Punjab-Haryana High Court
Jaswant Singh Virk vs Municipal Council on 22 April, 2003
Equivalent citations: (2003)135PLR47
JUDGMENT M.M. Kumar, J.
1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) is directed against the judgment dated 16.1.2003 passed by the Additional District Judge, Karnal upholding the order dated 4.1.2002 of learned Civil Judge (Jr. Division), Karnal. The Civil Judge in his order has declined the application of the plaintiff-petitioner filed under Order XXXIX Rules 1 and 2 of the Code seeking stay of recovery of house tax of Rs. 12,402/-. The learned Additional District Judge, Karnal found that there is a remedy of appeal provided under Section 99(1)(2) of the Haryana Municipal Act, 1973 (for brevity, 'the Act'). The order passed by the learned Additional District Judge reads as under:-
"......... But at this juncture, it is not possible for the court to consider the impugned notice as illegal and void without going on merits of the case and calling their evidence.
In fact the plaintiff has to prove his case on merits by producing cogent evidence that he has not been given proper opportunity of hearing at the time of assessing the house tax or the competent authority has not followed proper procedure of law or it has discriminated by assessing excess house tax to that of his neighbours. Mere by perusal of notice under challenge it cannot be said that it is illegal or void notice or the competent authority has not followed the proper procedure of law. So, under such circumstances. I feel that there is no prima facie case in favour of the plaintiff for granting ad interim injunction.
Moreover, the order under challenge has also been passed by the competent authority on the judicial side and if such authority has not followed the proper procedure of law or has assessed the house tax on higher side, the remedy is available to the plaintiff to file appeal in the court of Collector but the plaintiff instead of agitating the matter before the appellate authority has filed the present suit and challenged the competency of the authority and validity of the impugned order which is simultaneously not warranted under the law. The proposition of law is very clear that when the efficacious remedy is available then the plaintiff is not supposed to file civil suit by challenging the impugned order. First he has to exhaust the efficacious remedy available to him before filing of the suit, but he has not done so, therefore, on the fact of it he is not entitled for the relief of injunction. As such the learned lower court has rightly considered this fact and it has not committed any error."
2. The learned Additional District Judge has also held that the plaintiff-petitioner would not suffer any irreparable loss by depositing small sum of Rs. 12,402/- on account of house tax.
3. It is pertinent to mention that ordinarily in matters concerning payment of tax, no interim order of stay is warranted as has been laid down by the Supreme Court in Silliguri Municipality v. Amalendu Das, (1984)2 S.C.C. 436 and Assistant Collector of Central Excise v. Dunlop India Ltd., (1985)1 S.C.C. 260. Therefore, the revision petition is liable to be dismissed.
4. The argument of learned counsel for the plaintiff-petitioner that the learned Additional District Judge has wrongly referred to the provisions of Section 86 of the Act to conclude that the jurisdiction of the Civil Court is barred is meritorious. Under Section 86 of the Act, an obligation has been imposed on all concerned to give all the information to the officials of the municipal committee in order to frame the assessment. There is no section in Chapter V of the Act which may bar the jurisdiction of the civil Court from entertaining a civil suit. Therefore, the order of the learned Additional District Judge to that extent deserves to be set aside.
5. In view of the above, the order passed by the learned Additional District Judge is partially set aside by holding that the jurisdiction of the civil court is not barred under Section 86 of the Act. The victory of the plaintiff-petitioner is a pyrrhic victory because I do not find any ground to interfere with other part of the order. The petition is thus liable to be dismissed.
6. For the reasons stated above, this petition fails and the same is dismissed.