BARODA MUNICIPAL CORPORATION v. STATE — 1975 DIGILAW 123 (GUJ)

A. N. SURTI, J. ( 1 ) THIS revision application is directed against the impugned order passed by the learned Civil Judge (Senior Division) Baroda in Court Fees Reference No. 3 of 1969 in Regular Civil Suit No. 452 of 1968 In substance by the impugned order the Civil Judge called upon the Baroda Municipal Corporation to pay the deficit court-fees stamp of Rs; 4 670 as mentioned by the Inspecting Officer (Court Fees) Baroda and Kaira Districts Baroda in his report dated December 26 1968 In order to appreciate the grievance of the petitioner Corporation a few relevant facts may be stated. ( 2 ) IN the suit which is filed by the petitioner Corporation the following reliefs are claimed as set out in paragraph 26 of the plaint. (1) It may be declared that the Gujarat State is not entitled to recover from the plaintiff any N. A. assessment which is levied retrospecttively i. e. in respect of the years prior to the year in which the order is passed. (2) And that the Gujarat State is not legally entitled to recover any N. A. assessment in respect of lands encroached upon by others. (3) It may be declared that the order of the Collector demanding an amount of Rs. 2 37 778 or any amount as ordered by the Collector by the Order No. LND. 2573/63 dated 16-9-1963 is ultra vires illegal and inoperative. . . . (4) A. permanent injunction be issued to the Gujarat State not to recover the; aforesaid amount as well as not to levy or recover. N. A. assessment as well as other charges complained of in this suit in future. (5) The defendant may be ordered to pay the costs of the suit. (6) Such other and further reliefs as may be granted as may be deemed necessary in the interests of justice. ( 3 ) WHEN the suit was initially filed the petitioner Corporation had affixed the court-fees stamp of Rs. 30. 00. The petitioner Corporation was of the view that for the purposes of court-fees the suit should be valued under sec. 6 (iv) (j) of the Bombay Court Fees Act 1959 (hereinafter referred to as the Act) and accordingly the court-fees stamp of Rs. 30 was affixed on the plaint. ( 4 ) THE Inspecting Officer who acted under sec. 00. The petitioner Corporation was of the view that for the purposes of court-fees the suit should be valued under sec. 6 (iv) (j) of the Bombay Court Fees Act 1959 (hereinafter referred to as the Act) and accordingly the court-fees stamp of Rs. 30 was affixed on the plaint. ( 4 ) THE Inspecting Officer who acted under sec. 12 of the Act submitted his report to the learned Civil Judge on December 26 1969 In substance; the report was that the petitioner Corporation had paid insufficient and improper Court-fees in the aforesaid suit. He stated that the petitioner Corporation had filed the suit for a declaration that the State of Gujarat is not entitled to recover from the petitioner Corporation any assessment with retrospective effect and for the other reliefs as stated hereinabove. He also reported that the present suit is for a specific relief of declaration of the right which is susceptible of monetary evaluation. He also reported that the petitioner Corporation have prayed for a declaration of the right that they are not liable to pay the amount of Rs. 2 37 778 being the amount of N. A. assessment with retrospective effect as well as future N. A. assessment charges. The Inspecting Officer was of the view that the suit for the purposes of payment of court-fees falls under sec. 6 (iv) (a) of the Act as the suit is for declaration for a substantive right viz. that the defendants are not entitled to recover from the plaintiff Rs. 2 37 778 and for other reliefs. He also took the view that without prejudice what has been stated above the present suit falls under Article 7 of Schedule I of the Act. As a result of his aforesaid view the Inspecting Officer submitted the report to the learned Civil Judge (Senior Division) Baroda and stated that the petitioner Corporation should pay the deficit court-fees amount of Rs. 4 670 ( 5 ) THE learned Civil Judge issued the notice to the Baroda Municipal Corporation under sec. As a result of his aforesaid view the Inspecting Officer submitted the report to the learned Civil Judge (Senior Division) Baroda and stated that the petitioner Corporation should pay the deficit court-fees amount of Rs. 4 670 ( 5 ) THE learned Civil Judge issued the notice to the Baroda Municipal Corporation under sec. 12 (5) of the Act and called upon them to show cause why they should not be directed to pay the deficit court-fees stamp as stated by the Inspecting Officer by his report dated December 26 1969 The learned trial Judge having heard the petitioner Corporation came to the conclusion that the petitioner Corporation should pay the deficit court-fees of Rs. 4 670 within a period of one month from the date of the impugned order. ( 6 ) THE petitioner Corporation was aggrieved by the impugned order and has filed the present revision application. This revision application was placed for hearing-and disposal before our learned brother B. K. Mehta J. and by his referring judgment dated 29th April 1975 has raised the following points for consideration of the Division Bench. (1) Whether the suit for declaration that the State Government bad no authority to levy N. A. assessment and for a declaration that the order of the Collector in exercise of that power was ultra vires and illegal and for injunction restraining the enforcement of the recovery as well as the future recovery would involve the question of adjudication against recovery or not and therefore would be within the preview of sec. 6 (iv) (a) of the Bombay Court-fees Act ? (ii) If not under what appropriate section the present suit would bear the court-fees. ( 7 ) IT is under these circumstances that the present revision application is placed before us for disposal. ( 8 ) MR. N. R. Oza the learned advocate appearing on behalf of the petitioner Corporation has drawn our attention to the relevant averments contained in the plaint. ( 9 ) IN paragraph 10 of the plaint it is averred as follows : The Government cannot levy N. A. assessment if some plots are given for temporary use by charging a licence fee. These plots are not given permanently and hence the use of those plots as street lands is not permanently disturbed. ( 9 ) IN paragraph 10 of the plaint it is averred as follows : The Government cannot levy N. A. assessment if some plots are given for temporary use by charging a licence fee. These plots are not given permanently and hence the use of those plots as street lands is not permanently disturbed. So far as garden lands are concerned those were given absolutely to the Municipality by the Baroda Government and hence no N. A. assessment can be charged for the same. . ( 10 ) IN paragraph 11 of the plaint in is averred as follows : Some lands were given to merchants for cabins. The Government was charging N. A. assessment for such lands. But the cabins or other temporary things are removed and their use as street land is restored and hence the Government cannot levy and charge N A. assessment. Such amount ought to be deducted. ( 11 ) IN paragraph 12 of the Plaint it is averred as follows: The Government cannot charge and recover N. A. assessment for the plot beneath the tomb on the west of Jubilee Garden. The tomb exists there from time immemorial and the Municipality has not permitted anyone to construct that tomb. ( 12 ) IN paragraph 13 of the plaint it is averred as follows : The Government cannot claim more than 1/2 the amount of income that the Municipality got from Azad Maidan. Rule 81 (3) allows the Government to charge at the maximum 1/2 the income (rent ). In paragraphs 14 and 15 of the plaint the grievance of the petitioner Corporation is that it was not open to the Government to charge any local cess on the amount of N. A. assessment. Nor the Government can charge N. A. assessment for the bungalow in public park Delhi pavilion and other properties. ( 13 ) IN paragraph 16 of the plaint the grievance of the petitioner Corporation is that it was not open to the Government to charge any N. A. assessment on small plots of land particularly when the income derived from such plots is quite meagre. ( 14 ) IN paragraph 17 of the plaint the petitioner Corporation stated that some land was given to the Harijan Municipal employees and the Government cannot charge more than 1/2 of the income that the Municipality was actually deriving from such land. ( 14 ) IN paragraph 17 of the plaint the petitioner Corporation stated that some land was given to the Harijan Municipal employees and the Government cannot charge more than 1/2 of the income that the Municipality was actually deriving from such land. Suffice it to state that the petitioner Corporation stated that the action of the Collector in calling upon the petitioner Corporation by his order dated 16th September 1963 to pay to the State a sum of Rs. 2 37 778 was illegal without jurisdiction and void ab initio. Shortly stated on the said grounds the petitioner Corporation claimed the aforesaid reliefs which we have set out in the ( 15 ) MR. Oza in view of the averments set out in the plaint raised the following contention. That the petitioner Corporation contends that the order of the Collector calling upon the petitioner Municipality to pay to the State the aforesaid amount of RS. 2 37 778 is illegal without Jurisdiction and void. In this view of the matter Mr. Oza submitted that the relief claimed by the plaintiff seeking a declaration in this behalf is not susceptible of monetary evaluation and hence the present suit would fall within the perview and scope of sec. 6 (iv) (j) of the Act and that the petitioner Corporation was justified in affixing the court fees stamp of Rs. 30. 00 on the plaint which was filed in Civil Court- ( 16 ) IN course of the hearing of the present revision application Mr. Oza raised the aforesaid contention only and now we proceed to dispose of the same. ( 17 ) NOW in order to determine as to whether the present suit for the purpose of court-fees falls within the scope of sec. 6 (iv) (a) or 6 (iv) (j) of the Act we must necessarily take into consideration the contents of the relief clause as set out in paragraph 26 of the plaint. ( 18 ) THE present suit is filed for a declaration to obtain adjudication against recovery of money from the petitioner Corporation and the alleged recovery is in respect of N. A. assessment a tax which is to be paid by the petitioner Corporation to the State Government. ( 18 ) THE present suit is filed for a declaration to obtain adjudication against recovery of money from the petitioner Corporation and the alleged recovery is in respect of N. A. assessment a tax which is to be paid by the petitioner Corporation to the State Government. In the relief clause there is inherent clear indication to show that the petitioner Corporation claimed the declaration that the State of Gujarat is not entitled to recover from the petitioner Corporation any assessment which was levied by the Collector in his demand notice of September 20 1963 whereby the Collector called upon the petitioner Municipality to pay to the State of Gujarat a sum of Rs. 2 37 778 It is also equally significant to note; that in the relief clause the petitioner Corporation by way of a consequential relief has prayed for a permanent injunction against the State of Gujarat restraining the State Government from recovering the aforesaid amount from the petitioner Corporation though specifically called upon by the Collector to pay the aforesaid amount to the State Government. ( 19 ) IN view of the specific averments contained in the plaint and the relief clause as set out above we may now conveniently refer to sec. 6 (iv) (a) of the Act which is in the following terms. ( 19 ) IN view of the specific averments contained in the plaint and the relief clause as set out above we may now conveniently refer to sec. 6 (iv) (a) of the Act which is in the following terms. 6 In suits for declaration to obtain adjudication against recovery of money from the plaintiff whether the recovery is as land revenue or arrears of land revenue or tax or duty or cess or fee or fine or penalty or under any decree or order of a Court or any certificate or award other than under the Arbitration Act 1940 or in any other manner one forth of ad valorem fee leviable on the amount sought to be recovered according to the scale prescribed under Article 1 of Schedule 1 with a minimum fee of fifteen rupees:provided that when in addition any consequential relief other than possession is sought the amount of fee shall be one half of ad valorem fee on the amount sought to be recovered; provided further that when the consequential reliefs also sought include a relief for possession the amount of fee shall be the full ad valorem fee on the amount sought to be recovered; ( 20 ) HAVING regard to the aforesaid provisions of the court-fees Act and bearing in mind the reliefs prayed for in the plaint in the present suit it is clear to us that the present suit is filed for a declaration to obtain the adjudication of the Collector against recovery of money from the petitioner Corporation and that the Civil Court should grant that declaration viz. that the State of Gujarat is not entitled to recover from the petitioner-Corporation any N. A. assessment which is levied retrospectively i. e. in respect of the years prior to the years in which the order was passed. It is equally clear to us that in the instant case the Collector had sent to the petitioner Corporation the notice of demand dated September 20 1963 calling upon the petitioner Corporation to pay to the state of Gujarat the aforesaid amount of Rs. 2 37 178 being the various amounts due and payable to the state Government towards N. A. charges and other charges as set out in the plaint. 2 37 178 being the various amounts due and payable to the state Government towards N. A. charges and other charges as set out in the plaint. It is equally clear to us that as the Collector of Baroda had issued and served the aforesaid notice of demand on the petitioner Corporation the petitioner corporation was anxious to obtain permanent injunction restraining the State of Gujarat to recover the aforesaid amount of Rs. 2 37. 778 bearing in mind these facts when we turn to the provisions of sec. 6 (iv) (a) of the Act it is clear to us that the present suit clearly falls within the perview of the sec. 6 (iv) (a) of the Act. At this stage we may once again repeat and state that in essence and substance the present suit is filed for a declaration that the State of Gujarat is not entitled to recover any amount levied by way of N. A. assessment from the petitioner Corporation and that in that behalf there was adjudication by the Collector of Baroda as stated above. . ( 21 ) THE present suit also falls within the perview of sec. 6 (iv) (a) of the Act as-in the instant case the Collector had already issued and served the notice of demand for the recovery of the aforesaid amount of Rs. 2 37 778 The present suit falls within the perview of sec. 6 (iv) (a) for the third reason also. The petitioner Corporation in the plaint has asked for a permanent injunction by way of a consequential permanent other than relief as to possession viz. the petitioner Corporation prayed for a permanent injunction restraining the state of Gujarat from recovering the aforesaid mount of Rs. 2 37 778 being the amount payable to the State by way of N. A. assessment as well as other charges. In this view of the matter the first proviso to sec. 6 (iv) (a) is clearly attracted in the case and hence the present suit will fall within the perview and scope of sec. 6 (iv) (a) of the Act for the purpose of determining the amount of court-fees payable on the plaint. ( 22 ) THE provisions of sec. In this view of the matter the first proviso to sec. 6 (iv) (a) is clearly attracted in the case and hence the present suit will fall within the perview and scope of sec. 6 (iv) (a) of the Act for the purpose of determining the amount of court-fees payable on the plaint. ( 22 ) THE provisions of sec. 6 (iv) (j) of the Act can only be attracted for the purpose of court-fees if a declaration is sought with or without injunction or other consequential reliefs and the subject matter in dispute is not susceptible of monetary evaluation and ins that behalf there is no other provisions in. the Act. . Now in the instant case as stated above there is a specific provision for the purpose of court-fees for the suit like the present one. As stated above the necessary provisions in that behalf are to be found in sec. 6 (iv) (a) of the Act If specified provision is there for the purposes. of determining the courts fees for the suit in question the petitioner Corporation cannot take the advantage of the provisions contained in sec. 6 (iv) (j) which in terms makes it explicit that. it applies to suit which are not otherwise provided for by this Act. ( 23 ) FOR the reasons aforesaid we are convinced that in the instant. case for the purpose of determining the court-fees payable on the suit in question court-Secs. Will have to be paid on the plaint as provided in sec. 6 (iv) (1) of the Act. We are also convinced that as there is a specific provision for paying the amount of court-fees in a suit of the present nature it would be patently erroneous to have any recourse to the provisions of sec. 6 (iv) (j) of the Act. It may be mentioned. at. this stage that the mere assertion in the plaint that the order of the Collector calling upon the petitioner Corporation to pay the aforesaid amount is void ab initio will not in our opinion take out the suit from the perview and scope of sec. 6 (iv) (a) of the Act for the purpose of determining the amount of court fees. As a result of this discussion we do not find any substance or merit in the contention raised by Mr. Oza. ( 24 ) BUT Mr. 6 (iv) (a) of the Act for the purpose of determining the amount of court fees. As a result of this discussion we do not find any substance or merit in the contention raised by Mr. Oza. ( 24 ) BUT Mr. Oza invited our attention to the devision of this Court in Civil Revision Application No. 482 of 1962 decided on October 19 1966 by Mr. Justice M. U. Shah as he then was. In that case a representative suit was filed by the plaintiffs against the Dohad Municipality Dohad on an allegation that the defendant Municipality had in 1960-61 appointed an officer for revision of the assessment list which was originally prepared sometime in 1950 in pursuance of the Municipal Resolution dated November 7 1949 It was alleged that the tax was recovered as per the original list upto the year 1959-60. It has alleged that in the year 1960-61 the Municipality had appointed an officer for revision of the assessment list which revision list according to the plaint was illegal unauthorised and ultra vires on the grounds stated in the plaint. In substance that suit was for a declaration that the said revised assessment of house-tax was illegal ultra vires and void. The plaintiff had also sought a permanent injunction to restrain the defendant Municipality from recovering the tax according to the revised assessment list. In that suit the plaintiff had paid court-fees on the plaint of Rs. 30. 00on the basis that the court-fees payable would be governed by sec. 6 (iv) (j) of the Act. The defendant Municipality resisted the suit of the plaintiff and contended that the amount to be recovered under the revised assessment list was Rs. 1 61 0 It was further contended in that suit that the plaintiff had also asked a permanent injunction restraining the defendant municipality from recovering the said amount. In this view of the matter it was urged on behalf of the defendant Municipality that ad-valorem court fee was payable on the entire amount of house tax to be recovered under the revised assessment list. It was also contended by the defendant Municipality on the basis of the aforesaid facts that the court-fees was payable as provided under sec. 6 (iv) (a) of the Act and not under sec. 6 (iv) (j) of the Act. It was also contended by the defendant Municipality on the basis of the aforesaid facts that the court-fees was payable as provided under sec. 6 (iv) (a) of the Act and not under sec. 6 (iv) (j) of the Act. ( 25 ) IN the aforesaid suit the learned trial Judge had taken the view that having regard to the construction of the plaint read at a whole the case was falling under sec. 6 (iv) (a) of the Act. The learned trial Judge had rejected the plaintiffs contention that for the purpose of court-fees payable on the suit the provisions under sec. 6 (iv) (j) would govern the case. The defendant Municipality was aggrieved by the said order passed by the trial Judge and filed the aforesaid revision application in this court. ( 26 ) THE learned Judge who decided the revision application observed as follows in course of his judgment. Now in order to determine the court-fees stamps chargeable on a plaint the Court has to look to the substance of the plaint construe the plaint and the relief clause. The plaint clearly reveals that a revised assessment list has been prepared by the Municipality some time in year 1959-1960. The plaintiffs are aggrieved by this revised assessment list. The plaint allegation is that the revised assessment list has been prepared without following the prescribed procedure under the District Municipal Act. It is also alleged that the revised assessment list is illegal unauthorised and ultra vires the District Municipal Act. The suit is filed by the two plaintiffs in a representative capacity. Para 9 of the plaint is the relief clause. The learned trial Judge has correctly translated in his order under revision as under : for a declaration that the said revised assessment of house-tax is illegal and without authority and is ultra vires and void and for a permanent injunction to restrain the defendant from recovering the tax according to the revised assessment list. ( 27 ) THE learned Judge in that case took the view that reading the plaint the plaintiffs had prayed for a declaration to set aside the revised assessment list. He also took the view that the declaration prayed for was a simpliciter praying for the revised assessment list to be declared illegal void and ultra vires as prayed for. ( 27 ) THE learned Judge in that case took the view that reading the plaint the plaintiffs had prayed for a declaration to set aside the revised assessment list. He also took the view that the declaration prayed for was a simpliciter praying for the revised assessment list to be declared illegal void and ultra vires as prayed for. In substance he observed that the said declaration to obtain adjudication against recovery of money from the plaintiffs cannot be a declaration as contemplated by sec. 6 (iv) (a) of the Act. However he also observed the it is no doubt true that the second relief of permanent injunction which has been sought by the plaintiff might affect the recovery of the tax. He took the view that the relief as to permanent injunction which has been sought by the plaintiff has nothing to do with the declaratory relief that was sought. ( 28 ) THE learned Judge in course of the judgment further observed that the Act being a fiscal statute it must be construed strictly and the language of sec. 6 (iv) (a) clearly indicates it to be a specific provision for a suit for declaration to obtain adjudication of recovery of money the proviso to clause (a) deals only with the consequential relief and will be attracted only when the main relief of declaration is to obtain adjudication against recovery of money from the plaintiffs. The learned Judge further observed that in the case before him the suit was for a declaration relating to the revised assessment list and for a consequential relief viz. a permanent injunction. As a result of his aforesaid view he came to the conclusion that the subject matter of the dispute was not suceptible or monetary value. As a result of his aforesaid discussion the learned Judge came to the conclusion that the aforesaid suit would be clearly governed by clause (iv) (j) of sec. 6 the Act. The learned Judge disagreed with the view of the learned trial Judge and allowed the revision application. ( 29 ) WITH respect it is not possible for us to agree with the reasoning adopted by the learned Judge who decided the aforesaid revision application. 6 the Act. The learned Judge disagreed with the view of the learned trial Judge and allowed the revision application. ( 29 ) WITH respect it is not possible for us to agree with the reasoning adopted by the learned Judge who decided the aforesaid revision application. The plaintiff in that suit had prayed for a declaration that the aforesaid revised assessment of housetax was illegal and without authority and was ultra vires and void for permanent injunction to restrain the defendant municipality from recovering the tax according to the revied assessment list. ( 30 ) WE do not think that for the applicability or sec. 6 (iv) (a) it is necessary that the declaration sought by the plaintiff must be coupled with another declaration that the recovery cannot be made. When declaration is sought that the assessment list is invalid and injunction is sought to restrain the recovery in a suit seeking a declaration against recovery. What else is the purpose of the declaration ? It is to seek declaration against the recovery even if the declaration itself does not advert to recovery for it is the substance which matters and not the form. Thus in essence and substance the aforesaid suit was also a suit for a declaration to obtain adjudication against recovery of money from the plaintiffs and that recovery was in respect of house tax which was levied in pursuance to the revised assessment list. We may also emphasise at this stage that though the aforesaid suit was not filed for any consequential relief as to possession but that suit was certainly filed also for obtaining a permanent injunction to restrain the defendant municipality from recovering the tax according to revised assessment list. In this view of the matter it is difficult for us to agree with the aforesaid reasoning of the learned Judge when he took the view that the aforesaid suit would fall within the perview of sec. 6 (iv) (j) of the Act for determining the amount of court-fees payable on the suit. Having regard to the averments to which the learned Judge has referred in his judgment and the relief clause in that suit we are convinced beyond any doubt that the afore- said suit clearly fell within the perview of sec. 6 (iv) (a) of the Act for the purposes of paying the court fees payable on the suit. Having regard to the averments to which the learned Judge has referred in his judgment and the relief clause in that suit we are convinced beyond any doubt that the afore- said suit clearly fell within the perview of sec. 6 (iv) (a) of the Act for the purposes of paying the court fees payable on the suit. ( 31 ) FOR the reasons aforesaid it is not possible for us to agree or accept the reasoning of the learned Judge who decided Civil Revision Application No. 482 of 1962 on October 19 1966 ( 32 ) MR. Oza invited our attention to several decisions of this Court reported in LALJI HARIDAS V. MULJI MANILAL VI G. L. R. 855 SANATKUMAR V. STATE VIII G. L. R. 946 INDERLAL V. KHIALDER XI. G. L. R. 948 CHANDRAKANT V. RATANSHI DAMJI XIL G. L. R. 174. Mr. Oza also invited our attention to a decision in JAFFERALI V. S. D. DOSSA and CO 70 B. L. R. 359 but Mr. Oza very frankly stated at the bar that none of the aforesaid cases pertains to a suit which was filed for declaration to obtain adjudication against recovery of money front the plaintiff whether the recovery is as land revenue or arrears of land revenue or tax or duty or cess or fee or fine or penalty or under any decree or order of a Court or any certificate or award other than under the Arbitration Act 190 or in any other manner. In substance Mr. Oza stated that in none of the aforesaid cases the plaintiff claimed a relief as to the declaration as provided in sec. 6 (iv) (a) of the Act. In view of this statement made at the bar we do not propose to refer to the aforesaid decisions for the Disposal of the present revision application. ( 33 ) AS a result of the aforesaid discussion we are convinced that the learned trial Judge was right in calling upon the petitioner Corporation to pay the deficit court-fees stamp of Rs. 4670. 00. For the reasons aforesaid we do not find any substance or merit in the revision application filed by the petitioner Corporation. Accordingly we confirmed the order passed by the learned trial Judge and the rule issues by this Court is discharged with no order as to costs ( 34 ) MR. 4670. 00. For the reasons aforesaid we do not find any substance or merit in the revision application filed by the petitioner Corporation. Accordingly we confirmed the order passed by the learned trial Judge and the rule issues by this Court is discharged with no order as to costs ( 34 ) MR. Oza requested us that two months time should be given to the petitioner Corporation to pay the amount of the aforesaid deficit court fees. We accordingly grant two months time to the petitioner Corporation to pay the amount of deficit courtfees after the receipt of the writ by the trial Court. ( 35 ) REVISION application fails and the rule is discharged with no order as to costs. Application dismissed. .