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2004 DIGILAW 685 (KAR)

MYSORE CITY CORPORATION v. D. V. RAGHURAM

2004-12-14

N.K.PATIL

body2004
N. K. PATIL, J. ( 1 ) THE petitioner being aggrieved by the order dated 22nd January, 2002 in O. S. No. 244 of 1998 on the file of the III Additional I Civil judge (Junior Division) at Mysore, holding the preliminary issue regarding maintainability of the suit against the petitioner, has presented the instant civil revision petition. ( 2 ) THE petitioner in this petition is the Mysore City Corporation, represented by its Commissioner (hereinafter called the "corporation" ). The respondents herein being aggrieved by the order passed by the assessing Authority dated 29th September, 1997 enhancing the property tax, as illegal, arbitrary and void and the same is one without jurisdiction and not binding on the respondents, had felt necessitated to file the suit in O. S. No. 244 of 1998 on the file of the III Additional I civil Judge (Junior Division) at Mysore. The petitioner-Corporation in pursuance of the receipt of summons, filed the written statement raising a preliminary objection with regard to maintainability of the suit and requested the Trial Court to decide the matter on additional issue regarding maintainability. The said matter had come up for consideration before the Trial Court on 22nd January, 2002 on additional issue. The Trial Court after hearing both sides and after going through the relevant provisions of the Karnataka Municipal corporations Act, 1976 (hereinafter called the 'act'), and the Rules and placing reliance on the judgment of the Supreme Court in Dhulabhai v. State of Madhya Pradesh and Another, has held that, the respondents have every right to challenge the order dated 29th September, 1997 passed by the Commissioner of the Mysore City Corporation, enhancing the property tax. The Trial Court has opined that the suit of the respondents is maintainable and it is not barred by permissive res judicata and accordingly, answered the additional issue in the negative against the petitioner-Corporation. ( 3 ) FEELING aggrieved by the impugned order passed on the additional issue, on the file of the in Additional I Civil Judge (Junior Division) at mysore, referred above, the petitioner-Corporation felt necessitated to present the instant revision petition. ( 3 ) FEELING aggrieved by the impugned order passed on the additional issue, on the file of the in Additional I Civil Judge (Junior Division) at mysore, referred above, the petitioner-Corporation felt necessitated to present the instant revision petition. ( 4 ) THE principal submission canvassed by the learned Counsel appearing for Corporation is that, the finding of the Trial Court that, the suit is maintainable,is vitiated by illegalities in exercise of its jurisdiction inasmuch as it has failed to examine the relevant provisions of the Karnataka Municipal Corporations Act, 1976 and Taxation Rules which are the parts of the Act. Further, she vehemently submitted that, the Trial Court has failed to note that, as against the order of the commissioner, an appeal is provided under the Taxation Appeal committee, thereafter, a revision before the Revisional Commissioner and an appeal to the District Court and in addition to the remedy of a civil revision petition before this Court as envisaged under Section 115 of the Code of Civil Procedure. Therefore, she submitted that, the Act of 1976 is thus a self-contained Act and the determination of the tax liability by the appropriate authorities under the Act is declared to be final and that, when the order of any special Tribunal is declared to be final, the jurisdiction of the Civil Courts entertaining the suit is impliedly barred. Further, she submitted that, the Trial Court has failed to take note of the fact that, the respondents have made very bald assertions in the plaint to the effect that, the statutory provisions have not been followed and the principles of natural justice have been violated without specifying how and what statutory provisions have not been followed and how the principles of natural justice have been violated. These aspects have not been taken into consideration by the trial Court at the time of answering the additional issue in the negative against the Corporation. Further, she has taken me through the stand taken by the respondents in their written statement to the petitioner-Corporation and pointed out that, the matter has been fixed on several dates of hearing and the respondents have not bothered to appear before the Corporation and had failed to substantiate their case and therefore, it cannot be said that the Corporation has acted in violation of the principles of natural justice or in an arbitrary manner. The Competent Authority has considered the objections and overruled the same and passed the assessment order. To substantiate her submission regarding maintainability, she placed reliance on the well-settled law laid down by the Hon'ble Supreme Court in the case of srikant Kashinath Jituri and Others v Corporation of the City of belgaum, wherein the Apex Court has declared that, assailing the assessment order by way of filing a suit is not maintainable. Therefore, she submitted that, the impugned order passed by the Trial Court is liable to be set aside. ( 5 ) PER contra, the learned Counsel appearing for respondents, inter alia, contended and substantiated the impugned order passed by the trial Court. Further, he vehemently submitted that, before issuing the special notice, there is no notice as such issued to the respondents to have their say in the matter. However, in pursuance of the special notice issued by the Competent Authority, the respondents have filed the objections and the said objections have not been considered as per the mandatory provisions of the Act read with Taxation Rules and further without following the procedure, as envisaged under the mandatory provisions of the Act, the Corporation has proceeded and arbitrarily fixed the tax. Therefore, the impugned assessment order passed by the commissioner is one without jurisdiction. This aspect of the matter has been rightly appreciated and the contention taken by respondents have been upheld by the Trail Court following the ratio of law laid down by the Supreme Court in Dhulabhai's case, wherein, it is held that, where the provisions of a particular Act have not been complied with, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure, the Civil Court has jurisdiction in the matter. Therefore, he submitted that, the Corporation has failed to make out any good grounds in the instant revision petition and hence, the same is liable to be dismissed. ( 6 ) I have heard the learned Counsel appearing for petitioner-Corporation and the learned Counsel appearing for respondents. After careful perusal of the order passed by the Trial Court on additional issue dated 22nd January, 2002, it emerges on the face of the said order that, the Trial Court has committed an error of law, much less irregularity. ( 6 ) I have heard the learned Counsel appearing for petitioner-Corporation and the learned Counsel appearing for respondents. After careful perusal of the order passed by the Trial Court on additional issue dated 22nd January, 2002, it emerges on the face of the said order that, the Trial Court has committed an error of law, much less irregularity. It is not in dispute that, in the instant case, the assessment order passed by the Commissioner has been assailed and a declaration is sought that, the said assessment order passed by the commissioner enhancing the property tax is not in accordance with law and the same is arbitrary and illegal. It is significant to note that, the petitioner-Corporation have filed their written statement taking a specific stand that the suit is not maintainable and have also pointed out the mandatory provisions of the Act and Taxation Rules stating that, against the assessment order passed by the Competent Authority, there is an appeal remedy available to the respondents herein to file an appeal to the standing Committee thereafter the aggrieved party is entitled to file revision and subsequently, they are also entitled to file the appeal before the District Court and further are entitled to file revision under Section 115 of the Civil Procedure Code before this Court. These aspects of the matter has not at all been taken into consideration by the Trial Court nor whispered in the order passed by it. On the other hand, the Trial Court has proceeded to pass the order, without following the procedure laid down by the Supreme Court in the case of Dhulabhai. The reliance placed by the Trial Court is not justified nor the same is in accordance with law, as rightly pointed out by the learned Counsel for petitioner-Corporation in view of the well-settled principles of law laid down by the Supreme Court in the case of Srikant Kashinath Jituri, wherein the Apex Court has held thus:"10. Applying the above principles, it must be held that the present suit, on the allegations contained in the plaint itself- let alone the findings of the Court - None of the grounds on which an assessment made under the Karnataka Act can be challenged in a Civil Court is even alleged in the plaint, as pointed out hereinbefore. Applying the above principles, it must be held that the present suit, on the allegations contained in the plaint itself- let alone the findings of the Court - None of the grounds on which an assessment made under the Karnataka Act can be challenged in a Civil Court is even alleged in the plaint, as pointed out hereinbefore. In other words, none of the grounds indicated in dhulabhai's case, upon which such an assessment can be questioned is alleged in the plaint. All that is complained of is that the enhancement is excessive. That by itself is not enough. Similarly, the allegation that enhancement is arbitrary or unreasonable is per se not sufficient to override the express statutory bar. The High Court was, therefore, right in holding that, the said suit is not maintainable in Civil Court". The Supreme Court has followed the law laid down in Dhulabhai's case holding that, all that is complained of is that, the enhancement is excessive and that by itself is not enough. Similarly, the allegation that enhancement is arbitrary or unreasonable is per se not sufficient to override the express statutory bar. The High Court was, therefore, right in holding that, the said suit is not maintainable in Civil Court. Having regard to the facts and circumstances of the case, as stated above, and taking into consideration the well-settled law laid down by the Supreme court, as stated above, I do not find any good grounds to sustain the impugned order passed by the Trial Court. ( 7 ) HAVING regard to the facts and circumstances of the case, as stated above, the revision petition filed by the petitioner-Corporation is allowed. The order passed by the Trial Court dated 22nd January, 2002 on additional issue is hereby set aside. ( 8 ) FOR the foregoing reasons, the revision petition filed by the corporation stands disposed of. However, the disposal of the civil revision petition will not preclude the respondents from redressing their grievance before the appropriate forum, as envisaged under the mandatory provisions of the Karnataka Municipal Corporations Act read with Taxation Rules, if they are so advised. --- *** --- .