JUDGMENT
M. Narayana Reddy, J.
1. This judgment, according to law, arises out of a civil miscellaneous second appeal, filed by the sole appellant, against the sole respondent, under Section 287 of the Hyderabad Municipal Corporation Act, 1955, questioning the, validity and legality, of the adjudications made by, and set forth in Para 2, infra.
2. Judgment, dated 2-8-1994, of the Court of the Chief Judge, City Small Causes Court, Hyderabad, made in MA No. 199 of 1993, of its file, and the Decree of even date, that, followed the same, therein.
3. Perused the material papers of Record.
4. Arguments were heard of the learned Counsel for both the parties.
5. At the very outset, I am of the opinion, that, the brief, material, required, facts and circumstances of the case, and the brief background thereof, but, only, insofar as, the same are, factually and legally, germane, for the purposes of the present judgment, as well as, for better appreciation of the questions involved, and the merits, or, demerits, of the present civil miscellaneous second appeal, and the impugned judgment, and the adjudications, covered thereby, etc., should be set forth, in brief, as hereunder.
6. The sole appellant in this present civil miscellaneous second appeal corresponds to the sole appellant in the MA No. 199 of 1993, of the file of the said First Appellate Court, and is the assessee, in respect of the building bearing House No. 9-5-82, situate at Ibrahimbagh Village, Golconda Mandal, Hyderabad. The sole respondent in this civil miscellaneous second appeal corresponds to the sole respondent in the CMSA, and if the Commissioner of the Municipal Corporation, Hyderabad.
7. The parties are, hereinafter referred to, as the assessee, and the said Corporation, unless, otherwise, so specified.
8. In respect of the said building, bearing House No. 9-5-82, referred to in Para 6, supra, the said Corporation imposed and demanded, by way of notice of demand, dated 12-3-1993, property tax of Rs. 33,170-70 ps., up to the year ending on 31-3-1993, within 7 days after receipt thereof, and also informed, that, lest, distress warrant will be issued for recovery of the same, with costs, etc.
9. The building, being, the house, bearing House No. 9-5-82, is situate in Ibrahimbagh, of Golconda Mandal, Hyderabad District.
10. The said demand notice does not disclose the period, for which the demand of Rs. 33,170-70 ps. was made, but, however, merely mentions, that, it pertains to the period ending with 31-3-1993.
11. The learned Counsel for the assessee vehemently urged, that, the said Ibrahimbagh Village is not within the limits of Hyderabad Municipal Corporation and, that, hence, it is not competent, under law, either, to levy, much less, demand, much less, collect, any property tax, in respect of the said assessed house, situate in, that, village.
12. It is vehemently urged for the assessee, that, so long as, that, Village of Ibrahimbagh, not included, as required by law, within in the limits of the said Corporation, it cannot impose any tax on the said house, and that, it is, only, after inclusion thereof, within the said limits, then only, it will be competent to levy, demand, and collect the property tax. It is further urged, that, the inclusion should be, as required by Hyderabad Municipal Corporation Act, 1955 (said Corporation Act).
13. In fact, a copy of the complaint petition, dated 17-3-1993, filed by the assessee, under Section 221 of the said Corporation Act, questioning the said impugned demand notice, discloses, that, therein, the assessee, inter alia, urged, that, because, the said village was not included in the said Corporation limits, as prescribed, the assessment and demand have to be set-aside, etc., etc. However, it is urged, that, however, no orders were made thereon.
14. Subsequently, the assessee filed, in the High Court, WP No. 9636 of 1992, for issue of a writ of mandamus, to restrain the said Corporation, from levying, or, collecting, property tax in respect of the said house, as well as, other houses, situate in Sy.Nos.9, 13, 19/1, of the said Ibrahimbagh Village, Golconda Mandal, as well as, for declaration, that, the same do not fall within the limits of the said Corporation, and that, hence, it has no jurisdiction to collect the tax, etc.
15. A Division Bench of the High Court, after due enquiry into the said WP No. 9636 of 1992, adjudicated thereupon, by orders, dated 15-2-1993, inter alia, by the last and sixth paragraph, thereof, observing, that, the questions raised by the assessee in that, writ petition, can be effectively decided, only, by a competent Civil Court, after a detailed enquiry thereinto, including, recording of oral, and documentary, evidence, etc., finally, dismissed the writ petition, observing, further, that, the assessee can file an appeal before the Appellate Authority, under the said Corporation Act, or, the Civil Court, which shall consider the matter, on merits, and pass appropriate orders, etc., etc.
16. In pursuance thereof, the assessee filed M.A. No. 199 of 1993, on the file of the Court of Chief Judge, City Small Causes Court, Hyderabad, which, after due enquiry thereinto, finally, adjudicated thereupon, by its now impugned judgment and the decree, both, dated 2-8-1994, set forth in Para 2, supra, as under:
(a) Refused to interfere the said notice, dated 12-3-1993, set forth in Para 8, supra;
(b) Consequently, dismissed the M.A., in toto;
(c) Directed the parties to bear their respective costs incurred in the M.A.
17. Aggrieved thereby, and, hence, questioning the validity and legality thereof, the assessee filed the present civil miscellaneous second appeal, as set forth in Para 1, supra, read with Para 2, supra.
18. It is vehemently urged by the learned Counsel for the assessee, that, Ibrahimbagh Village of Golconda Mandal, was not within the limits of the said Hyderabad Municipal Corporation, as on the date of the levy, or, demand, of tax, in respect of the said house, situate in that village and that, hence, the Corporation cannot, validly and legally, assess, levy, demand, or, collect, property tax, in respect of the said house.
19. Admittedly, or, even otherwise, as disclosed by the said Corporation Act, 1955, which came into force, in the year 1956, the said Ibrahimbagh Village was not within the limits of that Corporation.
20. So, therefore, it is, only subsequent to that year, till issue of the said demand notice, somewhere, therein, during that period, i.e., between 1956 and 1993, that, Ibrahimbagh Village must have been included in the limits of the said Corporation, if at all, it was so done. It is for the Corporation, to prove the same. The assessee disputes the same. In fact, they filed the said writ petition also.
21. The learned Counsel for the appellant vehemently urged, that, any such inclusion of the said Ibrahimbagh Village, within the limits of the said Corporation, shall be made, as prescribed by the specific statutory provisions, prescribed in that regard, being sub-sections (2) and (3) of Section 3 of the said Corporation Act.
22. A direct examination of sub-section (2) of Section 3 of the said Corporation Act will make it manifest, that, the Government may, from time to time, after consultation with the Corporation, by notification in the Andhra Pradesh Gazette, alter the limits of a city, constituted under sub-section (1) of that Section 3, so as to include therein, or, to exclude therefrom, the areas specified in such notification.
23. Sub-section (3) of that Section 3 postulates, that, the power to issue such a notification, under sub-section (2), shall be subject to previous publication.
24. So, therefore, inter alia, in order to include any village, including the said Ibrahimbagh Village, within the limits of the said Corporation, it is required, statutorily, that, a notification should be issued, as prescribed by sub-sections (2) and (3) of the sad Section 3, and the same has to be proved.
25. In fact specific notification, only under the said sub-section (2), as also, (3) thereof, both, of the said Section 3, should, therefore, be issued, specifically, as postulated by those statutory provisions.
26. When so, it goes, without saying, that, any notification under any other statutory provision, of any other provision, of any other Enactment, or, Enactments, other than the said Corporation Act, and, so to say, under any other provision, and, even that Corporation Act, other than said Section 3(2) and (3), will not be valid one, and will not, validly and legally, include such a village, to bring the same, within the limits of the said Corporation, so as to warrant, or, authorize, the said Corporation to assess, levy, or, demand, any tax, in respect of any building in such village, or, villages.
27. Hence, any notifications, by way of Government Orders, issued by the Government, under the statutory provisions of other Enactments, inter alia, for the purposes on elections, etc., will not be of any valid, or, legal, avail, whatsoever, for the Corporation, in the case of hand, to prove, much less, successfully, that, thereby, the said village was included in the limits of the said Corporation.
28. None of such Government Orders, or, Notifications, can, under law, validly and legally, be construed, as the one, passed, or, made, under the said Section 3(2) and (3), of the said Corporation Act.
29. Any such Government Orders, etc., issued under the other provisions of law, other than the said Section 3(2) and (3) of the said Corporation Act, cannot, validly and legally, prove inclusion of the said village, in the limits of the said Corporation, as prescribed by Section 3(2) and (3), so as to warrant the Corporation to, validly, legally, and statutorily, to assess, levy, demand, and collect the property tax, in respect of any building, within the limits, inter alia, of the said Ibrahimbagh Village and other villages.
30. Hence, Notification, dated 19-1-1951, of the then Local Government Department, and the then Government of Andhra Pradesh, will be of no avail, whatever, to the Corporation, in the case, on hand, inter alia, apart from the same, of the year 1951, long preceded the coming into force of the said Corporation Act, in the year 1956. Hence, it is to be set aside, in toto.
31. Notification, dated 4-10-1985 of the Municipal Administration, published in Andhra Pradesh Gazette, and relied upon by the learned Counsel for the Corporation, even if it mentions the name of the Ibrahimbagh Village, still, notwithstanding, it will not be of any factual, legal, or, statutory, avail, to the said Corporation, in the case, on hand, because, as can directly be seen from Paras 1 and 2 thereof, it was issued under Clause (a) of sub-section (1) of Section 5, as well as, sub-section of Section 8 of the said Corporation Act, 1955. It is not the one, issued under the said Section 3(2) and (3) of the Corporation Act, referred to, in Paras 21 and 22 to 24, (supra).
32. Similarly, the other Notification, dated 25-5-1985, of the Revenue Department, published in the Andhra Pradesh Gazette, also, will be of no factual, legal, or, statutory, avail, to the said Corporation, even if it mention therein, the said Ibrahimbagh Village. As can be seen therefrom, it pertains to formation of Revenue Mandals. Hence, the reasons, set forth in the immediately preceding paragraph, will apply hereto also, mutatis mutandis.
33. It should be mentioned here, that, placing some Government Order, or, Notification issued by some other department, under some other statutory provision, or, provisions, can, under law, much less, statutorily, be equated to the one, which is specifically required by a specific statutory provision, under the said Section 3(2) and (3) of the said Corporation Act. It cannot be claimed by filing some other Government Orders, that the statutory mandates of the said Section 3 of the said Corporation Act were complied with.
34. Hence, none of the Government Orders referred to in Paras 30 to 32, (supra), are of any avail to the Corporation, in the case, on hand.
35. Earlier, the said same Appellate Court, by judgment, dated 31-3-1973, in M.A. No. 653 of 1972, in between the very same present parties, in respect of the same building, set aside the levy of property tax, in respect thereof, for the years 1951 to 1972, as illegal and unwarranted by law, etc.
36. As can directly be seen from the short judgment in the said MA No. 653 of 1972, referred to in the immediately preceding paragraph, that case pertains to payment of property tax in respect of the same building, for a period of so many as of 21 years, form 1951 to 1972, and that, therein, that Appellate Court found, that, the Corporation did not place any record, to show, that, the village was included within its limits, and that, in the absence thereof, levy of tax will be illegal, etc., etc., and, hence, set-aside the same etc., etc.
37. Therein, in the said M.A. No. 653 of 1972, the said Appellate Court, observed at its end, that however, the said Corporation will be entitled to levy the tax, from the date of notification of the said building being included in the limits of the said Corporation, by way of Gazette Notification.
38. However, as already found, no notification, as prescribed under the said Section 3(2) and (3) of the said Corporation Act, is placed, on record, in the case, on hand, on any such thereof, since beginning, till now.
39. The learned Counsel for the assessee vehemently urged, that, notwithstanding the said judgment of the Appellate Court, in MA No. 653 of 1972, still, without complying with the liberty given therein, again, by the said demand notice, covered by the present civil miscellaneous second appeal and M.A No. 199 of 1993, the said Corporation has, again, made a demand for the said set-aside period, from 1951 to 1972, and up to 1993, and that, the same is illegal, unwarranted and unsustainable at law, and hence, is liable to be set-aside, in toto, as such.
40. The said demand notice is vague, in the sense, that, it merely mentions the ending period of the demand covered thereby, of Rs. 33,170-70 ps., as ending with 31-3-1993, as set forth in Para 8 supra. It does not mention the commencement period, or, the total period, for which that demand was made.
41. The learned Counsel for the appellant vehemently urged, that, the said earlier judgment of the Appellate Court, in the said MA No. 653 of 1972, will operate as res judicata, in the case, on hand.
42. Neither party furnished any details of the period for which the present demand notice, dated 12-3-1993, covered by the present civil miscellaneous second appeal, is concerned.
43. However, if it were to pertain, also, to the set-aside period, from 1951 to 1972, then, that earlier judgment will operate as res judicata.
44. Even otherwise, as directed by that judgment, without the prescribed notification, the same tax cannot be redemanded, factually and legally, for the reasons, also, that, that judgment will be a statutory bar.
45. Even otherwise, for non-compliance with Section 3(2) and (3) of the said Corporation Act also, the impugned demand, is unsustainable at law.
46. Even otherwise, the demand for so long a period, is barred by limitation, inter alia, as postulated in (DB), (C.E. Co-oper v. Municipal Commissioner of Hyderabad), (Raj Lakshmi Dasi v. Banamali Sen), , Daryao v. State of UP. and AIR 1961 SC 377 (M/ s. Radhasoami Satsang Saomi Bagh, Agra v. I.T. Commissioner), delivered, inter alia, interpreting Section 11, CPC.
47. Hence, the impugned judgment, made by the said notice, dated 12-3-1993, referred to in Para 8, supra, as illegal and unsustainable at law and is totally without, statutory and legal, jurisdiction, and hence, is liable to be set-aside, in toto, as such.
48. Hence, the impugned judgment and the Decree, set forth in Para 2, supra, confirming the same, are also liable to be set-aside, in toto, as such.
49. Hence, the High Court, doth hereby adjudicate upon the civil miscellaneous second appeal, as under:
(I) Set-aside, in toto, the judgment and the Decree, both, dated 2-8-1994, of the Court of the Chief Judge, City Small Causes Court, Hyderabad, referred to in Para 2, supra;
(II) Consequently, set-aside, in toto, the demand notice, dated 12-3-1993, issued by the Municipal Corporation, Hyderabad, referred to in Para 8 supra, as without statutory and legal jurisdiction, and illegal, and unsustainable at law;
(III) Direct the parties to the civil miscellaneous second appeal, to bear their respective costs, incurred, herein; and.
(IV) However, it is hereby made clear, that, the said Corporation is at liberty to assess, levy and collect, property tax, according to law, in respect of the building, covered by the case on hand, on and from the date of valid inclusion of the Ibrahimbagh Village, within the limits of Municipal Corporation, as per Section 3(2) and (3) of the said Corporation Act, 1955, as well as, subject to the Law of Limitation, prescribed in that regard, and the other relevant statutory provisions and the case-law, prevailing, on the subject.