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Baroda Municipal Corporation Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1977)18GLR85
AppellantBaroda Municipal Corporation
RespondentState of Gujarat and anr.
Cases ReferredJafferali v. S.D. Dossa and Co.
Excerpt:
.....list. and the language of section 6(iv)(a) clearly indicates it to be a specific provision for a suit for declaration to obtain adjudication of recovery of money, the proviso to clause (a) deals only with the consequential relief and will be attracted only when the main relief of declaration is to obtain adjudication against recovery of money from the plaintiffs. as a result of his aforesaid discussion, the learned judge came to the conclusion that the aforesaid suit would be clearly governed by clause (iv)(j) of section 6 the act. having regard to the averments to which the learned judge has referred in his judgment and the relief clause in that suit, we are convinced beyond any doubt, that the aforesaid suit clearly fell within the preview of section 6(iv)(a) of the act for the..........1975, has raised the following points for consideration of the division bench.(1) whether the suit for declaration that the state government had no authority to levy n.a. assessment and for a declaration that the order of the colletator in exercise of that power was ullru vires and illegal and for injunction restraining the enforcement of the recovery as well as the future recovery would involve the question of adjudication against recovery or not and, therefore, would be within the preview of section 6(iv)(a) of the bombay court-fees act?(ii) if not, under what appropriate section the present suit would bear the court-fees.7. it is under these circumstances that the present revision applica tion is placed before us for disposal.8. mr. n.r. oza, the learned advocate appearing on.....
Judgment:

A.N. Surti, J.

1. This revision application is directed against the impugned order passed by the learned Civil Judge, (Senior Division), Baroda, in Court Fees Reference No. 3 of 1969, in Regular Civil Suit No. 452 of 1968. In substance, by the impugned order the Civil Judge called upon the Baroda Municipal Corporation to pay the deficit court-fees stamp of, Rs. 4,670/- as mentioned by the Inspecting Officer (Court Fees) Baroda; and Kaira Districts, Baroda, in his report dated December 26, 1968. In order to appropriates the grievance of the petitioner Corporation, a few fefeViant facts may be stated.

2. In the suit which is filed by the petitioner Corporation, the following reliefs are claimed as set out in paragraph 26 of the plaint.

(1) It may be declared that the Gujarat State is not entitled to recover from the plaintiff any N.A. assessment which is levied retrospectively i.e. in re spect of the years prior to the year in which the order is passed.

(2) And that Before Gujarat State is not legally entitled to recover any N.A. assessment in respect of lands encroached upon by others.

(3) It may be declared that the order of the Collector demanding an amount of Rs. 2,37,778-02ps. or any amount as ordered by the Collector by the Or der No. LND. 2573/63 dated 16-9-1963 is ultra vires illegal and inoperative.

(4) A permanent injunction be issued to the Gujarat State not to recover the aforesaid amount as well as not to levy or recover N.A. assessment as well as other charges complained of in this suit in future.

(5) The defendant may be ordered to pay the costs of the suit.

(6) Such other and further reliefs as may be granted as may be deemed necessary in the interests of justice.

3. When the suit was initially filed, the petitioner Corporation had affixed the court-fees stamp of Rs. 30/-. The petitioner Corporation was of the view that for the purposes of our-fees, the suit should be valued under Section 6 (iv)(j) of the Bombay Court Fees Act, 1959 (hereinafter referred to as 'the Act') and accordingly, the court-fees stamp of Rs. 30/-was affixed on the plaint.

4. The Inspecting Officer who acted under Section 12 of the Act, submitted his report to the learned Civil Judge on December 26, 186, in substance; the report was that the petitioner Corporation had paid injtfc fficient and improper Court-fees in the aforesaid suit. He stated that the petitioner Corporation had filed the suit for a declaration that the State of Gujarat is not entitled to recover from the petitioner Corporation any assessment with retrospective effect and for the other reliefs as stated hereinabove. He also reported that the present suit is for a specific relief of declaration of the right which is susceptible of monetary evaluation. He also reported that the petitioner Corporation have prayed for a declaration of the right that they are not liable to pay the amount of Rs. 2,37,778-02ps. being the amount of N.A. assessment with retrospect, effect as well as future N.A. assessment charges. The Inspecting Officer was of the view that the suit for the purposes of payment of court-fees falls under Section 6(iv)(a) of the Act as the suit is for declaration for a subs tantive right viz. that the defendants are not entitled to recover from the plaintiff Rs. 2,37,778-02ps. and for other 'reliefs. He also took the view, that without prejudice, what has been stated above, the present suit falls under Article 7 of Schedule 1 of the Act as a result his aforesaid view, the Inspecting Officer submitted the report to the learned Civil Judge, (Senior Division), Baroda and stated that the petitioner Corporation pay the deficit court-fees amount of Rs. 4,670/-.

5. The learned Civil Judge issued the notice to the Baroda Municipal Corporation under Section 12(5) of the Act and called upon them to show cause why they should not be directed to pay the deficit court-fees stamp-as stated by the Inspecting Officer by his report dated December 26, 1969. The learned trial Judge having heard the petitioner Corporation came; the conclusion that the petitioner Corporation, should pay the deficit court-fees of Rs. 4,670/- within a period of one month from the date the impugned order.

6. The petitioner Corporation was aggrieved by the impugned order and has filed the present revision application. This revision application was placed for hearing and disposal before our learned brother B.K. Mehta J., and by his referring judgment dated 29th April, 1975, has raised the following points for consideration of the Division Bench.

(1) Whether the suit for declaration that the State Government had no authority to levy N.A. assessment and for a declaration that the order of the Colletator in exercise of that power was ullru vires and illegal and for injunction restraining the enforcement of the recovery as well as the future recovery would involve the question of adjudication against recovery or not and, therefore, would be within the preview of Section 6(iv)(a) of the Bombay Court-fees Act?

(ii) If not, under what appropriate section the present suit would bear the court-fees.

7. It is under these circumstances that the present revision applica tion is placed before us for disposal.

8. Mr. N.R. Oza, the learned advocate appearing on behalf of the petitioner Corporation has drawn our attention to the relevant averments contained in the plaint.

9. In paragraph 10 of the plaint it is averred as follows

The Government cannot levy N.A. assessment if some plots are given for temporary use by charging a licence fee. These plots are not given permanently and hence the use of those plots as street lands is not permanently disturbed. So far as garden lands are concerned, those were given absolutely to the Municipality by the Baroda Government and hence no N.A. assessment can be charged for the same.

10. In paragraph 11 of the plaint ii is averred as follows:

Some lands were given to merchants for cabins. The Government was charging-N.A. assessment for such lands. But the cabins or other temporary things are removed, and their use as street land is restored and hence the Government cannot levy and charge N A. assessment. Such amount ought to be deducted.

11. In paragraph 12 of the Plaint it is averred as follows:

The Government cannot charge and recover N.A. assessment for the plot beneath the tomb on the west of Jubilee Garden. The tomb exists there from time Immemorial and the Municipality has no permitted anyone to construct that tomb.

12. In paragraph 13 of the plaint it is averred as follows:

The Government cannot claim more than 1/2 the amount of Income that the Municipality got from Azad Maidan. Rule 81 (3) allows the Government to charge at the maximum 1/2 the income (rent).

In paragraphs 14 and 15 of the plaint, the grievance of the petitioner Corporation is that it was not open to the Government to charge any local cess on the amount of N.A. assessment. Nor the Government can charge N.A. assessment for the bungalow in public park, Delhi pavilion and other properties.

13. In paragraph 16 of the plaint, the grievance of the petitioner Corporation is that it was not open to the Government to charge any N.A. assessment on small plots of land, particularly when the income derived from such plots is quite meagre.

14. In paragraph 17 of the plaint, the petitioner Corporation stated that some land was given to the Harijan Municipal employees and the Government cannot charge more than 1/2 of the income that the Municipality was actually deriving from such land. Suffice it to state that the petitioner Corporation stated that the action of the Collector in calling upon the petitioner Corporation by his order dated 16th September, 1963 to pay to the State a sum of Rs. 2,37,778-02ps. was illegal, without jurisdiction and void ab initio. Shortly stated on the said grounds, the petitioner Corporation claimed the aforesaid reliefs which we have set out in the earlier part of our judgment.

15. Mr. Oza in view of the averments set out in the plaint raised the following contention.

That the petitioner Corporation contends that the order of the Collector calling upon the petitioner Municipality to pay to the State the aforesaid amount of Rs. 2,37,778-02ps. is illegal, without jurisdiction and void. In this view of the matter, Mr. Oza submitted that the relief claimed by the plaintiff seeking a declaration in this behalf is not susceptible of monetary evaluation, and hence, the present suit would fall within the preview and scope of Section 6(iv)(j) of the Act and that the petitioner Corporation was justified in affixing the court-fees stamp of Rs. 30/- on the plaint which was filed in Civil Court

16. The course of the hearing of the present revision application, Mr. Oza raised the aforesaid contention only and now we proceed to dispose of the same.

17. Now in order to determine as to whether the present suit, for the purpose of court-fees, falls within the scope of Section 6(iv)(a) or 6(iv)(j) of the Act, we must necessarily take into consideration the contents of the relief clause as set out in paragraph 26 of the plaint.

18. The present suit is filed for a declaration to obtain adjudication against recovery of money from the petitioner Corporation and the alleged recovery is in respect of N.A. assessment - a tax, which is to be paid by the petitioner Corporation to the State Government. In the relief clause, there is inherent clear indication to show that the petitioner Corporation claimed the declaration that the State of Gujarat is not entitled to recover from the petitioner Corporation any assessment which was levied by the Collector in his demand notice of September 20, 1963, whereby the Collector called upon the petitioner Municipality to pay to the State of Gujarat a sum of Rs. 2,37,778-02ps. It is also equally significant to note, that in the relief clause, the petitioner Corporation by way of a consequential relief has prayed for a permanent injunction against the State of Gujarat restraining the State Government from recovering the aforesaid amount from the petitioner Corporation though specifically called upon by the Collector to pay the aforesaid amount to the State Government.

19. In view of the specific averments contained in the plaint and the relief clause as set out above, we may now conveniently refer to Section 6(iv)(a) of the Act, which is in the following terms.

(iv)(a) In suits for declaration to obtain adjudication against recovery of money from the plaintiff, whether the recovery is as land revenue or arrears of land revenue or tax or duty or cess or fee or fine or penalty or under any decree or order of a Court or any certificate or award other than under the Arbitration Act, 1940 or in any other manner - one forth of ad valorem fee leviable on the amount sought to be recovered according to the scale prescribed under Article 1 of Schedule 1 with a minimum fee of fifteen rupees:

Provided that when in addition any consequential relief other than possession sought, the amount of fie shill be one half of ad valorem fee on the amount sought to be recovered;

Provided further that when the consequential reliefs also sought include a relief for possession the amount of fee shall be the full ad valorem fee on the amount sought to be recovered;

20. Having regard to the aforesaid provisions of the court-fees Act, and bearing in mind the reliefs prayed for in the plaint in the present suit, it is clear to us, that the present suit is filed for a declaration to obtain the adjudication of the Collector against recovery of money from the petitioner Corporation, and that the Civil Court should grant that declaration viz. that the State of Gujarat is not entitled to recover from the petitioner-Corporation any N.A. assessment, which is levied retrospectively i.e. in respect of the years prior to the years in which the order was passed. It is equally clear to us, that in the instant case, the Collector had sent to the petitioner Corporation the notice of demand dated September 20, 1963 calling upon the petitioner Corporation to pay to the State of Gujarat the aforesaid amount of Rs. 2,37,178-02ps. being the various amounts due and payable to the State Government towards N.A. charges and other charges as set out in the plaint. It is equally clear 'o us, that as the Collector of Baroda had issued and served the aforesaid notice of demand on the petitioner Corporation, the petitioner corporation was anxious to obtain permanent injunction restraining the State of Gujarat to recover the aforesaid amount of Rs. 2,37,778-02, bearing in mind these facts, when we turn to the provisions of Section 6(iv)(a) of the Act, it is clear to us that the present suit clearly falls within the per-view of Section 6(iv)(a) of the Act. At this stage, we may once again repeat and state, that in essence and substance, the present suit is filed for a declaration that the State of Gujarat is not entitled to recover any amount levied by way of N.A. assessment from the petitioner Corporation, and that in that behalf there was adjudication by the Collector of Baroda as stated above.

21. The present suit also falls within the preview of Section 6(iv)(a) of the Act, as-in the instant case the Collector had already issued and served the notice of demand for the recovery of the aforesaid amount of Rs. 2, 37, 778-02ps. The present suit falls within the preview of Section 6(iv)(a) for the third reason also. The petitioner Corporation in the plaint has asked for a permanent injunction by way of a consequential permanent other than relief as to possession viz. the petitioner Corporation prayed for a permanent injunction restraining the State of Gujarat from recovering the aforesaid amount of Rs. 2,37,778-02Ps, being the amount payable to the State by way of N.A. assessment as well as other charges. In this view of the matter the first proviso to Section 6(iv)(a) is clearly attracted in the case, and hence, the present suit will fall within the preview and scope of Section 6(iv)(a) of the] Act for the purpose of determining the amount of court-fees payable on the plaint.

22. The provisions of Section 6(iv)(j) of the Act can only be attracted for the purpose of court-fees, if a declaration is sought with or without injunction or other consequential reliefs, and the subject matter in dispute is not susceptible of monetary evaluation, and in that behalf, there is no other provisions in the Act. Now in the instant case, as stated above; there is a specific provision for the purpose of court-fees, for the suits' like the present one. As-stated above, the necessary provisions in that behalf are to be found in Section 6(iv)(a) of the Act If specific provision is there for the purposes of determining the court fees for the suit in question, the petitioner Corporation cannot take the advantage of the provisions contained in Section 6(iv)(j) which in terms makes it explicit that it applies to suit 'which are not otherwise provided for by this Act'

23. For the reasons aforesaid, we are convinced that in the instant case, for the purpose of determining the court-fees payable on the suit in question, court-fees will have to be paid on the plaint as provided in Section 6(iv)(a) of the Act. We are also convinced that as there is a specific provision for paying the amount of court-fees in a suit of the present nature, it would be patently erroneous to have any recourse to the provisions of Section 6(iv)(j) of the Act. It may be mentioned at this stage, that the mere assertion in the plaint that the order of the Collector calling upon the petitioner Corporation to pay the aforesaid amount is void ab initio, will not, in our opinion, take out the suit from the preview and scope of Section 6(iv)(a) of the Act for the purpose of determining the amount of court fees. As a result of this discussion, we do not find any substance or merit in the contention raised by Mr. Oza.

24. But Mr. Oza invited our attention to the decision of this Court in Civil Revision Application No. 482 of 1962, decided on October 19, 1966 by Mr. Justice M.U. Shah, as he then was. In that case, a representative suit was filed by the plaintiffs against the Dohad Municipality, Dohad, on an allegation that the defendant Municipality had in 1960-61 appointed an officer for revision 'of the assessment list, which was originally prepared sometime in 1950 in pursuance of the Municipal Resolution dated November 7, 1949. It was alleged that the tax was recovered as per the original list upto the year 1959-60. It was alleged that in the year 1960-61 the Municipality had appointed an officer for revision of the assessment list which revision list, according to the plaint, was illegal, unauthorised-and ultra vires on the grounds stated in the plaint. In substance, that' suit was for a declaration that the said revised assessment of house-tax- was illegal, ultra vires and void. The plaintiff had also sought a permanent injunction to restrain the defendant Municipality from recovering the tax according to the revised assessment list. In that suit, the plaintiff had paid court-fees on the plaint of Rs. 30/- on the basis that the court-fees payable would be governed by Section 6(iv)(j) of the Act. The defendant Municipality resisted the suit of the plaintiff and contended that the amount to be recovered under the revised assessment list was Rs. 1,61,000 /-. It was further contended in that suit that the plaintiff had also asked for a permanent injunction restraining the defendant municipality from recovering the said amount. In this view of the matter, it was urged on behalf of the defendant Municipality that ad-valorem court fee was payable on the entire amount of house tax to be recovered under the revised assessment list. It was also contended by the defendant Municipality on the basis of the aforesaid facts, that the court-fees was payable as provided under Section 6(iv)(a) of the Act and not under Section 6(iv)(j) of the Act.

25. In the aforesaid suit, the learned trial Judge had taken the view, that having regard to the construction of the plaint read at a whole, the case was falling under Section 6(iv)(a) of the Act. The learned trial Judge had rejected the plaintiff's contention that for the purpose of court-fees payable on the suit the provisions under Section 6(iv)(j) would govern the case. The defendant Municipality was aggrieved by the said order passed by the trial Judge and filed the aforesaid revision application in this Court.

26. The learned Judge who decided the revision application observed as follows in course of his judgment.

Now, in order to determine the court-fees stamps chargeable on a plaint, the Court has to look to the substance of the plaint, construe the plaint, and the relief clause. The plaint clearly reveals that a revised assessment list has been prepared by the Municipality some time in year 1959-1960. The plaintiffs are aggrieved by this revised assessment list. The plaint allegation is that the revised assessment list has been prepared without following the prescribed procedure under the District Municipal Act. It is also alleged that the revised assessment list is illegal, unauthorised and ultra vires the District Municipal Act. The suit is filed by the two plaintiffs in a representative capacity. Para 9 of the plaint is the relief clause. The learned trial Judge has correctly translated in his order under revision as under:

for a declaration that the said revised assessment of house-tax is illegal and With out authority and is ultra vires and void and for a permanent injunction to restrain the defendant from recovering the tax according to the revised assessment list,

27. The learned Judge, in that case, took the view that reading the plaint, the plaintiffs had prayed for a declaration to set aside the revised assessment list. He also took the view that the declaration prayed for was a simpliciter, praying for the revised assessment list to be declared illegal, void and ultra vires as prayed for. In substance, he observed that the said declaration to obtain adjudication against recovery of money from the plaintiffs cannot be a declaration as contemplated by Section 6(iv)(a) of the Act. However, he also observed, the it is no doubt true, that the second relief of permanent injunction which has been sought by the plaintiff might affect the recovery of the tax. He took the view that the relief as to permanent injunction which has been sought by the plaintiff has nothing to do with the declaratory relief that was sought.

28. The learned Judge in course of the judgment further observed that the Act being a fiscal statute, it must be construed strictly; and the language of Section 6(iv)(a) clearly indicates it to be a specific provision for a suit for declaration to obtain adjudication of recovery of money, the proviso to Clause (a) deals only with the consequential relief and will be attracted only when the main relief of declaration is to obtain adjudication against recovery of money from the plaintiffs. The learned Judge farther observed, that in the case before him, the suit was for a declaration relating to the revised assessment list and for a consequential relief viz. a permanent injunction. As a result of his aforesaid view, he came to the conclusion that the subject matter of the dispute was not suspectable or monetary value. As a result of his aforesaid discussion, the learned Judge came to the conclusion that the aforesaid suit would be clearly governed by Clause (iv)(j) of Section 6 the Act. The learned Judge disagreed with the view of the learned (civil Judge and allowed the revision application.

29. With respect it is not possible for us to agree with the reasonings adopted by the learned Judge who decided the aforesaid revision application. The plaintiff in that suit had prayed for a declaration that the aforesaid revised assessment of house-tax was illegal and without authority and was ultra vires and void for permanent injunction to restrain the defendant municipality from recovering the tax according to the review assessment list.

30. We do not think that for the applicability or Section 6(iv)(a) it is necessary that the declaration sought by the plaintiff must be coupled with another declaration that the recovery cannot be made. When declaration is sought that the assessment list is invalid and injunction is sought to restrain the recovery in a suit seeking a declaration against recovery. What else is the purpose of the declaration? It is to seek declaration against the recovery even if the declaration itself does not advert to recovery, for it is the substance which matters and not the form. Thus, in essence and substance, the aforesaid suit was also a suit for a declaration to obtain adjudication against recovery of money from the plaintiffs and that recovery was in respect of house tax which was levied in pursuance to the revised assessment list. We may also emphasise at this stage that though the aforesaid suit was not filed for any consequential relief as to possession, but that suit was certainly filed also for obtaining a permanent injunction to restrain the defendant municipality from recovering the tax according to revised assessment list. In this view of the matter, it is difficult for us to agree with the aforesaid reasoning of the learned Judge when he took the view that the aforesaid suit would fall within the preview of Section 6(iv)(j) of the Act, for determining the amount of court-fees payable on the suit. Having regard to the averments to which the learned Judge has referred in his judgment and the relief clause in that suit, we are convinced beyond any doubt, that the aforesaid suit clearly fell within the preview of Section 6(iv)(a) of the Act for the purposes of paying the court fees payable on the suit.

31. For the reasons aforesaid, it is 'riot possible for us to agree or accept the reasoning of the learned Judge who decided Civil Revision App lication No. 482 of 1962 on October 19, 1966.

32. Mr. Qza invited our attention to several decisions of this Court, reported in Lalji Haridas v. Mulji Manilal VI. G.L.R. 855, Sahatkutnar v. State VIII G.L.R. 946, Inderlalv. Khialder XT. G.L.R. 948, Chandra-kant v. Ratanshi Damji XII G.L.R. 174. Mr. Oza; also invited our att ention to a decision in Jafferali v. S.D. Dossa and Co. 70 B.L.R., 359; but Mr: Oza very frankly stated at the bar that none of the aforesaid cases pertains to a suit which was filed for declaration to obtain adjudication against recovery of money from the plaintiff, whether the recovery is as land revenue or arrears of land revenue or tax or duty or cess or fee or fine or penalty or under any decree or order of a Court or any certificate or award other than under the Arbitration Act, 1940, or in any other manner. In substance, Mr. Oza stated that in none of the aforesaid cases the plaintiff claimed a relief as to the declaration as provided in Section 6(iv)(a) of the Act. In view of this statement made at the bar, we do not propose to refer to the aforesaid decisions for the disposal of the present revision application.

33. As a result of the aforesaid discussion, we are convinced that the learned trial Judge was right in calling upon the petitioner Corporation to pay the deficit court-fees stamp of Rs. 4670/-. For the reasons aforesaid, we do not find any substance or merit in the revision application filed by the petitioner Corporation. Accordingly, we confirm the order passed by the learned trial Judge and the rule issued by this Court is discharged with no order as to costs.

Mr Oza requested us that two month's time should be given to the petitioner Corporation to pay the amount of the aforesaid deficit court fees. We accordingly grant two month' time to the petitioner Corporation to pay the amount of deficit court-fees after the receipt of the writ by the trial Court.

34. Revision application fails and the rule is discharged with no order as to costs.


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