Municipality, Rampura Phul vs Hardev Singh alias Bhola

1.By this common judgment, I propose to dispose of Regular Second Appeals Nos. 2124 to 2138 of 1990, because similar points of law and facl are involved in all these appeals.

These appeals are directed against the judgments and decrees dated 28-7-1990 passed by the Additional District Judge, Bhatinda, by which the appeals filed by the Municipality, Rampura Phul, defendant-appellant, were dismissed and the judgments and decrees dated 2-12-1989 passed by the trial Court (decreeing the suits of the plaintiffs-respondents) were upheld.

Briefly stated the facts of the case are as follows :-- The plaintiffs-respondents had taken on lease shop on rent from the defendant-appellant and had been regularly making payments of the rent to the Municipal Committee, under receipts. It is alleged that the notices under Sections 80 and 81 of the Punjab Municipal Act, 1911 (hereinafter referred to as the Act) were served on the plaintiffs-respondents for recovery of arrears of rent. The plaintiffs-respondents replied to those notices but, without deciding their objections, the Municipal Committee started the recovery proceedings. It was further alleged by the plaintiffs-respondents that the Municipal Committee defendant-appellant had no authority or right to increase the rent by 15% but still the defendant-appellant enhanced the rent illegally and arbitrarily; that the defendant-appellant now wanted to effect the recovery by resorting to the provisions of Sections 80 and 81 of the Act; and that, since the defendant-appellant did not accede to the request of the plaintiffs-respondents not to enhance the rent or not to effect recovery in a summary way, the plaintiffs-respondents had to file a suit for permanent injunction.

In the written statement filed by the defendant-appellant, a number of preliminary objections have been taken, aileging that the suit in the present form is not maintainable, that the Court has no jurisdiction to try the suit; that the plaintiffs-respondents have no locus standi to file the present suit; and that the suit is barred by the principle of res judicata. It was further alleged by the defendant-appellant that the shop, in dispute, was given to the plaintiffs-respondents on lease in open auction for a period of 3 years; that it has every right to increase the rent; that, when the plaintiffs-respondents are in arrears of rent, the Municipal Committee is legally justified in resorting to the provisions of Sections 80 and 81 of the Act, that the Municipal Committee is fully competent to increase the rent by 15 per cent in terms of the letter of the Punjab Government, dated 18-8-1980; that earlier similar suits were also filed by the plaintiffs-respondents, which were dismissed.

On the pleadings of the parties, the following issues were framed by the trial Court :--

Whether the defendant-Committee cannot proceed against the plaintiff u/s 81 of the Punjab Municipal Act?

Whether the suit is not maintainable in the present form?

Whether this Court has no jurisdiction to try the present suit?

Whether the plaintiff has no locus standi to file the present suit?

Whether suit is barred by principle of res judicata?

Whether the plaintiff is entitled to the injunction, as prayed for?

Relief.

The trial Court decided issues Nos. 1 and 6 in favour of the plaintiffs-respondents, issue No. 5 partly in their favour, issues Nos. 2, 3 and 4 against the defendant-appellant Municipal Committee, and decreed the suit of the plaintiffs-respondents.

The learned counsel for the appellant, Mr. J. S. Randhawa, has contended that any arrears of any tax, water-rate, rent, fee or any other money claimable by a Committee under the Act can be recovered u/s 81 of the Act; that, since Section 81 of the Act covers the arrears of rent also, therefore, the Municipal Committee is fully justified in resorting to those provisions of the Act to effect recovery by making an application to the Magistrate having the jurisdiction; that 15 per cent rent has been enhanced in view of the instructions of the State Government; that as far as the competency of the Municipal Committee to enhance the rent in terms of the Government instructions, as contained in Exhibit D-l is concerned, the matter has already been settled by the Civil Court between the parties in an earlier litigation, as is evident from Exhibits D-2 and D-3 and that judgment and decree has become final between the parties; and that, therefore, the Municipal Committee is legally entitled to recover the rent due from the plaintiffs-respondents u/s 81 of the Act.

The learned counsel for the appellant has further submitted that, in case the plaintiffs-respondents had any objection that the amount is not an amount claimable under the Act, then they can file an objection before the Magistrate before whom an application u/s 81 of the Act has been filed by the Municipal Committee, because the Magistrate dealing, with an application u/s 81 of the Act has power to decide whether the amount claimable is, in fact, an amount claimable under the Act, on objection being raised before him. In support of his argument, the learned counsel for the appellant has relied on Uttam Singh v. Municipal Committee, Rawalpindi AIR 1942 Lah 72 : 43 Cri LJ 542).

The learned counsel for the appellant has further referred to Section 46 and subsections (2) and (3) of the Section 47 of the Punjab Municipal Act, which read as under :--

"46. Authority to contract.-- (1) The committee or any Municipality of the first class may, subject to the provisions of this Act, delegate to one or more of its members, other than an associate member, the power of entering on its behalf into any particular contract whereof the value or amount does not exceed five hundred rupees, or into any class of such contracts.

(2) No contract by or on behalf of any committee whereof the value or amount exceeds five hundred rupees, shall be entered into until it has been sanctioned at a meeting of committee.

Mode of executing contracts and transfer of property.-

(1) **********************************************

(2) Eyery transfer of immovable property belonging to any committee must be made by an instrument in writing, executed by the president or vice-president, and by at least two other members of committee, whose execution thereof shall be attested by the secretary.

(3) No contract or transfer of the description mentioned in this section executed otherwise than in conformity with the provisions of this section shall be binding on the committee."

After hearing the learned counsel for the parties, I am unable to find myself in agreement with the learned counsel for the defendant appellant. Section 80 of the Act covers the case of tax in respect of property, which may be recovered as arrears of land revenue u/s 67 of the Punjab Land Revenue Act and Section 81 of the Act widens the sphere of application of Section 67 of the Punjab Land Revenue Act and permits its use for the recovery of Municipal dues which may be in respect of arrears of any tax, water-rate, rent, fee or any other money "claimable under the Act". It would be seen that the expression "claimable under this Act" is important as it controls the operation of Section 81 of the Act. It is not just anything due to the Committee that may be described as rent or fee which may be recovered under the summary procedure of this section but only those sums which are climable by the Committee under the express provisions of the Act. A mere use of the word ''rent'' applied to a sum recoverable by the Committee will not necessarily make it a rent recoverable under this Act. To this view, I find support from Gurandhta Mal v. Emperor AIR 1938 Lah 29 : 39 Cri LJ 286) Mana Ram v. Emperor AIR 1926 Lah 518 (1) : 17 Cri LJ 912) Municipal Committee, Delhi v.Hafiz Abdullah AIR 1934 Lah 699; New Snow View Transport Company Ltd., Pathankot v. Secretary, Municipal Committee, Palampur 1960 PLR 928; and Oil Jan v. Municipal Committee, Peshawar AIR 1939Lah 40 : 40 Cri LJ 851). It has been held in Guranditta Mal''s case (supra) as under at page 30 :--

"In our opinion, the operation of the section is controlled by the words "claimable by a committee under this Act". It is not any sum that can be described as rent or fee which can be recovered under the summary provisions of the section, but only a sum that is claimable by the committee under the express provisions of the Act. The mere use of the word ''rent'' applied to a sum recoverable by the committee will not of necessity make that sum recoverable as rent claimable by the committee under the Act. If, for example, the sum was payable as rent under a lease, a contract made independently of the Act, that sum would clearly not be recoverable under the summary powers. Having failed to show the nature of the sum payable, the Committee were not entitled to obtain an order u/s 81 of the Act and we, therefore, accept the recommendation of the learned Judge and set aside the order of the Magistrate."

In Mana Ram''s case (supra), it has been held that the Muncipal Committee is not entitled to recover the debt by setting in motion the penal provisions of Section 81 of the Act and that the dispute was one between a creditor and a debtor for the recovery of money due under a contract and must be determined by a Civil Court. In that case, the petitioner and another entered into a contract with the Municipal Committee, Chunian, jointly talcing a lease for certain tonga stand within the limits of the Municipality, and agreeing to pay a certain sum as hire for the same. The Municipal Committee, on the ground that the said sum due under that contract or lease had not been paid to it, took criminal action before the Magistrate, which purported to be u/s 81 of the Act. It was held in that case that the Municipal Committee is not entitled to recover the lease money u/s 81 of the Act.

The learned counsel for the plaintiffs-respondents has argued that operation of Section 81 of the Act is controlled by the expression "claimable by a committee under this Act" and that it was not any sum that could be described as rent or fee and recovered under the summary provisions of this section. After reading Section 81 of the Act, 1 am of the opinion that only the sum, which is claimable by the Committee under the express provisions of the Act can be recovered through the Magistrate and not any sum which may become due to the Committee.

The learned counsel for the defendant-appellant Municipal Committee was unable to point out any provision in the Act under which the premises, in dispute, were leased by the Committee to the plaintiff-respondents. Therefore, prima facie the sum, in dispute, would not appear to be claimable under the Act.

In view of the above-mentioned discussion, there is no merit in these appeals and the same are dismissed with costs.

Appeals dismissed.