Municipal Corporation vs Prahlad Parkash

Paramjeet Singh, J.—Appellant-defendant has assailed the judgment and decree dated 19.12.1986 passed by learned Additional District Judge, Jalandhar, whereby judgment and decree dated 18.11.1983 passed by learned Sub Judge 1st Class, Jalandhar, has been reversed. For convenience sake, hereinafter parties will be referred to as appeared in the trial court i.e. appellant as defendant and respondent as plaintiff.

Brief facts of the case are that plaintiff filed a suit for declaration challenging the assessment made for the year 1981-82 and 1982-83 whereby the house tax was assessed by the defendant. After notice, defendant appeared and filed written statement. Plaintiff filed replication controverting the allegations of the defendant and reiterating his version as set out in the plaint.

Learned trial court after considering the pleadings of the parties, framed the following issues: -

Whether the property in dispute has not been assessed for house tax in provisions with chapter VIII of the Punjab Municipal Corporation Act? OPP

Whether the plaintiff is entitled to the declaration and injunction prayed for? OPP

Whether the civil Court has no jurisdiction to entertain and try this suit? OPD

Whether notice u/s. 396 of the Punjab Municipal Corporation Act, was required to be served upon the defendant before filing the present suit, if so its effect? OPD

Relief.

Learned trial court recorded finding on issue No. 3 that civil court has no jurisdiction to entertain and try the present suit and dismissed the suit filed by the plaintiff. Plaintiff preferred an appeal, which has been allowed and findings of the trial court have been reversed. Hence this regular second appeal.

While admitting appeal, no substantial question of law was framed, however, at the time of arguments, learned counsel for the defendant raised following substantial question of law for determination:

Whether civil court has jurisdiction to entertain the suit for injunction in respect of house tax assessment?

Learned counsel for the appellant/defendant contended that civil suit was filed challenging the levy of house tax and fixation of rate of house tax. The same are determined under Sections 146 and 149 of the Municipal Corporation Act, 1976 (hereinafter referred to as ''the Act''). Learned counsel for the defendant further submitted that remedy of appeal/revision is available against the order of assessment as well as the recovery to be effected with respect to the house tax. Since the adequate remedy is available under the Act, civil court has no jurisdiction. It can only exercise jurisdiction if the order passed by the competent authority is without jurisdiction. In support of his contention, learned counsel for the defendant has relied upon the judgment of this Court in Municipal Corporation, Ludhiana through its Commissioner and others v. Raghbir Kaur and another, (2000-4) 156 P.L.R. 130.

I have considered the contentions raised by learned counsel for the appellant/defendant.

It would be appropriate to reproduce the finding recorded by the trial court on issue No. 3, which reads as under: -

Section 146 of the Punjab Municipal Act lays down that appeal against the levy of assessment of any tax under this Act shall lie to the Divisional Commissioner and every such appeal shall subject to the provisions of this Act be received, heard and disposed of within the local area of the city. As discussed under issue No. 1 the house tax upon the plaintiff has been levied in accordance with chapter 8 of the Municipal Corporation Act. Therefore the same is legal. Hence appeal against the assessment lies with the Divisional Commissioner and this court has got no jurisdiction to entertain and try this suit. Consequently this issue is decided in favour of the defendant.

The said finding has been reversed without any basis and without referring to the statutory provisions. The only observation recorded by learned lower appellate court is to the effect that two bills issued by the defendant are illegal on the ground that house tax demanded through these bills was unauthorized and on this premises the finding on issue No. 3 has been reversed. This is apparently against the statutory provisions as contained in the Act. Issue whether the house tax is liable to be increased and to what extent, falls within the exclusive jurisdiction of the municipal authority under the Act. In this regard reference can be made to the judgment of Hon''ble Supreme Court in Munshi Ram and Others Vs. Municipal Committee, Chheharta, , wherein Hon''ble Supreme Court has held as under: -

From a conjoint reading of Section 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principles of assessment. The Act further provides a particular forum and a specific mode of having this remedy which is analogous to that provided in Section 66(2) of the Indian income tax Act, 1922. Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act.

It is well-recognized that where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded. Construed in the light of this principle, it is clear that Sections 84 and 86 of the Municipal Act bar by inevitable implication, the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under this Act.

Although in Munshi Ram''s case (supra) reference to Sections 84 and 86 of the Punjab Municipal Corporation Act, 1911 was made; but with the assistance of the learned counsel for the defendant I have perused Sections 146 and 149 of the Act, which are pari-materia to Sections 84 and 86 of 1911 Act, respectively; as such law enunciated in Munshi Ram''s case (supra) applies to the facts of the present case. Therefore, the findings recorded by learned lower appellate court are against the settled principles of law; as such are not sustainable in the eyes of law. In view of above, substantial question of law is answered in favour of the defendant and against the plaintiff. Present appeal is allowed. Judgment and decree dated 19.12.1986 passed by learned lower appellate court is set aside and that of learned trial court dated 18.11.1983 is restored. The suit is accordingly dismissed.

No order as to costs.