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Judgment
Rajesh Tandon, J.—Heard Sri M.C. Pande, counsel for the appellant.
By the present second appeal filed u/s 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 23.1.2001 passed by the Civil Judge (Sr. Division), Rudrpur, District Udham Singh Nagar in C.S. No. 166 of 1999 Guru Pal Singh Dhillon v. Kumuon Jal Sansthan and Anr. and judgment and decree dated 26.07.2002 passed by the Addl. District Judge/Fast Track Court Udham Singh Nagar in Civil Appeal No. 8 of 2001 Gurupal Singh Dhillon v. Kumaon Jal Sansthan and Anr.
Briefly stated, a suit was filed by the plaintiff-appellant being Civil Suit No. 166 of 1999 Gurupal Singh Dhillon v. Kumaon Jal Sansthan and Anr. praying for the cancellation of the assessment regarding water tax in respect of Plots No. 16/1 and 17/1 D 1, D 2, measuring 100 X 150'' situate at Civil Lines, Rudrapur, District Udham Singh Nagar, which the plaintiff has purchased by way of sale deed dated 14.4.1966.
According to the plaint averments, after purchasing the said plots, the plaintiff got constructed a residential house in the western side of the said plots and after some time, he went to England. After coming from there, he has constructed one Mission Hospital, but the same has been closed from 1st July, 1995.
According to the averments contained in the plaint, the defendant No. 2 Executive Engineer, Kumaon Jal Sansthan, Rudrapur, District udham Singh Nagar has started assessment reading from 1989 to 1994-95 and water tax was imposed to the extent of Rs. 3600/- vide demand letter No. 35042/1353 dated 17-3-1995- Plaintiff has sent the amount to the extent of Rs. 1800/- on 31.3.1995 and for the year, 1995-96, a sum of Rs. 237o/- was deposited and again a demand was made for the year, 1997-98 to the extent of Rs. 1,00,000/- and the plaintiff has replied the same on 23.12,1997.
According to the plaintiff, the enhancement of the house tax to the extent of Rs. 2,00,000/- has been made exorbitantly when in point of fact, the hospital is lying closed.
A notice was sent to the plaintiff on 21.1.1999, which the plaintiff has replied on 23rd August, 1999. The plaintiff has submitted that the entire procedure was wholly illegal inasmuch as before enhancing the assessment neither any notice has been given nor the plaintiff has been heard, though the plaintiff has paid a sum of Rs. 25010/- and the plaintiff, therefore, has submitted that the demand is wholly without jurisdiction.
A perusal of the record shows that from time to time, water tax has been imposed on the basis of the assessment and the same has been paid by the plaintiff right from 1979-80.
So far as 1994-95 to 1999-2000 is concerned, the valuation has come to Rs. 2,00,000/- on which a sum of Rs. 25,000/- towards water tax has been imposed.
Trial Court has framed as many as six issues to the following effect:
1& D;k fookfnr tydj ds lEcU/kes vf/kfu;e la0 43 lu~ 1975 dh /kkjk 55 ds [k.M+ �[k ds mi[k.M [k&1� ds vUrZxr o"kZ 1989 ls v/ZkU;kl fu/kZkfjr ugh gS \\ ;fn gkW rks izHkko \\
2& D;k oknh dk edku jktkKk fnukad 1&1&94 ds vUrxZr v/kZU;kl es ugh vkrk vkSj izfroknhx.k oknh ls mDr jktkKk ds vuq:i tydj olwy ikus ds vf/kdkjh ugh gS\\
3& D;k nkok oknh fucU/ku ds fl)kUr ls ckf/kr gS\\
4& D;k oknh }kjk dksbZ izkalfxd vuqrks"k u ekaxs tkus ds dkj.k nkok pyus ;ksX; ugh gS \\
5& D;k nkok oknh voewY;kafdr gS vkSj vnk fd;k x;k U;k;''kqYd vi;kZIr gS \\
6& D;k oknh vU; fdlh vuqrks"k dks ikus dk vf/kdkjh gS \\
While deciding the issues No. 1, 2, and 3, a finding was recorded that in the year, 1989, the plaintiff has paid the water tax and for the year, 1994-95, he has also paid some of the amount and for the year, 1989, he has also paid certain amount and as such after paying the said amount, the plaintiff is debarred from challenging the water tax so far as 1994-95 and 1989 are concerned.
While deciding the issue No. 4, a finding has been recorded that no such declaration can be granted and as such the suit was dismissed. The plaintiff went in appeal. The appellate Court has dismissed the appeal.
Sri J.P. Joshi, counsel for the respondent has pointed out that appeal lies u/s 54 of the U.P. Water Supply and Sewerage Act, 1955 against the assessment of annual value for the levy of the tax.
Section 52 provides the liability of the tax. Section 53 relates to the assessment of annual value. Section 53 of the Water Supply and Sewerage Act, 1975 reads as under:
Assessment of annual value.--(1) For the purposes of Section 52, annual value means--
(a) in the case of railway stations, educational institutions (including their hostels and halis) factories (as defined in the Factories Act, 1948), and commercial establishment (as defined in the Uttar Pradesh Dookan Aur Vanijya Adhisthan Adhiniyam, 1956), five per cent of the market value of the premises;
(b) in the case of any other premises, the gross annual rent fro which such premises are actually let or
where the premises are not let, the gross annual rent for which the premises might reasonably be expected to be let:
(2) The annual value of premises for the purposes of the levy of taxes mentioned in Section 52 shall be assessed b y such authority as the State Government may, by general or special order direct, and such authority may be either the Jal Sansthan itself or any other agency may be specified in the order.
(3) Where the assessment is made by the Jal Sansthan or by any other agency the Jal Sansthan or such other agency shall follow the prescribed procedure.
(4) Until an assessment of the annual value of premises in any local area is made by the Jal Sansthan or any other agency specified under Sub-section (2) the annual value of all premises in that local area, as assessed by the local body concerned fro the purposes of house tax shall be deemed to be the annual value of the premises for the purposes of this Act as well.
(5) Where the annual value of premises in any local area is assessed by the Jal Sansthan or other agency specified under Sub-section (2), it shall, subject to any variation therein on appeal u/s 54, be deemed to be the annual value of the premises for the purposes also of house tax levied by the local body concerned, anything contained in the law constituting such local body notwithstanding.
Section 54 of the U.P. Water Supply and Sewerage Act, 1975 reads as under:
Appeal against assessment.--(1) Any person aggrieved by an orde4r of assessment made by a Jal Sansthan or any other agency under Sub-section (2) of Section 53 may, within thirty days from the date of such order, prefer an appeal to the prescribed authority.
(2) Where an appeal is preferred from an order of the Jal Sansthan or fany other agency under Sub-section (l), the prescribed authority may stay the enforcement of that order for such period and on such terms as it deems fit.
(3) The prescribed authority may, after giving to the parties an opportunity of being heard, confirm, set aside or modify the order under appeal.
(4) A decision of the prescribed authority under Sub-section (3) shall be final and binding on the parties.
Section 55 of the Water Supply and Sewerage Act, 1975 relates to the levy of taxes. It reads as under:
Restriction on levy of taxes.--The levy of taxes mentioned in Section 52 shall be subject to the following restrictions, namely.-
(a) they shall not be levied on any land exclusively used for agricultural purpose unless water is supplied by the Jal Sansthan for such purposes to that land;
(b) the water tax shall nto be levied on any premises--
[(i) of which no part is situate within the radius prescribed from the nearest stand-post or other water -works at which water is made available to the public by the Jal Sansthan; or
[(ii) the annual value of which does not exceed rupees three hundred and sixty, and to which no water is supplied by the Jal Sansthan.]
(e) the sewerage tax shall nto be levied on any premises--
(i) of which no part is within a radius of one hundred metres from the nearest sewer of the Jal Sansthan, or
(ii) the annual value of which does not exceed one hundred fifty rupees.
In view of the aforesaid clause, counsel for the appellant has submitted that the entire assessment has been done in violation of Section 55(b)(i) of Water Supply and Sewerage Act & Rules, 1989.
Since two courts below have recorded the findings of fact, as such second appeal cannot be entertained as no substantial question of law arises in view of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, , where it has been observed as under:
It is not within the domain of the High Court to investigate the ground son which the finding were arrived at, by the last court of fact, being the first appellate Court.... The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible evidence or arrived at without evidence.
...Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an erro4r either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India and Another Vs. Ramkrishna Govind Morey, held that whether trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference.
Considering the submissions of the counsel for the appellant, since two courts below have already directed the plaintiff that remedy lies by invoking the provisions under U.P. Water Supply and Sewerage Tax, 1975 and appeal lies u/s 54 against the amount and the plaintiff has a remedy to challenge the annual value of the premises for the purposes of imposition of taxes mentioned in Section 52, therefore, the suit against the assessment order of house tax and water tax is not maintainable.
In case, the plaintiff proceeds for the appropriate remedy before the prescribed Authority against the assessment order, the appellate Authority shall consider the submissions of the appellant in accordance with law and shall dispose of the appeal. However, if there is any delay in filing the appeal, the same shall not come in the way of the appellant if the appellant files the same within a period of one month from the date of the receipt of the certified copy of the judgment of this Court. Any findings recorded by the trial Court and the appellate Court will not come in the way of the Prescribed Authority while deciding the appeal on merits.
Subject to aforesaid observations, second appeal lacks merit and is dismissed on the ground of alternative remedy. No order as to costs.