High Court Punjab-Haryana High Court

Municipal Council vs Atter Singh And Others on 6 February, 2009

Punjab-Haryana High Court
Municipal Council vs Atter Singh And Others on 6 February, 2009
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
Civil Revision No.6354 of 2008 -2-

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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.

Civil Revision No.6354 of 2008 -3-

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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
Civil Revision No.6354 of 2008 -6-

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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