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2001 DIGILAW 1332 (AP)

Pingili Naraslmha Reddy v. Municipal Corporation, Warangal HYDERABAD MUNICIPAL

2001-10-19

L.NARASIMHA REDDY

body2001
L. NARASIMHA REDDY, J. ( 1 ) THE petitioner in this Civil Revision petition is aggrieved by the order of the principal Junior Civil Judge, Warangal, dated 18-2-1979 dismissing the EP. No. 80 of 1997 in OS. No. 35 (sic. 33) of 1995. ( 2 ) THE petitioner is the owner of house bearing No. 7-1-35, corresponding to Old no. 7/22-2-1, situated at Sainagar, hanamkonda, Warangal District. When he apprehended demolition of the said premises by the respondent, the Municipal corporation, Warangal, he filed os. No. 724/94 for permanent injunction. It appears that the suit was decreed on 30-9-1994 and it became final. Obviously, in the wake of this decree, the respondent issued proceedings dated 4-10-1994 cancelling the assessment of the premises. ( 3 ) AGGRIEVED by the cancellation of the assessment, the petitioner filed OS. No 33 of 1995 on the file of the Principal Junior Civil judge, Warangal, claiming relief of restoration of the assessment. The suit was decreed ex parte on 8-3-1996 and the decree became final. Since the petitioner was entitled for restoration of the assessment in respect of his property on the basis of the decree, he filed EP. No. 80/1997 for execution of the decree. The respondent resisted the same, mainly by pleading that the decree in OS. No. 33/1995 was without jurisdiction and the question of execution of the same does not arise. The executing Court accepted the plea of the respondent and dismissed the EP. Aggrieved by the same, the petitioner filed this Civil Revision petition. ( 4 ) SRI K. V. Bhanu Prasad, the learned counsel for the petitioner submits that once the decree in OS. No. 33/1995 had become final, the executing Court ought to have given effect to it. As far as jurisdiction is concerned, he submits that having permitted the decree to become final, it was not open to the respondent to challenge the same in the execution proceedings and since the Civil suits are not barred under the provisions of the Municipal Corporation Act (hereinafter referred to as the Act ), it cannot be said that the decree is without jurisdiction. ( 5 ) SRI K. Venugopal Reddy, the learned counsel for the respondent, submits that the act is a self contained Code, that the order/ notice that was challenged in the suit was passed under Section 225 (1) (d) of the Act and the same was appealable under Sec. 282 before the specified Forum and, as such, the jurisdiction of the Civil Court was impliedly barred. On this ground, he submits that the executing Court had arrived at a proper conclusion that the decree that was sought to be executed was without jurisdiction. ( 6 ) IT is to be seen that in O. S. No. 33/95, the petitioner prayed for the relief of withdrawal of the proceedings under which assessment of his house was cancelled. The consequential relief of restoration of the assessment was also prayed for. The suit was decreed ex parte and the respondent did not take any steps to challenge the same, either by way of an application under order IX of CPC or an appeal. The Court below considered the validity of the decree with the special reference to the provisions of the Act and arrived at a conclusion that the decree was without jurisdiction and, as such, need not be executed at all. Reliance was placed by the Court below on the provisions of Section 282 of the Act, which reads as under: "282. "appeals when and to whom to lie:- (1) Subject to the provisions hereinafter contained, appeals against any rateable value or tax fixed or charged under this Act shall be heard and determined by the Judge; (2) But no such appeal shall be heard by the said judge, unless, - (a) it is brought within fifteen days after the accrual of the cause of complaint. (b) a complaint has previously been made to the Commissioner under Section 221 and such complaint has been disposed of. (c) a complaint has been made, by the person aggrieved within fifteen days after the first received notice of any amendment made in the assessment book under Sec. 225 and his complaint has been disposed of. (d) in the case of an appeal against tax, an amount claimed from the appellant has been deposited by him with the Commissioner. " ( 7 ) THE appeal under this Section is against the orders of fixation or charging of rateable value of tax under the Act. (d) in the case of an appeal against tax, an amount claimed from the appellant has been deposited by him with the Commissioner. " ( 7 ) THE appeal under this Section is against the orders of fixation or charging of rateable value of tax under the Act. What was complained in the suit was not any of them. It was an order of cancellation of assessment itself. Therefore, the provisions of Section 282 do not apply to the facts of the present case. Even assuming that the relief claimed by the petitioner in OS. No. 33/95 falls within the scope and ambit of Sec. 282 of the Act, it has to be seen whether the suit was barred and the decree passed therein is a nullity. ( 8 ) IT is to be remembered that the jurisdiction of the Civil Courts remains unaffected unless it is specifically barred by any statute. Even where a statute provides for redressal mechanism or a hierarchy of adjudication, that fact by itself does not oust the jurisdiction of the Civil Courts. What is material is as to whether the statute, by express and unequivocal terms, excludes the jurisdiction of the Civil Courts. ( 9 ) IT is then, and only then that the jurisdiction of the Civil Courts stands excluded in respect of the matters, the adjudication of which is provided under the concerned Act. There is catena of judgments of the Hon ble Supreme Court as well as this court on the subject. Suffice it to refer to one of the classic judgments on the subject in firm Seth Radha Kishan v. Administrator municipal Committee. ( 10 ) JUSTICE Subba Rao (as he then was) speaking for the Court said:-"but there is also an equally well settled principle governing the scope of the Civil Court s jurisdiction in a case where a statute created a liability and provided a remedy. Even in such cases, the Civil Court s jurisdiction is not completely ousted. A suit in 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. A suit in 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. " ( 11 ) SUBSEQUENT judgments on the subject have only given cosmetic touches to these basic principles and, as such, it is not necessary to refer to the catena of decisions. ( 12 ) IT is not in dispute that there is no provision in the Act excluding the jurisdiction of the Civil Courts in respect of the matters covered under the Act. Therefore, the Court below was not correct when it implied exclusion of jurisdiction of the Civil Courts. ( 13 ) THE other aspect that weighted with the Court below was that Section 282 of the act provided for an appeal to be heard by a judge and the word judge occurring in the Section has been defined in Section 2 (27) of the Act to mean the Chief judge. City small Causes Court in twin cities of hyderabad and since there is no mention in section 2 (27) of the Act about the District munsiff, the decree passed in OS. No. 33/95 by a Junior Civil Judge/district Munsiff, who is not competent to pass the decree, was without jurisdiction. Since it is held that the subject matter of the suit did not fail within the scope and ambit of Section 282, this aspect of the matter does not need any consideration at all. Accordingly, the order under revision is set aside and the Civil revision Petition is allowed. The executing court is directed to dispose of the EP in accordance with law and as expeditiously as possible. In the circumstances of the case, there shall be no order as to costs.