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1991 DIGILAW 3 (KER)

Sankara Pillai v. Chandran

1991-01-02

PAREED PILLAY

body1991
Judgment :- Revision petitioner challenges the order of the Munsiff, Alathur in O.S.No.132 of 1987. Plaintiff filed the suit claiming damages on the ground that the defendant did not act in good faith when he assessed the Building Tax. 2. In the written statement defendant contended inter-alia that he is entitled to the benefits under the Judges (Protection) Act, 1985. The Munsiff rejected the said contention. 3. Plaintiff filed the suit to realise Rs.3,000/- as damages on the allegation -that the defendant out of spite towards him and misusing his official capacity and without bonafides and quite arbitrarily assessed the building tax without any rhyme or reason. The Tahsildar had sent a notice to the plaintiff on 18-11-1985 under S.7(1) of the Kerala Building Tax Act calling upon him to file the return. Case of the plaintiff is that though he submitted the return, defendant without considering the relevant documents and without complying with the provisions in the Act assessed the value of the building at Rs.1,70,056/- and determined the taxasRs.2,101.70. Plaintiff challenged the order before the appellate authority successfully. 4. The only question that arises for consideration is whether the defendant (the assessing authority under the act) is entitled to the benefits under the Judges (Protection) Act, 1985. S.2 of the Judges (Protection) Act, 1985 (Central Act 59 of 1985) defines 'Judge'. In this Act, 'Judge' means not only every person who is officially designated as a judge, but also every person- (a) who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or (b) who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in Clause (a). S.2 Of the Kerala Judicial Officers Protection Act, 1963 (Act 4 of 1963) reads: "No Judge, Magistrate, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction; Provided that he, at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Collector, or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same". 5. S.6 of the Kerala Building Tax Act provides for the determination of the capital value. Under S.6(1) the annual value of a building shall be the annual value fixed for the building in the assessment books of the local authority within whose area the building is situate. But if the assessing authority holds that the annual value fixed for a building in the assessment books of the local authority is too low, he is entitled to make his own assessment after giving notice to the owner of the building. S.6(4) enumerates the factors to betaken into consideration by the assessing authority. They are: the location of the building, nature and quality of the structure of the building, the capability of the building for profitable use, amenities provided in the building, access to the building from public roads or water ways, the value of the land on which the building is constructed, the estimated cost of construction of the building and such other facts as may be prescribed. 6. S.2(d) defines assessing authority. 'Assessing Authority' means an assessing authority appointed under S.4. Under S.4 the Government may, by notification in the Gazette, appoint such officers as they think fit to be assessing authorities for the purposes of the Act and may assign to them such local limits as the Government may think fit. 6. S.2(d) defines assessing authority. 'Assessing Authority' means an assessing authority appointed under S.4. Under S.4 the Government may, by notification in the Gazette, appoint such officers as they think fit to be assessing authorities for the purposes of the Act and may assign to them such local limits as the Government may think fit. The Government may, by notification in the Gazette, appoint such officers as they think fit to be appellate authorities and may assign to them such local limits as the Government may think fit. 7. Under S.17 of the Building Tax Act the assessing authority, the appellate authority and the revisional authority under the Act are conferred with same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit, in respect of the following matters, namely:- a) enforcing the attendance of any person and examining him on oath or affirmation; b) compelling the production of documents; and c) issuing commissions. Specificmentionof"otherpersonactingjudiciaHy"inS.2of the Kerala Judicial Officers Protection Act, 1963 is comprehensive enough to include the assessing authority under the Kerala Building Tax Act. As the assessing authority while determining the annual value has to give notice to the affected person and as he has to decide it on a consideration of the factors mentioned under S.6(4) and as the finding is appealable and revisable there is no merit in the contention that the proceeding of the assessing authority is not in the nature of judicial proceeding. "Judicial proceeding" as defined under the Interpretation and General Clauses Act 1125 (Act 7 of 1125) is of wider amplitude and makes the position clear that it is not confined to proceedings before the civil or criminal courts. S.2(19) defines "Judicial Proceedings" as proceeding in the course of which evidence is or may be legally taken. As 'Judicial Proceeding' includes any proceeding in the course of which evidence is legally taken, it has to be held that the proceeding of the assessing authority under the Act is a'judicial proceeding'. 8. S.11 of the Building Tax Act envisages that any assessee objecting to the amount of building tax assessed under S.9 or denying his liability to be assessed under the Act or objecting to any order of the assessing authority under the Act may appeal to the appellate authority against the assessment or against such order. 8. S.11 of the Building Tax Act envisages that any assessee objecting to the amount of building tax assessed under S.9 or denying his liability to be assessed under the Act or objecting to any order of the assessing authority under the Act may appeal to the appellate authority against the assessment or against such order. S.13 provides that the District Collector, may, either suomotu or on application by any person aggrieved, call for and examine the record of any order passed by the appellate authority or the assessing authority and may pass such order in reference thereto as he thinks fit. From the provisions of the Act it is apparent that the assessing authority's order is appealable and revisable. S.2 of the Judges (Protection) Act 1985 makes the position abundantly clear that judges mean not only every person who is officially designated as a judge, but also every person who is empowered by law to give in any legal proceeding a definitive judgment or judgment which if not appealed against would be definitive, or a judgment which if confirmed by some other authority would be definitive. As the assessing authority under the Act comes within the definition of a judge under the Judges (Protection) Act 1985 contention of the plaintiff that the assessing authority is only a mere executive officer and that he does not exercise any judicial or quasi judicial functions or preside over any judicial proceeding and so he cannot get the protection of a judge cannot be accepted. It is useful to refer to Venkata Narasimha v .Muni. Council, Narasaraopet (AIR 1931 Mad. 122) the Court held: "the term 'judicial' does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but a judicial act may be an act done by competent authority upon a consideration of facts and circumstances and imposing liability or affecting the rights of others. And if there is a body empowered by law to inquire into facts, make estimates to impose a rate on a district, the acts of such a body involving such consequence would be judicial acts". In Abdul Aziz Ansari v. State of Bombay (AIR 1958 Born. 279) the Bombay High Court held: "The expression "legal proceeding" is not synonymous with'judicial proceedings'. Proceedings may be legal even if they are not judicial proceedings, if they are authorised by law". In Abdul Aziz Ansari v. State of Bombay (AIR 1958 Born. 279) the Bombay High Court held: "The expression "legal proceeding" is not synonymous with'judicial proceedings'. Proceedings may be legal even if they are not judicial proceedings, if they are authorised by law". In Jaswant Sugar Mills v. Lakshmi Chand (AIR 1963 SC 677) the Supreme Court held thus: "To make a decision or an act judicial, the following criteria must be satisfied: 1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rules; 2) it declares rights or imposes upon parties obligations affecting their civil rights; and 3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on question of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact". 9. Under the Building Tax Act the assessing authority has to decide the annual value of the building and the tax to be paid by the owner of the building. He has to assess the value of the building as postulated under the Act He has to issue notice to the land lord and the local authority. He has to follow the guide lines under S.6(4). His decision is appealable and revisable as the case maybe. Once he decides the annual value of the building the determination of the tax is dependant upon it Under S.17 the assessing authority is conferred with the powers under the Civil Procedure Code to enforce the attendance of any person and to examine him on oath or affirmation. As the assessing authority determines the annual value of the building and consequently the tax observing the legal requirements under the Act he is entitled to the protection under the Judges Protection Act, 1985. 10. The trial court was not justified in holding that the assessing authority is not entitled to the benefit of Judges (Protection) Act. As the assessing authority determines the annual value of the building and consequently the tax observing the legal requirements under the Act he is entitled to the protection under the Judges Protection Act, 1985. 10. The trial court was not justified in holding that the assessing authority is not entitled to the benefit of Judges (Protection) Act. For the foregoing reasons I hold that the defendant is entitled to the benefits under the Judges (Protection) Act In that view of the matter it has to be held that the suit is not maintainable. 11. In the result, the order of the court below is set aside. The suit is not maintainable and hence it is dismissed, the Civil Revision Petition stands allowed.