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J&K High Court · body

2000 DIGILAW 66 (JK)

Bharat Bhushan v. Special Tribunal, J&K

2000-04-04

O.P.SHARMA

body2000
1. The petitioner challenges the order dated 19-11-1997 passed by respondent-1 dismissing the appeal challenging notice of demand raised by respondent-2 for payment of the amount outstanding against him. 2. Facts of the case in brief are these. Executive Officer Notified Area Committee, Rajouri acting under sub-section (1) of section 101 of the J&K Municipal Act raised a demand of Rs. 51,300 giving the petitioner option either to deposit the amount within 15 days or to prefer an appeal if he so desires failing which amount would be recovered as arrears of land revenue. This notice is dated 01-12-1989. The petitioner exercised the option by filing an appeal before the Special Tribunal. By order dated 19-11-1997 the Tribunal rejected the appeal relying on the judgment of this court in Amrik Singh Vs. State & Ors., 1992 KLJ 113. 3. It is this order rejecting the appeal which is assailed on the ground that its findings are contrary to the provisions of law and against the judgment in Amrik Singhs case (supra). Mr. Thakur appearing for the petitioner argued that the judgment of the Tribunal is erroneous because he has wrongly applied the law. Sub-section (1) of section 101 of the Municipal Act argued the learned counsel provides for notice calling upon the withdrawal to pay the amount while sub-section (2) prescribes what notice should contain. Sub-section (3) applies only where no appeal has been preferred. Since the petitioner has preferred appeal against the notice issued under sub-section (1) of section 101, sub-section (c) of section 103 was not applicable. Contention of Mr. Jandial is that the appeal was incompetent because neither the amount was deposited nor any security offered. 4. Let us examine what is the position in law about the maintainability of appeal u/s 103 of the Municipal Act. While dismissing the appeal Tribunal observed as under: - œAdmittedly the amount demanded has not been deposited by the appellant, nor any security has been furnished by the appellant before filing the appeal. The provisions of section 101 (3) of the Municipal Act are clear in this regard. I am fortified by an authority of the Hon™ble High Court reported in KLJ page 113 of 1992 titled Amrik Singh Vs. State & Ors. The appellants is liable to pay the demand amount under the contract upto the date of Abolition of dharat procedure as envisaged in the Municipal Act. I am fortified by an authority of the Hon™ble High Court reported in KLJ page 113 of 1992 titled Amrik Singh Vs. State & Ors. The appellants is liable to pay the demand amount under the contract upto the date of Abolition of dharat procedure as envisaged in the Municipal Act. Viewed thus, the appeal of the appellant is dismissed.� So appeal has been dismissed only for non-compliance of sub-section (c) of section 103 of the Municipal Act. In support of this, reliance is placed on the case of Amrik Sing (supra). 5. However, in Amrik Singh™s case facts were entirely different because notice u/s 101(1) had been issued, but neither the amount was deposited nor it was challenged by filing appeal. So a declaration under clause-e of sub-section (3) of section 101 was issued. The appeal filed against the declaration was dismissed for non-competence of S. 103(c) of the Municipal Act. The writ petition challenging the order was also dismissed. The Letters Patent Bench upheld the decision of the writ court. According to Mr. Thakur the decision is distinguishable because the facts were different. 6. This takes upto the question whether there is any difference in the appeal challenging the demand notice issued under sub section (1} (Sic) declaration issued under clause (c) of sub-section (3) of section 101 for the application of sub-section (c) of section 103 of the Act. It may be noticed that sub-section (3) of section 101 deals with a case where after presentation of the bill under sub-section (1) the person fails either to make payment or to prefer an appeal and upon such failure a declaration is made which is conclusive evidence of its contents under sub-section (4). Sub-section (5) empowers the Executive Officer to present this declaration before the Collector authorised to recover the amount as arrears of land revenue. 7. However, both notice under sub-section (1} and declaration made under sub-section (3)(c) of section 101 are appealable under section 103 of the Municipal Act. The only difference is that period of limitation for filing appeal under sub-section (1) is only 15 days whereas it is one month against declaration issued under sub-section (3) of section 101. Section 103(c) makes no distinction between the two appeals as argued by Mr. Thakur. Section 103 reads as under:- œ103. The only difference is that period of limitation for filing appeal under sub-section (1) is only 15 days whereas it is one month against declaration issued under sub-section (3) of section 101. Section 103(c) makes no distinction between the two appeals as argued by Mr. Thakur. Section 103 reads as under:- œ103. Appeal against notice of demand.-Appeals against any notice of demand issued under sub-section (3) of section 101 may be made to the Government or to such authority as may be empowered by the Government in this behalf according to section 104 of this Act. But no such appeal shall be heard and determined unless- (a) the appeal is brought within one month next after service of the notice of demand complained of; and (b) an application in writing, stating the grounds on which the claim of the Council is disputed, has been made to the Council as follows, that is to say-(i) in the case of rate on buildings or lands within the time fixed in the notice of the assessment or alteration thereof according to which the bill is prepared; (ii) in the case of any other claim for which a bill has been presented under sub-section (1) of section 101 within 15 days next after the presentation of such bill; and (c) the amount claimed from the appellant has been deposited by him or sufficient security has been furnished by the appellant to the satisfaction of the Executive Officer.� 8. It is clear that sub-section (c} of section 103 applies in both the situations and deposit of the amount claimed or sufficient security to the satisfaction of the Executive Officer is a pre-condition for admitting the appeal. As the provision was not complied, the appeal was rightly dismissed. 9. The only other argument advanced by Mr. Thakur is that recourse to section 101 cannot be had to facilitate the recovery of contract money. This argument is required to be noticed only to be rejected because Dharat is one of taxes which the Notified Area Committee is competent to impose and collect. It has also the option either to collect it through its employees or entrust it to any other person. It is thus not a contract money, but a tax imposed by the Committee which is recoverable u/s 101 of the Municipal Act. It has also the option either to collect it through its employees or entrust it to any other person. It is thus not a contract money, but a tax imposed by the Committee which is recoverable u/s 101 of the Municipal Act. There is thus no merit in this petition which is dismissed without any order as to costs.