 42 provides for imposition of optional taxes. Further on, Section 46 of the Act provides as under :- Any arrear of a cess, tax, toll, fee or rate imposed under this Act shall be recoverable by the Deputy Commissioner as if it were an arrear of land revenue. 7. As the said Section provided for a mode of recovery as if a tax were arrears of land revenue the learned covnsel for the respondent suggested that Section 236 of the M. P. Land Revenue Code. 1954 would be a bar to the tenability of a suit by the Gram Panachayat. The said Section excludes the jurisdiction of a Civil Court in respect of a matter, which is within the jurisdiction of a Reuenue Officer. It was further pointed out that u/s 143 (c) of the M. P. Land Revenue Code, 1954, it would be the exclusive jurisdiction of the Revenue Officer to collect an amount, which is recoverable as arrears of land revenue. Therefore, the jurisdiction of the Civil Court will be barred. 8. I am unable to accept this uptenable suggestion of the learned counsel for the respondent. The amount due from the respondent to the Gram Panchyat was not towards arrears of tax or cess. The amount due was towards contractual obligations. By a contract the appellant had auctioned its right to collect the taxes for a valuable consideration The respondent collected the said taxes from the villagers aid appropriated the amount and did not pay the full consideration towards the contract. As such the amount due by him cannot be said to be an arrear of tax or levy. It is a matter of pure contract and the provisions of the C. P. Panchayats Act, 1947 nor the provisions of the M. P. Land Revenue Code, 1954 would be a bar to the tenability of the suit. A suit would certainly be tenable for recovery of an amount due under a contractual obligation. 9. It is a matter of pure contract and the provisions of the C. P. Panchayats Act, 1947 nor the provisions of the M. P. Land Revenue Code, 1954 would be a bar to the tenability of the suit. A suit would certainly be tenable for recovery of an amount due under a contractual obligation. 9. However, the learned counsel for the respondent urged that the contract was void, as there was no provision in the C. P. Panchayats Act 1947 for auctioning the right to collect taxes. Therefore, the contract itself being void, no contractual obligation could be created. It is true that there is no provison in the Panchayat Act for auctioning the right to collect the taxes. But, it is also clear that the procedure relating to auctioning the right to collect taxes to not prohibited by the provisions of the C. P. Panchayats Act. 1947. Section 76 A of the C. P. and Berar Municipalities Act. 1922 authorises a Municipal Commitee to auction its right to collect tolls, market dues and fees by public auction or private contract. Therefore, such a procedure is not unknown to local bodies. For this reason it is, in my opinion, futile to contend that the contract was void on the ground of the Gram Panchayat having no power to enter into such a contract. Every contract would be permissible, which is not opposed to law, or which would not be opposed to public policy u/s 23 of the Contract Act. The Gram Panchayat being a body corporate, as provided for by Section 26 of the Panchayats Act would be able to enter into all contracts, which are not prohibited by law. 10. Therefore, in my opinion, there is no substance in the contention of the learned counsel for the respondent that the contract was void as it was not warranted by the provisions of the Panchayats Act 1947. The said Act can apparently not be expected to make any provision about the contracting power of the Gram Panchyat, which matter would solely be governed by the provisions of the Indian Contract Act. 11. The said Act can apparently not be expected to make any provision about the contracting power of the Gram Panchyat, which matter would solely be governed by the provisions of the Indian Contract Act. 11. The learned counsel for the appellant invited attention to the observations of a Division Bench consisting of Sinha C. J. (as he then was) and Hidayatullah J. (as he then was) in Laxmichand Vs Sunderabai and others ILR 1952 Nag 534 wherein the learned Judges observed that there was a difference between want of jurisdiction and a wrong decision given when the Court has jurisdiction. The Division Bench further expressed that it the decision be without jurisdiction it would be open to a challenge as it would be a nullity, On the other hand, if it be a wrong decision although within jurisdiction, it cannot be challenged either in execution or in collateral proceedings, however, wrong it may be. This view, has been approved of by their Lordships of the Supreme Court in Kiran Singh and Others Vs. Chaman Paswan and Others, where their Lordships laid down that a decree without jurisdiction can be challenged at any stage whether in execution or in collateral proceedings. Therefore, it is necessary to see whether the decree passed by the Civil Court for the balance of consideration was without jurisdiction. 12. As already pointed out by me earlier, the contract not bring void the Gram Panchayat had a right to recover the balance of consideration due towards the contract. Moreover, the amount due could not be said to be a tax. Consequently, such an amount due from the respondent to the Gram Panchayat could not be recoverable as an arrear of land revenue. Even assuming that it might be so recoverable, the right of the Gram Panchayat to realise the same by filing a suit would not be barred, as held by Broomfield J. in Shivprasad Deviprasad Vs. Jankibai Jugalkishore, . where it Was held that the Municipal Committee could file a suit for recovery of the tax due. Similarly, in The City Municipality Vs. The Hindustan Construction Company, it was held that the Municipal Committee could file a suit for recovery of the octroi tax due. A Division Bench of this Court consisting of Hidayatullah C J. (as he then was) and Chaudburi J. in Union of India representing Central and Western Rly. Administration Vs. Similarly, in The City Municipality Vs. The Hindustan Construction Company, it was held that the Municipal Committee could file a suit for recovery of the octroi tax due. A Division Bench of this Court consisting of Hidayatullah C J. (as he then was) and Chaudburi J. in Union of India representing Central and Western Rly. Administration Vs. R. C. Jail 1958 JLJ 611 held that the Union could always file a suit for recovery of the excise dues recoverable from a contractor. Therefore, the mere fact that a summary remedy might be provided by a certain Act for recovery of the amount due is arrears of land revenue will not debar the party concerned from filing a regular suit in a Civil Court for recovery of the amount due. It would be the choice of the party either to resort to the summary remedy or to enforce its right by a common law right. 13. In AIR 1940 105 (Privy Council) their Lordships of the Privy Council have laid down that the exclusion of jurisdiction of a Civil Court is not to be really inferred. Section 9 of the CPC confers on the Civil Court the power to adjudicate on all disputes of a civil nature. In order to oust the jurisdiction of a Civil Court, there must be a specific provision in the special enactment or the jurisdiction must be excluded by necessary intendment or implication. 14. In Mahant Har Kishan Das Vs. Satgur Prasad, AIR 1938 PC 98 it was laid down by their Lordships of the Privy Council that the executing Court cannot go behind the decree. That principle has been approved of by their Lordships of the Supreme Court in V. Ramswami Aiyangar and others Vs. T N V Kailasa Thrar. AIR 1951 SC 889 and Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, . In view of the authoritative pronouncement of their Lordships of the Privy Council and their Lordships of the Supreme Court, it is unnecessary for me to refer to a series of cases decided by this High Court on the question of jurisdiction of the Civil Court, as also the power of the executing Court to go behind a decree. The decree passed in the present case cannot be said to be a decree without jurisdiction. The decree passed in the present case cannot be said to be a decree without jurisdiction. Therefore, I am unable to agree with the view of the learned appellate Judge that the decree could be challenged in the execution proceedings. On the other hand, I find that the view of the learned Judge of the trial Court was correct and in accordance with the principles, laid down by their Lordships of the Privy Council and by their Lordships of the Supreme Court. 15. As a result, this appeal succeeds and is allowed with costs. The order of the first appellate Court is set aside, while that of the trial Court is restored. Council's fee Rs. 150, if certified. Leave for filing Letters Patent Appeal is refused.