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2009 DIGILAW 1913 (PNJ)

Municipal Committee, Bhatinda v. Madan Lal

2009-11-05

ADARSH KUMAR GOEL

body2009
JUDGMENT Adarsh Kumar Goel, J.- This appeal has been preferred by the defendant against decree granted by the lower appellate court restraining the appellant from recovering house tax in respect of the suit property at enhanced rate i.e. beyond the rate calculated on the basis of rateable value of Rs.5400/-. 2. The respondent filed suit for injunction stating that he was owner of a building at Bathinda and the appellant made claim for house tax in respect thereof for the years 1974 to 1984 by enhancing the rateable value without taking proceedings under section 66 of the Punjab Municipal Act, 1911 (in short, ‘the Act’). 3. The appellant contested the suit, inter-alia, on the ground that jurisdiction of civil court was barred under section 86 of the Act. 4. The trial court dismissed the suit upholding the preliminary objection in the light of judgment of the Hon’ble Supreme Court in Firm Seth Radha Krishan and others v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547, apart from deciding other questions in favour of the appellant. 5. On appeal, the finding of the trial court was reversed by relying upon DB judgment of this Court in M/s Rama Krishna Rice Mills v. Municipal Committee, Sultanpur Lodhi, 1985 SLJ 73. It was held that since no notice had been issued by the Municipal Committee, which was mandatory, proceedings were void. It was also observed that recovery for period beyond three years was beyond limitation in view of judgment of this Court in Faqir Chand and others v. Municipal Committee, Sultanpur Lodhi and others, 1984 PLJ 109. 6. I have heard leanred counsel for the parties. 7. Learned counsel for the appellant proposes following substantial questions of law:- “i) Whether the civil suit was barred by on the point of ouster of jurisdiction in view of sections 84 and 86 of the Punjab Municipal Act? ii) Whether or not could the appellate court grant a blanket injunction against recovery of house tax or not? iii) Whether or not the appellate court could reverse the well reasoned order of the trial court?” 8. Learned counsel for the appellant submitted that the lower appellate court was in error in holding that the suit was maintainable. He relies on judgment of the Hon’ble Supreme Court in NDMC v. Satish Chand, AIR 2003 SC 3187, which in turn refers to earlier well known judgment in Dhulabhai etc. Learned counsel for the appellant submitted that the lower appellate court was in error in holding that the suit was maintainable. He relies on judgment of the Hon’ble Supreme Court in NDMC v. Satish Chand, AIR 2003 SC 3187, which in turn refers to earlier well known judgment in Dhulabhai etc. v. State of MP and others, AIR 1969 SC 78, laying down following seven principles:- “(1) Where the Statute gives a finality to the orders of the special tribunals the Civil Courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but is not a compulsory remedy to replace a suit. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.” 9. Reference to Principle (1) itself shows that where provisions of the Act had not been complied with or where the statutory Tribunal had not acted in conformity with the fundamental principles of judicial procedure, the bar of jurisdiction of civil court will not apply. 10. In the present case, finding recorded by the lower appellate court that statutory provisions were not followed and the appellant did not act in conformity with the fundamental principle of judicial procedure, has not been shown to be perverse. On such a finding, the bar of jurisdiction of civil court was not applicable. 11. Learned counsel for the appellant next submitted that in the event of bar to jurisdiction of civil court not being applicable, the civil court could have merely declared the proceedings to be void or could have given injunction against enforcement of an order passed on the basis of such proceedings but could not issue any order on merits so as to debar passing of fresh order, after compliance of statutory provisions. 12. Operative part of the impugned judgment is as under:- “13. In the light of above discussion, the appeal is accepted and the judgment and decree under appeal are set aside. The suit of the plaintiff/appellant is ordered to be decreed to the extent that the notice Ex.P1 is illegal and void. 12. Operative part of the impugned judgment is as under:- “13. In the light of above discussion, the appeal is accepted and the judgment and decree under appeal are set aside. The suit of the plaintiff/appellant is ordered to be decreed to the extent that the notice Ex.P1 is illegal and void. The defendant/respondent is restrained from recovering house tax regarding the suit property at the enhanced rate. However it can recover house tax from 1981 to 1984 at the rate of Rs.5400/- per annum annual value..” 13. It is clear that the lower appellate court has not only declared proceedings to be void but has also restrained the appellant from recovering house tax, which is a decision on merits. 14. I am, thus, satisfied that substantial question of law arises whether the decree of the lower appellate court to the extent it goes beyond declaring the impugned notice to be void, could be sustained. 15. Learned counsel for the plaintiff-respondent is not able to show as to how beyond holding the impugned notice to be void, further injunction could be issued by the lower appellate court except to the extent of consequential order. Accordingly, the question has to be answered in favour of the appellant to the extent that the decree beyond holding the proceedings to be void, could not be sustained. 16. Accordingly, this appeal is partly allowed by deleting the direction beyond holding impugned notice to be void and making it clear that the appellant will be at liberty to proceed afresh in accordance with law. --------------