Judgment:
Vinod K. Sharma, J.
1. This regular second appeal is directed against the judgment and decree dated 24.10.2007 passed by the learned Courts below dismissing the suit filed by the plaintiff/appellant for declaration to the effect that house tax bill bearing No. 406 dated nil, amounting to Rs. 2,33,556/- issued by the Municipal Committee, Dhuri, regarding property of the plaintiff/appellant to be illegal and based on no criteria. The bill was further said to be without jurisdiction and having been issued in absence of any specific order for enhancement of rental value, and also being in violation of principles of natural justice. Consequential relief of permanent injunction restraining the defendant council from recovering the amount, was also claimed.
2. The plaintiff/appellant claimed itself to be owner of the godowns opposite sham-shan ghat, Malerkotla Road, Dhuri,which was assessed to house tax. Plaintiff received notice under Sections 67 and 68-A of the Punjab Municipal Act, 1911 (for short 'the Act') dated 24.1.1989 for enhancement of the rental value. It was the case of the plaintiff that after issuance of notice, the plaintiff/appellant was not heard and without passing order of assessment bill was raised. It was claimed that the demand raised was illegal, null and void. It was also the case of the plaintiff/appellant that the copy of assessment was not supplied, though it was claimed that appeal against the said order was filed before the learned Deputy Commissioner, which was dismissed on 31.8.1994.
3. On notice, the suit was contested, wherein preliminary objection was taken that the Court has no jurisdiction under Sections 84 and 86 of the Act. It was also claimed that the suit in absence of notice under Section 49 of the Act was not competent. On merits, it was claimed that assessment has been made in accordance with law. The learned trial Court on appreciation of evidence and pleadings of the parties was pleased to hold that the plaintiff/appellant had a remedy to challenge the imposition of house tax by filing an appeal before the learned Additional Deputy Commissioner, which was dismissed on 31.8.1994. The said order was not challenged by the plaintiff/appellant. The learned trial Court further held that there was nothing on file to show that imposition of house tax by the Municipal Council was illegal, null and void or contrary to the provisions of the Punjab Municipal Act. The plea of declaration and injunction was ordered to be declined. The learned trial Court also held that the suit filed by the plaintiff/appellant for declaration was not maintainable for want of notice under Section 49 of the Act. Though, the learned trial Court held the suit to be within limitation, the finding of the learned trial Court that the suit was within limitation stands reversed by the learned lower appellate Court.
4. The learned Counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law:
1. Whether the jurisdiction of the civil Court can be said to be barred to challenge the assessment of house tax under Sections 67 and 68-A of the Punjab Municipal Act, 1911?
2. Whether the learned lower appellate Court committed an error in holding the suit to be barred by limitation by mis-reading the pleadings and evidence on record?
3. Whether in absence of disclosure of criteria for house tax, the imposition of tax could be sustained?
5. In support of the substantial questions of law, the learned Counsel for the appellant contends that though in view of the provisions of Sections 84 and 86 of the Punjab Municipal Act, the jurisdiction of the civil Court would be barred, however, once the plaintiff/appellant had availed remedy of appeal, thereafter it was open to the plaintiff/appellant to invoke the jurisdiction of the civil Court to challenge the order of assessment, as the same was passed against the provisions of the Punjab Municipal Act, 1911.
6. This contention of the learned Counsel for the appellant cannot be accepted. The very fact that the order of assessment is not open to challenge before the civil Court, could not be subsequently challenged merely by filing an appeal. The plaintiff, in said situation, was required to challenge the order of appellate authority, as by way of principle of merger, the order of assessment merged in the order passed by the appellate authority. Except for mentioning in the body of the plaint that appellate order was illegal and void, no relief was claimed to challenge order of appellate authority. In absence thereof, it could not be said that the civil Court had the jurisdiction to entertain and try the suit. In any case, the suit filed by the plaintiff/appellant was not competent for want of notice under Section 49 of the Punjab Municipal Act, 1911. No fault, therefore, can be found with the finding recorded by the learned Courts below.
7. The learned Counsel for the appellant also contends that the finding recorded by the learned lower appellate Court holding the suit to be time barred cannot be sustained, as the plaintiff/appellant had earlier filed a suit which was ordered to be returned for want of jurisdiction of the civil Court to entertain and try the suit. It was after return of plaint, that the suit was immediately filed to challenge the order of assessment and, therefore, if the benefit of Section 14 of the Limitation Act was given to the plaintiff, the suit was to be held within limitation, as rightly held by the learned trial Court.
8. The plea of the learned Counsel for the appellant is also misconceived. The learned lower appellate Court has held the suit to be time barred after giving benefit of Section 14 of the Limitation Act, by holding that the order of assessment as challenged in the previous suit was itself barred by limitation having been filed after three years, specially when the plaintiff either in the previous suit or in subsequent suit has not chosen to challenge, the order passed by the learned appellate authority in appeal. Thus, it cannot be said that the learned lower appellate Court wrongly reversed the finding recorded by the learned trial Court.
The substantial questions of law raised are answered against the appellant.
No merit.
Dismissed.