Vinod Kumar and Others vs Municipal Council

Iqbal Singh, J.—The plaintiff-appellant filed the present suit for permanent injunction against the defendant-Municipal Council (hereinafter referred to as the defendant-Council) restraining the latter from effecting the recovery of house tax in respect of the property known as Jasuja Open Complex for the years 1992-93 to 1995-96. It was stated in the plaint that the said property was purchased by the plaintiff-appellant vide registered sale deeds dated 30-4-1993 and 27-5-1993. It was pleaded that the assessment of house tax for the years 1992-93 to 1995-96 of the property in question was wrong because the defendant-Council has no jurisdiction to assess the house tax on the property in question as it does not fall within the local limits of the defendant-Council. It was further stated that house tax for the years 1986-87 to 1991-92 has also been declared illegal in different suits. No notice was served upon the plaintiff-appellant u/s 65 of the Punjab Municipal Act, 1911 (hereinafter referred to as ''the Act''). It was also stated that the defendant-Council, under duress, had recovered Rs. 26730/- as house tax from the plaintiff-appellant.

The suit was contested by the defendant-Council. In the written statement filed by the defendant-Council preliminary objections were taken to the effect that the jurisdiction of the Civil Court is barred; that no notice u/s 49 of the Act had been given to the defendant-Council by the plaintiff-appellant before filing the suit; that the plaintiff-appellant has not availed the efficacious remedies provided under the Act; and that the plaintiff-appellant is estopped from filing the present suit especially when the amount of Rs. 26730/- towards the house tax for the year 1992-93 had already been deposited by the plaintiff-appellant. On merits, it was stated that the plaintiff-appellant 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 defendant-Council. Notice under Sections 65 and 67 of the Act was given to the plaintiff-appellant.

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 u/s 49 of the Municipal Act?OPD.

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

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

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

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

I have heard Mr. K. L. Dhawan, Advocate, on behalf of the plaintiff-appellant and Mr. S. C. Pathela, Advocate, on behalf of the defendant-Council and have gone through the records of the case.

This is a case where the plaintiff-appellant has been non-suited because no evidence was led by him despite availing numerous opportunities for the purpose. At no stage, the plaintiff-appellant 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 15-3-1996. The first date of hearing for evidence of the plaintiff-appellant was 26-7-1996. The evidence of the plaintiff-appellant was closed by the trial Court on 20-12-1997. During this period the plaintiff-appellant availed four opportunities including a last opportunity to produce his evidence, but he failed to do so. No explanation whatsoever was furnished by the plaintiff-appellant for not producing his evidence. I do not see any wrong on the part of the trial Court in closing the evidence of the plaintiff-appellant because no litigant can be permitted to continue with the litigation at pleasure and leisure. It is also worth-while to mention here that the plaintiff-appellant had deposited the house-tax amounting to Rs. 26730/- which was assessed by the defendant-Council for the year 1992-93. Nothing has been brought on the record whether any appeal, as provided under the Act, was preferred by the plaintiff-appellant against the imposition of house tax of Rs. 26730/- for the year 1992-93. 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 and Others Vs. Municipal Committee, Chheharta, , 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 and Others Vs. The Municipal Committee, Gurdaspur and Others, , 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 house-tax u/s 61 (1) (a) of the Act.

In Rama Krishna Rice Mills v. Municipal Committee Sultanpur Lodhi 1985 PLJ 84, while referring to Romesh Kumar and Others Vs. The Municipal Committee, Gurdaspur and Others, , 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.