Municipal Board, Bareilly v. Kishori Lal — 1979 DIGILAW 1085 (ALL)

JUDGMENT Murlidhar, J. - This defendants second appeal by the Municipal Board, Bareilly arises out of a suit for restraining the appellant Board from disconnecting the water supply to the house of the plaintiff, Kishori Lal, on the ground oi nonpayment of Rupees 1600/- as water tax dues from 1-4-1958 to 31-3-1966 for that house demanded by the appellant Board per notice dated 28-10-1965 from the plaintiff occupier under Section 149 of the U. P. Municipalities Act (hereinafter referred to as 'the Act). The plaintiff respondent is a tenant in the premises. The owner, it is no longer disputed, is one Smt. Savitri Devi. In the Boards records, however, the name Smt. Savitri Devis husband, Dwarka Prasad, was shown as the owner. It is common ground that the premises were for the first time subjected to municipal assessment in the assessment proceedings that took place in the year 1958. In the assessment list finalised after the said proceedings on 6-8-1958, the premises were shown with an annual value of Rs. 2000/-, the owners name being shown as Dwarka Prasad and the occupier as Chheda Lal. Un-disputably the plaintiff is also another occupier in the same premises. 2. The plaintiff challenged the assessment and demand on two grounds, namely: (1) that the assessment proceedings were void for want of a notice to the owner or occupier under Section 143 (1) of the Act, and (2) that the premises in question being at a distance of more than the prescribed 250 yards from the nearest stand pipe, no water tax could be imposed on the same in view of Section 129 of the Act. As regards the factual basis for these grounds the findings recorded by the courts below are that the notice under Section 143 (1) of the Act said to have been served upon Dwarka Prasad, the recorded owner, was not shown to have been served upon him and that a stand pipe within 250 yards of the house, for the first time came to be installed on 19-1-1960. These findings have not been questioned during arguments in appeal. 3. These findings have not been questioned during arguments in appeal. 3. The trial court held (relying upon Municipal Board, Banaras v. Jokhun (193PJ All WR (HC) 230 DB) that the conclusive presumption under Section 149 of the Act about correctness of the assessment list and the bar under Section 149 of the Act to the jurisdiction of the civil court regarding objections to an assessment applied only if the assessment was lawfully-made in accordance with the provisions of Sections 142 to 144 of the Act and since the notice to the owner or occupier under Section 143 (1) in the case of this first assessment had not been served the assessment was illegal and water tax would not be recovered on the basis of such an assessment. It further held that the demand of water tax was also invalid under Section 129 of the Act because on the date of assessment the premises were not situate within the prescribed 250 yards of a stand pipe. The lower appellate court confirmed these findings. These have been challenged in this second appeal. 4. The ground of there being no stand pipe within the prescribed distance of 250 yards at the time of assessment can ,be easily disposed of. Section 129 of the Act bars imposition of water tax on buildings which do not lie within the prescribed radius for the municipality concerned which in this case is 250 yards. Water tax as levied under Section 128 (1) (i) of the Act on the annual value of the buildings. Under Section 149 the annual value assessed for purposes of the tax on lands land buildings under Section 128 (1) (i) is followed for purposes of water tax also. It is provided under Section 146 (b) that an entry in the assessment list prepared for the tax on lands and buildings under ; Section 128 (1) (i) is conclusive proof for the purposes of assessing other municipal taxes which includes water tax. Therefore, in case the assessment list, of the tax on buildings and lands is a valid one the only effect of Section 129 would be that the demand for the period prior to 19-1-1960, when the building came to be within the prescribed radius would be illegal and invalid. Therefore, in case the assessment list, of the tax on buildings and lands is a valid one the only effect of Section 129 would be that the demand for the period prior to 19-1-1960, when the building came to be within the prescribed radius would be illegal and invalid. But the demand few (the subsequent period cannot be illegal merely because the assessment was made when the house was outside the prescribe led radius. This is because the list prepared after following the procedure under Sections 142 to 144 is a list for assessment of tax on lands and buildings. For this purpose the distance from stand pipe is irrelevant. That becomes material only when water tax is imposed. Therefore, the restriction under Section 129 can affect only the demand for the period when there was no stand pipe within the prescribed radius and not the whole demand. Hence on this ground only the demand for the period prior to 19-1-1960 could be struck down. Sri. G. D. Srivastava, learned counsel for the appellant quite fairly conceded this. The result is that the demand relating to the period subsequent to 19-1-1960 cannot be questioned on this ground. 5. As regards the ground of want of service of notice under Section 143 (1) on the owner or occupier, in two single Judge decisions Pt. Triloki Nath v. Municipal Board, Agra (1957 All LJ 733) and Bareilly Municipal Board v. Shakuntala Devi (1979 All LJ 625) this Court has taken the view that the provisions of Section 143 (1) of the Act are mandatory and non-compliance with the same vitiates the assessment, making it illegal and unenforceable. I respectfully concur with this view. Therefore, the finding that this defect invalidates the assessment and the demand must be confirmed. 6. The learned counsel for the appellant, however contended that the civil court had no jurisdiction to deal with this matter in view of Section 164 (1) and the plaintiff was bound to seek his remedy under the Act. Section 164 (1) runs as follows:- "164 Bar to jurisdiction of civil and criminal courts in matters of taxation.- (1) No objection shall be taken to a valuation or assessment, nor shall the liability of a person to be assessed or taxed be questioned in any other manner or by any other authority than provided in this Act". (2).............. Section 164 (1) runs as follows:- "164 Bar to jurisdiction of civil and criminal courts in matters of taxation.- (1) No objection shall be taken to a valuation or assessment, nor shall the liability of a person to be assessed or taxed be questioned in any other manner or by any other authority than provided in this Act". (2).............. " It was stressed that after the pronouncement of the Supreme Court in Bata Shoe Co. Ltd. v. Jabalpur Municipality ( AIR 1977 SC 955 ) and Munshi Ram v. Municipal Committee ( AIR 1979 SC 1250 ) there is no doubt left that the present suit is barred under Section 164 (1) of the Act. In Bata Shoe Companys case (supra) Section 84 (3) of the C. P. & Berar Municipalities Act, 1922, the terms of which are almost identical with Section 164 (1) of the Act had come up for consideration. The Supreme Court inter alia observed that questions of correctness of the assessment apart from its constitutionality are for the decision of authorities set up by the Act and a civil suit will not lie if the orders of those authorities are given finality. With great respect I am of opinion that the observations in the above case have to be interpreted in the context of the facts of the case. The attack in that case was on the validity of imposition of double octroi duty which under the rules was chargeable if goods were imported either without paying duty or without giving declaration to the Octroi Moharrir. In this background the Supreme Court observed that even if these eventualities did not occur the error could be corrected under the Act and the remedy by way of a suit was barred. The Court referred to Dhula Bhai v. State of Madh. Fra. ( AIR 1969 SC 78 ) and observed that in accordance with proposition (6) laid down in that case, in case of an express bar the scheme of the Act should be examined because it is a relevant consideration, Obviously this examination has to be with a view to find if the remedies provided by the Act are adequate and sufficient. After examining the rules in point in the case the Supreme Court found that the scheme of the Act provided an effective remedy to the aggrieved party to challenge the assessment of the octroi duty and claim refund of duty illegally paid or recovered and noted that in fact the plaintiff had actually availed of these remedies and partly succeeded. In this background it was held that the bar of Section 84 (3) was applicable. In the present case, however, the scheme of the Act so far as the assessment in question is concerned is that the objections to proposed assessment are decided under Section 143 (3) before the assessment list is finalised. An appeal from the order deciding the objection lies under Section 160 of the Act to the District Magistrate or other empowered officer. There is also provision under Section 162 for a reference to the High Court by the appellate officer. But where the assessment list has been finalised without any objection there is no clear provision under which an aggrieved assessee can vindicate his right. There is no provision that in appropriate cases an objection under Section 143 may be entertained even after finalisation of the list and the list amended according to this decision nor that an appeal may be filed against an entry in the assessment list even where there has been no objection. Thus unless the notice under Section 143 (1) is served the owner and/or occupiers right to have his say by filing an objection and then if necessary an appeal is jeopardised. It is mainly for this reason that the provision of notice under Section 143 (1) has been held to be mandatory'. Thus the statute provides no adequate remedy for the aggrieved party in cases like the present. Therefore, on the test laid down in Dhula Bhais case (supra) the jurisdiction of the civil court to examine the validity of the assessment list cannot be treated as ousted. The difference arises as the facts of this case are different from those in the Bata Shoe Companys case (supra). Here the jurisdictional precondition for the validity of the assessment list, namely, notice under Section 143 (1) is lacking. Therefore, the list prepared in the absence of such notice is one prepared outside the framework of the statute. The difference arises as the facts of this case are different from those in the Bata Shoe Companys case (supra). Here the jurisdictional precondition for the validity of the assessment list, namely, notice under Section 143 (1) is lacking. Therefore, the list prepared in the absence of such notice is one prepared outside the framework of the statute. In Bata Shoe Companys case (supra) there was only an erroneous determination by the authorities about the liability to double duty. The basic jurisdiction to impose double duty was there. I would, therefore, hold that the challenge on the ground of want of notice under Section 143 (1) is not bar-red by Section 164 of the Act. Munshii Ram v. Municipal Committee. (AIR 1979, SC 1250), a case under the Punjab Municipalities Act also in no way advances the case of the appellant. There also the authorities had jurisdiction to assess profession tax and the mere fact that, they erroneously' imposed tax on the partners individually rather than on the firm was held insufficient to confer jurisdiction on the civil court and it was held that the remedy under Section 84 of the said Act excluded the civil court jurisdiction in view of Section 86 of the said Act which is similar to Section 164 of the U. P. Act. In this connection it in proper to repeat the observations of the Supreme Court in Seth Radha Kishan v. The Administrator, Municipal Committee, Ludhina ( AIR 1963 SC 1547 ): "A suit m a civil court will always lie to question the order of a Tribunal created by a statute even if its order is expressly or by necessary implication made final if the said Tribunal abuses its power or does not act under the Act but in violation of its provisions." These observations quoted in Bata Shoe Companys case (supra) were not disapproved but distinguished. The only thing stated was that "the observations ................. cannot in the context be taken to mean that the Act protects correct assessments only and every incorrect or wrong order of assessment can be challenged by a suit though the statute gives it finality and provides full and effective remedies to challenge it. The only thing stated was that "the observations ................. cannot in the context be taken to mean that the Act protects correct assessments only and every incorrect or wrong order of assessment can be challenged by a suit though the statute gives it finality and provides full and effective remedies to challenge it. Except in matters of constitutionality and the like (emphasis mine), a self contained Code must have priority over the common means of vindicating rights." With great respect the ground of challenge in this case, namely, the omission of a necessary precondition to a valid assessment is similar to lack of constitutionality and covered by the words 'and the like in the above quotation. The Full Bench decision of this Court in Municipal Board, Banaras v. Jokhun (1939 All WR (HC) 230 FB) may be usefully referred to in this connection. The assessment list there had been finalised without disposing of the plaintiffs objection under Section 143 (3). It was held that the suit was not barred by Section 164 as there was no 'assessment within the meaning of that section when the mandatory provisions of Section 143 had been ignored. In another Full Bench decision District Board of Farrukhabad v. Prag Dutt ( AIR 1948 All 382 ) it was observed that if an assessment is made within the frame-work of the Act but the assessment is wrong it may not be possible for the Civil Court to give to the assessee any relief and his remedy may be confined to an appeal under the Act. If, on the other hand the assessment complained of is beyond the competence of the Board and is. therefore an illegal imposition, the civil court will have jurisdiction to interfere. The true position thus is that whether the bar of Section 164 will operate in case of challenge to the tax must depend on the nature of challenge to the assessment and the nature of the provisions of which breach is alleged to have taken place. In cases of breach of basic or jurisdictional requirement laid down by the statute the bar will not apply. But if the breach is merely of the principle of assessment laid down in the Act or the Rules the bar will operate. 7. In the result, the decision of the courts below that Section 164 does not bar the present suit is upheld as correct. But if the breach is merely of the principle of assessment laid down in the Act or the Rules the bar will operate. 7. In the result, the decision of the courts below that Section 164 does not bar the present suit is upheld as correct. 8. The appeal, accordingly, fails and is hereby dismissed. But the parties shall bear their own costs.