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Madura Municipality Represented by the Municipal Commissioner Vs. P.M.S. Muthusami Chettiar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal No. 310 of 1949
Judge
Reported inAIR1954Mad454
ActsMadras Town Planning Act, 1920 - Sections 14, 23, 25, 26, 27, 27(1) and 29; Code of Civil Procedure (CPC) , 1908 - Sections 9; District Municipality Act - Sections 354(2)
AppellantMadura Municipality Represented by the Municipal Commissioner
RespondentP.M.S. Muthusami Chettiar
Appellant AdvocateK. Kutti Krishna Menon, Adv.
Respondent AdvocateK. Rajah Ayyar and ;K. Vaitheeswaran, Advs.
DispositionAppeal dismissed
Cases ReferredCorporation of Madras v. Balakrishna Mehta
Excerpt:
madras town-planning act (vii of 1920), section 23--betterment contribution--right to levy--municipality should prove increase in value by reason of the scheme--sections 14(6) and 26(b), scope of--scheme--execution, commencement of--betterment levy--suit for declaration of illegality--code of civil procedure (act v of 1908), section 9, scope of--civil court, jurisdiction of--section 69 and rule 65 of town-planning act--no bar to suit;the right to levy betterment contribution, which is vested in a municipality under section 23 of the madras town-planning act (vii of 1920), depends wholly and entirely upon the municipality being able to prove and establish the fact that the properties comprised i the scheme have actually increased in value or are likely to increase in value by reason of the.....1. i need not recapitulate the facts which have been detailed in extenso in the judgment of my learned brother. but i wish to add only a few words on the question of law that has been elaborately argued at the bar.2. the learned judge's finding that the introduction of the labour scheme is within the purview of the powers of the municipality and is therefore not 'ultra vires' has not been questioned before us; nor is the opinion that the formalities as provided under the madras town planning act, 1920, have been complied with, controverted. thus the only question which arises for determination is whether the levy of the betterment tax is unreasonable and excessive and whether the fixation of the betterment tax was done in an arbitrary manner. in considering this question the basic.....
Judgment:
1. I need not recapitulate the facts which have been detailed in extenso in the judgment of my learned brother. But I wish to add only a few words on the question of law that has been elaborately argued at the Bar.

2. The learned Judge's finding that the introduction of the labour scheme is within the purview of the powers of the municipality and is therefore not 'ultra vires' has not been questioned before us; nor is the opinion that the formalities as provided under the Madras Town Planning Act, 1920, have been complied with, controverted. Thus the only question which arises for determination is whether the levy of the betterment tax is unreasonable and excessive and whether the fixation of the betterment tax was done in an arbitrary manner. In considering this question the basic question of the jurisdiction of the Court to enquire into the right of levy of betterment tax will have to be decided in the first instance. On behalf of the appellant, reliance is placed upon Sections 24, 26 and 27 of the Madras Town Planning Act, 1920, as well as Rule 58-A and Rule 65 framed under Section 44 of the Act.

Section 23 empowers the municipal council to levy betterment contribution where by the making of any town planning scheme the value of the property has increased or is likely to increase, and such a claim has to be made within the time limited by the scheme not being less than three months after the date of publication of a notification of the Government sanctioning the scheme under Section 14; and the betterment contribution shall be recovered from the owner of the property annually for such term of years and at such uniform percentage of the increase in value not exceeding ten per cent, as may be fixed In the scheme. There is a proviso that the aggregate amount of the contribution so recovered shall not exceed one half of the maximum increase in valuer during the term of years as ascertained under the latter provision of the statute. In the present case, as has been considered by ray learned brother, betterment contributions were for the years 1945-46 and 1946-47.

The Municipality's argument that the Civil Courts are deprived of the power to question the legality of the levy is founded upon a joint reading of Sections 24 and 26 and Rule 65. The calculation of the betterment levy is laid down in Section 24 (b) and when betterment contribution is calculated under that section, it is open to the owner of the property under Section 26, if in any particular year he objects to the amount of such contribution on the ground that the market value estimated under Clause (b) of Section 24 is excessive, to state the market value which he contends is correct and then within thirty days of the date on which the determination of his objection or appeal becomes final by written notice, he can require the municipal council to acquire the property together with any buildings or other works that may exist thereon. Clause (2) of Section 26 makes it obligatory upon the municipal council either to acquire the property or to accept the market value as stated by the owner and revise its assessment of the betterment contribution in accordance therewith. If under Clause (3) of Section 26 the municipal council elects to acquire the property the compensation payable shall be determined according to the provisions of the Land Acquisition Act, 1894, which may in suitable cases be modified by the provisions of Sections 34 and 35 of the Madras Town Planning Act.

We are now asked to hold that the only remedy which the owner of the" property has is to apply to the Municipality under Section 26 either to acquire the property according to the provisions of the Land Acquisition Act or to accept the valuation given by the owner and revise the assessment accordingly. Rule 65 reads as follows:

"The assessment or demand of any betterment contribution when no appeal is made as hereinbefore provided, and when such an appeal is made, the adjudication of the council thereon shall be final."

What is the nature of the finality attached to the assessment contemplated under Rule 65 is the question for consideration.

The appellant's counsel also invoked Section 354 of the Madras District Municipalities Act, Clause (2). but that section can only apply where the assessment or the demand made was under the authority of the District Municipalities Act. It does not state that any sum of money collected by the Municipality under the powers conferred by statutes other than the District Municipalities Act cannot be questioned in accordance with that section. There is specific reference that the collection or demand should be under the authority of the District Municipalities Act. Therefore Section 354 of the District Municipalities Act cannot in our opinion be applied to justify the appellant's claim.

3. A line of cases which lay down the principle that where a statute confers certain rights and prescribes a particular mode of remedying the encroachments upon such rights, the ordinary civil Courts have no jurisdiction to entertain the disputes, has been put forward as the basis of the contention in favour of the appellant.

4. The most authoritative pronouncement on the subject in recent years is contained in the Judgment of the Privy Council in -- 'Secy. of State v. Mask and Co.', AIR 1940 PC 105 (A) in which their Lordships have taken care to point out that the determination of such questions must rest on the terms of the particular statute, and decisions on other statutory provisions would not be of much material assistance, except in so far as general principles of construction are laid down. They refer to the Judgment of Willes J. in --Wolverhampton New Water Works Co. v. Hawkesford', (1859) 141 ER 486 (B), which was approved by the House of Lords in -- 'Neville v. London "Express" Newspapers Ltd.', (1919) AC 368 (C).

In the former case Willes J. formulates the three classes of cases into which the question of the ousting of jurisdiction may fall to be considered. The third class as stated by the learned Judge is as follows:

"Where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it....... .With respect to that class it has always been held, that the party must adopt the form of remedy given by the statute."

The principles laid down by Lord Thankerton have been summarised and followed in -- Secy. of State v. Jagannatham', AIR 1941 Mad 530 (D) and it is unnecessary to repeat them here in any detail.

5. Quite a large body of case law on this subject has been brought to our notice but I do not think it essential to discuss any of these cases. When once we clearly understand the principle that underlies, the application of the same is not beset with any difficulty. It is a truism to say that the exclusion of the jurisdiction of a civil Court to redress the grievance of a subject who suffers from a liability due to the act of another, either as a result of statute, or otherwise, should be explicitly expressed, or clearly implied, and so far as the Madras Town Planning Act, 1820 is concerned, there is nowhere any reference to the exclusion of the jurisdiction of civil Courts. Even by necessary implication, it is impossible to find any exclusion. The sole question is whether there is any machinery in the Act whereby it is possible to assess an increase in the value of any property, or the likelihood of such property increasing in value, by the making of a Town Planning Scheme, There is no section of the Act which enables the: owner of property to agitate before any authority, competent to decide the question of an increase or likelihood of an increase. In such circumstances, the decisions laying down that where a statute creates a liability which causes an injury to a citizen and the redress of such grievance is afforded by a special remedy provided by the same statute, then the civil Courts have no jurisdiction to interfere, cannot be applied to the present case.

The cases cited on this topic viz., -- 'Kamayya v. Leman, 2 Mad 37 (E); -- 'Municipal Council, Nellore v. Rangayya', 13 Mad 10 (F); -- 'Nataraja Mudaliar v. Municipal Council of Mayavaram', 36 Mad 120 (G); -- 'Taluk Board, Bandar v. Mallikarjuna Prasada', AIR 1921 Mad 92 (H); -- 'Municipal Chairman, Virudupatti v. Saravana Pillai', AIR 1920 Mad 379 (I); -- 'Krishnamachariar v. Municipal Council, Srirangam', AIR 1926 Mad 448 (J); -- 'Lakshmanan Chetti v. Municipal Council, Trichinopoly', AIR 1928 Mad 208 (K); --'Pattarani Purnachendra Mala Jamna v. President, Taluk Board, Chicacole', 113 Ind Gas 560 (Mad) (L); -- 'Commissioner, Municipal Council, Vizgapatam v. Siddeswara Devi', AIR 1949 Mad 189 (M); -- 'Udipi Municipal Council v. Vasudevacharya', (N) can have no application to the present case.

6. The true principle, in my view, is to ascertain the basic foundation on which the jurisdiction to levy betterment contribution can be rested. In view of the fact that there is no dispute regarding the value of the land at the time the betterment contribution was levied, the question of a resort to the arbitrator cannot arise for the reason that the arbitrator is not empowered to find out whether in any particular year the value of the land has increased or is likely to increase in order that a higher betterment contribution can be levied that year. All that the arbitrator can decide is what the value of the land was at the date of the notification and therefore it is not possible for the owner of the property to approach the arbitrator for assessing the value at different times as and when the Municipal authorities levy betterment contribution. It is only in cases where the betterment contribution is levied on the basis of a lesser market value of the property that the owner is unable, under Section 26, to compel the Municipal Council to acquire the property on a market value which he fixes. Such a state of things cannot happen in this case because the respondent does not dispute the value of the land.

7. Can we therefore say that the civil Courts have no jurisdiction to find whether the value of the land has increased, or is likely to increase? As I have already stated, since there is no machinery fixed by the statute for ascertainment of that figure, the civil Courts must certainly have vested in them the right to do so.

8. The respondent's counsel relied upon the statement of objects and reasons for the bill which subsequently became the Town Planning Act wherein we find the following statement:

"The bill proposes to assist Municipalities by applying the principle of betterment contribution or special assessment and charging part of constructing roads and other works to the holders of property receiving immediate and direct benefit from them."

The stated object of this part of the legislation is that a holder of property must receive immediate and direct benefit by the work undertaken by the Municipality and a period of twenty years is given for the implementation of the scheme. If therefore the Municipality collects the betterment tax for a period of 19 years, without taking any steps to construct works from which benefits can be received by the holders of property, and after 20 years nothing is done, there is no provision in the Act for the holders paying the tax for getting back the same. One need hardly say that it is not possible to view with equanimity a state of things like that.

It must therefore be clear that the burden is on the municipality to lay the foundation for the levy of the betterment tax for any year, if the same has been disputed, by showing that the arket value has increased, or is likely to increase. Where, therefore, the Court is convinced that the municipality is acting in excess of its authority by levying the betterment tax, even though the market Value of the land has not increased as result of any work undertaken by it, or is not likely to increase in the future as a result of any proposed work, then it is open to the aggrieved party to have recourse to a civil Court to get redress. See the observations of Lord Reading C. J. in -- 'Rex v. Brixton Prison (Governor), Sarno Ex parte', 1916-2 KB 742 at p. 749 (O).

"If we were of opinion that the powers were being misused, we should be able to deal with the matter. In other words if it was clear that an act was done by the executive with the intention of misusing those powers, this court would have Jurisdiction to deal with the matter."

To a similar effect are the observations of Lord Esher M. R. in the -- 'Reg v. Commrs. for Special Purposes of the Income-tax', (1888) 21 QBD 313 at pp. 319 and 320 (P):

"When an inferior Court or Tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the Jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction,"

Varadachariar J. has discussed these and other cases in -- 'Secretary of State v. Meyyappa Chettiar', AIR 1937 Mad 241 (Q) and quotes a passage from -- 'Reg v. Bolton', 1841-1 QB 66 (R) to the effect that the test of jurisdiction was whether or not the authority in question had power to enter upon the enquiry, not whether its conclusions in the course of it were true or false. The learned Judge later on discusses the applicability of the provision contained in Section 67 of the Income-tax Act. It is unnecessary for the purpose of this case to consider the various aspects of the question for there is no express prohibition in the present statute ousting the civil Courts' jurisdiction.

A recent decision of the Bombay High Court in -- 'State of Bombay v. Maharashtra Sugar Mills Ltd.', (R) may also be

referred to, As I am of opinion that the jurisdiction of the civil Courts to find out whether there has been an increase in the market value or whether there is a likelihood of an increase in the market value has not been ousted the suit as framed is maintainable. The other points have been discussed by my learned brother in extenso and I do not wish to repeat the same. I agree with my learned brother that the appeal should be dismissed with costs.

Basheer Ahmed Sayeed J.

9. Defendant, who is aggrieved by the judgment and decree of the learned Subordinate Judge of Mathurai, who decreed the suit of the plaintiff for refund of a sum of Rs. 1898-12-0 from the defendant-municipality, on the ground that the levy of the betterment tax on the suit properties was wholly illegal, void and 'ultra vires' of the powers of the defendant municipality, has preferred this appeal.

10. The facts of the case may briefly be stated as follows: Three items of suit properties, namely S. No. 32/1, measuring 2.9 acres, S. No. 40/1 measuring 0. 68 acres and S. No. 100/5 measuring 0.82 acres belonging to the plaintiff are mamool wet lands, irrigated by the ayan Madakulam tank, and situated outside the Municipal limits of the Mathurai Municipality. On this land, paddy crop is raised year after year and the plaintiff has been paying cist to the Government on the basis of wet assessment in respect of paddy cultivation. They have not been assessed to any tax by the Mathurai Municipality and the lands have not been classified as house sites by the Municipality at any time. These lands are also surrounded by irrigation channels and paddy fields on all sides. No streets, no roads and no approaches are available in respect of these lands. Nor is there any municipal water supply, drainage, lighting or other amenities. In their present condition, the lands could not be utilised for building or residential purposes.

By notification dated 15-1-1937 in G. O. Ms. No. 202 L. S. G. under Section 12 of the Madras Town Planning Act, the Government directed the Mathurai municipality to prepare, publish and submit for their sanction, before 31-12-1937, a town planning scheme in respect of areas specified in the said notification, which included, among

others, the suit items as well. The town planning scheme was styled as "Sri Meenakshi Mills Labour Housing Town Planning Scheme", Madakulam village, outside the Municipal limits and the total extent comprised in the said town planning scheme was 46 acres within the boundaries given in the said notification.

In pursuance of this direction, the Mathurai Municipality would appear to have prepared, published and submitted for sanction, a scheme styled the "Sri Meenakshi Mills Labour Housing Scheme" including the three suit items. This scheme received the sanction of the Government in G. O. No. 938 dated 21-4-1943 under Section 14 (3) of the Madras Town Planning Act of 1920. In this order, it is stated that the scheme was finally approved of by the Mathurai Municipal Council, in its resolution dated 14-4-1942 and the schedule of the lands was shown in Appendix 1 to this order. This sanction was accordingly published as Appendix 2 to the said order, in the Fort St. George Gazette. This order further directed that a copy of the scheme should be placed for inspection by the public at the municipal office during office hours for a period of six months from 26-6-1943.

11. It is clear that though this scheme was prepared as early as 1937 and was finally sanctioned by the Government on 21-4-1943, until the date of the suit or even thereafter, the scheme was not executed in accordance with the provisions made thereunder. None of the items of improvements or amenities provided in the scheme appear to have been actually brought into existence till the date of suit or even thereafter. No funds appear to have been spent on this scheme by the Mathurai Municipality. There is nothing unusual in this, for it is rarely that Municipalities could command the resources to put through the schemes they prepare and publish.

12. When such was the position, on 18-10-1944, the Commissioner of the Mathurai Municipality, on behalf of the Municipal Council filed a claim in form No. 20 prescribed under Rule 55 of the rules framed under Section 44 of the Madras Town Planning Act before the Arbitrator appointed for the "Sri Meenakshi Mills Labour Housing Town Planning Scheme."

In that claim the Commissioner stated that the properties described in Col. 2 of the statement appended to the claim have increased in value or are likely to increase in value by the making of Sri Meenakshi Mills Labour Housing Town Planning Scheme, that the Council was entitled under Clause 22 of the Scheme to recover betterment contribution from the owners of the lands at the rates determined in the scheme, that the value of each such property on 15-1-1937 was as shown against it in Col. 4 of the statement appended and the Commissioner requested that the Arbitrator should be pleased under Section 27 of the Act to declare the liability of these properties for betterment contribution and to determine the market value of each property on the date of the Notification referred to above in pursuance of the resolution of the Council dated 11-10-1944. The statement of claim for betterment appended to the said claim gave the various particulars required under Rule 55 of the Act and set out also the market value.

13. The Arbitrator, who enquired into the said claim of the Mathurai Municipality, for betterment levy, after giving notice to the concerned parties, including the plaintiff in the suit, gave his award in respect of 3 items on 24th, 25th and 29th of January 1945 respectively. These are Exs. B. 9, B. 7 and B. 8. In these exhibits, the suit properties described therein were declared to be bound to levy of betterment tax under Section 27 of the Town Planning Act and that the value of the site as on 15-1-1937 was fixed at Rs. 23 per cent. for the first item bearing S. No. 32/1 and at Rs. 20 per cent. in respect of S. Nos. 40/1 and 100/5. It may be noted that the market value of these items was fixed on the statement given by the. agent of the plaintiff in the suit before the Arbitrator and there appeared to be no controversy over the same. These statements are Exs. B.4 and B.3.

14. Thereafter by notices served on 28-11-1945, namely, Exs. A. 15 to A. 17 by the Mathurat Municipality to the plaintiff, the plaintiff was informed that the assessment in respect of his property bearing S. No. 40/1 situated in the Meenakshi Mills Labour Housing Town Planning Scheme has been increased to the sum of Rs. 102 for the half year, commencing from 1-4-1945, that In case the plaintiff was dissatisfied with the assessment fixed, he could present a revision petition to the Municipality within 30 days from the date of the service of the notice and that if no complaint or objection to the assessment was made within the time mentioned, the assessment would be final.

The amount of betterment contribution in respect of S. No. 32/1 was fixed at Rs. 315 and that in respect of S. No. 100/5 was fixed at Rs. 30-12-0 by similar other notices. The plaintiff paid these amounts claimed by the Municipality, as could be gathered from Exs. A. 4, A. 5 and A. 6 and Exs. A. 1 to A. 3, for the said year 1945-46 and filed revision and appeal petitions against the levy of betterment contribution for that year. These appeal petitions are respectively, Exs. A. 19 to A. 21. All these appeal petitions would appear to have been rejected by the resolution of the Municipal Council as noted in the said exhibits. The betterment contribution claimed by the Municipality for the year 1946-47 would also appear to have been similarly paid by the plaintiff in pursuance of the notices issued by the Municipality making a demand for the same. After paying the betterment contribution, the plaintiff again put in a revision petition before the Commissioner, Mathurai Municipality, against the Imposition of betterment tax. Even these petitions seemed to have shared the same fate as the prior ones. The Municipal Commissioner refused to cancel the assessment and stated that no further reference on the subject will be entertained. Vide Ex. A. 22. Appeals to the Council must have also been similarly rejected in due course.

15. Seeing that the revision petitions filed before the Commissioner and the appeals preferred against the orders of the Commissioner to the Municipal Council were of no avail, and that the Municipality was bent upon retaining the amounts collected from the plaintiff and was Intending to impose further assessment by way of betterment tax on the plaintiff, the plaintiff filed the suit, out of which this appeal has arisen, for a refund of an aggregate amount of Rs. 1898-12-0 collected from him, on the grounds set out in the plaint.

16. In the plaint, the plaintiff averred that the proceedings under the Town Planning Act were Illegal, void and ultra vires, as no increase or likelihood of Increase in the value of the suit properties could be stated to have been due to the mating of the alleged Sri Meenakshi Mills Labour Housing Scheme, that it-was learnt that the scheme itself had been abandoned and that the arbitration proceedings under it could not affect the suit properties, and that the defendant-Municipality had no power to levy betterment contribution within the meaning of Section 23 of the Madras Town Planning Act and, that, therefore, the levy was illegal and void and 'ultra vires', and that no scheme was made as stated in Section 23 of the Madras Town Planning Act, that the procedure laid down under the Act had not been adhered to in any respect.

17. The defence to the plaint allegations was that the suit properties lay adjacent to the Municipal limits and was included in the Town Planning Scheme, namely, Sri Meenakshi Mills Labour Housing Scheme, that to the east of S. No. 32/1, which is one of the items involved in the suit, there are a number of houses constructed, that on all the four sides of this S. No. namely, 32/1, broad roads have been provided for in the scheme and that the land covered by this S. No. was a very good house site In respect of which there was a great demand in the locality. The defendant further averred that broad roads had been provided for on the 3 sides of the other S. Nos. as well, and that the same can be used as house sites by reason of the provision for roads in the scheme. The suit plots can very well be utilised for building houses for residential purposes, that consequently the value of the suit property had already appreciated and was likely to appreciate by the making of the Town Planning Scheme and that, therefore, the suit properties were liable to betterment tax or contribution, that the decision of the arbitrator giving the valuation of the properties as on 15-1-1937 was final, the revision petitions filed by the plaintiff having been rejected on proper grounds, that all the formal requirements under the Act had been properly observed, that the scheme was binding and that the same was not abandoned.

The defendant further contended that the plaintiff haying submitted to the proceedings before the arbitrator could not now question the legality of the said proceedings, and he not having appealed against the decision of the Arbitrator, the Arbitrator's award had become final and that Section 29 of the Town Planning Act precluded the plaintiff from challenging the levy of betterment tax as not sustainable.

18. The learned Subordinate Judge after framing 6 issues, the material ones among them being whether the levy of betterment tax was illegal, void and 'ultra vires' of the powers of the defendant, and whether the suit was barred under Section 29 of the Town Planning Act, and on a consideration of the oral and documentary evidence adduced on behalf of both the parties, decreed the suit, holding that the levy of betterment tax was unreasonable and excessive and that the same was fixed in an arbitrary manner by the defendant Municipality, that the plaintiff will be entitled to a refund of the sum from the defendant and that in so far as the suit was not questioning the award but questioning only the right of the Municipality for the levy of the betterment tax for the years 1945-46 and 1946-47, there was no question of the suit being barred by Section 29 of the Madras Town Planning Act. Against this decision the defendant-Municipality has preferred this appeal.

19. Mr. Balakrishna Eradi, appearing for Mr. Kuttikrishna Menon at the earlier stages of the hearing of this appeal and Mr. Kutti Krishna Menon himself appearing at the later stages on behalf of the appellant, contended before us that the respondent was not entitled to question the legality of assessment of the levy of betterment tax In view of Section 29 of the Madras Town Planning Act. Section 29 of the Act is to the following effect: 1 "Any party aggrieved by any decision of the arbitrator under Clause (c) or (d) of Sub-section (i) of Section 27 may within three months from the date of the communication of such decision appeal to the District Judge concerned in cases arising outside the City of Madras and to the Chief Judge of the Court of Small Causes in cases arising in City of Madras, 2 The decision of the arbitrator under Clause (c) or Clause (d) of Sub-section (1) of Section 27, and, when an appeal has been preferred under Sub-section (i) the decision on such appeal shall be read as part of the scheme sanctioned under Section 14 and shall be final and binding on all persons."

20. It is now argued that not having preferred any appeal under the Sub-clause (1) of Section 29, It is not open to the respondent to question the decision of the Arbitrator under which the suit properties had been made liable to the levy of betterment contribution, and that decision of the Arbitrator, which has not been taken on appeal therefore, has become final and it formed part of the scheme under Section 14 and is binding on both the municipality as well as the plaintiff-respondent. When once the arbitrator has fixed the market value of the properties on the day when the scheme was first required to be prepared and published and when the Arbitrator had given the decision that the suit properties were liable to betterment contribution as stated in his award, it is urged that what the Municipality had proceeded to do further was only to enforce the award.

The method and procedure for the enforcement of the said award, according to the learned counsel for the appellant Municipality, is laid down. in Sections 24 and 25 of the Act, and that If any owner of any property objects to the payment of such contribution, he should adopt the procedure laid down in Section 25(2) and Section 26 of the Town Planning Act. In this case, the plaintiff having exhausted the remedies available to him under Sub-clause (2) of Section 25, and not having had recourse to the reme-die.3 made available to him under Section 26 of the Act, it is contended by the learned counsel for the appellant, that it was no more possible for him to approach the civil court for setting aside the claim of the Municipality for betterment contribution or to declare the same as illegal and void, or to ask for a refund of the amount already collected from the plaintiff by the Municipality.

21. The learned counsel for the appellant has cited numerous authorities in support of his contention that the suit before the learned Subordinate Judge was not maintainable and that apart from Section 29, Section 25 of the Town Planning Act read with Section 354(2) of the District Municipalities Act also excluded the jurisdiction of the civil court in the matter of the levy of the betterment contribution by the municipality against the owner of properties included in any Town Planning Scheme duly made under the provisions of the Act.

Before we could discuss how far these authorities relied upon by the learned counsel for the appellant are applicable to the facts in this case, it may be necessary to determine clearly as to what exactly is the scope of the suit that has been brought by the plaintiff and the relief that he claims against the Municipality. For this purpose an examination of the relevant sections, which had been referred to in course of the arguments by both the parties, would be necessary.

22. So far as the preparation, publication and sanction of the scheme and the application by the Municipality under Rule 55 framed under the Town Planning Act are concerned, there is no controversy. But the real point that arises for consideration, in the first instance, is what is the scope and the real implications of the award made by the arbitrator. Under Section 27, Sub-section (i) Sub-clause (d), it is the duty of the arbitrator appointed by the Government to determine 'in reference to the claims made' the properties which are 'liable' to the betterment contribution under Section 23 and to estimate and record their market value at the date of the Notification under Section 10 or Section 12, as the case may be, in accordance with the provisions of Clause (a) of Section 24. This Sub-clause (d) of Section 27 refers to Sections 23 and 24, apart from Sections 10 and 12, which latter have relevance only to the date with reference to which the market value of the properties has to be fixed.

Under this sub-clause it is plain, that the Arbitrator has to do two things. In the first place, he has to fix the market value, at the date of the publication of the notification under Section 10 or Section 12, in respect of each of the properties on which the contribution may be levied under Section 23. This he has to do in accordance with Section 24 which lays down that the market value shall be estimated without reference to the improvements contemplated in the scheme. That is to say, it is the duty of the Arbitrator to fix the valuation of the property as on the date when the scheme was first contemplated and before anything was sought to be done by way of amenities or improvements under the scheme in respect of the lands. In the second place, the arbitrator has to determine, in reference to the claims made, the properties which are liable to the betterment contribution under Section 23. Now Section 23 of the Town Planning Act lays down that,

"Where by the making of any town-planning scheme the value of any property has increased or is likely to Increase, the municipal council, if it makes a claim for the purpose, within the time if any limited by a scheme, not being less than three months after the date of publication of a notification of the Provincial Government sanctioning a scheme under Section 14, shall be entitled to recover from the owner of such property art annual betterment contribution of the increase in value not exceeding ten per centum as may be fixed in the scheme."

The proviso to the section is to the following effect :

"Provided that the aggregate amount of the contribution so recovered shall not exceed one half of the maximum increase in value during the aforesaid term of years as ascertained under the next following section."

This proviso is not very material for a consideration of the question raised before us In this appeal. We might however note in passing, that the observation of the learned Subordinate Judge in paragraph 9 of his judgment to the effect that "since the Municipality is entitled to levy the contribution till 1937, the result would be that the' contribution would exceed even the market value of the properties" is objected to by the learned counsel for the appellant as being Inconsistent with what is laid down In the said proviso. We may point out that there is not much force in the objection raised by the learned counsel, for the simple reason that there is nothing in this proviso which prevents a contingency happening whereby the contribution recovered by the Municipality may actually exceed the market value of the property as it stood when the scheme came to be published; for the proviso only restricts the right of the Municipality to recover one half of the 'maximum increase in the Value" during a certain number of years for which the contribution is leviable. It is not inconceivable that this one half of the maximum increase in value during a certain period of years might exceed the actual market value of the property as it was estimated to be at the time when the Town Planning Scheme itself was notified.

23. That apart, the object of Section 23 of the Town Planning Act appears to be to provide for the right of the Municipality to recover from the owner of any property included in any scheme, an annual betterment contribution for the term of years provided for in the scheme and at such percentage of the increase in value as is contemplated in the scheme and not exceeding 10 per cent. This right of the Municipality to claim an annual betterment contribution is conditioned by what is stated in the first part of the section, namely, "where by the making of any town planning scheme the value of any property has increased or is likely to Increase". The intention is that it is only when this condition is fulfilled that the Municipality becomes entitled to claim an annual betterment contribution from the owner of the properties included in the scheme. The Municipality, therefore, can make a claim for betterment contribution from the owner of the property included in the scheme, only if and when the value of the property included in the scheme has increased or is likely to increase by the making of any town planning scheme. In other words, if the value of any property has not increased or is not likely to increase, the Municipal council concerned may not be entitled to make any claim in that behalf and much less to recover any annual betterment contribution from any owner of property included in any scheme.

The right to recover betterment contribution could, therefore, arise only from the fact of the value of the property having increased or its being likely to increase by the making of the scheme. This right to recover annual betterment contribution from the owner of the property included in the scheme is also conditioned by a further fact that the municipal council should make a claim for the purpose within the time, if any limited by the scheme, not being less than 3 months after the publication of a notification by the Provincial Government sanctioning the scheme under Section 14. Therefore the language of the section indicates that (I) in order to be entitled to recover from the owner of any property included in the scheme an annual betterment contribution, according to the terms laid down in the section, the municipal council must make the claim for the purpose of recovering such contribution within the term specified in the scheme; and (ii) that such claim can be made only when, by the making of any town planning scheme, the value of the property has Increased or is likely to Increase.

On a proper interpretation of this section, it is quite possible for the Municipal Council not to make any claim for the purpose of recovering any contribution. That would be the case where, by the making of any town planning Scheme, the value of the property has not increased or is not likely to increase.

24. Therefore the fact, whether any property has increased in value or is likely to increase in value by the making of any town planning scheme is the governing factor and that is what entitled the municipal council to recover the betterment contribution. But neither the section nor any other sections in the Town Planning Act make it clear as to who should decide on this important question. Prom the rules framed under the Town planning Act, however, it is to be gathered that this fact is left to the decision of the Municipal council and the discretion to make a claim or not on that basis seems at so to be left to the Municipal Council. The scheme of the Act also seems to be that when the municipal council once comes to the conclusion that the value of any property has, by reason of the making of the town planning scheme, increased, or is likely to increase, it can make a claim for the purpose of recovering an annual betterment contribution in accordance with the provisions made in the said scheme.

After taking such a decision, then the Municipality has to make a claim for betterment contribution and when that claim is made, it is placed before the Arbitrator appointed under Section 27 of the Act and that Arbitrator is then called upon to determine, in reference to the claims made by the Municipality, the properties which are liable to betterment contribution and estimate and record the market value of the property at the date of the notification in accordance with the provision of Section 24(a). A reading of Ex. B.6, which is an application made by the Municipal Council in the present case in form 20 prescribed under the rules framed under the Town Planning Act, would clearly show that so far as the question of the properties having increased in value or their being likely to increase in value by the making of the "Sri Meenakshi Mills Labour Housing scheme" is concerned, the decision has already been made by the Municipal council itself without reference to any other authority and thereupon the council declares or claims that it is entitled under Clause 22 of the scheme to recover the betterment contribution from the owners of the properties according to the terms and conditions laid down in the provisions of the scheme, and it also further declares that the valuation of the property on the date of the publication of the notification under Section 10 or Section 12 as the case may be, was Rs. 20 per cent in respect of the suit properties. Having taken such a decision, namely, that the properties have increased in value or are likely to increase in value and having furnished the particulars required and also declaring its right to recover betterment contribution, the application proceeds to request the arbitrator under Section 27

"to declare the liability of the suit properties for betterment contribution and to determine the market value of each property on the publication of the notification referred to above."

Thereupon, after notice to the parties concerned and after recording such evidence as has been adduced by the parties, as to the market value, the arbitrator proceeds to give the award. This application does not call upon the arbitrator to decide on the question of the value having increased or not, but it takes it for granted that the value has increased.

25. In this connection, it is relevant to notice that in Ex. B. 4 and B. 3 which are statements filed by the plaintiff, no question is raised by the plaintiff either as to the fact or otherwise, that the properties have increased in value or are likely to increase in value or their liability to betterment contribution, by reason of the making of the scheme. The plaintiff does not also raise any point as to the right of the municipal council to make any claim for the betterment contribution from him in respect of the properties. All that the plaintiff purports to deal with in these two exhibits, is to confine himself to the extent of the property comprised in the claim and his ownership thereto, their present value with reference to the value of the property in the neighbourhood and also the value of the property as it stood in 1937.

The case of the plaintiffs seems to be that since the properties are included in the scheme already, prima facie, they may be liable to betterment, contribution, subject however to the condition that the increase in value or the likelihood of increase in value of the suit property is proved and established by the Municipal Council, to be due to the making of the Town Planning Scheme in question. Therefore he confines himself merely to place before the Arbitrator, the present value and the value as it was in 1937 without raising any question as to whether the properties have actually increased In value or not, and whether or not they have become liable to betterment contribution,, by reason of the making of the scheme.

It is obvious, therefore, that because the plaintiff understood that the municipality will become entitled to recover betterment contribution only on its showing that the property belonging to the plaintiff and comprised in the Town Planning Scheme, had increased in value or was likely to increase in value by reason of the making of the scheme, that the plaintiff did not choose to raise the question relating thereto before the Arbitrators. If the plaintiff had understood it otherwise, he would not have confined himself merely to showing the valuation and the extent of the property, but would have even then questioned the fact of the value having increased by reason of the making of the scheme.

26. Even so, the Arbitrator, as can be gathered from his awards, Exs. B. 7 to B. 9 has contented himself with merely stating that the property of the plaintiff is bound to the levy of betterment contribution under Section 27 of the Town Planning Act and that the value of the property as on 16-1-1937 is Rs. 23 per cent in the case of B. S. No. 32/1 and Rs. 20 per cent in the case of R. S. Nos. 40/1 and 100/5. This award makes no reference to Section 23 of the Act for the simple reason that the Arbitrator is not called upon to give any findings as to whether the properties have actually increased in value or not, or whether the Municipal Council is entitled to recover betterment contribution only on its proving that the value of the property belonging to the plaintiff and comprised in the scheme has increased or is likely to increase by reason of the making of the scheme.

The arbitrator presumably proceeds on the basis, that it is not within his province to say whether the title of the Municipality to recover betterment contribution is well founded or otherwise, or whether it is based on the fact that the value of the properties has increased or is likely to increase by reason of the making of the Town Planning Scheme, but merely gives the value of the property as on the date when the notification of the scheme was made under Section 10 or Section 12 of the Act, on the assumption that since the properties are included in the scheme, and since a claim in respect thereof has been made, they are "liable and bound to pay" the betterment contribution. The award does not purport to say, that the municipal council will be entitled to recover betterment contribution, irrespective of Whether or not it is proved that the value has increased by reason of the making, of the scheme as laid down in Section 23 of the Town Planning Act. The question of the right of the municipality to recover betterment contribution on proof of the value of the property comprised in the scheme having increased or is likely to increase by reason of the making of the scheme is, therefore, one not decided by the arbitrator but is one about which the municipal council itself has come to a decision and, on that basis, proceeds to lay its claim before the arbitrator.

To our mind all that the arbitrator does under Section 27 of the Town Planning Act is to decide the question that the value of the property has increased or is likely to increase by reason of the making of the Town Planning Scheme and that, therefore, the municipal council is entitled to levy betterment contribution, but merely to say that since the properties are included in the Town Planning scheme, they are liable to betterment contribution, leaving it to the Municipal Council, by implication, to substantiate its right to recover such contribution by proving that the increase in value has been due to the making of the scheme. The most important and the real thing, that the Arbitrator is called upon to do under Section 27 of the Act, appears to be to fix the value of the property involved in the scheme, as on the date of the notification of the scheme and to determine the properties, i.e. the particular items which are prima facie liable to betterment contribution by their being included in the scheme. To read anything over and above this from the awards of the Arbitrator given under Section 27 (1) (d) of the Act and not under Section 23, would be wholly unwarranted and unjustifiable.

If it were otherwise, the award of the Arbitrator should have set out the data on which the Arbitrator came to any conclusion, if at all, he ever came to any such conclusion, that the value of the property Involved in the scheme had actually increased or was likely to increase and how the municipality was entitled to recover betterment contribution in pursuance of such increase in value of the properties. The award does not seek to do any such thing, and does not give any finding on the right of the municipal council to recover betterment contribution in view of the fact that the value has Increased by reason of the making of the scheme, which alone is the operative factor giving rise to the title of the municipal authority to the claim. There is no material before us to say that the arbitrator made any investigation under Section 23 of the Act before he gave his award or that he went into the question by any means.

27. Therefore it does not stand to reason to argue, as Js sought to be done by the learned counsel, for the appellant, that the award of the Arbitrator, has finally settled the question of the right of the Municipality to levy betterment contribution, from the owner of the properties involved in the scheme, on the ground that the value of the properties has increased or is likely to increase by reason of the making of the Town Planning scheme in question and that, therefore, It was not open to the plaintiff to go back upon the award, which had not been taken on appeal and which had, therefore, become binding on the parties thereto.

28. In the light of what we have observed above, the scope of the suit is, therefore, not to question the award of the arbitrator, which is merely limited to the question of the fixation of the market value of the property on the date of the notification of the scheme and the determination of the properties involved in the scheme and liable to betterment contribution and which does not decide the question of the liability as such, or its scope and extent. What the suit seeks to do on the other hand is only to question the right of the Municipality to recover betterment contribution in the absence of any proof that the value of the suit properties included in the scheme has increased or is likely to increase by reason of the making of the Town Planning scheme.

As we have already stated, the right of the municipality to recover betterment contribution at the rate stipulated in the scheme and for the period provided therein, depends wholly and entirely upon the municipality being able to prove and establish the fact that the properties have actually Increased in value or are likely to increase in value by reason of the making of the Town Planning Scheme. It is this basis, which the plaintiff is seeking to demolish as not having been made out by the appellant and it is on this basis which, if the appellant succeeds in proving, he would be entitled to recover betterment contribution in accordance with the terms and conditions laid down in the scheme.

Therefore, in so far as there has been no decision either by the Arbitrator or by any other competent authority on the question of the right of the Municipality to recover betterment contribution on the basis of the increase in value of the properties by reason of the scheme or the likelihood of their increasing in value by reason of the making of the scheme, it cannot be said that the plaintiff is precluded from questioning the claim or right of the appellant under Section 23 of the Town Planning Act, in a proper proceeding before a civil court. In our view, therefore, Section 29 of the Act does not debar the plaintiff from filing the suit for declaring that the claim of the municipal council to betterment contribution is illegal, void or 'ultra vires' of the powers of the Municipality under the Town Planning Act and the provisions of Section 29 of the Act do not take away the right of the plaintiff to agitate before a civil court against the right of the Municipality to levy betterment contribution without proving that it is entitled to the same, on the basis that the value has either increased or is likely to increase by reason of the making of the scheme, as provided for in Section 23 of the Town Planning Act.

29. It is next argued by the learned counsel for the appellant that, when once the Municipal Council has proceeded to levy betterment contribution calculated according to the provisions of Section 24 of the Town Planning Act, the remedy of the plaintiff was only to proceed under Section 25 (ii) of the Act, or in the alternative, to proceed to claim the remedy provided for In Section 26 of the Act. It may be noted, by the way, that Section 24 itself visualises the possibility of the market value of the property estimated under Sub-clause (b) of that section, either increasing or not increasing in the years succeeding or in the years following the year in which the scheme takes effect under Section 14 of the Act. Here again, it is made clear that the basis of the right of the Municipality to levy betterment contribution is only the fact of the Increase in value in the particular year for which the assessment is sought to be levied. If, in any particular year, there is no increase in value of the property, the municipality shall not be entitled to levy betterment contribution for that year.

It is entitled to levy betterment contribution from year to year, only as and when the estimated market value under Sub-clause (b) of Section 24 exceeds the market value arrived at under Sub-clause (a) of the same section and the levy of contribution shall be on the difference between the two according to the percentage fixed in the scheme. Once again, it may be noticed, the section contemplates that the increase in value should be by reason of the scheme taking effect under Section 14 of the Act. It is relevant here to note that in Section 24 (b) of the Act, particular reference is made to Sub-section (6) of the section 14. This sub-section has an important bearing on the right of the municipality to levy betterment contribution. This sub-section lays down,

" notification published under Sub-section (5) shall be conclusive evidence that the scheme has been duly made and sanctioned. The scheme shall have effect from the date of publication of such notification, and the execution of the scheme shall be commenced forthwith."

If this Sub-clause 6 of Section 14 is read along with Sub-clause (b) of Section 24, it will be apparent that what is contemplated by the Act is that the scheme, once published and sanctioned, shall have effect from the date of such publication of the sanction and that the execution of the same shall be commenced forthwith and it is thereby envisaged that only when the execution of the scheme is commenced that the question of the increase in value of the properties involved in the scheme would arise. Otherwise, if the scheme were to be simply sanctioned, and the sanction published in the Fort St. George Gazette, without the Municipality doing anything towards the execution of the scheme, it is hardly possible that any increase In the value of the properties would at all come into existence. The increase in the market value of the property, from year to year, which alone would entitle the municipality to levy betterment contribution is contemplated to be the result of the scheme taking effect and its being put into execution forthwith. Therefore it is just conceivable, that even if the scheme has taken effect, by reason of the mere publication of the sanction by the Government, still there may not be any increase in value, until the other part of Sub-section 6 of Section 14 is given effect to, namely, the execution of the scheme being commenced forthwith.

That apparently seems to be the reason why it has been provided to Sub-clause (c) of Section 24 that if the estimated value under Sub-clause (b) of Section 24 does not exceed that estimated under Sub-clause (a) in any financial year, no betterment contribution shall be levied for that year. It is obvious that, though the scheme might have taken effect, the value might not increase until and unless the execution of the scheme is also proceeded with immediately after the sanction. If execution be not proceeded with, there may not be any increase, as a matter of fact, in the value of the properties and, therefore, in such a case the Municipality will not be entitled to recover any betterment contribution, as is envisaged in Sub-clause (c) of Section 24.

Therefore, there appears to be much force in the contention that the right to levy betterment contribution vested in the Municipality under Section 23, depends only upon the actual increase in value of the properties comprised in the scheme and the enforcement of the right to levy betterment contribution will therefore, depend solely upon the fact whether the property has or has not increased in value by reason of the scheme taking effect and its execution forthwith. This section puts it beyond doubt that there is a relation between the right of the municipality to claim betterment contribution and the increase in value of the property by reason of the making of the scheme or its execution.

30. There is, of course, a proviso to Sub-clause (6) of Section 14 that, where the scheme so provides, the execution of the scheme or any part thereof may be deferred until such time as may be fixed in the scheme. It follows that, if there is such a provision for deferring the execution of the scheme until such time as may be fixed in the scheme, then the right to levy betterment contribution on the basis of increase in the value of the property under Section 24 of the Act would also be automatically postponed and such right would arise again only if the scheme has been put into execution after the period fined in the scheme has expired. It will, therefore, not be proper to read Section 24 to say, that when once certain properties are included in a Town Planning scheme, the right of the Municipality to levy betterment contribution becomes absolute and can be enforced forthwith, and that there could be no room for any agitation on the question as to whether the mere sanction of the Town Planning scheme and its publication has or has not caused the increase in value of the property included in the scheme, For the mere reason that such an agitation on the factum of the increase in value by reason of the making of the scheme or by its taking effect which includes that the scheme should be executed forthwith, has not been restored to at an earlier stage, the right of the owner of the property to question the validity of the claim of the municipality to recover betterment contribution on the ground that it has not been established that the value of the property has increased by reason of the making of the scheme, cannot be denied.

There is no section which takes away this right of the owner of the property. The arbitrator, not having adjudicated upon the factum of the in crease in value of the properties by reason of the making of the scheme in his award, and the municipality itself not having established a direct relation of cause and effect between the making of the scheme or its execution, if such has been the case, and the increase in value of the property, by no means could such a situation be held to preclude the owner of the property from questioning the right and claim of the municipality for betterment contribution.

31. The remedy that is available under Section 25) of the Town Planning Act to the property owner, which has been stressed upon by the learned counsel for the appellant, is not so much as the right to question the basis of the assessment and collection of the betterment contribution, namely a proved increase in value of the property by reason of the making of the scheme, but only to object to the quantum of the assessment and the procedure adopted in ascertaining that quantum and its collection from the owner, once the condition precedent laid down in Section 23 of the Town Planning Act is satisfied. Sub-clause 2 of Section 25 itself provides for the power of the Chairman and the procedure to be adopted by him for the assessment and collection of betterment contribution, which power is said to be the same as available in the case of assessment and collection of property tax. As in the case of the assessment and collection of property tax, it may not be open to the property owner to question the right of the municipality to collect the property tax In respect of any property situated within a municipality, but he can only question the quantum of assessment and the procedure by which it is arrived at.

Even so, when once the right of the Municipality to collect betterment contribution is established and the same is properly arrived at by the Chairman of the municipal council, following the procedure of the assessment and collection of the property tax, the remedy available to the property owner to question the assessment and the procedure involved therein is merely by way of appeal to the Commissioner and the municipal council and if that right of appeal has been exhausted the decision on appeal shall be final and conclusive. It is only here that Section 354 (2) of the District Municipalities Act may become relevant, as ousting jurisdiction of the civil court. No doubt in the present case, after the assessment was made by the Chairman of the Municipal council, the plaintiff put in revision petitions, as well as appeals to the respective authorities, as he could have done in the case of assessment to property tax. He did not succeed either before the commissioner or the municipal council. He appears to have simply proceeded on the assumption, that the municipal council would be entitled to collect betterment contribution and did not choose to question that right, but only questioned the assessment and the procedure adopted therein.

The reasons adduced for rejecting the revision petitions, filed by the plaintiff against the assessment for the period 1946-48, by the commissioner are very significant in this connection. The petitioner (respondent) in Ex. A. 22 has objected to the assessment of property tax in respect of R. S. No. 32/1 on the ground that it is not liable to any land tax and that the new assessment is wholly Illegal and 'ultra vires' of the powers of the municipality; that the land is nanja land cultivating paddy and irrigated with Government water from Madakulam tank, that the value fixed at Rs. 16-15-0 is arbitrary and without justification and that the land was not assessed to any land tax all these years and the assessment was therefore, entirely unwarranted. The reason given by the appellant for rejecting the petition is that agricultural lands lying within municipal limits are liable for property tax (land tax) and hence the levy of land tax for the said property is in order.

Therefore, as pointed out by the learned counsel for the respondent, what Section 25 contemplates is only that, when the assessment of betterment contribution is made, the owner of the property shall have the same rights, as in the case of assessment to property tax, to object to the assessment and to appeal to the council for cancellation or otherwise and decision on such appeals shall be final and conclusive, in so far as the quantum of the assessment and the procedure adopted by the assessing authority !s concerned. It is not, by any means, provided that an appeal against the assessment and the procedure adopted for the collection of such assessment, shall preclude the owner of the property from questioning the very right of the municipality to levy betterment contribution which it can do only on the basis provided in Section 23 of the Act viz., that the value of the property in question has increased by reason of the making of the Town Planning Scheme. Therefore there is no substance in saying that the plaintiff has exhausted his remedy under Section 25, and he cannot avail of any civil court for a declaration that the right of the municipality to levy betterment contribution is void and 'ultra vires' and illegal.

32. Even so, the language of Section 26 of the Town Planning Act does not appear, in our opinion, to preclude the owner of the property assessed to betterment contribution from resorting to a civil "court to question the right of the municipality to levy the betterment contribution in the absence of proof that the property has increased in value by reason of the scheme. Section 26 contemplates that, when once properties have been assessed to betterment contribution in any particular year, if the owner of the property objects to such contribution on the ground that the market value estimated under Clause (b) of Section 24, is excessive, he shall state the market value, which he contends is correct, and may within 30 days from the date on which the determination of his objection or appeal becomes final, by written notice, require the municipal council to acquire the property together with any buildings or other works that may exist thereon.

A proper understanding of the language of this section would make it clear, that it has nothing to do with, nor has any bearing on, the question of the right of the municipality to claim betterment contribution on the basis of Increase in value of the property, by reason of the making of the scheme, as is contemplated in Section 23 of the Act it has reference only to the objection which the owner of property might take to the amount of such contribution on the ground that the market value estimated is excessive and it lays down the procedure which is available to the owner of the properly by which he could compel the municipal council to acquire the property. The mere fact that the plaintiff in the present case has not taken advantage of Section 38 of the Act, and has not chosen to proceed to compel the municipality to acquire the property on the ground that the amount of contribution levied by the municipality is excessive, and not warranted, cannot, in our opinion, debar him from proceeding to a court of law for an adjudication upon the question, as to whether the municipal council has become entitled to recover betterment contribution without establishing that the property in question has increased in value or is likely to increase in value by reason of the making of the scheme in question. In our opinion, both Section 25 and Section 26 deal only with the question that arises after the municipality has made its claim on the basis of the alleged increase or likelihood of increase in value of the land by reason of the making of the scheme and do not concern themselves with the very question of the right of the municipality to levy assessment on the basis contemplated In Section 23 of the Act.

Though sections 25 and 26 provide certain remedies which are open to the aggrieved party, namely, the property owner, to question the amounts of the assessment and the procedure by which it has been arrived at or the collection thereof, they do not lay down any remedy in case the aggrieved property owner elects to question the very right of the municipal council to proceed to levy betterment contribution on the bare assumption that since the properties are included in the Town Planning Scheme, whether or not they have increased in value or are likely to increase in value by reason of the making of the Town Planning Scheme, the municipal council is entitled to betterment contribution. Whether or not the property owner has exhausted the remedies provided for in Ss, 25 and 28 of the Act, in so far as those remedies do not have any bearing on the real question involved in this suit, namely, the validity of the claim or right of the municipality to levy betterment contribution, it cannot be said that the property owner is precluded or prevented from resorting to a civil court for establishing his point that the very foundation on which the municipality can lay its claim does not exist, and that the right to recover betterment contribution in the absence of such a foundation cannot be legal or 'intra vires' of the powers of the municipal council.

It will be open to the property owner, the plaintiff in this case, to contend in a suit that the action of the municipality in claiming betterment contribution is an abuse of the statutory power or right vested under Section 23 of the Act and also to say that the power to levy such betterment contribution is not exercised bona fide by the Municipality. The plaintiff cannot be heard to say that the state of things contemplated in the first part of Section 23 is the foundation of the jurisdiction of the municipality to claim betterment contribution, viz., that the value of the property has increased by reason of the making of the scheme and, if that foundation is not established the claim of the municipality must fall to the ground. Even if it is assumed that the point, whether the property is liable to betterment contribution does not arise in the case, as the same has already been determined by the Arbitrator in his award, still it cannot be argued that the light of the municipality to claim betterment contribution on the ground that the value of the property has increased by reason of the making of the scheme, has been decided by the award of the arbitrator. In consequence, the plaintiff can urge that the tax has been illegally collected from him and seek to recover the same back from the appellants.

33. The learned counsel for the appellant has Invited our attention to a series of decisions ranging from --'2 Mad 37 (E)', to -- ' (N)', in support of his proposition that there

can be no right of suit when remedies are provided by the statute itself for redressing grievances of any aggrieved party, and that if the special Jaw provides for the remedies, the decision of the authority on questions of fact cannot be agitated in a civil court.

In -- '2 Mad 37 (E)', a suit was brought in the court of the District Munsif of Guntur to recover back the amount of a profession tax for 1876 levied by the Municipal commissioner of Guntur on the plaintiff upon the supposition that he carried on business as an agent, when in fact he carried on no such business. The defendant pleaded that the court had no jurisdiction. Upon reference, it was held by the High Court, that the court had no jurisdiction to adjudicate on the matter in contest. It was ruled that, since it appeared that the procedure prescribed by Section 61 for the imposition of the tax had been conformed to by the Commissioners, and the tax having thus a legal existence, no suit would lie to contest its Incidence.

The decision in -- 'Leman v. Damodaraya'. 1 Mad 158 (T), was distinguished on the basis that since the machinery prescribed for imposing the tax did not exist when it was imposed, it was rightly held that the suit would lie as there was no legally sanctioned tax.

In -- '2 Mad 37 (E)', the learned Judges observed further that the matter of fact in dispute in the suit before them was no part of that machinery, and that in case of error in respect to it, the only remedy the plaintiff had was the appeal allowed by Section 85 and that if the party failed to prefer the appeal or if the appeal preferred by him was disallowed by the Commissioners, Section 85 was a bar to a suit to contest the assessment. On the facts of the case before us there being no machinery provided in the Town "planning Act to contest the claim of the municipality that the value of the property had increased by the making of the Town planning Scheme, and that it was entitled to betterment contribution on that account, the decision in --'2 Mad 37 (E)', cannot have any application.

In -- 'Iswarsnanda v. Commrs. H. R. E. Board, Madras', AIR 1931 Mad 574 (U), it was held that when by an act of the Legislature powers are given to any person for a public purpose from which an individual may receive injury and when the mode of redressing the injury is also pointed out by the statute, as has been done in this case by Section 84 (2) of the H. R. E. Act, namely, by an application to the District Court, a suit for the said purpose was not maintainable. In view of our having found already that, what the plaintiff in the present suit has sought to dispute is not the decision of the Arbitrator estimating the market value of the properties and determining the properties liable to contribution but only the right of the municipality to claim betterment contribution without proving that the value of the property has actually increased by reason of the making of the scheme, we do not think that even this decision has any application to the facts of the present case.

For the same reason, the decision In -- 'AIR 1940 PC 105 (A)', wherein It has been held that a decision by an Assistant Collector on the duty leviable on imported goods was a decision within the meaning of Section 188 of the Sea Customs Act, and when the right of revision therefrom conferred by Section 191 of the same Act had been exercised and an order under that section had been made the order was final and the Jurisdiction of the civil courts was excluded, does not apply to the question that is involved in the present appeal before us. if it were contended that the suit brought by the respondent had the effect of challenging the decision of the arbitrator, then possibly the ruling in the above decision would apply, but in this case once again, it is not the decision of the arbitrator that is being challenged but it is only the right of the municipality to claim betterment contribution under Section 23 of the Town Planning Act without its proving positively or establishing the fact that the value of the property belonging to the respondent has increased by reason of the municipality having made a Town Planning Scheme that is being challenged.

34. As has been pointed out by Mr. Rajah Iyer, the learned counsel for the respondent, the town Planning Scheme does not contain any provision which explicitly or impliedly excludes the jurisdiction of the civil courts to enquire into matters in dispute between the municipality and the owner of property included in a town planning scheme, if the latter challenges the right of the municipality to levy betterment contribution on the-ground that the value of the property has increased by reason of the property having been included in the Town Planning Act or by reason by the fact that a Town Planning Scheme has been made in respect of that property.

The Privy Council in -- 'AIR 1940 PC 105 (A)', has itself observed that :

"It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly Implied."

Their Lordships further observed that, "Even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where 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."

The Full Bench of our High Court in -- 'Secy. of State v. Allu Jagannadham', AIR 1941 Mad 530 (FB) (V), followed this observation with approval. We are of opinion that many of the cases cited before us by the learned counsel for the appellant are cases where the provisions of the special law prescribed the remedies and where those provisions have been complied with. They have, therefore, no application to the facts of the present case.

Within the same category fall all the cases, viz., -- '19 Mad 10 (P)'; -- '36 Mad 120 (G)'; -- AIR 1920 Mad 379 (I)'; -- 'AIR 1926 Mad 448 (J)'; --'113 Ind Cas 560 (Mad) (L)'; -- 'AIR 1928 Mad 208 (K)'; -- 'Sasala Raminaidu v. Secretary of State', AIR 1942 Mad 127 (W)'; -- 'Srinivasaraghavachariar v. Union Panchayat. Tirukoilur', 59 Mad LW (SN) 63 (X); -- 'AIR 1949 Mad 189 (M)'; -- Thiruvengadasami v. Municipal Health Officer, Karaikudi', AIR 1949 Mad 547 (Y); --' (N)', which have been relied on by learned counsel for the appellant.

These decisions enunciate that a suit is not maintainable even if the decision of the authority provided in the special law was wrong, erroneous or mistaken, if only the authority has proceeded in accordance with the Act and if there are remedies provided in the Act itself. In the present case, the complaint of the respondent is that the fundamental requirements of Section 23 of the Town Planning Act have not been observed, or compiled with by the authorities concerned. As we have already observed the Municipal Council of Mathurai has not related the alleged increase in value of the property Included in the scheme to the making of the scheme by the municipality so as to entitle it to claim betterment contribution and as such, this matter in dispute has not been the subject of any decision or order, either by the Arbitrator or by any other authority provided for in the Town Planning Act. Consequently a suit will lie and the court will be entitled to quash the illegal levy.

35. Mr. Rajah Iyer, the learned counsel for the respondent, has invited our attention to -- James v. Young', (1884) 27 Ch D 652 (Z), where the words "shall be liable to be forfeited" have been interpreted to mean "that what was intended was not that there should be an absolute forfeiture, but a liability to forfeiture, which might or might not be enforced". Therefore he contends that even the determination of the properties liable to contribution by the arbitrator cannot be final, for such liability may or may not be enforced by the municipal authority. It can enforce the liability only if there is an actual increase in the value of the property by reason of the making of the scheme and if there is no such increase, the municipality may not enforce the liability, and if it does without satisfying the condition precedent, it will be open to question.

Therefore, the mere fact that the arbitrator has determined the particular properties liable to betterment contribution does not vest an absolute right in the municipal authority to claim or to enforce the claim for betterment contribution, irrespective of whether there has been or not an increase in the value of the property, or whether there is or is not, likelihood of such increase in the value of the property by reason of the making of the scheme. We see there is force in this contention and we are of opinion that the mere fact that the Arbitrator has determined the particular properties liable to betterment contribution in accordance with Section 27 of the Town Planning Act would not make his decision final and conclusive until and unless the municipal authority is able to prove the requirements of Section 23 of the Town Planning Act, namely, that there has been an increase in value or there is a likelihood of such increase in value by reason of the making of the Town Planning Scheme.

It would not therefore be correct to say that when the municipal authority proceeds to levy betterment contribution without satisfying the requirements of Section 23 of the Town Planning Act, the aggrieved party cannot proceed to a civil court to prevent the municipal authority from, making or enforcing an illegal claim.

In --'Rex v. Bradford', (1903) 1-KB 365 (Z1), the issue was whether the land in question was a park under Section 53 and Section 54 of the High Way Act of 1835 and it was held that the question whether the land was a park or not was one which was preliminary to the exercise of the jurisdiction given by the statute, and that the justices could not by wrongfully deciding that the land was not a park give themselves jurisdiction in the matter. It has been observed in that decision that "It is clear from the authorities that such a tribunal cannot give itself jurisdiction by a wrong decision on the question of fact which arises as a preliminary question, before it exercised its jurisdiction." Chaanell Lord Justice held that "the question whether a place is a park or not is a matter which is preliminary to the exercise of the Justices' jurisdiction, and one which it is not for the justices to finally determine. And if the place is a park in fact they cannot give themselves jurisdiction by finding that it is not a park."

This decision is authority for the proposition that if a preliminary question is wrongly decided by the authority constituted under the Special Act the superior court can interfere, when the aggrieved party seeks redress by a suit.

The principles governing the jurisdiction of courts in regard to decisions by Special Tribunals have been discussed in -- '(1888) 21 QBD 313 and at pp. 319 and 320 (P)'. Lord Esher, Master of the Rolls has observed as follows: "When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established, by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether the state of facts exists, and, if they do exercise the jurisdiction without its existence what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may in trust the tribunal or body with a jurisdiction, which Includes the Jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislatures are establishing such a tribunal, or body with limited Jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases that was mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of the Jurisdiction."

In our opinion, the present case before us falls under the first category, where it is made necessary that a certain state of facts should exist before the municipal authority can seek to enforce the claim for betterment contribution. In --'Board of Education v. Rice', (1944) AC 179 (Z2), the Board of Education was called upon to determine certain questions required by Section 7(3) of the Education Act of 1902. The Board purported to give its decision in a document which failed to deal with the matters in issue. It was held by the House of Lords that inasmuch as the Board had not determined the questions, the decision must be quashed by certiorari, and a mandamus must issue, commanding the Board to determine the questions. Lord Loreburn observed, "The Board is in the nature of the Arbitral tribunal, and a court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari." In -- (1916) 2 KB 742 (O)', Lord Reading Chief Justice observed as follows:

"If we were of opinion that the powers were being misused, we should be able to deal with the matter. In other words, if it was clear that ah act was done by the Executive with the intention of misusing those powers, this court would have jurisdiction to deal with the matter."

In -- 'AIR 1921 Mad 92 (H)', Abdur Rahim and Oldfield JJ. have held, when a point arose in regard to the exercise of the power conferred by Section 100 of the Local Boards Act, that though the power was very wide still it must not be exercised for ulterior purposes, or in a capricious, wanton and arbitrary manner, and if so used, can be controlled by the Civil Courts, and that the order passed by the Board in that case was one that could be set aside. Repelling the contention that where the local authority is given the power to determine a certain matter for itself, it was not for the court to substitute its own Judgment for the judgment of the statutory authority, the Bench held that where it is clear that a discretionary power has been exercised in a manner which could not have been in the contemplation of the Legislature, then the court undoubtedly has jurisdiction to interfere. "The power exercised by the Taluk Board without taking into consideration more important matters" has been held not to be a proper exercise of the power as has been pointed out by Maxwell on "Interpretation of Statutes".

in -- 'AIR 1937 Mad 241 (Q)', the general principles in matters of jurisdiction of civil courts have been elaborately discussed by Varadachariar J. In that case the plaintiff paid the income-tax to which he was assessed, and filed a suit for a declaration that he was not liable to be assessed to income-tax on the Income received by him from the business in Saigon and for recovery, of the tax levied from him. It was held, that the assessing officer had power to determine the question of the plaintiff's residence in British India and the consequent receipt of the profits in question in British India and that, as he did make an enquiry as to the facts relating to the plaintiff's residence in British India, it could not be said that he did not or could not honestly come to the conclusion that the plaintiff was a resident of British India, the plaintiff's suit was barred by Section 67 of the Act and was not maintainable. In the course of the discussion at pages 242 to 244 and 248 of the case relating to exclusion of the civil jurisdiction, the matter has been very fully reviewed and elaborately discussed. His Lordship observed at p. 244:

"In the interpretation and application of taxing statutes, the distinction between liability to assessment and the method or quantum of assessment has long been recognised in the Land Revenue law of this country. After a review of the relevant statutory provisions, it was pointed out by a Full Bench in -- 'Fahmidannissa Begum v. Secy. of State', 14 Cal 67 at p. 84 (FB) (Z3), that the former question had always been treated as and declared to be a matter for courts of justice, The same distinction was recognised in Section 58 of the Madras Revenue Recovery Act which excludes from the cognizance of civil courts only question as to rate of land revenue or as to the amount of assessment."

36. We are in entire agreement with the principles enunciated by Varadachariar J. in the above decision and we do not think that we need go into an elaborate discussion of these. We think that the principles adverted to in the said decision apply to the facts of the present appeal before us. In that view, we think that there is nothing that would preclude the present respondent from approaching the civil court for redressing the grievances, which he has set out in his plaint.

To similar effect is the decision in -- ' (S). At p. 69, Chagla C. J. after referring to -- 'Mohsinali Mahomedali v. State of Bombay', (Z4), has observed as follows: "Now it is well established, that when there is a collateral fact upon the determination of which the jurisdiction of a tribunal arises, if the tribunal decides the collateral fact erroneously and assumes jurisdiction, the superior court can always correct the decision of the inferior court. It must be a fact which it is necessary to decide in order to assume Jurisdiction; or in other words, the jurisdiction of the court must be conditional upon the existence of that fact. In contradistinction to such collateral facts there are relevant facts or facts in issue which the court has been created in order to determine. Express jurisdiction has been conferred upon the court to decide and determine those facts and as far as the determination of those facts is concerned, the decision of the court is final and however erroneous its decision may be in fact or in law, the superior court will not interfere with that decision. Therefore, what has got to be considered in this case, is whether the question as to the relationship between the company and the contract labour and as to whether that relationship was that of employer and employee is a collateral fact or a relevant fact which the court had to determine as required by statute. In our opinion Bhagwati J. was quite right when he came to the conclusion that the very Jurisdiction of the Tribunal depend upon the matter which it was determining being an industrial dispute.

Therefore the existence of an industrial dispute was the very foundation of the Jurisdiction of the tribunal to decide this matter. Therefore, it is clear that the tribunal could not assume to itself jurisdiction to decide this question by erroneously finding that the relationship between the company and contract labour was that of employer and employee. If that determination was wrong, the superior court could only certainly interfere and correct the lower court as far as determination of this particular Issue was concerned. Therefore there can be no question that this court has ample jurisdiction to consider whether the finding of the tribunal that the relationship between the company and contract labour was that of employer and employee was right or not."

Applying the reasoning given in the above decision, we think if the Arbitrator has decided as to when exactly the municipality was entitled to exercise its right to levy contribution, there would have been no scope for the plaintiff to question that decision, however erroneous and mistaken it might have been. But in so far as the Arbitrator has not done any such thing, and as we have stated, when it is the municipality that has decided for itself that it can exercise the right to levy contribution without its being able to prove or relate the increase in value or its likelihood to the making of the scheme by it, we do not think, the decision of the arbitrator comes into consideration at all. It is rather the question as to when the Municipality has the power to levy contribution and whether it is the Municipality that is to decide this question finally, that is now before us for consideration.

We cannot say in the present context that Section 23 of the Town Planning Act, which gives the Municipality the jurisdiction to assess betterment contribution, or the award under Section 27 by the arbitrator, takes away the jurisdiction of the civil court, if the municipality makes the claim or exercises its right to it under that section without establishing the basis which gives it such jurisdiction. Therefore the mere decision of the arbitrator that the property is liable to betterment contribution, irrespective of a consideration of the requirements contained in Section 23, being fulfilled, cannot be said to be final, even if it is assumed that he has done so by his award and, therefore, the right to the aggrieved party to test the validity of the claim made by the municipality without satisfying the condition contained in Section 23 cannot be disputed.

In -- 'Dorman Long & CO. Ltd. v. Jagadeeschandra Mahindra', 62 Cal 596 (Z5) the complaint was that the Controller of Patents had refused two applications for the summoning of two witnesses and it was contended that the Controller had acted without jurisdiction in refusing to issue sub-penas to witnesses. A question arose as to whether the High Court had the right to issue writs of certiorari, or prohibition, or order a mandatory injunction directing the Controller to issue the sub-penas. Belying on the observations of Lord Justice Atkin in -- 'King v. Electricity Commissioners', (1924) 1 KB 171 (Z6), it was also held by the Bench of the Calcutta High Court that the fact of there being any specific legal remedy such as right of appeal was not conclusive because It may not be adequate, and in some circumstances, the remedy given by the issue of such writs may be more speedy and more convenient and less costly.

37. A reference has been made by counsel on both sides to certain passages occurring in Halsbury's Laws of England, Vol 32, page 252. Para. 388 in that volume is in the following terms:

"The responsible authority may recover by way of betterment from any person whose property has increased in value by the coming into operation of any provision contained in a scheme, or the execution of any work under a scheme, an amount not exceeding 75 per cent, of the amount of that increase".

This paragraph makes It clear as to when exactly a claim for betterment contribution can be made from any person whose property has increased in value. It says that the increase in value must be due to the coming into operation of any provision contained in the scheme or the execution of any work under the scheme and then only the responsible authority may recover by way of contribution 75 per cent, of the amount of the actual increase in value.

As against this paragraph, Mr. Kuttikrishna Menon invites our attention to paragraph 399 of the same volume of Halsbury's Laws of England which is in the following terms:

"Any question arising as to the right of a claimant to recover compensation, or the right of an authority to recover betterment, or as to the amount & manner of payment of any compensation or betterment, must be referred to and determined by an official arbitrator appointed in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1949, who has the powers with regard to procedure, costs, and the statement of special cases conferred upon him by that act."

In this paragraph, no doubt, the method of determination of betterment contribution is assigned to an official arbitrator appointed in accordance with the Acquisition of Land Act in force in Great Britain. It is contended on the analogy of this text that the question of the right of an authority to recover betterment contribution is to be referred to the Arbitrator, that in the present case it has been so referred and that his decision that the property is liable to betterment contribution should be considered final, but we do not think that this contention is tenable.

As we have already observed, what has been referred to an Arbitrator in the present case is not the right of the responsible authority to recover betterment contribution on the basis of a finding that the value of the property has increased by reason of the making of the scheme, for as a matter of fact, the award of the Arbitrator does not find that the value of the property has increased by reason of the Town Planning Scheme and therefore the Municipal Council is entitled to recover contribution.

38. In the United Kingdom, it seems to us, that the condition to be satisfied before a responsible authority could claim betterment contribution is set out in paragraph 388, viz., that there should be an increase in value by the coming into operation of any provision contained in a scheme or the execution of any work under a scheme. Even so under Section 23 the right of the municipal council to claim betterment contribution can arise only if and when the scheme has come into operation and it has been put into execution as contemplated in Sub-clause 6 of Section 14.

Therefore the right of the municipal authority to recover betterment contribution could be referred to the arbitrator only after the Municipality has succeeded in establishing that the increase in value has been due to the scheme having come into operation or any work having been executed. Any decision by the Arbitrator, without reference to this basic fact, which is to be proved by the municipal council, cannot be said to be a final decision; and without a finding on this basic factor, which alone gives rise to the right of the municipal council to recover, betterment contribution, it cannot be said to be a decision for which the Arbitrator has jurisdiction. Therefore considered from this point of view, the decision of the Arbitrator, even assuming that he has determined liability of the property to betterment contribution, cannot be said to be final and conclusive. In this case, however, it is plain that it is the municipal council that says that the property has increased and by no means the Arbitrator. The test laid down In -- 'Chairman of Giridhi Municipality v. Sureshchandra Mozumdar', 35 Cal 859 at p. 864 (Z7), namely, whether the assessment is or is not in conformity with the statutory, provisions, cannot be said to have been satisfied on the facts disclosed in this case, when the municipality made the claim for betterment contribution and recovered the same from the respondent.

39. Our attention has been drawn by Mr. Kuttikrishna Menon, the learned counsel for the appellant, to a recent, decision of Satyanarayana Rao and Rajagopalan JJ. in -- 'Corporation of Madras v. Balakrishna Mehta', (Z8). In that case the only substantial and

outstanding question debated before the Bench, was whether the defendant-corporation was entitled to enforce distress proceedings for the collection of betterment contribution for a period of years previous to a demand made in the second half year of 1948-49. While considering the point, the entire scheme of the Town Planning Act, commencing from Section 4 onwards right upto to Section 29 has been set out and its relation to the City Municipal Act has also been discussed.

On the specific point raised in the appeal, the Bench came to the conclusion that the provisions of the city Municipal Act governing assessment and collection of property tax were made applicable to the assessment and collection of betterment contribution by virtue of Section 25(2) of the Town Planning Act and that Section 387 of the City Municipal Act did not apply to collection of betterment contribution. It also held that the requirement of Rule 20(3) of Scheme IV of the City Municipal Act is that the bill referred to in Sub-rule (1) of Rule 30 has to be served or given either in the half year in which the betterment contribution became due or in the succeeding half year and if it is not so served, betterment contribution for the half year first mentioned cannot be enforced by distraint. In our opinion, this case has no application to the facts of the appeal before us and we do not think that the point raised in this appeal has come to be considered at all by the said Bench.

40. On the merits of appeal, we do not think that the appellants have any case. Whereas in the United Kingdom the operation of a scheme or the execution of the scheme is to precede any claim by the responsible authority for betterment contribution, in this case, the Municipal authority has proceeded to lay its claim even before the scheme has been put into operation or even before its execution has been commenced. The material placed before us points clearly to the fact, as we have already observed, that the scheme has not been put into execution to any the least extent. None of the improvements and amenities provided for in the scheme appear to have been made to the area comprised in the scheme. As could be gathered from the statement of objects and reasons published, when the Town Planning Bill was originally introduced in the legislature and later amended, the purpose of the Bill was to assist the municipalities by applying the principle of betterment contribution, namely, special assessment and charging part of the costs of constructing roads and other works from holders of properties receiving immediate benefit from them. The bill adopted the principle of special assessment to be levied and collected in 20 half-yearly instalments.

The provision in the Town Planning Act that the execution of the scheme should commence immediately after it was sanctioned and the power reserved for enabling the execution of different parts of the scheme at different times seems to have been introduced in the Amending Act II of 1930. What the Municipal authority has sought to do in the present case, is to claim betterment contribution even before it has incurred any expenditure towards the costs of constructing roads or other works beneficial to the holders of the property. Even without reference to any benefit, either Immediate or direct, having arisen to the holders of the property within the scheme, the claim has been made by the Municipal authority for betterment contribution. The learned Subordinate Judge has gone thoroughly into the matter as to how far it has been proved that the value of the property of the respondent has increased by reason of the scheme made by the Municipality and sanctioned by the Government which scheme remains till today a mere paper scheme without any of the provisions therein having been put Into execution.

The learned Subordinate Judge has, on a consideration of the documentary and oral evidence, come to the conclusion that the increase in value of the property belonging to the respondent-plaintiff has not, by any means, been due to the making of the scheme. As a matter of fact, it is very problematical as to how many persons actually were made aware of the municipality having made a scheme for the locality in question, or of the Government having sanctioned the same, particularly when nothing was done to execute the scheme by the municipality. No evidence has been let in, even as to the actual number of copies of the scheme that might have been purchased by the owners of the property or members of the public either within the scheme or in the neighbourhood and what advertisement was given to the scheme in order to create an impression in the public mind, that the scheme, by reason of the very many Improvements provided therein, would increase the value of the property.

Actually, it must be stated that most often the publication in a newspaper about any Town Planning Scheme or its sanction by the Government published in the Port St. George Gazette, goes unnoticed by even the persons whose properties are affected by the scheme not to speak of the general public. The owners of the property themselves do not become aware of the scheme until and unless notices in connection therewith are served upon them; much more scanty will be the knowledge of the general public with regard to any scheme, that is published and sanctioned by the Government, and which remains unexecuted by the municipal authority. It is inconceivable to claim in such cases that the value could increase by the mere making of scheme. It must be noted however the term "making of the scheme" has not been defined in this Act but the reference to execution of the scheme forthwith or latter provides the distinction between "the making" and "execution of a scheme".

41. In such circumstances, the question arises as to whether the municipal authority will be entitled to take advantage of the extraneous circumstances and factors, which might have brought

about a general Increase in value not merely of the properties comprised in the scheme, but also of properties all over the town as has been shown by the evidence in this case. The learned Subordinate Judge has, in "our opinion, rightly come to the conclusion that while the municipal authority might be entitled to claim betterment contribution by reason of the increase in value, consequent upon the making of the Town Planning scheme, which means also its execution and operation, the municipal authority cannot claim any contribution if the value of the property has increased by general factors which are extraneous the scheme and which have raised, as a matter of fact, the value of the properties in the present case.

The question, therefore, as to whether the Municipal authority is entitled under Section 23 of the Town Planning Act, to claim betterment contribution from the respondent has, in our opinion, been rightly decided against the municipal authority by the learned Subordinate Judge, and we do not think that the municipal authority is either entitled to claim contribution from the respondent in this appeal or to retain what has been collected from the respondent by way of betterment contribution, when the municipal authority has failed to correlate the rise in the value of the property to the mere making of the scheme and when it has not been proved that the respondent received any immediate or direct benefit by the making of the scheme, as is contemplated by Section 23 of the Act.

42. On a consideration of all the facts of this case, we think that the case has been rightly decided by the learned Subordinate Judge in favour of the plaintiff and that this appeal must fail. We accordingly uphold and confirm the judgment and decree of the learned Subordinate Judge and dismiss this appeal with costs.


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