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Judgment
Ritu Bahri, J.—This judgment shall dispose of R.S.A. Nos. 1711 of 1987 and 54 of 1986 as controversy is same in both the appeals. For the sake of convenience, facts have been extracted from R.S.A. No. 1711 of 1987.
Challenge is to the notification dated 20.11.1974 issued u/s 5(3) of the Punjab Municipal Act, 1911 whereby the order dated 29.3.1979 has been passed by the Administrative Municipal Committee for recovery of house tax from the Plaintiff.
Counsel for the Respondent had filed a civil suit challenging the notification and restraining the Defendants from recovering the house tax. This suit has been decreed by concurrent judgment dated 18.2.1984 passed by the Sub Judge III Class, Bhatinda, and judgment dated 8.8.1985 passed by the Additional District Judge (II), Bhatinda.
Both the Courts have held that the notification dated 20.11.1974 by which the Plaintiff''s Milk Plant was included in the Municipal Limits is illegal and void.
Challenge is to the concurrent findings on decree. From the pleadings of the parties, the following issues have been framed by the trial Court:
Whether the area in which the premises of the Plaintiff are located has not been legally included within the Municipal limits of Bhatinda, on ground as alleged in the plaint? OPP.
Whether the impugned assessment is illegal and void as alleged? OPP
Whether the Plaintiff is entitled to the declaration and injunction prayed for? OPP.
Whether the Defendant has not been served with the notice u/s 49 of Punjab Municipal Act? OPD
Whether the Plaintiff is estopped by his act and conduct from challenging the notification by which the Milk plant area has been included within the Municipal limits? OPD
Whether this Court has jurisdiction to try the suit? OPD
Whether the General Manager of the plant is not competent to file the suit? OPP.
7a) Whether the suit is barred by the principals of res-judicata? OPD.
7b) Whether the suit of the Plaintiff is within the limits? OPP.
Relief.
The trial Court after going through the evidence of both the parties has come to a conclusion that procedure as contemplated u/s 5(1) of the Municipal Act has not been followed i.e. there was no publication of the notification. The evidence given by PW1 Shri Alihal Singh, Assistant Deputy Commissioner''s office, stated that Punjab Government had not issued any instructions to his office to invite objections against the said notification. If the objections had been included then u/s 5(2) of the Act the Deputy Commissioner within six weeks of the publication of the notification take into consideration the objections before making the final notification u/s 5(3) of the Act. This procedure was not followed and therefore the finding on issue No. 1 was returned in favour of the Plaintiff.
In view of the finding arrived at issue No. 1, the finding on issue No. 2 was also returned in favour of the Plaintiff. The Plaintiff had not challenged the assessment orders right from the year 1974 and had been paying the house tax. The impugned assessments were held to be correctly made. However, the issue was decided in favour of the Plaintiff as the notification including the premises of the Plaintiff-Milk plant in the Municipal Limits has been declared as null and void. Issues No. 3, 4 and 5 were decided in favour of the Plaintiff since the notification was not issued following the procedures under the Municipal Act. The Civil Court has the jurisdiction to entertain the suit. The finding on issue No. 6 was also returned in favour of the Plaintiff. Issue No. 7(a) was not pressed by the Defendant and the suit was decreed.
On appeal filed by the Municipal Committee, they did not assail the finding of the trial Court on issue No. 1. The challenge to the judgment was only on the point that the Plaintiff had been paying their tax right from the inception i.e. imposition from 1975 till filing of the suit in the year 1981 and hence they were estopped from challenging the same. This argument was rejected by the Appellate Court as the validity of imposition of tax can be challenged, mere making of payment of the tax will not render the suit non-maintainable.
In view of the evidence on record, both the judgments of the Courts below do not suffer from any illegality.
No substantial question of law arises for consideration by this Court.
The Regular Second Appeals are dismissed.