1. The Municipal Committee, Ajmer, presented a requisition under Section 234 of Municipal Regulation No. VI of 1925 seeking to realize a sum of Rs. 476/6/- from Shri Narain of Mohalla Nagra, Ajmer in respect of property No. XV/ 2095. A notice was issued to the opposite party and he filed a written objection. When examined by the Magistrate, the opposite party admitted ownership of the property and also receipt of the demand notice. Thereupon the learned Magistrate overruling the objection that a second application would not lie, directed the opposite party to pay the sum within three days failing which a distress warrant would be issued for realizing the same. Against that order, a revision application was filed in the court of the District Magistrate, but was unsuccessful. Now Shri Narain, the opposite party, has come up in revision to this Court. I have heard the learned Counsel for the applicant and the learned Counsel for the Municipal Committee.
2. The first point urged by the learned Counsel is that the learned Magistrate was wrong in proceeding in the matter as he had not been Satisfied that the requirements of Section 87 of Regulation 6 of 1925 had been satisfied. The learned Counsel refers me to the provisions of Section 234. Under that section the Magistrate had power to proceed further only if he is satisfied that any tax, water-rate or fee (other than a school fee) and any costs, damages or compensation or other money is payable or is claimable or is recoverable by a Committee. He has further to be satisfied that a demand has been made therefor in the manner prescribed by the rule.
So far as house-tax is concerned the relevant provision is contained in Rule 87 which prescribes that a bill for the amount stating the property which is taxed and the period for which the charge is made is to be delivered to the owner of the Immovable property. If the amount of this bill is not paid within 10 days of the delivery of the same, then a notice of demand has to be served and if the notice of demand is not complied within 7 days, then alone the Municipal Committee has the choice either to make a requisition to the Magistrate under Section 234 or a request to the Collector to realize the tax as an arrear of land revenue or to proceed in the civil court.
3. It appears to me that the proper procedure is not being followed in these applications. It would therefore be advantageous to state the procedure that should be followed. On receipt of the requisition the Magistrate should, before summoning the opposite party, call upon the Municipal Committee to furnish prima facie evidence of the Municipal Committee having served the opposite party with a bill for the amount stating the property and the period for which the charge is made. Then it should satisfy the Magistrate that a period of ten days has elapsed without payment having been made. The Committee should further satisfy the Magistrate that subsequently a notice of demand was duly served on the opposite party and that within seven days the opposite party neither paid the amount nor showed sufficient cause for non-payment.
In addition, the Magistrate should be satisfied that the amount had not been paid upto date. Then and then alone the learned Magistrate should issue process calling upon the opposite party to show cause why a distress warrant be not issued. Of course, it will be open to the opposite party to satisfy the Magistrate that despite the evidence and his prima facie satisfaction on the point, the preliminary steps had, in fact, not been taken by the Municipal Committee.
4. In the present case, the opposite party filed an objection. He urged that no proper demand notice had been served upon him. Later it was admitted that a demand notice had been served on him. In the revision application, the learned Counsel wishes to urge that the bill for the amount had not been proved to have been delivered to the applicant. This is a question of fact which should have been raised before the learned Magistrate. Apparently there was no dispute between the parties on this point in the court of the learned Magistrate. In this revision I cannot permit a new question of fact to be raised. The applicant not having raised this objection must be held to be precluded from raising it at this stage. The only objection that was taken was in regard to the service of demand notice. That is admitted to have been served. As such, it appears to me that the learned Magistrate was right in proceeding further in the matter.
5. The second point urged by the learned Counsel is that in a previous proceeding under Section 234 of Regulation VI of 1925, attempt was made to realize the tax for the years 1947-50. Those proceedings were dismissed, as there was no proof that a demand notice had been properly delivered to the opposite party. It is urged that it was not. competent for the learned Magistrate to take any steps for realization of the tax in respect of the years 1947-50. Reliance has been placed on certain remarks of my learned predecessor in - 'Municipal Committee, Ajmer v. Dal Chand' AIR 1951 Ajmer 38 (A). The relevant portion reads:
The revisional Court below held that the first application having been rejected, the Magistrate was within his rights to stay his hands and refuse to entertain a fresh application and that the Municipal Committee still had a remedy open to it by way of a regular suit before a competent civil Court. There appears to be no reason for me to hold otherwise. Even if it be taken for granted just for arguments' sake that technically the Municipal Committee could have put in a fresh application, then I do not see as to why in such a petty matter the accused-applicant be summoned again and again for no fault of his and harrassed. The Municipal Committee has still a remedy open to it by way of a regular suit before a competent Civil Court.
6. It is my misfortune to disagree with my learned predecessor and I am doing so with considerable hesitation. It appears to me that there is some misapprehension as to the nature of proceedings under Section 234 of Regulation VI of 1925, The proceedings before the Magistrate are neither criminal nor civil In nature. As stated above, the Municipal Committee, has under Regulation VI of 1925 a choice of three processes for realization of arrears of taxes. It may submit at requisition to the Magistrate under Section 234 or it may get the arrears realized as arrears of land revenue or it may proceed in the civil court. The mere fact that it chooses to take advantage of the provisions of Section 234 will not make the arrears of tax or other dues realisable as fine which is realized under Section 386 of the Code of Criminal Procedure.
The Magistrate is only the machinery and acts under the provisions of Section 234 and not under the Code of Criminal Procedure. Of course he will have to follow some procedure and I have already held that the procedure he must follow should be as nearly as possible the procedure laid down in the Code of Criminal Procedure. The proceedings remain merely proceedings for realization of a tax or amount due to a Municipal Committee and there is no reason why the provisions of Section 403 of the Code of Criminal Procedure or Section 11 of' of the Code of Civil Procedure should apply to these proceedings. Repeated applications may thus be made to the Magistrate just as repeated demands for payment may be made to the persons liable to pay the tax. I am not saying that in any case of proved harassment, it will not be open to the Magistrate to refuse to issue further process. But it does not appear to me that this was a case in which it could be said that the Municipal Committee was unnecessarily harassing the opposite party.
7. I am, therefore, of opinion that a second application for realization of the same tax would certainly lie to the Magistrate under Section 234 of Regulation VI of 1925. In cases of harassment, as also for other Just and sufficient cause the Magistrate would have the right to refuse to issue the process.
8. No other point has been pressed before me.
9. Accordingly, I see no force in this revision and dismiss it.