ORDER Gangele, J. -- 1. The appellants-defendants have filed this appeal against the judgment dated 21.4.2007 passed in Civil Suit No.41-A/2007. 2. The plaintiffs-respondents filed a suit for declaration and permanent injunction. They pleaded that theyhad industrial establishment at Chhatri Bazar, Taksal Road, Lashkar, Gwalior in the name of Sudarshan Ice Factory and Gupta Cold Storage. Plaintiff No.1 was residing in 1998 at A.B. Road, Bahodapur and there was a public tap at A.B. Road. All the residents have been using the public tap. When the Municipal Corporation decided to discontinue water supply to the tap, a civil suit was filed before the civil Court 8th Civil Judge, Glass II in Civil Suit No.521-A/1998 passed a judgment and decree dated 30.1.2004 of declaration and permanent injunction. The appellants were restrained to discontinue water to the public tap. 3. The officers of the defendants-appellants came on the spot on 14.4.2005 and they tried to discontinue the water connection to the public tap. Subsequently, it was re-connected. Thereafter, a show cause notice was issued to the plaintiffs on 15.9.2005 to the effrect that the plaintiffs had been taking water from the main line of the Municipal Corporation illegally since 2000 and they were using the aforesaid water commercially for their establishments Sudarshan Ice Factory and Gupta Cold Storage. Hence, they were directed to pay amount of Rs.1,58,36,970/-. The plaintiffs pleaded that had no business at the place mentioned in the notice. They had been doing business at Chhatri Bazar, Lashkar and Taksal Road, Lashkar, Gwalior. There was no establishment of the plaintiffs at A.B. Road, Bahodapur as mentioned in the notice. The plaintiffs further pleaded that they had not taken any illegal connection of water from the public line as mentioned in the notice neither they had taken water for commercial use. The plaintiffs pleaded that a decree of declaration be granted that the notice dated 15.9.2005 is illegal and void and a permanent injunction be issued and the defendants be restrained from taking any action against the plaintiffs. 4. The appellants-defendants denied the pleadings of the plaintiffs.They plealdeld that some complaints were received that illegal connection had been taken from the main line at A.B. Road, Bahodapur. 4. The appellants-defendants denied the pleadings of the plaintiffs.They plealdeld that some complaints were received that illegal connection had been taken from the main line at A.B. Road, Bahodapur. An inquiry committee was constituted for the aforesaid purpose and the committee inspected the spot and found that Sudarshan Ice Factory and Gupta Cold Storage had been using illegally water of the Municipal Council for commercial purpose by fitting 1”x1-1/2” diameter pipe lines in the main pipe line. The pipes were also seized. An FIR was lodged at the police station. The connection of public tap was again restored. The plaintiffs are owners of Sudarshan Ice Factory and Cold Storage and Sudarshan Filling Center and they had been using illegally water of the Municipal Corporation. Hence, after calculation liability towards payment of water tax notice was issued under section 174 of the Municipal Corporation Act, 1956 to the plaintiffs and they were directed to deposit the amount upto 15.9.2005. 5. The trial Court framed the issues that whether the plaintiffs are owner of Sudarshan Ice Factory, Gupta Cold Storage and Sudarshan Filling Center Bahodapur and whether the bill dated 15.9.2005 is illegal and void and whether the plaintiffs had used water of Municipal Corporation illegally. 6. Learned trial Court vide impugned judgment had held that commercial establishment of the plaintiffs were not situated at Bahodapur and the notice issued to them for recovery of the tax was illegal. Trial Court further held that the defendants failed to prove that the plaintiffs had taken tap connection illegally from the main line of the Municipal Corporation. 7. Learned counsel appearing on behalf of the defendants-appellants has submitted that the findings recorded by the trial Court are perverse. Inquiry committee found that the plaintiffs had been taking water illegally from the main pipe line and they used the same for commercial purpose. A Panchnama was prepared and FIR was also lodged. There is enough evidence documentary and oral to establish the fact that the plaintiffs had taken water illegally. 8. Contrary to this, learned counsel appearing on behalf of the respondents-plaintiffs has contended that the judgment passed by the trial Court is in accordance with law. The trial Court has appreciated the evidence properly and answered the issues in favour of the plaintiffs. Hence, there is no illegality or irregularity in the judgment. 9. 8. Contrary to this, learned counsel appearing on behalf of the respondents-plaintiffs has contended that the judgment passed by the trial Court is in accordance with law. The trial Court has appreciated the evidence properly and answered the issues in favour of the plaintiffs. Hence, there is no illegality or irregularity in the judgment. 9. In support of their claim, plaintiffs examined two witnesses; plaintiff Hemant Kumar Gupta (PW1) and P.R. Parashar (PW2) and filed documents Ex.P-1 to P-18. Defendants-appellants examined six witnesses and filed 13 documents. 10. Plaintiff Hemant Kumar Gupta (PW1) in his evidence deposed that in the year 1998 he had been residing at A.B. Road Bahodapur and there was a public tap. When the Municipal Corporation tried to close the tap, a civil suit was filed before the civil Court and thereafter civil Court passed a decree in favour of the plaintiffs. A Commissioner was also appointed. On 14.4.2005 connection of public tap discontinued and a false report was lodged against the plaintiff Hemant Gupta and his brother. Thereafter, a show cause notice was issued on 15.9.2005 mentioning the fact that the plaintiffs had taken illegally water for commercial purpose for running Sudarshan Ice Factory and Gupta Cold Storage. A demand of Rs.1,58,36,976/- was raised from the plaintiffs. He further deposed that his commercial establishments Sudarshan Ice Factory and Cold Storage are at Chhatri Bazar Taksal Road and they are situated 5 km. away from Bahodapur. He further deposed that for the purpose of use of water for these establishments commercial connection were taken and the tax was also paid. The Electricity Board also issued a certificate that no such establishments are at Bahodapur. He further pleladed that the action was taken because a civil suit was filed. 11. P.R. Parashar (PW2), who was working at the relevant time as Assistant Engineer M.P. Electricity Board, in his evidence, deposed that a certificate (Ex.P-14) was issued from the office and as per the certificate there was no electricity connection of M/s. Sudarshan Ice Factory, M/s. Gupta Cold Storage and M/s. Sudarshan Filling Center at Bahodapur in the name of Devendra Gupta, Hemant Gupta and Ajay Gupta. 12. 12. Ex.P-1 is the copy of the plaint filed earlier before the civil Court, which was registered at Civil Suit No.521-A/98, Ex.P-2 is the copy of written statement, Ex.P-3 is the copy of Commissioner Report, Ex.P-4 is the certified copy of the judgment dated 30.1.2004, Ex.P-6 is the copy of the notice dated 15.9.2005. It was issued at the address of Lashkar, Gwalior. Ex.P-7 is also copy of notice. Ex.P-8 and Ex.P-9 are copies of electricity bills and Ex.P-10, P-11 and P-12 are copies of receipts of water tax paid by the plaintiffs. Ex.P-15 is a copyof certificate issued by the Electricity Department. 13. S.L. Batham (DW1) deposed that he was working as Assistant Engineer in the Municipal Corporation and one Preetam Singh made a complaint about the illegal connection. Thereafter, Commissioner constituted an inquiry committee and issued order on 4.4.2005. The inquiry committee inspected the spot and found that two pies of pipes of diameter 1”x1-1/2” were fitted in the main connection and thereafter Assistant Engineer and Executive Engineer calculated the water intake and issued notice. In his cross-examination he deposed that nobody signed Ex.D-3. He further deposed that he had no knowledge that at A.B. Road Bahodapur the plaintiffs had commercial establishment Sudarshan Ice Factory and Gupta Cold Storage. He further admitted that on the notices Ex.P-6 and P-7 address of Lashkar, Gwalior has been mentioned. Information was sought vide letter dated 10.11.2006 (Ex.D-14) from Industries Department that whether the Firms are at Bahodapur but the information was not received. 14. Jagesh Shrivastava (DW2) has also deposed the same facts that an inquiry committee was constituted and thereafter the committee inspected the spot on 14.4.2005 and found that two pipes of diameter 1”x1-1/2” were fitted illegally in the main pipe line. He admitted that he signed the inquiry report. In his cross-examination he deposed that the inspection was conducted on 13.4.2005 and there is no date mentioned in the report. In para 10 he admitted the fact that after digging the earth it was found that two pipe lines were connected with main pipe line, however, it could not be verified that what was the direction of pipes and where these pipe lines had been advancing. 15. In para 10 he admitted the fact that after digging the earth it was found that two pipe lines were connected with main pipe line, however, it could not be verified that what was the direction of pipes and where these pipe lines had been advancing. 15. Ajayraj Singh Jadon (DW3) also admitted the fact that there was nodigging of earth at the time of inspection and it could not be found that what was the direction of pipes fitted illegally. He further deposed that the spot inspection was made and it was found that some water had been taken illegally. 16. Same facts have been deposed by Rajendra Singh Bhadoriya (DW4), who was working as Assistant Engineer and Saurabh Golya (DW5), who was also working as Assistant Engineer. Both the witnesses have deposed that they found that illegal connection had been taken. Rajendra Singh Bhadoriya (DW4) admitted the fact in his cross-examination that at the time of inspection no digging of the earth was taken place. Saurabh Golya (DW5) also admitted the same facts. 17. D.K. Rathore (DW6), who was working as Executive Engineer deposed that he had constituted a committee and the committee inquired the matter and submitted its report. He also admitted the fact that the committee did not conduct any digging of the earth and he had no knowledge that who are the owners of Sudarshan Ice Factory and Gupta Cold Storage and Sudarshan Filling Center. 18. Ex.D-13 is the FIR lodged at the police station, Ex.D-14 is the letter written to the Industries Department to the effect that whether the establishment of Sudarshan Cold Storage, Sudarshan Ice Factory and Sudarshan Filling Center Bahodapur are of the ownership of plaintiffs. Ex.D-4 is the report of the committee. 19. From the evidence produced by the defendants oral and documentary there is no evidence that the plaintiffs had been using water for the last six years from the date of issuance of notice. 20. Part IV of Municipal Corporation Act, 1956 (hereinafter referred to as Act of 1956) prescribes taxation section 132 of the Act of 1956 authorises the Corporation to impose tax as water tax. The relevant section 132(b) is as under : “(b) a water tax, in respect of lands and buildings to which a water supply is furnished from or which are connected by means of pipe with municipal water works;” 21. The relevant section 132(b) is as under : “(b) a water tax, in respect of lands and buildings to which a water supply is furnished from or which are connected by means of pipe with municipal water works;” 21. Chapter XII of the Act of 1956 prescribes Recovery of Corporation Claims. As per section 173 of the Act of 1956, a bill shall be presented and the bill shall specify the period for which and the property, occupation or thing in respect of which the sum is claimed. 22. Hon’ble Supreme Court in the case of Heinz India (P) Ltd. v. State of U.P. and others, reported in (2012)5 SCC 443 , has considered the standard of proof in taxation and after considering the previous judgments of the Hon’ble Supreme Court and also the English law as well as American law has held as under : “43. In England, the civil standard of proof is defined by Lord Denning in Miller v. Minister of Pensions [All ER p.373 H], thus : “(1) .... It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is proved beyond resonable doubt, but nothing short of that will suffice.” 44. Three years later came Bater v. Bater in which the civil standard of proof was to an extent modified, was seen by some jurists as somewhat confusing the concept so clearly stated in Miller case. In Bater the Court declared that neither civil nor criminal standard of proof was an absolute standard. A “civil case” may be proved by a preponderance of probability explained Denning, J. (Bater case, All ER p.459) : “.... but there mat be degrees of probability within that standard. The degree depends on the subject-matter. A civil Court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligience were established. but there mat be degrees of probability within that standard. The degree depends on the subject-matter. A civil Court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligience were established. It does not adopt so high a degree as a criminal Court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion.” 45. Then came Hornal v. Neuberger Products Ltd., where the Court held that (QB p.247) : “In a civil action where fraud or other matter which is or may be a crime is alleged against a party or against persons not parties to the action, the standard of proof to be applied is that applicable in civil actions generally, namely, proof on the balance of probability, and not the higher standard of proof beyond all reasonable doubt required in criminal matters; but there is no absolute standard of proof, and no great gulf between proof in criminal and civil matters; for in all cases the degree of probability must be commensurate with the occasion and proportionate to the subject-matter. The elements of gravity of an issue are part of the range of circumstances which have to be weighed when deciding as to the balance of probabilities.” 46. The law in England, therefore, is that degree of probability must be commensurate with the subject-matter. This implies that graver the charge in a civil action higher the degree of proof required. A civil case may be proved by preponderance of probability, but the degree of probability would depend upon the nature of the subject-matter. *** *** *** 57. The heightened standard of proof required to rebut a presumption raised under the stature at hand is in our view applicable for two distinct reasons. The first and foremost is that the presumption is raise in relation to a fiscal stature. While the amount payable is not a tax, it is nevertheless a statutory levy which is attracted the moment the transaction of sale takes place within the market area. Goods admittedly produced within the market area and not consumed within such area are presumed to be leaving pursuant to a transaction of sale unless the contrary is proved. While the amount payable is not a tax, it is nevertheless a statutory levy which is attracted the moment the transaction of sale takes place within the market area. Goods admittedly produced within the market area and not consumed within such area are presumed to be leaving pursuant to a transaction of sale unless the contrary is proved. That the goods are produced within the market area is not in dispute in the instant case. That they left the market area is also admitted. In the ordinary course, therefore, the presumption would be that the goods left pursuant to a sale unless the appellants are in a position to prove the contrary. 58. The second reason for applying a higher standard of proof than mere preponderance of probability is that the nature of transaction pursuant to which the goods are removed from the market area is within the exclusive knowledge of the appellants or the persons to whom such goods are being dispatched. In other words, the circumstances in which the transactions, which the statute presumes to be sales, but which the appellants claim are simple transfer of stocks are within the exclusive knowledge of the appellants. The entire evidence relevant to the transactions, being available only with the appellants and the true nature of the transactions being within their special knowledge, there is no reason why the rebuttal evidence should not satisfy the higher standard of proof and clearly and convincingly establish that the fact presumed is not the actual fact. Our answer to question 2 accordingly is that the evidence intended to rebut the statutory presumption under section 17 of the Adhiniyam ought to be clear and convincing evidence showing that what is presumed under the provision is not the real fact.” 23. From the judgment of the Hon’ble Supreme Court, it is clear that a heightened standard of proof is required to rebut a presumption raised under the statue and the evidence required to rebut a statutory presumption should be clear and convincing and the degree of poof may not be as high as proved nothing beyond the reasonable doubt. In the present case, the plaintiffs have led cogent evidence that they had no business establishment at Bahodapur in the name of Sudarshan Ice Factory, Gupta Cold Storage and Sudarshan Filling Center. In the present case, the plaintiffs have led cogent evidence that they had no business establishment at Bahodapur in the name of Sudarshan Ice Factory, Gupta Cold Storage and Sudarshan Filling Center. They have also pleaded and established the fact that Sudarshan Ice Factory and Sudarshan Cold Storage and Sudarshan Filling Center are situate at Lashkar Gwalior. A certificate from Electricity Board Ex.P-14 was also filed to the effect that there was no electricity connection at Bahodapur in the name of M/s. Sudarshan Ice Factory, Mrs. Gupta Cold Storage and M/s. Sudarshan Filling Center at Bahodapur.The witnesses of the Municipal Corporation failed to establish the fact that the establishments were in the name of plaintiffs at Bahodapur. The letter was written to the Industries Department on 10.11.2006 (Ex.D-14) and the witness of the Corporation admitted the fact that he had not received the reply. Plaintiffs also filed documents to show that they had taken commercial water connection for their establishments at Chhatri Bazar, Lashkar. Hence, in our opinion, the plaintiffs discharged their burden to prove the fact that they had no establishment as mentioned in the show cause notice at Bahodapur. 24. The defendants-appellants further failed to prove the fact that the plaintiffs had been taking water by illegal connection for the last six years when the inquiry committee inspected the spot. Contrary to this, in the judgment and decree dated 30.1.2004 also, a copy of which has been filed as Ex.P-4, earlier suit proceeding, it has been held by the civil Court that the Corporation defendant failed to prove that plaintiff had taken illegal water connection. This plea was taken by the appellant-defendant in their earlier suit also. The witnesses of the defendants admitted in the cross-examination that no digging of the earth was taken place at the time of inspection and it could not be said that in which direction illegally fitted pipes were going on. A criminal case was also registered against the plaintiff and in that case the plaintiffs have been acquitted.The appellants only proved that on spot inquiry it was found that two pipes were illegally connection in main pipe line. But on this fact it could not be presumed that plaintiffs had been taking water illegally for the last six years. 25. A criminal case was also registered against the plaintiff and in that case the plaintiffs have been acquitted.The appellants only proved that on spot inquiry it was found that two pipes were illegally connection in main pipe line. But on this fact it could not be presumed that plaintiffs had been taking water illegally for the last six years. 25. From perusal of all the evidence produced by the defendants in our opinion, the defendants failed to prove with probabilities that the plaintiffs are liable to pay water tax as mentioned in the notice. It is well settled principle of law that the taxation statute has to be interpreted strictly and high degree of proof of probabiulity is required by the authority to discharge its burden that the person has evaded tax. In the present case there is no iota of evidence to establish the fact that the plaintiffs had been taking water illegally for the last six years i.e. since 2000. We do not know from where this fact came. It is also contrary to the findings of the earlier judgment of the civil Court. Even though there is no clinching evidence that pipes were fitted illegally in the establishments of the plaintiffs-appellants. 25.1 I sent draft judgment to brother Justice Mudgal for his consideration. He has written a dissenting judgment and held that the civil suit filed on behalf of the plaintiffs was not maintainable and allowed the appeal and also dismissed the suit filed by the plaintiffs. 25.2 In the draft judgment I have not considered the maintainability of the suit because no issue was framed on the aforesaid point by the trial Court, neither the arguments were advanced on this point. 25.3 The defendants-appellants in their written statement admitted the fact that the Court had jurisdiction to hear the dispute. The relevant pleadings in this regard are in para 18 of the written statement which are as under : ^^18- ;g fd okn&i= ds in Ø-18 es of.kZr vuqlkj U;k;ky; ds {ks=kf/kdkj ds lac/k es vkifÙk ugh gS] ijarq nkok O;FkZ izLrqr fd;k x;k gSA^^ 25.4 However, because brother Judge dismissed the suit and allowed the appeal on the ground of maintainability, hence, it is necessary for me to express my opinion about the maintainability of the suit. 25.5 The plaintiff sought a declaration to the effect that notices (Annexure P-6 and P-7) issued by the Municipal Corporation under section 173 of the Municipal Corporation Act in regard to recovery of water tax are null and void and without jurisdiction and notices are not binding on the plaintiffs. 25.6 Section 132 Part IV under Chapter IX. Taxation of Municipal Corporation Act, 1956 prescribes that the Corporation can impose a water tax. The relevant provision of section 132(1)(b) is as under : “(b) a water tax, in respect of lands and building to which a water supply is furnished from or which are connected by means of pipe with Municipal Water Works;” 25.7 Sub-section (4) of section 132 of the Act of 1956 further prescribes in regard to charge of water tax. The relevant provisions are as under : “(a) on buildings and lands which are exempted from property tax, at a rate as shall be determined by the Corporation; (b) on buildings and lands which are not exempted from property tax, at a rate as determined in clause (a) plus such percentage of the property tax, as shall be determined by the Corporation;” 25.8 There is a provision of appeal against the order of imposition of tax. Section 189 of the Act of 1956 prescribes taxation not to be questioned except under this Act. Section 189(1) reads as under : “(1) No objection shall be taken to any valuation or assessment, or shall the liability of any person to be assessed or taxed be questioned in any other manner or by any other authority than as provided in this Act.” 25.9 The aforesaid section prescribes that the objection in regard to assessment of tax or liability of another person to be assessed or taxed to be questioned as per the provisions as provided under the Act. 25.10 The question is that whether the aforesaid provision completely excludes the jurisdiction of civil Court to entertain a dispute of civil nature in regard to procedure of imposing tax. 25.10 The question is that whether the aforesaid provision completely excludes the jurisdiction of civil Court to entertain a dispute of civil nature in regard to procedure of imposing tax. 25.11 Privy Council in the case of Secretary of State v. Mask and Co., reported in AIR 1940 Privy Council 105, considered the exclusion of jurisdiction of civil Court by a statue and has held as under : “The exclusion of the jurisdiction of the civil Courts is not to be readily inferred but such exclusion must either be explicity expressed or clearly implied. Even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.” 25.12 Hon’ble Supreme Court further in the case of Provincial Government Madras v. J.S. Basappa, reported in AIR 1964 SC 1873 , quoted with approval the earlier judgment of the Supreme Court in the case of Civil Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh, AIR 1964 SC 322 , in considering the provisions of Madras General Sales Tax Act, 1939 in regard to exclusion of jurisdiction of civil Court and held as under : “In dealing with the question whether civil Court jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary civil Courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of civil Courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may not by itself necessarily exlcude the jurisdiction of the civil Courts to deal with a case brought before it in respect of some of the matters covered by the said statute. The mere fact that a special statute provides for certain remedies may not by itself necessarily exlcude the jurisdiction of the civil Courts to deal with a case brought before it in respect of some of the matters covered by the said statute. *** *** *** It was thus held that the civil Court’s jurisdiction may not be taken away by making the decision of a Tribunal final because the civil Court’s jurisdiction to examine the order, with reference to rundamental provisions of the statutes, non-compliance with which would make the proceedings illegal and without juriisdiction, still remains, unless the statute goes further and states either expressly or by necessary implication that the civil Court’s jurisdiction is completely taken away.” 25.13 Hon’ble Supreme Court further in the case of Firm Seth Radha Kishan v. Administrator Municipal Committee, Ludhiana, reported in AIR 1963 SC 1547 , considered the provisions of section 9 of Civil Procedure Code and the provisions of Punjab Municipal Act in regard to levy of terminal tax on salt and also the remedy of appeal and held as under : “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. 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.” 25.14 Constitution Bench of the Hon’ble Supreme Court in the case of Dhulabhai v. State of M.P., reported in 1969 JLJ 1= AIR 1969 SC 78 , again considered the question of exclusion of the jurisdiction civil Court, section 9 of Civil Procedure Code and the provisions contained in Madhya Bharat Sales Tax Act (3 of 1950) and the Bench has laid down following 7 principles in regard to exclusion of jurisdiction of civil Court : “The following principles regarding exclusion of jurisdiction of civil Court may be laid down : (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 liabilityshall be determined by the Tribunals so constituted, and whether remedies normally associated with actions incivil 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 HighCourt 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 it 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 thee 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 jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply. Case law discussed. 25.15 A three Judges Bench, the Hon’ble Supreme Court in the case of Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa, reported in (2009)4 SCC 299 , has again considered the exclusion of jurisdiction of civil Court in regard to service dispute of a workman covered under Industrial Dispute Act and held as under : “33. A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliament Act and the regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act on the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil Court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil Court. *** *** *** 36. The question in regard to the jurisdiction of the civil Court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil Court. *** *** *** 36. If an employee intends to enforce his constitutional rights or a right under a statutory regulation, the civil Court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil Court will have none. In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Orders certified under the 1946 Act, ipso facto the civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this “Court in Rajasthan SRTC v. Mohar Singh. The question as to whether the civil Court’s jurisdiction is barred or not must be determined having regard to the facts of each case. 37. If the infringement of the Standing Orders or other provisions of the Industrial Disputes Act are alleged, the civil Court’s jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil Court’s jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil Court is barred, the civil Court will have jurisdiction.” 25.16 Hon’ble Supreme Court in the case of Ramkanya Bai v. Jagdish, reported in 2011 RN 361= (2011)7 SCC 452 , further considered the exclusion of jurisdiction of civil Court under section 9 of Code of Civil Procedure and the provisions of M.P. Land Revenue Code. Hon’ble Supreme Court in the aforesaid judgment quoted with approval the earlier judgment of the Hon’ble Supreme Court reported in the case of Kamla Mills Ltd. v. State of Bombay [ AIR 1965 SC 1942 ], and held as under : “15. Hon’ble Supreme Court in the aforesaid judgment quoted with approval the earlier judgment of the Hon’ble Supreme Court reported in the case of Kamla Mills Ltd. v. State of Bombay [ AIR 1965 SC 1942 ], and held as under : “15. Having regard to section 9 of the Code of Civil Procedure, a civil Court can entertain any suit of civil nature except those, cognizance of which is expressly or impliedly barred. In Kamala Mills Ltd. v. State of Bombay, this Court held (AIR pp.1946-47 and 1952, paras 13 and 32) : “13.... the normal rule prescribed by section 9 of the Code of Civil Procedure is that the Courts shall (subject to the provisions contained in the Code) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred ..... *** *** *** 32.... whenever, it is urged before a civil Court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. In cases where the exclusion of the civil Court’s jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the aedequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and in conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by Tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not.” 25.17 In the aforesaid judgment Hon’ble Supreme Court also considered the judgment of in the case of Mahant Gopidas v. Ramkrishna Pande, reported in 1971 JLJ 825 =1971 MPLJ 893, and further held as under in regard to jurisdiction of civil Court in view of section 131(2) of the M.P. Land Revenue Code : “27. In Gopidas, a learned Single Judge of the Madhya Pradesh High Court (A.P. Sen, J., as he then was) explained the position succinctly, thus : “The scheme underlying the section, envisages a suit under section 131(2) by the claimant for the establishment of his right, if such right is not recognised by the Tahsildar. This necessarily implies that the correctness of the finding reached by the Tahsildar may be questioned in subsequent, legal proceedings in the ordinary Courts of law. No doubt, the language of section 131(2) is susceptible of the construction suggested by the learned counsel that the right of a suit is confined to the claimant. This, however, does not result in the consequence that a person, on whose property a right of way is declared by Tahsildar to exist, should haver no remedy for the protection of his rights in property, against an arbitrary or erroneous assumption of jurisdiction by the Tahsildar.” We respectfully agree with the said observations. The decision in Nathuram and Rambai are not good law.” 25.18 From the aforesaid judgments of the Hon’ble Supreme Court’s and the Privy Council, the proposition of law emerges that if a liability is created under the particular Act in regard to payment of tax and the remedy is given to a party aggrieved against enforcement of that liability, the party aggrieved can only pursue the remedy provided under the Act, he cannot file a suit in a civil Court. However, if the order passed by the authority or the Tribunal under the Act is contrary to fundamental principles of judicial procedure or contrary to statutory provisions or against the rules of natural justice or arbitrary or the order is null and void, then the jurisdiction of the civil Court under section 9 of Civil Procedure Code is not barred. (Please see condition No.1 of Constitutional Bench judgment of the Supreme Court in 1969 JLJ 1= AIR 1969 SC 78 , and further three Judge Bench judgment in (2009)4 SCC 299 , and also judgment of the Hon’ble Supreme Court in AIR 1963 SC 1547 , where the provisions of Punjab Municipal Act (3 of 1911) have been considered). (Please see condition No.1 of Constitutional Bench judgment of the Supreme Court in 1969 JLJ 1= AIR 1969 SC 78 , and further three Judge Bench judgment in (2009)4 SCC 299 , and also judgment of the Hon’ble Supreme Court in AIR 1963 SC 1547 , where the provisions of Punjab Municipal Act (3 of 1911) have been considered). 25.19 Hon’ble Supreme Court in the case of Rajasthan SRTC (supra), has specifically held that in the event of exclusion of jurisdiction the question in regard to the jurisdiction of the civil Court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil Court. In the aforesaid case, Hon’ble Supreme Court further held that only becuase an employee is workman within the meaning of provisions of 1947, then it could not be held that ipso facto the civil Court will have no jurisdiction. 25.20 The same principle be applied in the present case. The plaintiffs pleaded before the Court that the notices in regard to demand of water tax were null and void because the notices were arbitrary and without any basis. I have discussed this fact in the judgment. By the aforesaid notices, a demand of Rs.1,58,36,970/- has been levied against the plaintiffs in regard to recovery of water tax. Before the trial Court, a chart was fileld along with the record as Ex.D-4 and in the aforesaid calculation, it is mentioned that the plaintiffs had been using the water illegally for the last six years i.e. from 2000. However, there is no iota of evidence that on what basis the Corporation came to the conclusion that the plaintiffs had been using water illegally for the last six years. There is no evidence on record. No person stated that the plaintiffs had been using water for the last six years illegally. There is only evidence that the committee inspected the spot and it was found that some pipes had been illegally connected with main pipe line. Earlier also a civil suit was filed by the plaintiff in regard to disconnection of the public water tap situated at A.B. Road Moti Zeel in front of Anand Nagar. It was registgered as Civil Suit No.521-A/98. Earlier also a civil suit was filed by the plaintiff in regard to disconnection of the public water tap situated at A.B. Road Moti Zeel in front of Anand Nagar. It was registgered as Civil Suit No.521-A/98. In the aforesaid case, one of the present plaintiffs i.e. Hemant Kumar Gupta (respondent No.1 herein) was also the plaintiff and in regard to same pipe line the Corporation had pleaded that the plaintiffs had taken connection from 600 mm pumping CI main line illegally. An issue was also framed by the trial Court in this regard as issue No.2 and negative finding was recorded by the trial Court in its judgment dated 30.1.2004. Hence, the pleading of the appellants in the present case that the plaintiff had been using water since 2000 is also contrary to the judgment dated 30.1.2004 (Annexure P-4) passed earlier by the trial Court in Civil Suit No.521-A/98. Hence, the order passed by the authority is null and void. No notice was issued to the plaintiffs by the Corporation to show cause that why a tax liabilityof Rs.1,58,36,970/- be not imposed on the plaintiffs for using the water illegally. Hence, the notices of recovery Ex.p-6 and P-7 are against the rule of natural justice. The plaintiffs sought declaration that the notices are null and void. By the aforesaid notice, a demand has been made, which is not based on any evidence. It means that it is contrary to the statutory provisions of section 132(4) of Act of 1956 because section 132(4) Act of 1956 casts a statutory duty on the Corporation to determine the tax liability. Determination means application of mind and there must be evidence and facts to reach out on the conclusion. In the present case there is no evidence that plaintiffs had been using water illegally for the last six years, hence, there is no determination by the Corporation. 25.21 In such circumstances, in view of the provisions of section 9 of the Civil Procedure Code, which reads as under, the jurisdiction of civil Court could not be excluded that is why the Corporation in its written statement admitted that the Court had jurisdiction : “9. Courts to try all civil suits unless barred. 25.21 In such circumstances, in view of the provisions of section 9 of the Civil Procedure Code, which reads as under, the jurisdiction of civil Court could not be excluded that is why the Corporation in its written statement admitted that the Court had jurisdiction : “9. Courts to try all civil suits unless barred. -- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” 25.22 The matter has to be seen from another angle. By the notices Corporation sought recovery of a huge amount from the plaintiffs for which amount there must be proper adjudication. If there was an adjudication and proper application of mind, then it could be said that the civil Court had no jurisdiction, however, when there is no such adjudication, then certainly the jurisdiction of the civil Court could not be ousted because section 189 of the Act of 1956 explicitly and clearly does not exclude the jurisdiction of the civil Court. It only says that taxation not to be questioned except under this Act and the objection to any valuation or assessment or liability be decided as provided under the Act. However, when there is no assessment or there is no valuation, then certainly the civil Court has jurisdiction to declare the act null and void and the civil Court’s jurisdiction is not barred as held from the Privy Council up to the recent judgments of the Hon’ble Supreme Court quoted above because the jurisdiction of the civil Court is a plenary jurisdiction and exclusion of jurisdiction has to be construed strictly. 25.23 The question is regard to payment of court-fee has aloready been decided by the civil Court vide order dated 8.9.2006, in which it has been held that the plaintiffs are liable to pay fixed court-fees not ad valorem court-fee because they have sought a relied of declaration. I am in agreement with the findings of the trial Court. 25.24 Hence, in my opinion, the trial Court has rightly decreed the suit. I do not find any merit in this appeal. It is hereby dismissed with costs. Per Mudgal, J. -- 26. It is a great privilege for me to persue the judgment prepared by the learned senior brother Judge Justice Shri S.K. Gangele. 25.24 Hence, in my opinion, the trial Court has rightly decreed the suit. I do not find any merit in this appeal. It is hereby dismissed with costs. Per Mudgal, J. -- 26. It is a great privilege for me to persue the judgment prepared by the learned senior brother Judge Justice Shri S.K. Gangele. On perusal of the judgment, I am unable to concur with the findings recorded by learned senior Judge. The reasons are as follows : 27. The plaintiffs filed the suit for declaration of the notices dated 15.9.2005 Ex.P-6 and P-7 issued by the defendants under section 174 of the Municipal Corporation Act (hereinafter referred to as “the Act”) for demand of Rs.1,74,20,667/- to be null and void and also prayed for permanent injunction against the defendants. 29. Suffice to say that narration of the pleadingys of both the parties is not necessary to be stated here as the facts in detail have already been described in paras 2 to 9 in the judgment. 29. As per para 1 of the plaint and para 1 and 11 of the plaintiff Hemant Kumar Gupta’s (PW1) statement, it has indisputably come on record that theplaintiff No.1 has the business of cold storage and is also running Sudarshan Ice Factory and the plaintiff No.2 also runs the business of cold storage. The plaintiffs have challenged the legality and validity of the notices Ex.P-6 and P-7 on the ground that they had no business of cold storages and ice factory at Motizheel, Bahodapur, District Gwalior whereas, they are actually carrying their business at Chhatri Bazar, Taksal Road, Lashkar, Gwalior. Thus, the burden of proof was on the plaintiffs to prove the contention made by them in their pleadings as held by this Court in Pannalal v. Bhawani Ram [ 1982 MPWN 360 ]. Moreover, on perusal of the plaint, it becomes clear that the plaintiffs have not specifically disclosed as to what the actual location of their business is and the boundaries are and the date of registration and the permission as well from the concerning department. The entire pleadings are totally vague which prima facie given rise to the suspicion that the plaintiffs were actually carrying on their business at Chhatri Bazar. 30. Indisputably, whenever a cold storage and ice factory are set up. The entire pleadings are totally vague which prima facie given rise to the suspicion that the plaintiffs were actually carrying on their business at Chhatri Bazar. 30. Indisputably, whenever a cold storage and ice factory are set up. It is obligatory to seek the permission from the department of industry and secure registration with the Labour Department. In this case, the plaintiffs have not produced even a single document showing that they had taken permission and licence from any department concerned for setting up ice factory and cold storage at Chhatri Bazar, Taksal Road, Gwalior. These documents were most essential and indispensable to indicate the place of plaintiffs’ business. Similarly, the plaintiffs had also to produce the documents regarding the cold storage and ice factory situated at Motizheel, Bahodapur indicating that the said ice factory and cold storage did not belong to them and these were owned by someone else but they did not do so. Why the said documents were concealed and not produced on record by the plaintiffs, has not been explained by them. It is quite natural that the said document being related to theplaintiffs’ business ought to have been in their possession. Suppression of the said documents which were essential in this case leads to the inference that if the documents had been produced on record, they would not have supported the plaintiffs’ pleadings, on the contrary, they would have rebutted the plaintiffs’ story as held in V. Krishna and Co. v. Rajputana Motors [ 1984 MPWN 338 ], whereas, in the instant case, the defendants have tried to obtain relevant documents from the department of industry vide Ex.D-14, but the plaintiffs did not make any such efforts in this regard though the buden of proof was solely on the plaintiffs. 31. The plaintiffs have tried to prove their pleadings on the basis of verbal statement of Hemant Kumar Gupta (PW1), where the documents related to the location of the said business were available, they ought to have been proved only by producing the documents and not by oral evidence. As per section 61 of the Evidence Act, contents of documents must be proved by the documents themselves unless secondary evidence is permissible. In the instant case, there were no circumstances on record for producing the secondary evidence of the documents as produced by the plaintiffs i.e. orally and hence, is inadmissible. 32. As per section 61 of the Evidence Act, contents of documents must be proved by the documents themselves unless secondary evidence is permissible. In the instant case, there were no circumstances on record for producing the secondary evidence of the documents as produced by the plaintiffs i.e. orally and hence, is inadmissible. 32. The documents Ex.P-10 and P-13 produced by the plaintiffs are not related to the business of cold storage and ice factory. The said documents show that they are related to water connections for domestic use as it has come on record in para 17 of Hemant Kumar Gupta’s (PW1) statement. Further, the plaintiffs have not produced any document proving that they had taken any water connection from Municipal Corporation for their cold storage and ice factory and they had ever paid any bill in this regard. 33. The document Ex.P-1 the plaint, Ex.P-2 the written statement, Ex.P-3 Commissioner’s report and Ex.P-4 judgment dated 30.1.2004 of the earlier Civil Suit No.52-A/98 are neither admissible under section 40 of the Evidence Act not related to the instant dispute and so from these documents no inference can be drawn in favour of the plaintiffs. The certified copy of the spot inspection report Ex.P-3 dated 10.9.1998 made by the Commissioner Advocate Shri Dileep Awasthi in the earlier Civil Suit No.521-A/98 has no evidential value as the statement of the said Commissioner was not got recorded by the plaintiffs in this case. Besides, the earlier dispute was related to public tap whereas the instant dispute is related for taking illegal water connection from the main water supply pipe line through which the supply water tanks are filled. 34. It is very strange in this case that after receiving the notices Ex.P-6 and P-7 dated 15.9.2005 from the defendants, the plaintiffs did not submit any objection under section 173 of the Act contending that the said demand notice had no concern with them and they had no business of cold storage and ice factory at Motizheel Bahodapur. Further, no explanation has been tendered by them in their plealdings and in the PW’s statement as to why they remained silent and did not react at once. As per para 15 of the plaint, the plaintiff had given a notice Ex.P-16 dated 10.10.2005 at first before filing the suit. Further, no explanation has been tendered by them in their plealdings and in the PW’s statement as to why they remained silent and did not react at once. As per para 15 of the plaint, the plaintiff had given a notice Ex.P-16 dated 10.10.2005 at first before filing the suit. The very silence on the part of the plaintiffs in not filing any objection under sections 173 and 174 of the Act after receiving the notices celarly shows that they had no solid reason to challenge the demand notices on the ground that they had no business at Motizheel Bahodapur. 35. The learned trial Court has discussed the defendants evidence in paras 25 to 60 shifting the burden of proof on the defendants for proving the existence of the said business related to the plaintiffs at Motizheel, Bahodapur. The very approach of the learned trial Court in the instant case is against the basic principles of the Evidence Act. The burden of proving that the plaintiffs had actually led no such business located at Motizheel Bahodapur and so no advantage can be given to the plaintiffs for any weakness of the defendants as held by this Court in Gulabchand v. Durga Prasad [1976 MPWN 116], and Daryao Singh v. Siddhnath [ 1984 MPWN 532 ]. The plaintiffs have to stand on their own legs but they have utterly failed to do so. 36. In para 23 of the impugned judgment the learned trial Court has relied on the statement of P.R. Parasher (PW2) who has proved the Ex.P-15. The statement is also not trustworthy because as per para 2 of the witness’s statement he has deposed the same without producing any record. Hence, the trial Court ought not to have relied upon his statement. 37. In para 9 of the written statement, the defendants have specifically pleaded that the plaintiffs are not entitled to get any relief in the suit regarding the notices Ex.P-6 and Ex.P-7 and further in para 11(G) the defendants have pleaded that the plaintiffs have no right to challenge the notice in the instant suit and similarly in para 12 it has been pleaded by the defendants that the plaintiffs are not entitled to get the notices declared invalid. In para 15, the maintainability of the suit has also been challenged. In para 15, the maintainability of the suit has also been challenged. Though the learned Court has not framed any issue regarding maintainability of the suit yet the said question being purely legal can be considered by this Court. On perusal of the Ex.P-6 and Ex.P-7, it becomes clear that the demand notice Ex.P-7 was given under section 174 of the Act. Sections 173 and 174 of the Act are as follows : “173. Presentation of bill for taxes and other demands. -- (1) When any amount declared by or under the provisions of this Act to be recoverable in the manner provided in this chapter, or payable on account of any tax imposed within the limits of the city shall have become due, the Commissioner shall, with the least practicable delay cause to be presented to any person liable for the payment thereof a bill for the sum claimed as due. (2) Contents of Bill. -- Every such bill shall specify : (a) the period for which; and (b) the property, occupation or thing in respect of which the sum is claimed, and shall also give notice of : (i) the liability incurred in default of payment; and (ii) the time within which an objection may be preferred as against such claim. 174. If bill not paid within 15 days notice of demand to issue -- (1) If the sum, for which a bill is presented as aforesaid, is not paid and no objection has been preferred within 15 days from the presentation of the bill, the Commissioner may, serve upon the person to whom such bill has been presented a notice of demand in the (form prescribed by bye-laws). (2) For every notice of demand a free shall be charged at the rate specified in the bye-laws and shall be payable by the said person, and the fee shall be included in the costs of recovery.” 38. Indisputably, the plaintiffs had not submitted any objection before the competent authority under the said Act regarding Ex.P-6 and Ex.P-7. If the plaintiffs were aggrieved with the demand notices Ex.P-6 and Ex.P-7 they could have only filed the appeal under section 184 of the Act. Section 184 is as described here : “Appeals. Indisputably, the plaintiffs had not submitted any objection before the competent authority under the said Act regarding Ex.P-6 and Ex.P-7. If the plaintiffs were aggrieved with the demand notices Ex.P-6 and Ex.P-7 they could have only filed the appeal under section 184 of the Act. Section 184 is as described here : “Appeals. -- (1) Appeals against any notice of demand issued under sub-section (1) of section 174 may be made to the Appeal Committee constituted under section 403 and in the manner prescribed therein; (Provided that the appeal shall not be entertained unless the sum due under section 174 is deposited in the Corporation and a copy of the receipt is enclosed with the appeal memo). (2) No such appeal shall be heard had determined unless -- (a) a written objection has been made and determined in accordance with the provisions of this Act; and (b) the amount claimed from the appellant has been deposited by him in the Corporation office, and receipt thereof has been filed with a memo of appeal;” 39. As per section 189 of the Act, the only right the plaintiffs had, was to challenge the validity of the assessment order or demand notice under the provisions of the Act. The provision is as follows : “189. Taxation not to be questioned except under this Act. -- (1) No objection shall be taken to any valuation or assessment, nor shall the liability of any person to be assessed or taxed be questioned in any other manner or by any other authority than as provided in this Act. (2) The Government may make rules under this Act regulating the refund of taxes and such rules may impose limitations on such refunds. (3) No refund of any tax shall be claimable by any person otherwise than in accordance with the provisions of this Act and rules (and the bye-laws) made thereunder.” 40. On perusal and analysis of the said provisions, it is crystally clear that the civil Court and no jurisdiction to entertain the instant suit against the demand notices Ex.P-6 and Ex.P-7. The learned trial Court has committed a grave error in deciding the case by overlooking the aforesaid provisions. If the said provisions had been taken into account by the learned trial Court the suit would not have been decreed in favour of the plaintiffs. The learned trial Court has committed a grave error in deciding the case by overlooking the aforesaid provisions. If the said provisions had been taken into account by the learned trial Court the suit would not have been decreed in favour of the plaintiffs. As in Municipal Corporation, Indore v. Payare Ali [ 1993(I) MPWN 168 ], it has been held by this Court that a civil Court has no jurisdiction to entertain a suit against the assessment order relating to any demand for tax under this Act which is squarely covered by the decision rendered by Hon’ble apex Court in Bata Shoes Company v. Jabalpur Municipality [ AIR 1977 SC 955 ]. 41. The defendants have got six witnesses namely S.L. Batham, Assistant Engineer (DW1), Jagesh Shrivastava, Assistant Engineer (DW2), Ajay Raj Singh, Assistant Engineer (DW3), Rajendra Singh Bhadoriya, Executive Engineer (DW4), Saurath Golya, Assistant Engineer (DW5) and D.K. Rathore, Assistant Engineer (DW6) examined and have produced the documents Ex.D-1 to Ex.D-14. All the witnesses have unequivocally deposed in their statements that the plaintiffs had illegally taken the connection from main water pipe line for their cold storage and ice factory and the inspection report was prepared in this regard by the officers of the Municipal Corporation. In my opinion, there is no need to discuss the statement of the said witnesses and the documents as the suit filed by the plaintiff is not maintainable as discussed earlier. 42. The question of court-fees is also debatable in this case as it is not a simplicitor suit for declaration. On the other hand the relief sought by the plaintiffs amounts to cancellation of the demand notices Ex.P-6 and Ex.P-7 and so the ad voleram court-fees was required to be paid by the plaintiffs in this case as held by the Full Bench of this High Court in Subhash Chandra Jain v. Chairman, M.P.E.B. [ 2001(1) JLJ 81 = 2000(3) MPLJ 522 ], and also on this issue State of M.P. v. Siyaram Verma [2004 RN 62=2004(1) MPLJ 130], may be perused. However, the said question is not being considered elaborately as the said issue was not raised during arguments in this appeal by learned counsel for the appellans. 43. However, the said question is not being considered elaborately as the said issue was not raised during arguments in this appeal by learned counsel for the appellans. 43. Considering the entire evidence and the legal provision as stated earlier, I am led to the conclusion that the civil suit filed by the plaintiffs was not maintainable for challenging the legality and validity of Ex.P-6 and P-7. Hence, the impugned judgment and decree deserves to be set aside. Therefore, allowing the appeal, setting aside the impugned judgment and decree the suit filed by the plaintiff is hereby dismissed. 44. The cost of the appeal and the suit shall be borne by the plaintiff. Per Paul, J. -- 1. This first appeal is placed before me for opinion as a Third Judge as per rule 10 of Chapter IV of High Court of Madhya Pradesh Rules, 2008. There is a difference of opinion amongst the members of the Division Bench while deciding this first appeal. Accordingly following points for reference were made and in turn referred for my opinion : “(1) Whether in view of the evidence on record of the case, the trial Court had jurisdiction to entertain the civil suit? (2) Whether in the facts of the case and evidence on record of the case, the judgment and decree passed by the trial Court is in accordance with law?” 2. The respondents-plaintiffs filed a civil suit for declaration and permanent injunction against the demand notice issued by the Municipal Corporation. From bareperusal of the said notice which became reason of challenge in the civil suit, it is clear that by invoking section 174 of the Municipal Corporation Act, 1956 (for short, the “Act”), the demand notice was issued to the plaintiffs. In demand notice, it is mentioned that in every two months, bills of water tax were being regularly sent to the plaintiffs but the plaintiffs have not deposited the said amount. Thus, last notice is given to the plaintiffs to deposit the due amount of water tax, which is due for last six years by 14.4.2005, failing which coercive action will be taken. 3. Thus, there is no dispute between the parties that evidence on record shows that the grievance of the plaintiffs triggered aftger receiving the said notice issued under section 174 of the Act. The first point referred is regarding jurisdiction of the civil Court. 3. Thus, there is no dispute between the parties that evidence on record shows that the grievance of the plaintiffs triggered aftger receiving the said notice issued under section 174 of the Act. The first point referred is regarding jurisdiction of the civil Court. Since the question of jurisdiction of civil Court goes to the root of the matter, I deem it proper to deal with this aspect as a first issue. 4. The contention of Shri Sushil Chaturvedi, learned counsel for the appellants-defendants is that as per section 184 read with section 403 of the Act, the remedy is to prefer an appeal before the committee provided under the Act. As per section 189 of the Act, the jurisdiction of civil Court is ousted. He further submits that the trial Court did not have jurisdiction at all and, therefore, even if no objection was taken by the Corporation before the civil Court regarding jurisdictional aspect, jurisdiction cannot be assumed. Putting it differently, he submits that section 189 of the Act excludes the jurisdiction of the trial Court and even if the Corporation submitted to the jurisdiction of the civil Court, it will not confer jurisdiction on the said Court. He placed reliance on certain judgments of Supreme Court in this regard. 5. Per contra, Shri Sanjeev Jain, learned counsel for the respondents-plaintiffs, supported the judgment and decree as per the affirming order. 6. Learned brother while affirming the judgment of trial Court has based his judgment (called affirming order) on the judgment of Privy Council, reported in AIR 1940 Privy Council 105 (Secretary of State v. Mask and Co.). It was held therein that even if jurisdiction of civil Court is excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. The reliance is also place on AIR 1963 SC 1547 (Firm Seth Radha Kishan v. Administrator Municipal Committee, Ludhiana); AIR 1964 SC 322 (Civil Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh); AIR 1964 SC 1873 (Provincial Government Madras v. J.S. Basappa); and 1969 JLJ 1= AIR 1969 SC 78 (Dhulabhai v. State of M.P.). The reliance is also place on AIR 1963 SC 1547 (Firm Seth Radha Kishan v. Administrator Municipal Committee, Ludhiana); AIR 1964 SC 322 (Civil Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh); AIR 1964 SC 1873 (Provincial Government Madras v. J.S. Basappa); and 1969 JLJ 1= AIR 1969 SC 78 (Dhulabhai v. State of M.P.). On the basis of the said judgments, it is opined that the jurisdiction of civil Court is not ousted and the civil Court has not erred in passing the judgment and decree. 7. The contrary view of lelarned brother is based on sections 184 and 189 of the Act and judgment of Supreme Court in AIR 1977 SC 955 (Bata Shoe Co.Ltd. v. Jabalpur Corporation). 8. I have had the advantage of reading the views expressed. 9. Section 189 of the Act, if examined in juxtaposition to section 84(3) of the Central Provinces and Berar Municipalities Act, 1922 (for short, the “1922 Act”), will show that it is pari materia provision. It is apt to quote both the provisions in juxtaposition for ready reference : Section 84(3) of Central Provinces Section 189 of Municipal Corporation and Berar Municipalities Act, 1922 Act, 1956 *No objection shall be taken to any Taxation not to be questioned except valuation, assessment or levy nor under this Act -- shall the liability of any person to be (1) No objection shall be taken to assessed or taxed be questioned, in any valuation or assessment, nor shall any other manner or by any other the liability of any person to be assessed authority than is provided in this Act. or taxed be questioned in any other manner or by any other authority than as provided in this Act. *Source : AIR 1977 SC 955 (para 8) The apex Court in Bata Shoe (supra), was dealing with the pari materia provision of section 84(3) of 1922 Act. The apex Court opined that in view of section 84(3), the jurisdiction of civil Court is ousted. 10. *Source : AIR 1977 SC 955 (para 8) The apex Court in Bata Shoe (supra), was dealing with the pari materia provision of section 84(3) of 1922 Act. The apex Court opined that in view of section 84(3), the jurisdiction of civil Court is ousted. 10. It is apt to mention that the judgment of Bata Shoe (supra), is delivered after considering the judgments of Privy Council and Supreme Court, reported in AIR 1970 SC 1002 , AIR 1969 SC 78 , AIR 1966 SC 249 , AIR 1965 SC 1942 , AIR 1964 SC 322 , AIR 1963 SC 1547 , AIR 1955 SC 661 and AIR 1940 PC 105. The affirming order is based on most of the judgments of Supreme Court and Privy Council, which have been considered in the judgment of Bata Shoe Co. In Bata Shoe (supra), the apex Court considered the judgment of Privy Council in Mask and Co. (supra), and opined that the Privy Council was dealing with the provisions of the Sea Customs Act, 1878. Section 188 whereof gave a right of appeal to the person aggrieved by any decision or order passed by the Customs Officers under that Act. Section 191 further gave the aggrieved person right to make an application to the local Government for revision of the appellate decision or order. The last paragraph of section 188 provided : “Every order passed in appeal under this section shall, subject to the power of revision conferred by section 191, be final”. There was no express exclusion of the civil Courts’ jurisdiction to entertain a suit challenging an order passed by a Customs Officer but the Judicial Committee, while recognising that the exclusion of the jurisdiction of civil Courts was not to be readily inferred and that such exclusion must either be explicitly expressed or clearly implied; observed that looking at the last paragraph of section 188 of the Sea Customs Act it was difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the civil Courts. If a provision merely giving finality to an order could be construed as ousting the civil Court’s jurisdiction, section 84(3) of the Act which is far more expressive, can legitimately be construed to have the same effect. If a provision merely giving finality to an order could be construed as ousting the civil Court’s jurisdiction, section 84(3) of the Act which is far more expressive, can legitimately be construed to have the same effect. It excludes in terms a challenge to the vanous things therein mentioned, in any other manner or by any other authority than is provided in the Act. The Supreme Court in the judgment of Bata Shoe considered the judgment of Civil Firm of Illuri Subbayya Chetty (supra), and opined that whether the assessment was made by the appropriate authority correctly or not is a different facet. It cannot be said that the authority did not have jurisdiction of assessment and imposition of tax at all. The judgment in Firm Seth Radha Kishan (supra), is considered in para 23 of the judgment of Bata Shoe and it was opined that in the first place, the assessment in the instant case was made by the authority duly empowered to do so and secondly the authority was acting under the Act while revising the assessment and imposing double duty. It had the power to assess and lelvy double duty, if it exceeded that power it acted wrongly, not without jurisdiction. In Firm Seth Radha Kishan, the Municipal Committee being entitled to impose a certain rate of tax on common salt and higher rate in respect of salt of other kinds, imposed tax at the higher rate on “sambhar salt” which was a variety of common salt. Section 86 of the Punjab Municipal Act, 1911, provided that the liability of any person to be taxed cannot be questioned in any manner or by any authority other than that provided in the Act. That provision is identical with section 84(3) of the C.P. Municipalities Act, 1922, with which Supreme Court was concerned in the instant case. Section 86(2) of the Punjab Act provided that no refund of any tax shall be claimed by any person otherwise than in accordance with Rules thereunder, it was held by the apex Court that the liability to pay terminal tax was created by the Act and since a remedy was given to the party aggrieved in the enforcement of that liability, the suit for refund was not maintainable by reason of section 86. The observations on which plaintiffs rely cannot, in the context, be taken to mean that the Act protects correct assessments only and that every incorrect or wrong order of assessment can be challenged by a suit though the statute gives it finality and provides full and effective remedies to challenge it. Except in matters of constitutionality and the like, a self-contained Code must have priority over the common means of vindicating rights. The apex Court added that if the observations on which plaintiffs rely are to be understood literally, they are contrary to the decision in Kamla Mills case ( AIR 1965 SC 1942 ), where, speaking for a seven Judge Bench, Gajendragadkar, C.J., observed that if the appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the Act comes to an erroneous conclusion, it cannot be said that the decision is without jurisdiction. While considering the judgment in Dhulabhai ( supra), the apex Court in Bata Shoe (supra), opined as under : “24. Plaintiff’s reliance on the 1st proposition in Dhulabhai’s case ( AIR 1969 SC 78 ), is equally misconceived. The first two propositions formulated in that case contain a deichotomy. The 1st proposition refers to cases where the statute merely gives finality to orders of special Tribunals. In such cases according to that proposition, the civil Court’s jurisdiction would not be excluded if “the provisions of the particular Act are not complied with”. The instant case does not fall under the 1st proposition because section 84(3) of the Act does not merely give finality to the orders passed by the Special Tribunals. It provides expressly that such orders shall not be questioned in anyother manner or by any other authority than is provided in the Act.” (Emphasis supplied) The judgment of Bata Shoe is directly on the point dealing with a pari materia provision. This judgment squarely covers the question of jurisdiction of civil Court. 11. The apex Court in a recent judgment, reported in (2013)3 SCC 440 (Oma alias Omprakash and another v. State of Tamil Nadu), opined that “binding judgments should be the Bible of a Judge and there should not be any deviation” (para 57). This judgment squarely covers the question of jurisdiction of civil Court. 11. The apex Court in a recent judgment, reported in (2013)3 SCC 440 (Oma alias Omprakash and another v. State of Tamil Nadu), opined that “binding judgments should be the Bible of a Judge and there should not be any deviation” (para 57). In my opinion, the judgment of Bata Shoe (supra), is a binding judgment and this view was also expressed by a Single Bench of this Court in 1993(I) MPWN 168 (Municipal Corporation, Indore v. Payare Ali). Once a binding judgment covers the field, there is no scope of any deviation. Considering the aforesaid, in my opinion, the civil Court did not have jurisdiction to deal with the matter. 12. The anciliary question is whether the question of jurisdiction can be raised at appellate stage when, admittedly, the appellants-defendants have submitted to the jurisdiction of the trial Court without any objection/demur. In the opinion of this Court, this question is no more res integra. In AIR 1956 SC 340 (Kiran Singh and others v. Chaman Paswan and others), the apex Court opined that fundamental principle is well established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. This view is followed by Supreme Court in catena of judgments. In (2005)7 SCC 791 (Harshad Chiman Lal Modi v. DLF Universal Ltd. and another), the apex Court has taken the same view. In (2007)2 SCC 355 (Hasham Abbas Sayyad v. Usman Abbas Sayyad and others), the apex Court opined as under : “22. The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has been passed by the Tribunal/Court which has no authority in that behalf. Any order passed by a Court without jurisdiction would be coram non-judice, being a nullity, the same ordinarily should not be given effect to. [See : Chief Justice of Andhra Pradesh v. L.V.A. Dixitulu and MD, Army Welfare Housing Organisation v. Sumangal Services (P) Ltd.]”. Any order passed by a Court without jurisdiction would be coram non-judice, being a nullity, the same ordinarily should not be given effect to. [See : Chief Justice of Andhra Pradesh v. L.V.A. Dixitulu and MD, Army Welfare Housing Organisation v. Sumangal Services (P) Ltd.]”. (Emphasis supplied) The same view is taken in (2007)6 SCC 382 (Sethuraman v. P. Venkataraman and others). 13. This Court in a recent judgment reported in 2013(2) JLJ 219 = 2013(2) MPLJ 345 (M.P. Madhya Kshetra Vidyut Vitran Co.Ltd., Gwalior v. Savitri Devi), followed the same view and opined that no estoppal, acquiescence or waiver would apply in cases where the Court below had inherent lack of jurisdiction. 14. In the light of aforesaid analysis, in my opinion, the civil Court’s jurisdiction is expressly ousted. Point No.1 referred is answered accfordingly. Since the jurisdiction question is opined against the plaintiff, therefore, there is no need to answer Point No.2. 15. Registry is directed to do the needful as per rule 10(3) of Chapter IV of High Court of Madhya Pradesh Rules, 2008.