Vinod Kumar and others vs Municipal Council, Ferozepur

The plaintiffappellant filed the present suit for permanent injunction against the defendantMunicipal Council (hereinafter referred to as the defendantCouncil) restraining the latter from effecting the recovery of house tax in respect of the property known as Jasuja Open Complex for the years 199293 to 199596. It was stated in the plaint that the said property was purchased by the plaintiffappellant vide registered sale deeds dated 3041993 and 2751993. It was pleaded that the assessment of house tax for the years 199293 to 199596 of the property in question was wrong because the defendantCouncil has no jurisdiction to assess the house tax on the property in question as it does not fall within the local limits of the defendantCouncil. It was further stated that house tax for the years 198687 to 199192 has also been declared illegal in different suits. No notice was served upon the plaintiffappellant under Section 65 of the Punjab Municipal Act, 1911 (hereinafter referred to as the Act). It was also stated that the defendantCouncil, under duress, had recovered Rs. 26730/ as house tax from the plaintiffappellant.

The suit was contested by the defendantCouncil. In the written statement filed by the defendantCouncil preliminary objections were taken to the effect that the jurisdiction of the Civil Court is barred; that no notice under Section 49 of the Act had been given to the defendantCouncil by the plaintiffappellant before filing the suit; that the plaintiffappellant has not availed the efficacious remedies provided under the Act;

and that the plaintiffappellant is estopped from filing the present suit especially when the amount of Rs. 26730/ towards the house tax for the year 199293 had already been deposited by the plaintiffappellant. On merits, it was stated that the plaintiffappellant is the owner of the property in dispute and that house tax had been validly imposed after adopting due formalities. It was further stated that the property in question is situated within the municipal limits of defendantCouncil. Notice under Sections 65 and 67 of the Act was given to the plaintiffappellant.

On the pleadings of the parties, the trial Court framed the following issues besides that of relief :

"1. Whether the plaintiff is entitled to the injunction as prayed for? Opp.

Whether the jurisdiction of the Civil Court is barred?OPD.

Whether the suit is barred under Section 49 of the Municipal Act?OPD.

Whether the suit is not maintainable in the present form?OPD."

Issue No. 1 was decided against the plaintiffappellant. No argument was addressed on behalf of the defendantCouncil in respect of the remaining issues i.e. issue Nos. 2 to 4 and the same were, accordingly, decided against the defendantCouncil. The trial Court, in view of its findings on issue No. 1, dismissed the suit of the plaintiffappellant.

Feeling aggrieved against the judgment and decree passed by the trial Court, the plaintiffappellant filed an appeal before the lower appellate Court, which was also dismissed.

In this Regular Second Appeal, the plaintiffappellant has challenged the judgment and decree passed by the lower appellate Court.

I have heard Mr. K. L. Dhawan, Advocate, on behalf of the plaintiffappellant and Mr. S. C. Pathela, Advocate, on behalf of the defendantCouncil and have gone through the records of the case.

This is a case where the plaintiffappellant has been nonsuited because no evidence was led by him despite availing numerous opportunities for the purpose. At no stage, the plaintiffappellant had got summoned the witnesses by depositing their process fee, diet money etc. in the Court nor did he produce any evidence himself. The issues in this case were framed on 1531996. The first date of hearing for evidence of the plaintiffappellant was 2671996. The evidence of the plaintiffappellant was closed by the trial Court on 20121997. During this period the plaintiffappellant availed four opportunities including a last opportunity to produce his evidence, but he failed to do so. No explanation whatsoever was furnished by the plaintiffappellant for not producing his evidence. I do not see any wrong on the part of the trial Court in closing the evidence of the plaintiffappellant because no litigant can be permitted to continue with the litigation at pleasure and leisure. It is also worthwhile to mention here that the plaintiffappellant had deposited the housetax amounting to Rs. 26730/ which was assessed by the defendantCouncil for the year 199293. Nothing has been brought on the record whether any appeal, as provided under the Act, was preferred by the plaintiffappellant against the imposition of house tax of Rs. 26730/ for the year 199293. Otherwise also, has been held in various pronouncements of this Court and of the Apex Court, no civil suit is maintainable where a Revenue Statute provides a particular remedy to be sought in a particular forum.

The relevant provisions of Sections 84 and 86 of the Act, for facility of reference, are reproduced hereunder :

"84. Appeals against Taxation : (1) An appeal against the assessment or levy of any or against the refusal to refund any tax under this Act shall lie to the Deputy Commissioner or to such other officer as may be empowered by the State Government in this behalf:

Provided that, when the Deputy Commissioner or such other officer as aforesaid is, or was when the tax was imposed, a member of the Committee, the appeal shall lie to the State Government.

(2) If, on the hearing of an appeal under the section, any question as to the liability to, or the principle of assessment of, a tax arises on which the officer hearing the appeal entertains reasonable doubt, he may, either of his own motion or on the application of any person interested, draw up a statement of the facts of the case and the point on which doubt is entertained, and

refer the statement with his own opinion on the point for the decision of the High Court.

(3) On a reference being made under subsection (2), the subsequent proceedings in this case shall be, as nearly as may be, in conformity with the order relating to references to the High Court contained in Section 113 and Order XLVI of the Code of Civil Procedure.

(4) In every appeal the costs shall be in the discretion of the officer deciding the appeal.

(5) Costs awarded under this section to the Committee shall be recoverable by the committee as though they were arrears of a tax due from the appellant.

(6) If the committee fails to pay any costs awarded to an appellant within ten days after the date of the order for payment thereof, the officer awarding the costs may order the person having the custody of the balance of the municipal fund to pay the amount.

Taxation not to be questioned except under this Act : (1) No objection shall be taken to any valuation or assessment, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act.

(2) No refund of any tax shall be claimed by any person otherwise than in accordance with the provisions of this Act and the rules thereunder."

A perusal of the above provisions of the Act goes to show that a person aggrieved against an order passed for levy of house tax, has a right of appeal to the competent authority. Section 86 of the Act bars the jurisdiction of any other authority than is provided in the Act in the matter. When the jurisdiction of any other authority than provided in the Act is barred under the Act, the Civil Court has no jurisdiction to entertain the matter.

In Munshi Ram v. Municipal Committee Chheharata, AIR 1979 SC 1250, their Lordships of the Apex Court observed as under (Para 24) :

"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 xx xx xx."

In Romesh Kumar v. Municipal Committee Gurdaspur, 1981 Pun LJ 134 : (AIR 1981 Punj And Har 295), a Division Bench of this Court held that jurisdiction of the Civil Court is barred by Sections 84 and 86 of the Act where the grievance of the party relates to assessment and computation of housetax under Section 61 (1) (a) of the Act.

In M/s. Rama Krishna Rice Mills v. Municipal Committee Sultanpur Lodhi, 1985 Pun LJ 84, while referring to Ramesh Kumars case, (AIR 1981 Punj And Har 295) (supra), a Division Bench of this Court observed as under :

"xx xx xx xx xx xx that assessment and computation of tax in view of the provisions of Sections 84 and 86 would be beyond the jurisdiction of the Civil Court. But if the tax payer challenged the very basis of the legality of the tax, in that, that the given tax could not be imposed under the Act or the authority that had levied the tax or had passed the order of assessment, was not authorised under the Act, then the question undoubtedly could be canvassed before the Civil Court."

For the aforesaid reasons, I do not find any merit in this appeal and the same is hereby dismissed.

Appeal dismissed.