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Jagannath Vs. Municipal Board - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All337
AppellantJagannath
RespondentMunicipal Board
Excerpt:
..... - 5 and clearly deal only with those taxes which are dealt with in that chapter and the imposition of which is authorized by section 128. it is clear therefore that sections 160 and 164 have no application to the fees in question. suits of this nature are clearly cognizable by the civil courts unless their cognizance is either expressly or impliedly barred......of the plaintiffs in each of these cases have been in existence from before the passing of the bye-laws in question. bye-law no. 11 deals with existing projections and provides that the rates noted in the schedule will apply also to all projections of the nature of 'saiban, takhtas and patia zerin.' the municipal board acting under these bye-laws took certain steps to recover from the plaintiff in each case what it considered to be due to it under these bye-laws. thereupon these suits were filed, the relief claimed being a declaration that the bye-law passed by the municipal board, soron, under which a certain sum of money had been demanded from the plaintiffs was 'illegal' and was 'not connected with the stone slabs of the plaintiffs.' it was also prayed that a perpetual injunction be.....
Judgment:

Verma, J.

1. These three connected second appeals arise out of three different suits filed by three different persons against the Municipal Board, Soron. The points that arise for decision however are the same in all the three appeals. The appellant in each case was the plaintiff. The suits have been dismissed by both the Courts below. In the year 1930, certain bye-laws were made by the Municipal Board under Section 298, List I, heading J(d) of the U.P. Municipalities Act (No. 2 of 1916) for charging fees in respect of projections over streets and drains. These bye-laws were confirmed by the Commissioner. The projections of the plaintiffs in each of these cases have been in existence from before the passing of the bye-laws in question. Bye-law No. 11 deals with existing projections and provides that the rates noted in the schedule will apply also to all projections of the nature of 'saiban, takhtas and patia zerin.' The Municipal Board acting under these bye-laws took certain steps to recover from the plaintiff in each case what it considered to be due to it under these bye-laws. Thereupon these suits were filed, the relief claimed being a declaration that the bye-law passed by the Municipal Board, Soron, under which a certain sum of money had been demanded from the plaintiffs was 'illegal' and was 'not connected with the stone slabs of the plaintiffs.' It was also prayed that a perpetual injunction be issued to the defendant Board restraining it from taking proceedings of attachment or sale against the plaintiffs for the recovery of the amount in question. The grounds on which the bye-laws in question are attacked and are alleged to be illegal and ultra vires of the Board are given in paras. 3 and 4 of the plaint. The issue framed by the trial Court on this point was Issue 5 which runs thus:

Was the defendant competent to frame the bye-laws in question and were they properly framed, and can a demand be made from the plaintiff in pursuance thereof?

2. Among the pleas taken by the defendant Board in its defence were the pleas of limitation and jurisdiction, and those are the only two questions with which we are concerned in these appeals. The trial Court held that the suits were barred by time. On the question of jurisdiction, it held that the Civil Court was competent to entertain these suits. The lower Appellate Court has decided in favour of the defendant Board on both the points mentioned above, namely limitation and jurisdiction and has not decided the other issues that arose. The only questions that have been argued before us are the questions mentioned above, namely whether the lower Appellate Court is right in holding that these suits are barred by limitation and whether it is right in holding that the Civil Court has no jurisdiction to entertain these suits. No other point, for example, whether a suit for a declaration of the nature prayed for in these suits can be maintained, has been raised and we express no opinion on that question.

3. The grounds on which the lower Appellate Court has held that these suits are barred by limitation are these. A notice was served by the Board on these plaintiffs in July 1932 demanding payment of the too in question and the moveable property of each of these plaintiffs was attached in January 1933. The Court below has taken the view that in view of the provisions of Sub-section (3) of Section 326, Municipalities Act, the units should have been filed within six months, at any rate, from the attachment of the moveable property, if not from the service of the notice, and as the suits were not filed until 19th January 1934, the Court below has held that they are barred by time. Learned Counsel for the plaintiffs-appellants has urged that Section 326(3) has no application to a suit of this nature, and that in a case of this character the plaintiff has a recurring cause of action. He has rated the case in Ambika Churn v. Satish Chunder (1898) 2 C.W.N. 689 in support his contention. We agree with the decision in that case and are of opinion that the contention of the learned Counsel is correct. The word 'act' which has been used by the Legislature in Sub-section (1), Section 326(1). P. Municipalities Act, occurs also in the corresponding Section of the Bengal Municipal Act, namely Section 363, and the learned Judges in their judgment in this case cited have observed that the word 'act' refers to tortious acts. We agree with the opinion expressed in the judgment. The declaration prayed for is in respect of a bye-law framed by the Municipal Board, and it seems to us that the cause of action (which these plaintiffs have is a recurring lone which arises from day to day as long as that bye-law is in existence. In our opinion Section 326(3) does not bar the suit.

4. The second ground on which the lower Appellate Court has based its decision dismissing the suits is that the suits are not cognizable by the Civil Court. In our opinion, the judgment of the Court of first instance on this point was correct and the lower Appellate Court has erred in differing from it. The Court below does not refer to any Section of the Municipalities Act, but it has been argued by the learned Counsel appearing for the respondent Board that the jurisdiction of the Civil Court is barred by reason of the provisions of Sections 160 and 164, Municipalities Act. Now, the bye-laws in question have been framed under Section 298, List I, heading J(d) and deal with fees to be paid under Section 293(1) of the Act. Section 293(1) runs thus:

The Board may charge fees to be fixed by bye-law or by public auction or by agreement for the-use or occupation (otherwise than under a lease) of any immovable property vested in, or entrusted) to the management of the Board, including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise.

5. It is to be found in Ch. 8, headed 'Other powers and penalties' under the sub-heading 'Rent and charges'. The portion of the Act which deals with taxation is Chap. 5 and Section 128 enumerates the taxes, properly so called, which can be imposed by a Municipal Board. It seems to us that the fees which a Municipal Board is authorized to charge under Section 293 do not amount to taxes, properly so called, which are dealt with in Ch. 5 of the Act. Sub-section (2) of Section 293 lays down that the fees mentioned in the Section may be recovered in the manner provided by Ch. 6, and Section 166, which is the first Section of Ch. 6, deals not only with taxes but also with 'any other sum declared by this Act or by Rule to be recoverable in the manner provided by this chapter.' But the fact that these fees may be recovered in the manner provided by Ch. 6 cannot make them taxes which are dealt with in Ch. 5. Sections 160 and 164 on which reliance is placed on behalf of the Board occur in Ch. 5 and clearly deal only with those taxes which are dealt with in that chapter and the imposition of which is authorized by Section 128. It is clear therefore that Sections 160 and 164 have no application to the fees in question. It may also be pointed out that Section 318 of the Act provides an appeal to the District Magistrate against an order or direction made by a Board or under a bye-law made under heading G of Section 298 but does not provide any appeal against an order or direction under a bye-law made under any other heading of that Section. Section 321 of the Act also has therefore no application. Suits of this nature are clearly cognizable by the Civil Courts unless their cognizance is either expressly or impliedly barred. The only Sections of the Municipalities Act on which reliance has been placed by the learned Counsel appearing for the respondent Board do not, in our opinion, apply. The lower Appellate Court has relied on the case in Sheo Narain v. Town Area Panchayat Chhabramau : AIR1936All117 . In that case the question that arose for decision was with respect to a tax properly so-called. The case is therefore distinguishable. For the reasons given above, we allow these appeals, set aside the decrees of the Courts below and remand these cases to the lower Appellate Court with directions that it shall re-admit the appeals to their original numbers and shall proceed to decide the remaining issues that arise in these cases. Costs here and hitherto shall be coats in the cause.


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