JUDGMENT
J. Eswara Prasad, J.
1. The appellant filed O.S.206/83 in the Court of the Munsiff, Shimoga for declaration, that the respondent – Municipality has no right to demand development, betterment or layout charges from the appellant in respect of the suit schedule property and for a permanent injunction. The suit was contested inter alia on the ground that the layout charges were due from the appellant and that the suit is barred under Section 150(4) of the Karnataka Municipalities Act, 1964 (‘the Act’ for short). The Trial Court held that the suit is
barred under Section 150(4) of the Act and dismissed suit. On appeal by the plaintiff, in R.S.No.6/88, the Additional Civil Judge, Shimoga concurred with the findings of the Trial Court and dismissed the appeal.
2. The learned Counsel for the appellant contended that Section 150(4) of the Act is not a bar and the Civil Court has the jurisdiction and the suit is maintainable, in view of the findings that the provisions of law were not complied with. He further contends that the recovery sought to be made from the appellant under Exhibit P.6 – notice was not for the recovery of betterment charges as mentioned therein, but was for the recovery of layout charges as mentioned in the written statement and hence the amount cannot be recovered under Chapter VII of the Act and therefore Sub-section (4) of Section 150 is not applicable.
3. The learned Counsel for the respondent submitted that the mention of layout charges in the written statement was made by a mistake and what was sought to be recovered was only betterment or development charges which can be recovered under Section 168 under Chapter VII and hence the suit is barred as per the provisions of Sub-section (4) of Section 150 of the Act.
4. The demand notice Exhibit P.6 makes it clear that the amount is sought to be recovered towards betterment charges and not towards layout charges. It is therefore clear that what is stated in the written statement was a mistake as contended by the learned Counsel for the respondent. In the plaint, the appellant clearly stated that the respondent has no right to demand development charges and sought a declaration to that effect. Section 168 confers the Municipality to recover betterment charges or development charges in the manner provided in Chapter VII. When that is so, it is open to the Municipality to invoke Section 142(a) and proceed to recover the amount as laid down under Section 148(2).
5. An appeal lies to the Magistrate against any claim included in any notice of demand served under Sub-section (3) of Section 142 or under Sub-section (1) of Section 148 which may be made to the Judicial Magistrate having jurisdiction over the area concerned, Subsection (4) of Section 150 lays down that no entry in the assessment list made under the provisions of the Act and no sum claimed by
any person under Chapter VII shall be called in question before any Court or other authority. It is therefore dear that there is an express bar to the jurisdiction of the Civil Courts to entertain any suit with regard to any claim by any person under Chapter VII.
6. Following the decision in SECRETARY OF STATE v. MASK AND COMPANY, AIR 1940 PC 105, and DHULABHAI v. STATE OF MADHYA PRADESH AND ANR., , the Supreme Court in THE STATE OF WEST BENGAL v. THE INDIAN IRON AND STEEL COMPANY LIMITED, , held that it is settled law that the exclusion of jurisdiction of a Civil Court is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied It was further held that it is well settled that even if the jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases whether the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
7. As observed supra, Sub-section (4) of Section 150 is an express bar to the Civil Court from entertaining suits against claims of the Municipality under Chapter VII of the Act. The only exception is where the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the judicial procedure. The Trial Court observed that the plaintiff’s contention that he has not made any application for forming a new extension or layout is not disputed by the defendant by producing any application made by the plaintiff and hence Section 176 of the Act is not attracted. It was further held that the plaintiff was not given an opportunity before issuing the demand notice in Exhibit P.7 and that the procedure laid down in Sections 155 to 160 and 170 of the Act was not followed. The Appellate Court did not go into these aspects in the view it has taken that the suit is not maintainable. The learned Counsel for the respondent submits that the Municipality will follow the necessary procedures as laid down by law.
8. From the above discussion, it is clear that the respondent has not followed the statutory provisions and has not complied with the principles of natural justice. Therefore, this case falls within the
exceptions mentioned in the decisions reported and the Civil Court had the jurisdiction of ascertaining as to whether the procedure laid down was followed. As the procedure was not followed the demand notice cannot be allowed to stand and it is accordingly declared as unenforceable.
9. It is however open to the respondent to follow the procedure laid down by the law and to issue a frash demand notice if it finds that any amount is due from the appellant. The Judgment and Decree of the Courts below are set aside and the suit is decreed leaving liberty to the respondent to proceed afresh, in accordance with law. No costs.