Civil Revision No.6354 of 2008 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.6354 of 2008
Date of decision: 6.2.2009
Municipal Council, Narnaul
...Petitioner
Versus
Atter Singh and others
...Respondents
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr. Rameshwar Malik, Advocate for the petitioner.
Mr. N.S.Shekhawat, Advocate for respondent No.1
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S.D.ANAND, J.
The Municipal Council, Narnaul is in revision against the order
dated 26.9.2008 passed by the learned Additional District Judge, Narnaul
vide which the order dated 23.5.2008 passed by the learned Trial Court
was affirmed.
Facts in the first instance:-
In a representative cause filed in terms of the provision of
Order 1 Rule 8 C.P.C., the plaintiff-respondent called into question the
validity of levy of the development charges by the petitioner and also an
order passed by the Deputy Commissioner, Narnaul requiring the Sub
Registrars in District Narnaul to first ensure the payment of development
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charges before a sale deed could be registered by them. The plea, in the
context of the former count of challenge, was that the levy of development
charges was in valid for want of compliance with the provisions of Section
70 and 74 of the Haryana Municipal Act (hereinafter referred to as “the
Act”). In terms thereof, a Municipal Council is required to pass a resolution
authorising imposition of development charges. The plea, in the context, is
that the Municipal Council had not passed any resolution in that behalf.
Besides it, there were certain other counts as well on the basis whereof the
validity of the impugned imposition was challenged. The plaintiff-
respondent also applied for the invalidation of the impugned order issued
by the Deputy Commissioner to the Sub Registrars requiring them to first
confirm the payment of development charges, before proceeding to register
a sale deed.
The plaintiff-respondent also applied for the grant of ad-interim
injunction restraining the defendant-petitioner Municipal Council from
“charging development charges at the time of registration of sale deed”.
Also sought was the restraint of Sub Registrars from “refusing to register
the sale deed without payment of development charges.” Further more, the
petitioner Municipal Council was also sought to be restraint from “charging
development charges imposed illegally from the public at large.”
The defendant-petitioner filed a counter reiterating the validity
of the impugned levy and also the instructions issued by the Deputy
Commissioner in pursuance thereof. Apart therefrom, it was pleaded that
the suit is not maintainable in the representative character as no special
damage had been claimed by the respondent-plaintiff to have been
caused to him.
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The learned Trial Judge held that the impugned levy was
invalid for want of a resolution by Municipal Council in terms of provisions
of the Act. It was held, on that premise, that there was a prima facie case
in favour of the respondent-plaintiff for the grant of requested restraint
order. The balance of convenience was also, accordingly, found in favour
of the plaintiff-respondent.
In appeal, the view obtained by the learned Trial Judge was
affirmed by the learned First Appellate Court. It did otherwise notice that
the Municipal Council had been found to have passed a resolution for the
impugned levy. Further finding in the context was that the defendant-
petitioner had not complied with the provisions of the Act which require the
Municipal Council to afford 30 days time for filing objections. The matter
was, thereafter, to be forwarded to the State Government which had to
issue a notification for imposition of tax before the impugned levy could be
said to have been validly enforced. Qua the grievance with regard to
maintainability of the cause in representative character, the learned First
Appellate court observed that the Trial Court had indeed granted
permission to the plaintiff-respondent to file a suit on behalf of General
Public on 24.4.2007. It is also noticed, in the context, that in list of
interested persons filed by the plaintiff-respondent, he (plaintiff-
respondent) had given names of six persons, besides himself, who are
interested in filing the suit.
I have heard Mr. Rameshwar Malik, learned counsel for the
petitioner and Mr. N.S.Shekhawat, learned counsel for respondent No.1
and have carefully gone through the record.
Learned counsel appearing on behalf of the petitioner argued,
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at the very outset, that the the suit itself was not maintainable as it was not
in accord with the provisions of Order 1 Rule 8 C.P.C. Qua the grant of
liberty to the plaintiff-respondent to file the suit under Order 1 Rule 8
C.P.C., it was argued that the relevant order, by itself, would not validate
the filing of the suit which (the filing of the suit) does not stand scrutiny on
the touch stone of the relevant provisions because the plaintiff-respondent
is neither a proposed vendor nor a proposed vendee and he has not been
able to indicate any special damage which is being caused to him in the
context of the relevant levy and the order passed for the recovery thereof.
It is further argued that the question of validity or otherwise of impugned
taxation is beyond the domain of the Civil Court for purpose of adjudication
inasmuch as the vires of levy are required to be challenged in a writ
jurisdiction.
Learned counsel for the plaintiff-respondent resisted the view
advocated on behalf of the defendant-petitioner by arguing that the
impugned levy is invalid on the face of it because the proposed
development charges had never been forwarded to the State Government
for approval in accord with the provisions of the Act. Qua the
maintainability of the suit as a representative cause, it was argued that the
impugned imposition/order affects a large segment of the public and, thus,
the maintainability of the suit cannot be questioned on any valid count.
I find myself in agreement with the view advocated on behalf of
the petitioner with regard to the maintainability of the suit as a cause of
representative character. Order 1 Rule 8 C.P.C. does provide one person
to sue or defend a cause on behalf of numerous persons, if all of them
have the same interest in one suit. In this case, the plaintiff-respondent
had given a list of six persons who have interest in the averred cause of
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action. However, it is not the plea on behalf of the plaintiff-respondent that
any of them is a proposed vendor or a proposed vendee. In that view of
things, it would be, prima facie, inappropriate to say that the suit is
maintainable under Order 1 Rule 8 C.P.C.
It also requires particular notice that Haryana Municipal Act
itself provides an appeal against the levy of the indicated type. The Act
also provides for the filing of revision against the order of the Appellate
Authority. There is also a specific provision (Section 101 of the Act)
dealing with the manner in which a such like levy can be challenged. It
reads as under:-
“101. Taxation not to be questioned except under this Act
(1) No objection shall be taken to any valuation or assessment,
nor shall the liability or any person to be assessed or taxed by
questioned, in any other manner or by any other authority than
is provided in this Act.
(2) No refund of any tax shall be claimable by any person
otherwise than in accordance with the provisions of this Act
and the rules”
The present is, thus, a case where there is a specific bar to the
Civil Court jurisdiction in entertaining a controversy about the validity or
otherwise of the impugned levy. The plaintiff-respondent has not
exhausted the remedies available to him under the Municipal Act.
In that view of things, this Court is not required to go into the
question of validity or otherwise of the impugned levy. The finding, for the
purpose of disposal of the revision petition, is that the Civil Court
jurisdiction to entertain the point under adjudication is prima facie barred
under Section 101 of the Act and the very maintainability of the suit in
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representative form is open to question.
In the light of fore-going discussion, this petition shall stand
allowed. The impugned orders shall stand set aside. The stay application
filed by the plaintiff-respondent for the grant of interim relief shall stand
dismissed.
However, in view of the nature of controversy, the learned Trial
Court is directed to dispose of the suit itself within three months from the
next date day of hearing fixed before it. This Court is ordained to pass that
order particularly in view of the fact that adjudication in the suit is likely to
turn on an interpretation of legal question involved in it and barest oral
evidence may, if at all, be required to be adduced at the trial.
However, it would not debar the parties from adducing whatever evidence
they deem appropriate in support of their respective pleas at the trial.
February 06, 2009 (S.D.Anand) Pka Judge