Skip to content


K. Nanjundiah Setty and ors. Vs. Corporation of the City of Bangalore - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 60 to 78 of 1966
Judge
Reported inAIR1968Kant38; AIR1968Mys38; (1967)1MysLJ87
ActsCode of Civil Procedure (CPC), 1908 - Sections 115; City of Bangalore Municipal Corporation Act, 1949 - Sections 27, 412, 413, 415 and 420; Mysore Land Acquisition Act, 1894 - Sections 179, 351 and 402
AppellantK. Nanjundiah Setty and ors.
RespondentCorporation of the City of Bangalore
Excerpt:
.....municipal corporation act, 1949 - whether district judge passed orders as civil court or as persona designata - having regard to nature of duty which is more or less executive in character, scheme of sections, party, procedure prescribed for enquiry in deciding dispute and restricted ambit of dispute assigned by law for determination, district judge acting under section 412 acts not as civil court but in his personal capacity as persona designata - in light of precedents district judge entertaining application under section 412 acts as persona designate and his order is not open to revision under section 115. - karnataka land revenue act, 1964.[k.a. no. 12/1964]. section 71: [v. gopala gowda & arali nagaraj, jj] writ petition seeking direction to assistant commissioner for grant..........upon whether the impugned order was passed by the district court or by the district judge as persona designata.(2) the petitioners who are occupants of different shops belonging to the respondent corporation were served with notices demanding monthly fee of rs. 80 from two petitioners occupying corner shops with rs. 75 per month from the rest. these demands were made with effect from 1-6-1962. they filed various petitions (miscellaneous cases nos.148to169of1963 and164of1964) under section 412 of the act contending that the enhanced claim from rs.45 to rs.80 and from rs.40 to rs.75 respectively was exorbitant. the district judge came to the conclusion that the rate of rs.40 and rs.45 had been fixed in 1953 and that the revised fees fixed after 1962 were reasonable. he accordingly.....
Judgment:
ORDER

(1) These petitions filed under Section 115 of the Code of Civil Procedure are directed against the common order passed by the District Judge, Bangalore under Section 413 of the City of Bangalore Municipal Corporation Act,1949 (hereinafter called the Act). When they came up for admission before Govinda Bhat J., his Lordship felt that the question of their maintainability should first be decided and accordingly ordered a notice to be issued to the respondent. The question of maintainability depends upon whether the impugned order was passed by the District Court or by the District Judge as persona designata.

(2) The petitioners who are occupants of different shops belonging to the respondent Corporation were served with notices demanding monthly fee of Rs. 80 from two petitioners occupying corner shops with Rs. 75 per month from the rest. These demands were made with effect from 1-6-1962. They filed various petitions (Miscellaneous Cases Nos.148to169of1963 and164of1964) under Section 412 of the Act contending that the enhanced claim from Rs.45 to Rs.80 and from Rs.40 to Rs.75 respectively was exorbitant. The District Judge came to the conclusion that the rate of Rs.40 and Rs.45 had been fixed in 1953 and that the revised fees fixed after 1962 were reasonable. He accordingly dismissed the petitions with costs.

(3) In these revision petitions the petitioners attack the correctness of the order on various grounds. The sole question at this stage for determination, is whether the District Judge, Bangalore, passed the orders as a Civil Court or as persona designata.

(4) Mr. Srinath appearing for the petitioners contended that the impugned order was passed by the district Court and was therefore open to revision. In support of this contention, he placed reliance on rules 23to26 in Part VI of Schedule III to the Act and on the Full Bench decision of the Lahore High Court in Sultan Ali v. Nur Hussain, AIR 1949 Lah 131 (FB).Mr.Gopalakrishna appearing for the Corporation has placed reliance on Sections 412 to 415 of the Act and some decisions of different High Courts, in support of his contention that the order was passed by the District Judge as persona designata.

(5) The submission made by the learned Advocate for the petitioners is undoubtedly misconceived and deserves to be rejected. Schedule III to the Act contains Taxation Rules which form part of Chapter V of the Act as laid down in Section146 of the Act. Part VI of the Schedule contains rules relating to revision of assessment and provides remedies for an assessee dissatisfied with the assessment of any tax under the Act other than property tax. A petitioner who is dissatisfied with the assessment may make an application in writing to the Commissioner for revision of the amount of assessment stating his grounds,Rule 21 empowers the Commissioner to hear objections in the presence of the objector or his agent and record his order after deciding the objections.An objector who is dissatisfied by the order can approach, under rule22, the Taxation Appeals Committee possessing all the powers of a Standing Committee under sub-section(1) of Section27 of the Act.

(6) Rule 23 provides for an appeal to the District Court against the decision of the Taxation Appeals Committee, while rules 24 to 26 refer to the powers of the District court in dealing with such an appeal. It is not the case of the petitioners that the amount demanded from each of them was tax under any of the provisions contained in Chapter V of the Act. They contended in the Court below that the demand was of rent for use and occupation of municipal shops. The rules contained in Schedule III have obviously no application and the applications made before the District Judge clearly indicate that they were not appeals under rule27 against the decision of the Taxation Appeals committee. In sultan Ali's case, AIR 1949 Lah 131 (FB), relied upon by the learned Advocate for the petitioners the main question that arose before the Lahore High Court was, whether the various provisions contained in the Government of India Provincial Legislative Assemblies Order,1936 and the Government of India Provincial Elections (Corrupt Practices and Election Petitions) Order,1936, excluded the jurisdiction of Civil Courts, entrusting the investigation and determination of the various questions arising thereunder to the several functionaries mentioned therein. In dealing with this question, this is what the majority decision of the Full Bench laid down:

'The rule is fundamental both here and in England that where a right is created by a statute which also prescribed the manner in which that right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided by that statute. This principle has to be borne in mind in determining 'the question whether in the present case there has or has not been an ouster of the Civil Court's jurisdiction..... where a new right is created by a statute, the law being settled beyond question that where a special tribunal out of the ordinary course is appointed by an Act to determine the question as to rights which are the creation of that Act, then except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine these questions is exclusive. This principle has been generally accepted in this country and freely applied to the determination of the disputes arising out of elections to District or Municipal Boards and legislative bodies....'

It therefore follows even from these observations that the capacity in which the District Judge recorded his impugned decision has to be determined with reference to the relevant provisions of the Act.

(7) Mr.Gopalakrishna appearing for the respondent has primarily relied upon the provisions contained in Sections411to 415 of the Act. Section 411 provides for recovery of sums due to the Corporation towards 'costs,damages,penalties,compensation,charges,fees,rents,expenses,contributions and other sums which under this Act or any rule,bylaw or regulation made thereunder or any other law or under any contract including a contract in respect of water-supply or drainage made in accordance with this Act... are due by any person to the Corporation.' That section requires that a bill containing the particulars of demand and notice of liability shall be served on the person liable to pay the amount. It further enables such person within 15 days from the date of service of such bill to apply' to the District Judge, Bangalore division, under Section 412.' The latter section lays down: 'Where in any case not provided for in Section420,any municipal authority or any person is required by or under this Act or any rule, bylaw, regulation or contract made under it to pay any costs,damages,penalties,compensation,charges,fees,rents expenses,contributions or other sums referred to in Section 411 the amount or apportionment of the same, shall, in case of dispute, be ascertained and determined except as is otherwise provided in Sections179,351or 402 or in the Mysore Land Acquisition Act,1894,by the District Judge, Bangalore Division, on application made to him for this purpose at any time within six months from the date when such costs,damages,penalties,compensation,charges,fees, rents,expenses,contributions, or other sums first became payable'. It is thus clear that the application contemplated by Sections 411 and 412 is to the District Judge and not to the District Court. This position is further affirmed by Section 413, which reads:

'413(1) On any application under the provisions of Section 412 the said District Judge shall summon the other party to appear before him

(2) On the appearance of the parties or, in the absence of any of the, on proof of due service of the summons, the said District Judge may hear and determine the case.

(3) In every such case the said District Judge shall determine the amount of the costs and shall direct by which of the parties the same shall be paid'.

Mr. Srinath for the petitioners contended that the words 'here and determine the case' occurring in sub-section 2 of Section 413 require the District Judge to perform a judicial function by recording oral and documentary evidence and after hearing the parties to the case.The summary provision prescribed by sub-section (2) does not provide for recording of oral evidence by summoning witnesses. The duty cast upon the District Judge can at the most be regarded as quasi-judicial in character and this function is required to be discharged in a summary manner by hearing the parties and determining the dispute. The ascertainment and determination are restricted, as indicated by Section412,to a dispute relating to 'the amount or apportionment of the sum'. All this process forms part of the proceedings for the recovery of the sums due to the Municipal Corporation. Section 414 lays down that when the charges, fees or rents are ascertained in the manner prescribed in Section 413, the party is required to pay within 15 days after demand and on failure to pay the amount, a warrant for recovery may be issued by the District Court for attachment and sale of the movable property of the party.

Section 415 imposes a limitation for recovery of dues and lays down that no distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the Corporation under the Act after the expiration of the period of six years from the date on which the distraint might first have been made, a suit might first have been instituted or a prosecution might have been commenced, as the case may be, in respect of such sum. It was conceded by the learned Advocate for the petitioners, when his attention was drawn to Section 415, that the aggrieved party has his remedy by way of a suit. Whatever the right of the aggrieved party might be, it is clear from Sections 412 and 413 that the District Judge deciding the dispute thereunder acts as persona designata and not as a Court.

(8) This view is further fortified by the other provisions contained in the Act wherein a clear distinction has been made between the jurisdiction assigned to the District Judge and that assigned to the District Court. Section 59 of the Act provides for an application to the District Judge, Bangalore division, for a decision of question of disqualification incurred by the Councilor or Alderman. Section 68(2) of the Act empowers the Government to make rules providing 'for the adjudication by the Court of the District Judge, Bangalore Division,of disputes arising out of elections and for an appeal on a point of law to the High Court from the decision of such Court'. It is therefore clear to me that having regard to the nature of the duty which is more or less executive in character, the scheme of the sections, party, the procedure prescribed for the enquiry in deciding the dispute and above all the restricted ambit of the dispute assigned by the law for determination, the District Judge acting under Section412 acts not as a Civil Court but in his personal capacity and therefore as a persona designata.

(9) This conclusion finds abundant support from the decisions of the various High Courts and of the Supreme Court, dealing with similar provisions of law, Mr. Gopalakrishna has relied upon the decisions of the Privy Council in national Telephone Co.Ltd. v. Postmaster-General (No.2),1913 AC546, wherein Viscount Haldane L C., who delivered the main opinion of the Judicial Committee, laid down: '..... When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from the decisions likewise attaches....'

Lord Parker who concurred with the Lord Chancellor, laid down that--

'Where by statute matters are referred to the determination of a Court of record with no further provision, the necessary implication is, I think, that the Court will determine the matters, as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same.

In the present case the determination of the dispute is not entrusted to the Court established, viz., Court of the District Judge; on the other hand, it is entrusted to the District Judge, conferring upon him a special jurisdiction to adjudicate the disputes between the Corporation and the aggrieved party as regards the amount or its ascertainment.

(10) The learned Advocate drew my attention to the decision of the Allahabad High Court in Phul Kumari v. State, : AIR1957All495 , in which a petition under Section 115 of the Code of Civil Procedure for revision of an order passed by the Compensation Officer under the Zamindari Abolition and Land Reforms Act (No. 1 of 1951) came up for consideration. After considering the relevant provisions of the Act, the High Court came to the conclusion that the Compensation Officer was not a Court subordinate to the High Court within the meaning of Section 115. In arriving at that decision, reliance was placed on the Full Bench decision of the Patna High Court in Mst. Dirji v. Mt. Goalin, AIR 1941 Pat 65 (FB) and on the following observations of Fazl Ali J.:--

'The question which has to be asked in such case is whether the person so designated has been invested with the powers of a Court or otherwise. If he is invested with the powers of a Court, the necessary implication is that the jurisdiction of the Court is enlarged and its decision is subject to all the incidents of such a jurisdiction; see 1913 AC 546. If the powers are conferred on him not as a Court, he is a mere persona designata and his decision will not be subject to the incidents of such jurisdiction as the Court ordinarily exercises.'

Reference was also made to the Full Bench decision of the Madras High Court in Lakshmanan Chettiar v. Kannappar, Air 1927 Mad 93, where the Court had to deal with the capacity of the Chief Judge of the Court of Small Causes who had been invested with the power to decide disputes arising out of elections under the Madras City Municipal Act and the rules framed thereunder. The learned Chief Justice who delivered the judgment, discussed the rules and stated as follows:--

'.... Looking at the Municipal Act, it is clear that the draftsman of that Act was quite alive to the distinction between the Court of Small Causes (vide Section59) and the Chief Judge of that Court (vide Section54). it is difficult to resist the inference that when the Chief Judge is referred to in the Act he was meant to act as a persona designata and not as representing the Court.'

I have already pointed out above that a similar position prevails even in regard to the provisions contained in the Act. In Paidayya v. Rudrabhatla Muralidhar, : AIR1961AP498 , the District Judge who had been constituted the tribunal under Section 15 (2) of the Madras Estates (Abolition and Conversion into Ryotwari) Act was held to be a persona designata and not a Court subject to the revisional jurisdiction of the High Court. In that case the procedure prescribed for the tribunal was that prescribed under the Code of Civil Procedure and it was held that that circumstance could not be considered as conferring upon the tribunal the position or status of a Court subordinate to the High Court.

(11) The same view has been taken by the Calcutta High Court in a number of cases arising under different Rent Control Acts. In Amulya Ranjan Dey v. Pulin Bihari Shaha, ILR (1951) 1 Cal 198, it was held that the Chief Judge of the Court of Small Causes hearing an appeal under Section 32 of the West Bengal Premises Rent Control (Temporary Provisions) Act functioned not as a Court but as a persona designata whose order was not amenable to the revisional jurisdiction of the High Court. In this connection, reference may also be made to the decision in Kironchandra v. Kalidas Chatterjee : AIR1943Cal247 and Suhashini Das v. Mohindrakumar : AIR1947Cal455 . In all these cases it was held that the Dist. Judge or the Chief Judge of Small Causes Court who had been designed as the appellate authority functioned 'in the capacity of a superior executive officer' determining the reasonableness of the rent on hearing the parties and going through the papers.

(12) There are numerous decisions of the High Court of Bombay under the City of Bombay Municipal Act or District Municipal Act where the Chief Judge or the District Judge, as the case may, deciding an election dispute has been held to act as persona designata and not as Court. In this connection reference may be made to the decisions in Balaji Sakharam v. Merwanji Nowroji, (1897) ILR 21 Bom 279, Bhaishankar v. Municipal Corporation of Bombay, (1907) ILR 31 Bom 604, Navalkar v. Sarojini naidu, 25 Bom LR 463 = (Air 1923 Bom 421) and Ahmed Suleman v. Municipal Commr. of Bombay, ILR 54 Bom 224 = (AIR 1930 Bom 231).

(13) A similar question arose before the Supreme Court in Darga Committee v. State of Rajasthan, : [1962]2SCR265 , in which the question before their Lordships was whether the Magistrate who had been empowered under Section 234 of the Ajmeer-Marwara Municipalities Regulation, 1925, to recover any tax, water-rate, fee, costs, damages or other monies payable to or recoverable by the Municipal committee, on application made to him under the Regulation, was a Criminal Court as contemplated by Section 439 of the Code of Criminal Procedure or acted as persona designata. In dealing with this question, the Supreme Court laid down--

'Now looking at Section 234 it is clear that the proceedings initiated before a Magistrate are no more than recovery proceedings. All questions which may legitimately be raised against the validity of the notice served under Section 153 or against the validity of the claim made by the Committee under Section 222 can and ought to be raised in an appeal under Section 93 (1), and if no appeal is preferred or an appeal is preferred and is dismissed, then all those points are concluded and can no more be raised in proceedings under Section 234. That is why the nature of the enquiry contemplated by Section 234 is very limited and it prima facie partakes of the character of a ministerial enquiry rather than judicial enquiry. In any event it is difficult to hold that the Magistrate who entertains the application is an inferior Criminal Court. The claim made before him is for the recovery of a tax and the order played for is for the recovery of the tax by distress and sale of the movable property of the defaulter. If at all, this would at best be a proceeding of a civil nature and not criminal. That is why, we think, whatever may be the character of proceeding, whether it is purely ministerial or judicial or quasi-judicial, the Magistrate who entertains the application and holds the enquiry does so because he is designated in that behalf and so he must be treated as a persona designata and not as a Magistrate functioning and exercising his authority under the Code of Criminal Procedure. He cannot, therefore, be regarded as an inferior Criminal Court.....''

(14) On a careful consideration of the provisions of the Act and the decisions referred to above, I am of the opinion that the District Judge entertaining an application under Section 412 of the Act acts as a persona designata and his order, therefore, is not open to revision under Section 115 of the Code. These petitions are accordingly dismissed with costs; only one set of Advocate's fee.

(15) KK/BNP/D.V.C.

(16) Petitions dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //