Punjab-Haryana High Court
Municipal Committee vs Sukhdev Singh on 22 December, 2011
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
R.S.A.No. 774 of 1989 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A.No. 774 of 1989
Date of decision: 22.12.2011.
Municipal Committee, Bathinda
...Appellant
Versus
Sukhdev Singh
...Respondent
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA.
Present: Mr. I.P.S.Doabia, Advpcate
for the appellant.
Mr. Munish Jolly, Advocate
for the respondent.
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G.S.SANDHAWALIA, J (ORAL).
1. The challenge in the present appeal is to the judgment and decree dated 19.5.1987, whereby the Sub Judge Ist Class, Bathinda allowed the suit of the plaintiff against the demand of house tax for the year 1985-86 and restrained the Municipal Committee from recovering Rs.225/- as house tax arrears for the year 1985-86. The said order has been upheld in appeal by the Lower Appellate Court vide judgment and decree dated 17.11.1988.
2. The case of the plaintiff was that he was owner of property No.2948/R-18 and had been paying house tax to the defendant regularly at the rate of Rs.162/- per year and deposited house tax upto 1984-85. The Municipal Committee for the year 1985-86 demanded the house tax to the R.S.A.No. 774 of 1989 -2- *** tune of Rs.225/- per year without any fresh assessment inspite of the fact that there was no addition or alteration in the building occupied by him and there was no justifiable reason to increase the demand from Rs.162/- to Rs.225/-. The said suit was resisted on the ground that the suit was bad for want of notice under Section 49 of the Punjab Municipal Act,1911 (hereinafter called as "the Act")and the Civil Court had no jurisdiction to decide the suit. Accordingly, the following issues were framed:-
"1. Whether demand of house tax raised by defendant from plaintiff for year 1984-85 is void and illegal?OPP
2. Whether plaintiff is entitled to injunction prayed for?OPP
3. Whether the suit is not maintainable for want of service of notice u/s 49 of the Punjab Municipal Act ?OPD
4. Whether this Court has no jurisdiction to try the present suit?OPD
5. Relief?"
3. After taking into consideration the pleadings and the evidence brought on record, the trial Court came to the conclusion that there was an admission on behalf of DW-1 Sampat Singh, Tax Inspector that no fresh notice of assessment had been issued to the plaintiff and in the absence of any fresh assessment the claim of the house tax at the rate of Rs.225/- per year was not maintainable and plaintiff could only be asked to pay Rs.162/- per year till the fresh assessment is made in accordance with law. On the question of maintainability of want of service of notice under Section 49 of the Act and bar of jurisdiction of the Civil Court, it was held that in suit for injunction no such notice was required to be served in view of the urgency involved. And the Civil Court would have jurisdiction to entertain such a suit as this was not pressed by the Municipal Committee, accordingly, the suit R.S.A.No. 774 of 1989 -3- *** was decreed as noticed above,
4. In the appeal filed by the Municipal Committee before the Lower Appellate Court, the Addl. District Judge, Bathinda also noticed the admission of the Tax Inspector and in the absence of any fresh assessment held that claim for enhancement of house tax was not maintainable and accordingly held that demand of house tax raised by the Municipal Committee is void and illegal while dismissing the appeal.
5. The present Regular Second Appeal is, thus, directed against the said findings. Learned counsel for the appellant contended that the Civil Court had no jurisdiction in view of the bar contained under Section 86 of the Act and in view of the fact that there was machinery provided under the provisions of the Act, the Civil Court had no jurisdiction. Reliance was also placed upon the judgment of the Hon'ble Supreme Court in N.D.M.C. Vs. Satish Chand AIR 2003 Supreme Court 3187. The submission made by the counsel for the appellant though attractive but is without any force in the facts and circumstances of the present case. As noticed above, the plaintiff was paying a sum of Rs.162/- as house tax for the building in question under the Act. Before any element of tax has to be enhanced, there is a procedure to issue notice and make a fresh assessment and call for objections under Sections 65 to 68-A of the Act. Admittedly, this procedure has not been followed by the Municipal Committee. This has been admitted by the witness of the Municipal Committee namely Sampat Singh, Tax Inspector, who had deposed that no fresh assessment has been made in the year 1985-86 and even for the year 1984-85. In his cross-examination, he stated that after the year 1983 no notice for fresh assessment was issued to the plaintiff. Once the Municipal Committee has not followed the procedure specified under the R.S.A.No. 774 of 1989 -4- *** Act for framing assessment and has violated the mandatory provisions, then the Court Court would have jurisdiction to entertain the suit in such circumstances, as any such demand would be beyond the jurisdiction of the committee.
6. Another fact which has to be taken into consideration is that the issue in dispute is only pertaining to one particular year and after more than two decades to set aside such a additional demand would not be in the interest of justice whereby the plaintiff would again have to agitate the claim before the authorities. Accordingly, the present appeal is dismissed keeping in view the peculiar facts and circumstances of the case as no substantial question of law arises for the determination of this Court.
December 22, 2011 (G.S.SANDHAWALIA) Pka JUDGE