Bombay High Court
Chief Officer, Sangamner Municipal ... vs Narayandas Jagannath Karva And Anr. on 6 September, 1988
Equivalent citations: 1988(4)BOMCR164, 1989MHLJ26
JUDGMENT H. Suresh, J.
1. The plaintiffs have filed a suit, being Regular Civil Suit No. 57 of 1982, in the Court of Joint Civil Judge, Junior Division, Sangamner, as against the Chief Officer, Sangamner Municipal Council and another, for a declaration that a certain assessment for the year 1981 was illegal and not according to law. It appears that by an order dated March 21, 1983, the trial Court had held that the suit was tenable and the Civil Court had jurisdiction to entertain and try the same. Against this order, the present petitioner, the Chief Officer, Sangamner Municipal Council filed a Civil Revision Application No. 911 of 1983. By an order dated December 3, 1984, the High Court observed that the trial Court while considering the objections to the suit had not taken into account the allegations in the plaint and the law that operates on the subject of Municipal Taxes and its assessments. It was on that basis the said impugned order was set aside and the matter was remitted back to the trial Court to hear the issue of jurisdiction afresh and decide the same according to law.
2. Thereafter the trial Court reheard the matter on the issue of jurisdiction and by an order dated April 27, 1987, held that the Court had jurisdiction to entertain and try the suit and that section 172 of the Maharashtra Municipalities Act, 1965 is no bar to the suit. It is against this judgment the petitioner has filed the present civil revision application.
3. Undoubtedly, this suit is a suit for a declaration that the assessment is illegal and not according to law and consequently for an injunction not to enforce the said assessment and for certain directions in that behalf. The basis of the suit is that the Municipal Council did not follow proper procedure a prescribed under the Act. It is also alleged that no opportunity was given by way of personal hearing in respect of objections raised by the plaintiffs and lastly it is contended that the assessment is mala fide.
4. Before the learned trial Court, it was submitted that the plaintiffs did not challenge the assessment as such but they only questioned the procedure and some how this line of argument appealed to the learned trial Judge.
5. Under the Maharashtra Municipalities Act, 1965 there are provisions relating to assessment and liability to tax on buildings and lands. The procedural requirements are covered by section 113 to section 120 of the said Act. Section 149 to section 168 of the said Act provide for recovery of Municipal claims including taxes. Section 169 provides for appeals to magistrate and it is as follows :
''Appeals against any claim for taxes or other dues included in an bill presented to any person under section 150 or any other provisions of this Act may be made to any Judicial Magistrate or Bench of such Magistrates by whom under the direction of the Sessions Judge such class of cases is to be tried.'' Section 170 prescribes the procedure in appeal. Under section 171 a further revision is provided for at the instance of either party by the Court to which appeals against the decision of such Magistrate or Bench of Magistrate ordinarily lie. Section 172, prescribes a bar of other proceedings and it is as follows :
''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.''
6. The petitioner had raised this objection under section 172 of the Act before the trial Court and they submitted that in view of this provision suit was not maintainable. The learned Judge took note of this provision, but he came to an erroneous conclusion that this would not apply in the case of allegations relating to procedure or lapse of procedure in assessment. He also came to the conclusion that this provision will not apply if there are allegation of mala fide and/or if there are allegations of denial of principles of natural justice. In particular the learned Judge observed that in the present case the plaintiffs did not challenge the amount of tax on the property but challenged the procedure followed by the defendant-Municipal Council. In my view, this distinction is without any difference. When a person challenges the procedure relating to the levy of any tax and assessment of the property for the purpose of tax, ultimately, he challenges the assessment itself. In the present case the plaintiffs have challenged the assessment on the basis that the provisions of the Act have not been correctly appreciated or followed and the tax was levied on the property without any basis and that the defendant had adopted a wrong and arbitrary basis for the purpose of levy of the tax. This is nothing but challenge to the assessment itself. If that is so, 172 completely bars suits of this type.
7. Mr. Shah, appearing for the plaintiffs-respondents relied on two cases. Firstly the case of Dhulabai v. State of M.P., . In that case, the Supreme Court came to the conclusion that on the facts and circumstances of the case, the suit in question for a declaration that the provisions of law relating to assessment under the Madhya Bharat Sales Tax Act were ultra vires and for refund of tax illegally collected, was not barred by section 17 of the said Act and that the suit was maintainable. But, the principles are the same. The principles are that an exclusion of jurisdiction of the Civil Court is not readily to be inferred unless there is an express bar of the jurisdiction of the Court, on an examination of the scheme of the particular Act. The Court also has to consider whether the statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
8. He then drew my attention to the case of Bata Shoe Co. v. Jabalpur Municipality, . The Supreme Court was considering the rules relating to similar provisions as section 172. The provisions in question was 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.'' The Court construed this and further observed as follows :
''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 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 provisions.'' The further observations are as follows :
''If a provision merely giving finality to an order could be construed as ousting the Civil Court's jurisdiction, section 84(3) of the Act, which is far more expressive, can legitimately be construed to have the same effect. It excludes in terms a challenge to the various things therein mentioned in any other manner or by any other authority than is provided in the Act.''
9. Applying these principles, it is clear that under this Act there is a set of procedural remedies which will give a complete relief to an aggrieved party. Section 113 to section 120 provide for a procedure for the purpose of determination of rateable value of the property and the assessment of the property for taxes. Firstly, the valuation officer is appointed and valuation is done. On the basis of the valuation, assessment is done. The assessment is published. After a public notice is given, objections are invited. Under section 120 a procedure is prescribed as to how to deal with the objections. After considering the objections, the assessment list is authenticated under section 121 of the Act. Thereafter the provisions are made for recovery of taxes. Under section 169 is any party is aggrieved as against any claim for taxes or for other dues included in a bill presented to any person, an appeal is provided for to an independent person viz. the Judicial Magistrate or the Bench of such Magistrate. Again, a procedure is prescribed as to how the appeals are to be disposed of. After the appeals are decided, the decision of the Magistrate or Bench of Magistrate is subject to revision by the Court to which appeals against the decision of such Magistrate or Bench of Magistrates ordinarily lie. It is in the light of these provisions, the law has expressly provided for a bar for the purpose of any objection to any valuation, assessment or levy of any tax in any other forum than as provided under the Act. Therefore, this suit, as such, is not maintainable for the purpose of determining objections taken as to any valuation, assessment or levy of any tax in respect of the property which is subject to assessment under the Act.
10. Mr. Shah also pointed out that where the allegation is one of denial of principles of natural justice and of malice, it is possible for a person to file a declaratory suit. He is right but for the bar as provided under section 172 of the Maharashtra Municipalities Act, 1965. The Court has to consider the relevant provisions of the statute. If they provide for a procedure, hearing appeal and a further revision, and then excludes any other forum for any grievance, no suit shall lie in such a case. In the present case, sections 113 to 120 together with sections 169 to 171 of the Act can be said to be a complete Code by itself on the subject of assessment and levy of taxes by the Municipal Council under the Act. In the result, this revision will have to be allowed.
I, therefore, pass the following order :
Rule is made absolute in terms of prayers (b) and (c), with no order as to costs.