Bombay High Court
Nandanvan Co-Operative Industrial ... vs The Municipal Council Through Its Chief ... on 12 October, 1993
Equivalent citations: 1994(1)BOMCR679
JUDGMENT V.A. Mohta, J.
1. A point of some interest is involved in this Second Appeal.
2. The factual matrix against which the point arises is short and it is this. Municipal Council, Thane, through its Chief Officer-(Respondents-Defendants) issued a bill under section 150 of the Maharashtra Municipalities Act, 1965 ('the Act') dated 31-3-1969 for taxes on buildings amounting to Rs. 1,17,833.65 np., for the period 1965-66 to 1968-69 to Nandanvan Co-operative Industrial Estate Ltd., Thane, (the Appellant-Plaintiff). The plaintiff represented to the Municipal Council that it had not occupied the property before 21-3-1968 and hence taxes on that basis comes to only Rs. 41,000/-. The Standing Committee of the Municipal Council accepted this representation in its meeting dated 16-7-1969 and resolved to accept a sum of Rs. 50,000/- in full and final settlement of the said bill. The plaintiff accordingly paid the said amount and the Municipal Council accepted the payment in full discharge of the said bill. Property taxes for the subsequent period were paid by the plaintiff in due course. After a lapse of 7 years, the Municipal Council issued a notice of demand dated 7-6-1976 under section 151 claiming the difference between the amount mentioned in the bill dated 31-3-1969 and Rs. 50,000/- and interest total amounting to Rs. 71,416.96 and also issued a warrant of attachment of the property under section 152 of the Act. The plaintiff filed the Civil Suit seeking a declaration that nothing was due from the plaintiff on the basis of the bill dated 31-3-1969 in view of the acceptance of the amount of Rs. 50,000/- in full and final settlement; and restraining the Council from proceeding with the recovery of amount demanded.
3. The defendants did not dispute the basic facts but contended that the Standing Committee had no jurisdiction to pass the resolution dated 16-7-1969, the settlement of the bill was not valid, no appeal under section 169 was filed against the bill before the Judicial Magistrate and hence the Civil Court has no jurisdiction to try the suit in view of section 172. The trial Court upheld the defence on the jurisdictional ground and disposed off the suit as not maintainable only on that ground, relying upon the decision of the Supreme Court in the case of Bata Shoe Co. Ltd. v. City of Jabalpur Corporation, 1972(2) Supreme Court Cases, 472. This order of dismissal has been upheld in First Appeal and hence this Second Appeal.
4. Chapter IX of the Act deals with the subject of municipal taxation. Tax on buildings and lands is a compulsory tax under section 105. Section 113 and onward sections provide a methodology for periodically determining the rateable value of buildings and lands and the persons primarily liable for payment of tax on the respective buildings, preparing and publishing the assessment list, hearing and deciding objections to the assessment list and to amend the same on certain specified grounds, if necessary. Section 118 speaks of publication of assessment list. Section 119 provides for publication of and giving to the owner or occupant individual notice, of time fixed for lodging objections to the list. Objections, if desired to be made, are to be made in writing with grounds of dispute to the Chief Officer within the time fixed in the notice. Section 120 provides for hearing of objections and their disposal thereafter. Section 121 provides for authentication of list and its publication. Section 122 makes the entries in the authenticatea list as conclusive evidence for taxation subject to the result of any appeal under section 169 or revision made under, section 171. Section 123 provides for amendment of list on certain specified grounds, lodging of objections to it and hearing in the manner provided for by section 119 and making the amended list final again subject to appeal under section 169 and revision under section 171.
5. Having heard M/s. Walawalkar and Singhavi, learned Counsel for the parties, it seems to me that jurisdiction of the Civil Court under section 9, C.P.C., to decide the controversy in question, cannot be held to have been ousted by the Act. Generally speaking Civil Courts have plenary powers to try all suits which involve determination of any civil right. Only two things are required to give the jurisdiction: (i) Dispute must be of a civil nature and (ii) its cognizance must not be barred by other statute either expressly or by necessary implication. Ouster of Civil Courts' jurisdiction cannot be readily inferred and the provisions of ouster have to be strictly construed. Out of one incident or transaction more than one cause of action can arise, each giving rise to an independent right. Every right has a remedy and exclusion of ordinary remedy will depend upon the ambit of machinery provided for in the provisions of exclusion. Thus all will depend upon host of factors like the nature of the grievance, grounds of challenge, nature of remedy provided for in the enactment and conditions attached to that remedy.
6. Remedy provided for in the Act and bar of Civil Court can be discerned from sections 169 to 172. I reproduce them for ready reference.
"169. Appeal against any claim for taxes or other dues included in a 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.
170. No appeal under the preceding section shall be entertain unless-(a) the appeal is brought within fifteen days next after the presentation of the bill complained of;
(b) an application in writing stating the grounds on which the claim of the Council is disputed, has been made to the Council in the case of tax on buildings or lands or both within the time fixed in the notice given under section 119 or 123 or the assessment of alteration thereof, according to which the bill is prepared; and
(c) the amount claimed from the Appellant has been deposited by him in the municipal office.
171. No decision of the Magistrate or Bench of Magistrates in any appeal made under section 169 shall, at the instance of either party, be subjected to revision by the Court to which appeals against the decision of such Magistrate or Bench of Magistrates ordinarily lie.
172. 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 will be seen that section 169 provides for ventilating only a grievance against any claim for taxes or other dues included in bill presented under section 150. There are three condition precedents attached to the maintainability of appeal (section 170). Appeal is not entertainable unless the assessee had raised written objections to the assessment in time as provided under section 119 or 123 as the case may be. Appeal has to be brought within 15 days after the presentation of the bill complained off and the amount mentioned in the bill has to be deposited in the municipal office. Section 171 provides for a revision to the Sessions Judge against the appellate order passed by the Magistrate. Section 172 bars a challenge to the valuation, assessment, or levy or liability of a particular person to pay the taxes for particular property, in any other manner than provided under the Act.
7. In the present suit, cause of action is not the bill to which there is no challenge. Grievance is-right or wrong, legal or illegal, justified or unjustified- about demand and attempted recovery of amount in the bill which stood actually disharged by payment under the settlement long before. It is difficult to see as to how this dispute could at all be resolved by the Judicial Magistrate in an appeal under section 169. Actual payment of a bill or its discharge is a matter anterior to its presentation and the dispute on that score cannot fall under section 169. Appeal, on this ground, would not be entertainable also because by the very nature of things, conditions in section 170 are impossible to be fulfilled. Thrust of the challenge in this suit is neither on the valuation, assessment or levy, nor on the liability to be taxed for that property, but is on the alleged double demand even after actual payment or discharge and hence bar created by section 172 would not be attracted. Thus, looked from any angle, I do not see any valid reason or justification to drive the plaintiff out of Civil Court at the very threshold.
8. The ratio of Bata Shoe Co. Ltd. (supra) cannot apply to the instant case. There octroi duty against the assessee was revised by the Municipal Council and on that basis bill at the revised rate and penalty was submitted which was challenged by the assessee in the machinery provided in the C.P. and Berar Municipalities Act, 1922. Challenge failed on merits and then the assessee filed a civil suit raising those very challenges to the revised rates. In this background, it was held that civil suit was not maintainable.
9. Under the circumstances, the Second Appeal is allowed and the judgment and decree passed by the two courts below is quashed and set aside.
The Civil Suit is legally maintainable. The matter is remanded to the trial Court for decision on merits in accordance with law.
No order as to costs.
Needless to mention that this suit being old, will be decided expeditiously. Certified copy expedited.