Prem Chand vs Municipality and Another

N.K. Kapoor, J.—This Judgement shall dispose of Regular Second Appeal Nos. 1271, 753, 248, 793 of 1981 and 1027 of 1979 as in all these appeals common question of law and fact are involved.

Plaintiff in the aforesaid cases filed suit for declaration to the effect that the order of assessment, imposition, demand and recovery of house tax from them on property/properties situate at Ambala city is illegal, ultra vires, null and void and same cannot be enforced upon them with a consequential relief of permanent injunction restraining the defendant Municipal Committee from proceeding to recover any amount of house tax on the property in dispute on the basis of orders so passed. In each of the aforesaid cases, the plaintiffs averred that demand of house tax raised is without notice, against the provisions of the Haryana Municipal Act, 1973 (for short ''the Act'') and otherwise unjust and so deserves to be quashed. According to the plaintiffs, no notice has been issued to plaintiffs nor they have been afforded any opportunity of hearing before evaluating their properties for the purposes of house tax. Even the property has been assessed ignoring the principles regarding annual value of the property as contained in the Act and interpreted in various judicial pronouncements of this Court. The impugned order of assessment dated 31.3.1974 is per se void as admitted case of even defendants is that plaintiffs had been asked to present and substantiate their objections on 30.3.1974 (it being Saturday and hence holiday) and thus no proper/effective opportunity has been granted to each one of the plaintiffs in these suits.

Defendant Municipal Committee put in appearance, filed written statement and raised few preliminary objections, namely, that suit in the present form is not maintainable without mandatory notice u/s 52 of the Haryana Municipal Act; that the plaintiffs who were aggrieved could challenge the same by preferring an appeal and thereafter a revision also as envisaged u/s 99 and 101 of the Haryana Municipal Act and so this way too the civil Court has got no jurisdiction to try the suit. On merit, it was stated that the assessment has been made after duly complying with the law and procedure. Defendant further defended notice issued for appearance of plaintiffs on 30.3.1974 stating that merely for the fact that notice was issued for a date which was a public holiday does not make the assessment order a nullity especially when due opportunity has been afforded to the plaintiffs to substantiate their objections to the proposed house tax assessment. In addition thereto, defendant made reference to the plaintiffs'' filing writ petition in this court and its dismissal.

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

1) Whether the impugned order imposing the house tax on the property in dispute and demanding the same from the plaintiffs is illegal, ultravires etc. and not liable to be enforced for the reasons as alleged in the plaint? OPP.

2) Whether the suit is barred by Section 52 of the Haryana Municipal Act, 1973? OPD.

3) Whether the civil Court has no jurisdiction to try this suit? OPD.

4) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?

5) Relief.

Under issue No. 1, trial Court held the impugned order dated 31.3.1974 imposing house tax on the property of the plaintiffs and demand notice Exhibit P-3 to be illegal and hence not enforceable upon the plaintiffs. Under issue No.2, the Court held that the present suit is not barred by Section 52 of the Haryana Municipal Act. Under issued No.3, the court held that the civil Court has got jurisdiction to decide the matter. Resultantly, the suit of the plaintiffs was decreed as prayed for.

Feeling aggrieved by the judgment and decree of the trial Court, Municipal � Committee preferred appeal in all the cases.

Learned counsel representing the appellants in all the appeals argued that the receipt of notice regarding assessment and imposition of house tax has been admitted by the plaintiffs in all the four cases as in all these cases they have filed objections to the notices issued u/s 78 of the Act. Thus, admittedly, provisions of Section 78 of the Act have been complied with. Whether each one of these plaintiffs put in appearance for personal hearing as directed in notice (to come present on 30.3.1974) or not is another question which needs to be examined somewhat thoroughly. This has become necessary as except in the case of Chaman Lal, the impugned order of assessment has not been proved according to law and in the case of Chaman Lal this document is Exhibit P-3 and a perusal of the same makes clear that Chaman Lal came present and was heard. According to learned counsel for the appellants, the very basis of the plea set up by the plaintiffs being factually wrong, the appeals deserve to be accepted on this ground alone. Once there has been participation by an aggrieved party and on considering the objections so raised some assessment has been made, the only course open for the aggrieved person was to approach the higher authority-appellate authority. So such an order cannot be termed to be without any jurisdiction. The learned counsel further argued that the suit was wholly incompetent as admittedly notice in terms of Section 52 of the Act has not been served upon the Municipal Committee.

Learned counsel for the respondent-plaintiffs, on the other hand, almost advanced same arguments which found favour with the trial court.

The lower appellate court after considering the matter on fact and law found substance in the plea advanced by the learned counsel for the Municipal Committee and thus accepted the appeals thereby dismissing the suits filed by the plaintiffs in these set of cases.

Challenging the judgment and decree of the lower appellate court, learned counsel for the appellants argued that the findings recorded by the lower appellate Court being wrong and against the law laid down by the apex Court deserves to be set aside. According to learned counsel for the appellants, the very fact that plaintiff-objectors were asked to come present and substantiate their objections on a public holiday is by itself sufficient to hold that no effective opportunity was intended to be given to the objectors and the sole purpose of the Municipal Committee/Administrator was to burden them with a house tax liability and that too against the provisions of the Haryana Municipal Act. According to the counsel, it is unthinkable that a quasi judicial authority may fix a date for hearing on a public holiday. As a matter of fact, on the date fixed each one of the plaintiffs is stated to have gone at the time stipulated but found no one there and so came back. It is on the next date i.e. on 31.3.1974 that assessment was made by the Administrator and thereafter notice issued for deposit of tax so assessed. Thus, the proceedings were a farce and the civil Court has the jurisdiction to hold such an order to be illegal and ultra vires. This way the lower appellate court has erred in law in holding that the civil court has no jurisdiction and also that no such suit was legally maintainable in view of bar of Section 52 of the Haryana Municipal Act. Even the assessment has not been made on the basis of standard rent of the premises in dispute. Such an order can always be challenged being contrary to the provisions of the Act itself in a civil court of competent jurisdiction.

I have heard learned counsel for the appellants and has also perused the judgments of the courts below as well as some of the documents referred to by them during their submissions. Broad facts have been noticed above. Challenge in this set of appeals is to the assessment made by the Administrator, Municipal Committee, imposing house tax upon the properties owned by the plaintiffs. Section 76 of the Act deals with preparation of assessment list. u/s 77 of the Act, as and when such a list is complete, a public notice is to be given thereby intimating the persons to come and present if so desired. u/s 78 of the Act, a month''s time is given to the owners/occupiers to file all such objections regarding valuation and assessment and u/s 79 of the Act, these objections arc to be heard and thereafter finally assessment is made. Admittedly, in the aforesaid cases, public notice for revision of assessment list in terms of Section 78 of the Act was to be given to the Municipal Committee. It is also admitted case that each one of the plaintiffs filed objections to the proposed assessment who were later on directed to come present and substantiate their objections on 30.3.1974. Whether any proceedings were conducted on 30.3.1974 or it was merely a ruse is the first point which needs to be examined somewhat thoroughly. According to learned counsel for the appellants, 30.3.1974 was a public holiday. On that date office of Municipal Committee was closed and so no proceedings were conducted on that date and on the following day assessment was finalised and the plaintiffs were issued demand notice for the deposit of house tax assessed. Otherwise too, 30.3.1974 being a holiday, no legal proceedings could be conducted on such a date. This way, the impugned order was rightly held to be illegal and ultra vires by the trial Court.

Learned counsel for the respondents, on the other hand, argued that the averments made by the plaintiffs as highlighted by counsel for the appellant-plaintiffs are factually incorrect. As is clear from the reading of Exhibit P-3 in the case of Chaman Lal v. Municipal Committee, the presence of Chaman Lal finds recorded in the impugned order. Significantly, Chaman Lal did not come present in the witness-box. This way, the lower appellate court rightly came to the conclusion that Chaman Lal was not only present on 30.3.1974 but was heard as well. Otherwise, there is a presumption in law that all official acts are performed according to law/rules, unless it is established otherwise. As regards other appeals, impugned order of assessment though placed on record has, however, not been tendered in evidence.

Having given my anxious consideration to the respective pleas advanced by the counsel, I am of the view that the plea set up by the plaintiffs regarding non grant of opportunity to substantiate the objections raised by them regarding assessment of house tax is factually wrong. No doubt, 30.3.1974 was Saturday and hence public holiday but all the same objections were heard as is reflected in Exhibit P-3 in the case of Chaman Lal v. Administrator, Municipal Committee. Thus, the precise objection of the appellants that they had not been given an opportunity before making final assessment is factually wrong and this being so the argument raised that; such an order is liable to be set aside having passed without affording an opportunity of hearing is devoid of any merit. Concededly, assessment has been made after issuing notice u/s 78 of the Act. The Act gives power of appeal against such an assessment. Not only this, there exists a remedy of revision u/s 100-A of the Act. No argument has been advanced by the appellants as to why such an assessment could not be challenged in appeal. The apex Court in case reported as Munshi Ram and Others Vs. Municipal Committee, Chheharta, , while considering the provisions of Section 84 and 86 of the Punjab Municipal Act (similar to Section 99 and 101 of the Haryana Municipal Act) and Section 9 of the CPC held as under :-

"It is well recognised 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."

There is no denying the fact that exclusion of jurisdiction of civil Court is not to be readily inferred and that such exclusion is to be either explicitly expressed or clearly implied. It is also well settled that even if the 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. The aforesaid view taken in case reported as AIR 1940 105 (Privy Council) has been reiterated by the Supreme Court in case reported as Katikara Chintamani Dora and Others Vs. Guntreddi Annamanaidu and Others, .

Thus the next question which needs to be answered is whether the assessment is in terms of the provisions of the Act. Except for the bald assertion in the grounds of appeal that assessment has not been made in terms of the Act, no proof has been adduced by the plaintiffs. So in the context of the present case, one can infer that it is a case where the party was aggrieved by quantum of house tax imposed upon the property in question. Any such assessment cannot be termed to be against the provisions of the Act. At best, such an assessment is liable to be modified by a higher authority i.e. appellate authority if any proof is adduced by the aggrieved party in this regard. Accordingly, I am of the view that the finding of the lower appellate Court that suit was not competent before the civil Court is correct. Even if it be taken that any such order could be challenged by an aggrieved party in a civil court of competent jurisdiction, yet before approaching the court as envisaged u/s 52 of the Act, a prior notice before such a suit could be instituted is mandatory. As per Section 52 of the Act, no suit could be instituted against a Committee, or against any employee of a Committee, in respect of any act purporting to be done in its or his official capacity, until the expiration of one month notice. In fact, I Section 52 of the Act further envisages that it must be staled in the plaint that such a notice has been delivered or left at the place. Concededly, no notice has been issued before approaching the court. Thus, on this ground itself the suit ought to have been dismissed even by the trial Court. The lower appellate Court rightly came to the conclusion that the suit was not competent as no notice was served in terms of Section 52 of the Act. Thus, I find no merit in any of the pleas advanced by the appellants and so dismiss the appeals. No order as to costs.