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Madhya Pradesh High Court · body

2007 DIGILAW 150 (MP)

Nagar Palika Parishad, Junnardeo v. Altaf Ahmed

2007-02-08

A.K.MISHRA

body2007
JUDGMENT 1. This appeal has been preferred by the Municipal Council, Junnordeo aggrieved by judgment and decree dated 2.3.1995 in Civil Suit No. 26-AJ 88 passed by IIIrd Additional Judge to the Court of District Judge, Chhindwara, decreeing suit filed by plaintiff Altaf Ahmed quashing the recovery of exhibition tax of Rs. 33,160/- for the period with effect from 1.1.1979 to 18.11.1984. The dues were as against Laxmi Narain Jaju, licensee, it could not have been recovered from the plaintiff, the owner of the building and a subsequent licensee, the property owned by the plaintiff has been exempted from attachment or sale in recovery of the aforesaid amount by the trial Court. 2. It is not in dispute that plaintiff Altaf Ahmed is the owner of the premises situated at Junnordeo, District Chhindwara. Earlier one Laxmi Narain Jaju used to run Raaz Talkies w.e.f. 1.11.1979 till 18.11.1984. 3. A licence was issued by the Collector, Chhindwara to Shri Laxmi Narain Jaju resident of Nagpur to run Raaz Talkies. Plaintiff Altaf Ahmed being owner used to realize the rent from tenant Laxmi Narain Jaju of the premises. After the licence of Laxmi Narain Jaju was cancelled by the Collector, with an intention to run the cinema hall the plaintiff Altaf Ahmed obtained a licence on 16.11.1984 and started the "New Raaz Talkies" and did the said business till 15.3.1985, thereafter exhibition of films was stopped. Defendant No.2 raised demand of Rs. 33,160/- of exhibition tax for the period from 1.11.1979 to 18.11.1984, due against Laxmi Narain Jaju and wanted the recovery of the said amount from the plaintiff. Consequently suit was filed. 4. The defendants in the written statement admitted the plaintiff to be owner of the suit premises and that Shri Laxmi Narain Jaju was a licensee, however, it was submitted that plaintiff was liable to make the payment of exhibition tax due against Laxmi Narain Jaju. Defendants were entitled to recover exhibition tax from the plaintiff as he was owner of the premises. 5. The trial Court has decreed the suit and has found that Laxmi Narain Jaju was a licensee from 1.11.1979 till 18.11.1984. Plaintiff was only a co-owner of the "Raaz talkies" in which the pictures used to be exhibited. Plaintiff was not liable to make the payment of exhibition tax of Rs. 33,160/-, it could have been recovered from Laxmi Narain Jaju not from the plaintiff. Plaintiff was only a co-owner of the "Raaz talkies" in which the pictures used to be exhibited. Plaintiff was not liable to make the payment of exhibition tax of Rs. 33,160/-, it could have been recovered from Laxmi Narain Jaju not from the plaintiff. Dissatisfied with the judgment and decree passed, this appeal has been preferred. 6. Shri YK. Munshi, learned senior counsel with Shri Rajesh Nema, for the defendant-appellants, has submitted that M.P. Municipalities Act, 1961 (hereinafter referred to as 'the Act') prescribes the detailed procedure for investigation into the objections as against the municipal taxes, the suit filed by the plaintiff was not maintainable before the civil Court. He has referred to sections 139 and 319 of the Act. He has further submitted that remedy of appeal is also provided under section 139 and under section 172 of the Act, as such remedy of such was implicitly barred. 7. Shri Anshuman Singh, learned counsel appearing on behalf of plaintiff-respondent, has supported the judgment and decree and submitted that assessment of tax was not assailed in the suit. The recovery fastened upon the plaintiff was without jurisdiction. None of the provisions of the Act authorizes the Municipal Council to recover the dues of another licensee from the plaintiff who was subsequently licensee. Exhibition tax was not a charge on the property. He has also submitted that there is difference between the provision of section 172 (1) and section 139 of the Act and scope of appeal as provided under sections 139 and 172 of the Act, none of the provision comes in the way of suit. 8. In the instant case, the plaintiff has not assailed the imposition of tax on the licensee or the correctness of the assessment of exhibition tax imposed. The very authority of Municipal Council to recover it from the plaintiff has been put in question. 8. In the instant case, the plaintiff has not assailed the imposition of tax on the licensee or the correctness of the assessment of exhibition tax imposed. The very authority of Municipal Council to recover it from the plaintiff has been put in question. With respect to imposition of tax if it is to be assailed detailed procedure is provided under the Act, that has to be resorted to, there is difference between the scope of section 172 (1) and section 139 of the Act as succinctly laid down by this Court in Laxminarayan Mitral v. Municipality of Neemuch [ 1983 JLJ 479 = 1982 MPLJ 219 ] an appeal envisaged by section 139 is in respect of those matters regarding assessment which commence with preparation of assessment list, vide section 134 and end with an order passed by the Municipal Council under section 138. So far as appeal under section 172 is concerned, it can be preferred against any claim included in a bill presented in accordance with the provisions of the Act or the rules made thereunder and the limitation for such an appeal has also been prescribed. Section 172 (1) of the Act cannot be construed wide enough to include within its pale any dispute regarding liability to assessment as well as regarding basis or principle of assessment or as to the amount of tax assessed. The scope of the appeal is restricted to any claim included in bill presented. The bill has not been presented to plaintiff in accordance with Act or Rules, demand is not covered within the ambit of section 139 or section 172 of the Act. 9. Section 319 of the Act has been relied upon by learned counsel for I the appellants. Section 319 provides bar of suit in absence of notice. It is not in dispute, is rather admitted that a notice was served as per section I 319 by the plaintiff before institution of the suit, thus, having served requisite notice there was no bar to institute the suit. 10. It is clear that in the absence of any charge having been created on the property, exhibition tax could not have been recovered for the period in question from the owner, plaintiff as admittedly he was not a licensee for the period in question. Licence to exhibit was with Laxmi Narayan Jaju. 10. It is clear that in the absence of any charge having been created on the property, exhibition tax could not have been recovered for the period in question from the owner, plaintiff as admittedly he was not a licensee for the period in question. Licence to exhibit was with Laxmi Narayan Jaju. Subsequently a licence was also given for a short duration to the plaintiff that could not make him liable for payment of exhibition tax due against his tenant. No such condition in the agreement or licence is shown to exist that owner is liable to make the payment of the dues against tenant Laxmi Narain Jaju. Thus, I find that the suit has been rightly decreed by the Court below. No case for interference is made out. 11. Resultantly, the appeal deserves to be dismissed. Same is hereby dismissed. Parties to bear their own costs as incurred.