Hindustan Copper Ltd. Malajkhand Copper Project Malanjkhan Vs. Municipal Council Malanjkhand Judgement Given By: Hon'ble Shri Justice Ajit Singh - Court Judgment

Writ Petition No.7108/2013 24.2.2014 Shri S.C.Bagadia, Senior Advocate, with Shri R.K.Sanghi, Advocate, for the petitioner.

Shri Kishore Shrivastava, Senior Advocate, with Ku.C.V.

Rao, Advocate, for respondent no.1.

Heard on I.A.No.12853/2013, which is an application for amendment of the petition.

By the proposed amendment, the petitioner inter alia has mainly prayed that section 172(c) of the Madhya Pradesh Municipalities Act, 1961 (in short, “the Act”) be declared ultra vires the Constitution of India.

For better understanding of the provision, we deem it proper to reproduce the complete section 172.

It reads as under: "172.

Appeal to Civil Judge.- (1) Appeals, against any claim included in a bill presented in accordance with the provisions of this Act, or the rules made there under, be made to the Civil Judge, Class I, having jurisdiction over the Municipal area and if there be no Civil Judge, Class I, at the headquarters of the Municipality the Civil Judge, Class II having jurisdiction at such headquarters if there be no such Civil Judge, Class II at the headquarters to the Civil Judge, Class II having jurisdiction and in case of more than one such Civil Judges at the headquarters having jurisdiction, as the case may be, to such one of them as the District Judge may specify.

(2) No such appeal shall be heard and determined unless- (a) the appeal is brought within 15 days next after presentation of the bill complained of; (b) an application, in writing, stating the ground on which the claim of Council is disputed, has been made to the Council in the case of a rate on building or land within the time fixed in the notice given in accordance with the provisions of the Act or the rules made there under or of the assessment or alteration thereof, according to which the bill is prepared; (c) the amount claimed from the appellant has been deposited by him in the Municipal office." The petitioner is a Government of India undertaking and has its unit at Malajkhand.

It extracts copper ore from the mines which is sent to concentrator plant for getting copper concentrate.

Thereafter the concentrate is sent for final production at Khetri (Rajasthan) and Ghatshila (Jharkhand).Respondent no.1 Municipal Council, Malajkhand, is a local self-government constituted under Article 243Q of the Constitution.

It claims to have right to impose terminal tax on the goods exported from the limits under section 127(6)(n) of the Act.

The terminal tax is levied in accordance with the provisions of The Terminal Tax (Assessment and Collection) on the Goods Exported from Madhya Pradesh Municipal Limits Rules, 1996 (in short, "the Rules").The terminal tax is to be deposited till tenth day of every month as per Rule 4 of the Rules and under Rule 7 in the event of default, a surcharge at the rate of five per cent per month is payable and in case of submission of wrong return the amount equal to ten times of the tax is made payable.

Any party, aggrieved with the claim made by respondent no.1, has a remedy of filing an appeal before the Civil Judge having jurisdiction over the municipal area under section 172 of the Act (quoted above).The appeal, however, cannot be heard and determined unless the amount claimed is deposited in the municipal office in view of sub-section (2)(c).In Shyam Kishore v.

Municipal Corporation of Delhi AIR1992SC2279the constitutional validity of an identical provision section 170 (b) of Delhi Municipal Corporation Act 1957 was challenged but it was held to be intra vires by the Supreme Court.

Therefore, having regard to the decision of Supreme Court in Shyam Kishore (supra).the learned senior counsel for petitioner has fairly not pressed the application for amendment.

The application is accordingly dismissed.

Also heard on admission.

Respondent no.1, on coming to a conclusion that the petitioner submitted wrong returns in respect to terminal tax for the years 2006-07 up to 2011-12, issued a bill dated 16.10.2012 of Rs.1,77,57,70,395.00.

The petitioner, instead of filing an appeal under section 172 of the Act before the Civil Judge, Class I, Baihar, has filed the present petition.

It is to be noted that for an earlier bill dated 3.1.2007 of Rs.70,46,64,2901.00 the petitioner had filed an appeal under section 172 of the Act before the Civil Judge but since the amount claimed was not deposited in the Municipal office, the Civil Judge had dismissed the appeal vide order dated 14.5.2009.

Thereupon, the petitioner filed a revision before the FiRs.Additional District Judge, Balaghat, which was allowed vide order dated 19.5.2010 on the ground that because it had already deposited rupees three crore and thirty lakh, there was substantial compliance of section 172(2) of the Act and to direct petitioner to deposit the entire amount of bill will be too harsh.

The order dated 19.5.2010 was challenged by respondent no.1 before this Court in Writ Petition No.7284/2010 and the same was allowed vide order dated 20.1.2011 on a finding that sub-section (2) of section 172 was clear that no appeal can be heard and determined unless the amount claimed was deposited in the Municipal Office.

The petitioner was, thus, required to deposit the entire bill amount.

Undeterred, the petitioner challenged the order dated 20.1.2011 before the Supreme Court in Special Leave to Appeal (Civil) No.9697/2011.

The Supreme Court vide order dated 29.7.2011 did not interfere with the finding of this High Court and disposed of the special leave to appeal with the following direction: “ Having heard learned counsel for the contesting parties at some length but without going into the merits of the issues raised in the present Special Leave Petitions, we feel that, having regard to the peculiar facts of this case, the interests of justice would be sub-served if the petitioner is directed to deposit an additional amount of Rs.10 crores (Rupees Ten crores only) with respondent No.2 – Municipal Council, Malajkhand, District Balaghat, Madhya Pradesh, within six weeks from today.

If the petitioner complies with this order, their appeal dismissed by Civil Judge, Class-1, Baihar, on 14th May, 2009, shall stand revived for being disposed of on merits.

It goes without saying that the appellate authority shall afford to the parties adequate opportunity of being heard.

As already stated, this order is being passed in the peculiar fact-situation of this case and shall not be cited as a precedent.

The Special Leave Petitions are disposed of in the above terms.” It is stated at the Bar that in compliance of the above quoted order, the petitioner has deposited rupees ten crore with respondent no.1 and its appeal is pending adjudication.

It is, thus, clear that the petitioner has a statutory remedy of filing an appeal before the Civil Judge against the bill issued and earlier it has resorted to that remedy by depositing rupees ten crore in compliance of the order of the Supreme Court.

The petitioner, for another subsequent bill also issued against it by respondent no.1, instead of filing an appeal as provided under section 172 of the Act, filed Writ Petition No.3699/2011 which was dismissed by a different Division Bench of this High Court vide order dated 10.8.2011.

The Supreme Court in Shyam Kishore (supra) has held that resort to Articles 226 and 227 should be discouraged when there is an alternative remedy and more satisfactory solution is available on terms of the statute itself.

Section 172 of the Act is identical to that of section 170(b) of the Delhi Municipal Corporation Act which was dealt by the Supreme Court in Shyam Kishore (supra).Therefore, for the bill dated 16.10.2012 also since the petitioner has a statutory remedy of filing an appeal which is a more satisfactory solution on terms of the statute itself and earlier it has resorted to such a remedy after depositing rupees ten crore as per direction of the Supreme Court, we are not inclined to admit the present writ petition.

The petitioner is at liberty to file an appeal as provided under section 172 of the Act.

The petition is dismissed with costs of Rs.5,000/- payable to respondent no.1.

(AJIT SINGH) (SMT.

VIMLA JAIN) JUDGE JUDGE ps