Andhra HC (Pre-Telangana)
Tirumala Tirupathi Devasthanams, Rep ... vs Tirupathi Municipality Rep. By Its ... on 20 January, 2001
Author: Bilal Nazki
Bench: Bilal Nazki
JUDGMENT V. Eswaraiah, J.
1. These two Letters Patent Appeals are filed by Tirumala Tirupathi Devasthanams against the judgments of the learned Single Judge in A.S. No. 2525/1984 dated 01/03/1990 in reversing the judgments and decrees of the Principal Subordinate Judge, Tirupathi.
2. The suits filed by the appellant questioning the special notices issued by the Tirupathi Municipality have been decreed declaring the enhancement of the property taxes by virtue of the special notices as null and void and the defendant - Municipality is restrained by means of permanent injunction from enforcing the assessment and collection of taxes. Questioning the judgments and decrees made in favour of the appellant by the Principal Subordinate Judge, Tirupathi, the respondent filed appeals before the learned Single Judge and the learned Single Judge allowed the same only on the ground that the TTD has got a right of appeal as provided under the rules and without exhausting the alternative remedy the suit is not maintainable and while dismissing the suits directed the appellant to prefer an appeal. Questioning the said judgments of the learned Single Judge, the appellant - TTD filed these Letters Patent Appeals.
3. The Municipal Council is empowered to levy the tax in the manner and the method as contemplated under Sections 81 to 95 of the A.P. Municipalities Act and the rules made thereunder with regard to collection and assessment of tax. Schedule II, Part-I deals with the taxation rules. As per Rule 6, the Commissioner shall determine the property tax after giving an opportunity to the owner of the land or building. As per Rule 8 (1), the Commissioner is empowered to revise the tax in every five years. Rules 22 to 28 deal with the appeals, which read as follows:
"22 (1) An appeal shall lie to an appellate commissioner, appointed by the Government for the purpose (hereafter in these rules referred to as the appellate commissioner) in respect of the assessments and imposition of the following taxes and no others: -
(a) .....
(b) the order of the Commissioner or the valuation officer under Rule 14 upon a revision petition;
(c) ......
(d) ......
(e) ......
(2) The appellate commissioner shall dispose of the appeals in consultation with the Chairman of the municipality concerned.
23. The council may, of its own motion or otherwise, cancel or modify any order passed by Commissioner reducing or remitting a tax, after giving an opportunity of making a representation to the person affected.
24. An appeal shall be made in writing and shall set forth concisely and under distinct heads the grounds of objection to the decision or other proceedings appealed against.
25. .....
26. .....
27. The assessment or demand of any tax when no appeal is made, as hereinafter provided, and when such an appeal is made the adjudication of the appellate commissioner thereon, shall be final;
Provided that where any assessment or demand is not in accordance with the assessment books, nothing in this rule shall be deemed to prohibit a fresh assessment or demand of the tax being made in accordance therewith."
4. The civil court's jurisdiction to try all civil suits is barred in respect of the suits of which their cognisance is either expressly or impliedly barred.
5. Section 376 of the A.P. Municipalities Act reads as follows:
"376. Assessments etc., not be questioned:--(1) No assessment or demand made, and no charge imposed under the authority of this Act shall be questioned or affected by reason of any clerical error or by reason of any mistake (a) in respect of the name, residence, place of business or occupation of any person or (b) in the description of any property or thing, or (c) in respect of the amount assessed, demanded or charged, provided that the provisions of this Act have been, in substance and effect, complied with; and no proceedings under this Act shall, merely for defect in form, be quashed or set aside by any Court.
Provided that person or property so assessed or charged is reasonable ascertainable."
6. In the light of the aforesaid statutory provisions, the only question that arises for consideration in these two common Letters Patent Appeals is whether the civil court is empowered on the facts and circumstances of this case to entertain the civil suits filed by the TTD without availing the alternative remedy by-passing the statutory appeal.
7. In these two appeals, the respondent had revised the tax by way of special notices after giving notices to the appellant and admittedly the appeals have not been filed. The civil court negatived the contention of the respondent that the suit is bad for failure to exhaust the other remedies open in law and held that the suit is maintainable even though the alternative remedy of revision or appeal is provided for in the Act.
8. While summarising the case laws relating to the cases where exclusion of the civil court's jurisdiction is expressly or implied barred, the Honourble Supreme Court of India in DHULABAI V. STATE OF M.P., stated as follows:
1. Where the statute gives a finality to the orders of the special tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
2. Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
3. Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunal.
4. When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
5. Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
6. Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
7. An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."
9. Dealing with the similar provisions of Madras Village Panchayats Act, a Division Bench of this Court in CHANDALADA PADMARAJU V. PANCHAYAT BOARD, SAMALKOT, 1960 (1) An.W.R. 63 held that the Civil Courts would derive jurisdiction to interfere in matters of assessment only when the provisions of the Act were in substance and in effect not complied. If any person seeks to have the proceedings of the assessing authority quashed in Civil Courts, he must establish noncompliance with the essentials of the procedure. Before he could succeed in getting such relief, he has to show that the assessing authority committed fundamental irregularities. The burden of establishing it rests upon the person alleging it. If the assessee fails to make out any infringement of any of the essential statutory requirements, no relief could be granted to him since he has got the appropriate forum contemplated by the relevant rules. Whether the assessment was adequate or not, it is for the tribunals set up by the rules to decide.
10. Another Division Bench of this Court in VIZIANAGARAM MUNICIPALITY V. PUVVADA BHASKARA RAO, while dealing with the Madras District Municipalities Act, held that though an appeal was open to the aggrieved party, where there was no legal basis for enhancement of the tax, the party need not wait or have recourse to that remedy alone when it is clear that the assessment was arbitrary, capricious and not at all bona fide. Having held so observed that of course if the assessment was made in due accordance with the basic principles of the statute, appeal was only the appropriate remedy for the time being, but that it is not the case here and the suit for declaration that the assessment was illegal was indeed proper remedy.
11. A similar view was taken by a learned Singled Judge of this Court in GUNTUR MUNICIPALITY REPRESENTED BY ITS COMMISSIONER V. GADE SUBBA RAO, 1968 (2) An.W.R. 94 and dismissed the appeal filed by the Guntur Municipality on the ground that the Civil Court's jurisdiction is not ousted as the assessment is contrary to what is laid down in the provisions of the Municipalities Act and there is no basis on which the enhancement has been made. We cannot approve these judgments in view of the latest judgment of the Supreme Court in SRIKANT KASHINATH JITURI V. CORPORATION OF THE CITY OF BELGUAM,
12. In GUNTUR MUNICIPAL COUNCIL V. GUNTUR TOWN RATE PAYERS' ASSOCIATION, a Division Bench of the Supreme Court without considering the bar of the jurisdiction of the Civil Court as there was an alternative remedy available, it dealt with only merits of the case with regard to the assessment made by the Municipality on the contention that the assessment of the tax was ultra vires and illegal. Thus, these judgments are no more good law in view of the subsequent judgments of the Supreme Court.
13. Similar provisions have been considered in BATA SHOE COMPANY LTD V. JABALPUR CORPORATION, while dealing with the Berar Municipalities Act. The question arose in that case was whether the Civil Court has jurisdiction to entertain the suit. In the said case also without availing the alternative remedy, a civil suit was entertained and the relevant provisions of Section 83 of the Act as extracted in Para 8 are as follows:
"Section 83 (1) if the Act of 1922 provides for appeal against the assessment or levy of any tax under the Act to the Deputy Commissioner or to such other officer as may be empowered by the Provincial Government in that behalf. Section 84 (3) of the Act, which bears directly on the question of jurisdiction, reads as follows:
"84 (3) No objection shall be taken to any valuation, assessment or levy 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."
It is plain from this sub-section that any valuation, assessment or levy and the liability of any person to be assessed or taxed can be questioned only in the manner prescribed by the Act and by the authority mentioned in the Act and in no other manner or by any other authority. Since the sub-section expressly prohibits a challenge to a valuation, assessment or levy "in any other manner....than is provided in this Act" and since the Act has devised its own special machinery for inquiring into and adjudicating upon such challenges, the common remedy of a suit stands necessarily excluded and cannot be availed of by a person aggrieved by an order of assessment to octroi duty. Similarly, the sub-section excludes expressly the power of "any other authority than is provided in this Act" to entertain an objection to any valuation, assessment or levy of octroi. This part of the provision is in the nature of ouster of the jurisdiction of Civil Courts, at least by necessary implication, to entertain an objection to any valuation, assessment or levy. This is the evident intendment, meaning and implication of the provision."
14. In that case after availing the alternative remedy, a civil suit was also filed questioning correctness of the levy of the tax and the Apex Court held that the civil suit is not maintainable and held as follows:
"Having exhausted their remedies under the Act and having been benefited by the appellate decision, though partly, plaintiffs turned to civil suit to claim the refund. That is impermissible in view of the provision contained in Section 84 (3) of the Act."
15. In this case also, Section 376 of the A.P. Municipalities Act is relevant according to which no assessment made by the authority under the Act shall be questioned in respect of the amount assessed, demanded or charged and the said assessment of the tax and the demand made if confirmed by an appellate authority, it shall become final as per Rule 27 of the Taxation Rules and the only limited scope on which the suit can be filed is if the provisions of the Act have not been complied with in its substance and effect.
16. However, in view of the latest judgment of the Apex Court in SRIKANT KASHINATH JITURI V. CORPORATION OF CITY BELGUAM (5) supra while dealing with the similar provisions, and while quoting seven principles of earlier decision of the Apex Court in DHULABAI V. STATE OF M.P.(1) supra clarified two more things that noncompliance of the provisions of the statute means noncompliance with such fundamental provision of the statute which will make the entire proceedings before the appropriate authority illegal and without jurisdiction any error or irregularity can be rectified by the machinery provided under the relevant special statutes. The Court further observed that merely because the assessment is excessive and the enhancement is arbitrary or unreasonable is per se not sufficient to override the expressed statutory bar. In that case also questioning revision of property tax as arbitrary, unreasonable and illegal and should not be enforced and against the owners of the house and the trial court dismissed the suit as not maintainable in view of the alternative remedy available by virtue of Rule 25 contained in Part-I of Schedule II of Karnataka Municipal Corporation Act. The first appellate court held that the suit is maintainable and remitted back the matter to the trial court for disposal on merits and the said order of the appellate judge was questioned by the Municipal Corporation before the Karnataka High Court and the learned Single Judge allowed the appeal as the suit is not maintainable. The Supreme Court while upholding the judgment of the High Court that the suit is not maintainable held in Para 11 as follows:
"Sri Tarkunde, the learned counsel for the appellants submitted that inasmuch as the right of second appeal to the District Court is coupled with an onerous condition, viz., deposit of the entire property tax - neither the appellate authority nor any other authority, it is stated, is empowered to relax that condition, either partly or wholly, whatever be the circumstances-the said remedy of appeal cannot be called an adequate or efficacious remedy. For this reason, the learned counsel submitted, the suit is maintainable. Learned counsel contended that if a writ petition is maintainable without filing the second appeal provided by Rule 20, a suit is equally maintainable. In our opinion, the said contention is based upon a misconception. Such an onerous provision may be a ground for entertaining a writ petition on the ground that the alternative remedy provided by the statute is not an adequate or efficacious remedy (see Himmatlal Harilal Mehta v. State of Madhya Pradesh, ), but that can never be a ground for maintaining a civil suit. Both the jurisdictions are different and are governed by different principles. Article 226 provides a constitutional remedy. It confers the power of judicial review on High Courts. The finality clause in a statute is not a bar to the exercise of this constitutional power whereas the jurisdiction of a civil court arises from another statute, viz., S.9 of the Code of Civil Procedure. In such a case, the bar arising from an express provision like Rule 25, or arising by necessary intendment can be overridden only in cases and situations pointed out in Dhulabhai. The jurisdiction of the Civil Court in such matters is governed by the principles of aforestated and the ground now urged by Sri Tarkunde is not one of the grounds recognised for invoking the jurisdiction of the Civil Court. It is not correct to say that whatever is good for Article 226 is good for suit as well."
17. In view of the judgments in BATA SHOE COMPANY (7), SRIKANT KASHNATH JITURI (5) supra`, Section 376 of A.P. Municipalities Act and Rules 22 to 27 of Part-I, Schedule-II of Taxation Rules, there is a specific bar to entertain a civil suit in respect of the amount assessed and demanded and imposition of tax in accordance with the provisions of the Act cannot be questioned and the entertainment of the civil suits after availing the alternative remedy under the taxation rules is only limited on the grounds that if the provisions of the Act have not been substantially and effectively complied with. The jurisdiction of the civil court to set aside or quash the demand made on the assessed tax is limited if the provisions of the Act for any substance and effect not complied with.
18. In the instant case, it is not the case of he appellant that the provisions of the Municipalities Act and the rules made thereunder have not been complied with while revising the tax, and therefore, the civil suits without exhausting the alternative remedy are not maintainable. Accordingly, the civil suits filed by the appellants stand dismissed and the Letters Patent Appeals are accordingly dismissed. On the facts and circumstances of the cases, there shall be no order as to costs.