Municipal Board. Bareilly v. Shakuntala Devi — 1979 DIGILAW 331 (ALL)

JUDGMENT R.R. Rastogi, J. - This is defendants second appeal arising out of a suit filed by the plaintiff-respondent for an injunction restraining the defendant Municipal Board from realising the amount of Rs. 924/- demanded as water tax for the period from 1-4-1958 to 31-3-1965 from the plaintiff or her tenants. The plaintiff is the owner of shops Nos. 124 and 125 situated in Shahmatganj Bazar, Bareilly. They are in possession of the tenants. The plaint allegations were that the defendant Board served a notice dated 2-11-1964 under Sec. 149 (3) of the U. P. Municipalities Act (hereinafter referred to as the 'Act) on the tenants requiring them to pay the aforesaid amount to the Board on account of water tax dues, alleged to be due in respect of the said shops. The plaintiff challenged the demand on the ground that the procedure prescribed under Sections 141 to 144 of the Act had not been followed while making the assessment and no notice as required under Section 143 of the Act was served on her or on the occupiers of the said shops hence the assessment was illegal and unenforceable. The defence, inter alia, was that the procedure prescribed under the Act was properly followed and hence the suit was barred by Section 164 of the Act. It was also barred under Section 326 of the Act. 2. The trial court held that the defendant Board had failed to comply with the mandatory provisions of giving notice t.o the owner or the occupier as required under Section 143 (1) of the Act and hence the assessment of Water Tax in respect of the shops in dispute was illegal and unenforceable. It also held that the jurisdiction of the civil court was not barred by Section 164 of the Act. On the plea of want of notice under Section 326 of the Act also the finding was given against the defendant Board. The suit was hence decreed. Against that judgment and decree an appeal was taken by the defendant-appellant to the higher court which was decided by the Civil Judge, Bareilly. 3. The first submission made before the learned Civil Judge was that the notice required under Section 143 (1) of the Act was properly served on the owner. The suit was hence decreed. Against that judgment and decree an appeal was taken by the defendant-appellant to the higher court which was decided by the Civil Judge, Bareilly. 3. The first submission made before the learned Civil Judge was that the notice required under Section 143 (1) of the Act was properly served on the owner. On a re-appraisal of the evidence on record the learned court below held that the alleged service of notice on Sher Singh, who according to the defendant Board was the owner of the disputed shops, had not been proved and there being no averment that any such notice had been served either on the plaintiff or on the occupiers of the disputed shops, the mandatory provision of giving of notice had not been complied with and hence the assessment was illegal. Another submission made was that the assessment having become final could not be challenged and further that the suit was barred by Section 164 of the Act. The learned court below did not accept these contentions either and upheld the judgment and decree that had been passed by the trial court, hence this further appeal. 4. The first submission made before me on behalf of the defendant-appellant was that the requirement of notice under Section 143 (1) of the Act is directory and not mandatory. After hearing counsel for the parties I am not. inclined to accept this submission. Sections 140 to 152 of the Act provide for assessment and levy of tax on the annual value of buildings or lands or both. Section 140 defines annual value and Section 141 provides for the procedure for preparation of assessment list. Under Section 142 the Board shall give public notice of the place where the list or copy thereof may be inspected and it also says that every person claiming to be either owner or occupier of the property included in the list, and an agent of such person, shall be at liberty to inspect the list and to make extract therefrom without charge. Then comes Section 143 which provides for 'objection to entries in list. Sub-section (1) of this Section is material for the present purpose and it reads as under; 1. Then comes Section 143 which provides for 'objection to entries in list. Sub-section (1) of this Section is material for the present purpose and it reads as under; 1. - The Board shall at the same time give public notice of a date, not less than one month thereafter, when it will proceed to consider the valuation and assessments entered therein and in all cases in which any property is for the first, time assessed or the assessment is increased, it shall also give notice thereof to the owner or occupier of the property if known. It would be seen that this sub-section places an obligation on the board to give a public notice calling for objection to the assessment list prepared under the foregoing provisions and it further says that in all cases in which any property is for the first time assessed or the assessment is increased, the Board shall also give notice thereof to the owner or occupier of the property, if known. Sub-secs, (2) and (3) provide for the filing of objections and disposal thereof. Sec. 144 provides for authentication and custody of list and Sec. 145 for revision and duration of list. Section 146 speaks of conclusiveness of entries in the list. It is not necessary to mention the other Sections of this part of the Act. 5. According to the learned counsel for the appellant the giving of public notice is substantial compliance of subsection (1) of Sec. 143 and further it is only in a case where an assessment is increased and thereby the vested right of the person concerned is affected that the giving of a notice to him is mandatory while in the case of a property which is being assessed for the first time the giving of a notice is directory and not mandatory. Upon a plain reading of the Section it is difficult to accept this contention advanced on behalf of the defendant-appellant. It would be seen that this provision has been made for the benefit of the tax-payers and hence it is to be construed strictly. I do not find anything in the language of this section which may warrant the distinction which the learned counsel seeks to draw. It would be seen that this provision has been made for the benefit of the tax-payers and hence it is to be construed strictly. I do not find anything in the language of this section which may warrant the distinction which the learned counsel seeks to draw. This sub-section clearly places an obligation on the Board concerned to give a public notice inviting objections to the assessment list prepared under the foregoing provisions and over and above that in respect of assessments made for the first time or in respect of an assessment where there is some increase, the Board is also required to give notice thereof to the owner or occupier of the property, if known. Evidently this provision is mandatory in nature and non-compliance of it will render the assessment list absolutely illegal and unenforceable. This requirement of the giving of a notice to the owner or occupier of the property is not a mere formality, the omission of which might be taken to be only an irregularity. There is certain purpose behind it as has been explained above. The courts below, therefore, have taken the right view in this regard that because of the non-compliance of this mandatory provision the assessment to water tax in respect of the shops in dispute was illegal and unenforceable. 6. Now coming to the second question, it was submitted by the learned counsel for the defendant-appellant that there is specific provision made in the Act itself of appeal against taxation. It is Section 160 which provides that in the case of a tax assessed upon the annual value of buildings or lands or both an appeal against an order passed under sub-section (3) of Section 143 or under subsection (3) of Section 147, and in the case of any other tax, an appeal against an assessment, or any alteration of an assessment, may be made to the District Magistrate or to such other officer as may be empowered by the State Government in this behalf. Section 164 bars the jurisdiction of civil and criminal courts in matters of taxation. Sub-section (1) of this Section reads; "1. Section 164 bars the jurisdiction of civil and criminal courts in matters of taxation. Sub-section (1) of this Section reads; "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." According to the learned counsel a certain hierarchy is provided in the Act itself and recourse can be had only to that hierarchy and the jurisdiction of the Civil Court has been completely barred from entertaining any dispute in regard to non-issue of notice on the contrary. According to the learned counsel for the plaintiff-respondent it is only in respect of assessment valuation made in accordance with the Act that the jurisdiction of the Civil Court would be barred. If an assessment valuation has not been made in conformity with the provisions of the Act, then certainly the Civil Court has jurisdiction to entertain a dispute in regard to such assessment. In my opinion what has been submitted by the counsel for the plaintiff-respondent is correct and finds support from the decision of this Court in Municipal Board Banaras v. Jokhun (AIR 1939 All 394) : (1939 All LJ 183) where the plaintiff, who was not supplied any water at all by the Municipality nevertheless received a notice in which it was alleged that he was assessed in respect of water tax and on receipt of such notice he filed an objection under Section 143 of the Act on which no orders were passed by the Municipal Board and his name was included in the final assessment list. In a suit for declaration that he was not liable to be assessed to water tax and for refund of the amount paid by him as water tax and also for recovery of damages for illegal attachment, it was held that the suit was not barred by Section 164 of the Act because there was no assessment within the meaning of Section 164 as the procedure prescribed by the mandatory provisions of Section 143 was entirely ignored by the Municipal Board. In District Board of Farrukhabad v. Prag Dutt ( AIR 1948 All 382 ) : (1948 All LJ 338) (FB) it was laid down that if an assessment is made within the framework of the Act but the assessment is wrong it may not be possible for the Civil Court to give to the asses-see 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. In this case the Full Bench relied upon the decision in Banaras Municipality (supra). 7. My attention has further been invited to a decision of a learned single Judge of this Court in Nagar Maha Palika v. D. G. C. Kapoor (1965 All LJ 773), in which as well it was held that the jurisdiction of a civil court to entertain a suit challenging the valuation or assessment made by a Municipal Board is barred under Section 164 (1) of the Act but if the assessment of tax is not in conformity with the statute or is in excess of the Boards power, the Civil Court will have jurisdiction to interfere. The learned Judge in that case had placed reliance on the decision of the Privy Council on the Secretary of State v. Mask and Co. ( AIR 1940 PC 105 ). 8. According to the learned counsel for the defendant-appellant these decisions are not good law because of the decision taken by the Supreme Court that where a particular statute provides for a certain hierarchy or sets upon a Tribunal to determine the questions relating to rights and liabilities which are created by that statute, the jurisdiction of the Civil Court would be deemed to be excluded. For this proposition reliance was placed on the State of Kerala v. Rama Swami Ayyar and Sons ( AIR 1966 SC 1738 ). I do not find that what the learned counsel contends comes out from this decision. Their Lordships of the Supreme Court in this decision relied upon the decision of the Privy Council in the Secretary of State v. Mask & Co. I do not find that what the learned counsel contends comes out from this decision. Their Lordships of the Supreme Court in this decision relied upon the decision of the Privy Council in the Secretary of State v. Mask & Co. (supra) and observed: "It is true that even if the jurisdiction of the Civil Court is excluded where the provisions of the statute have not been complied with or the statutory tribunal had not acted in conformity with the fundamental principles of judicial procedure the Civil Courts have jurisdiction to examine those cases." It would thus appear that there has been no departure whatsoever from the law which was laid down by lire Privy Council in Mask and Company (supra) and the decisions of this Court referred to above had followed that very principle. The position, therefore, is that i; the assessment had been made within the framework of the provisions of the Act then certainly the jurisdiction of the civil court would have stood barred but in the present case as has been found by; the courts below that the assessment of water tax was made not in conformity with the provisions of the Ac; but in complete disregard of the same. It cannot be said that the jurisdiction of the Civil Court was barred under Section 164 (1) of the Act. Agreeing with the courts below therefore, I hold that the Civil Court had jurisdiction to entertain this suit. 9. There is thus no merit in this appeal and it is dismissed with costs to the plaintiff-respondent.