Dismissed

(O&M) M.C.Abohar v. Suriender Mohan Ahuja

Punjab & Haryana HC21 Nov 2011RSA/1690/1989

Case brief

AI extract

What is this about?

This is a second appeal by the Municipal Committee, Abohar challenging a decree granting permanent injunction against water tax recovery. The Court held that the 1923 amendment deleted the power to impose water tax and affirmed that Civil Court jurisdiction was not barred when legality of tax imposition is questioned. The appeal was dismissed.

What the court decided

AI extract

(O&M) M.C.Abohar Vs Suriender Mohan… — Civil Procedure and Limitation | Punjab & Haryana HC (2011)

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RSA No.1690 of 1989

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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RSA No.1690 of 1989

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Date of Decision: November 21, 2011

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Municipal Committee, Abohar

.......Appellant

Versus

Surinder Mohan Ahuja

.......Respondent

CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA

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Present : Mr.SC Khungar, Advocate for the appellant.

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Mr.Pawan K.Mutneja, Advocate for the respondent.

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TEJINDER SINGH DHINDSA, J.

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The plaintiff-respondent filed a suit for permanent injunction restraining the Municipal Committee, Abohar from imposition and effecting the recovery of water tax qua the property described in the plaint, situated within the municipal limits of Abohar. The suit was decreed on 4.8.1987 and the appeal against said judgment and decree has been dismissed by the Additional District Judge, Ferozepur, vide order dated 1.3.1989. Resultantly, Municipal Committee, Abohar-appellant is in second appeal before this Court.

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Heard learned counsel for the parties.

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As per submission of the learned counsel appearing for the

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RSA No.1690 of 1989

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appellant, the following questions of law require consideration:

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i) As to whether the appellant-Committee is vested with the right to recover water tax in the light of a notification dated 20.6.1942 (Exhibit D1) issued by the Government of Punjab? ii)As to whether the jurisdiction of the Civil Court to entertain the present kind of suit was barred in terms of Section 86 of the Punjab Municipal Act, 1911 (hereinafter referred to as 'the Act')?

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A Municipal Committee is vested with the power to levy various categories of taxes as enumerated under Section 61 of the Act. The admitted position of fact is that prior to the amendment of Section 61 of the Act in the year 1923, the Municipal Committees had been specifically authorized to impose water tax. By virtue of the amendment in the year 1923, the specific entry to that effect i.e. in relation to imposition of water tax stood deleted. The question relating to the power of a Municipal Committee to impose water tax is no longer res integra. A Division Bench judgment of this Court in Municipal Committee, Ambala City v. M/s

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Khalsa Shoe Company Ltd. (1974) 76 PLR 5 clearly held that the Municipal Committee would not have the jurisdiction to levy water tax after the deletion of the specific entry to that effect from Section 61 of the Act. Such view stands affirmed by the Hon'ble Supreme Court in Municipal

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Committee, Abohar v. Kanshi Ram and others, 1994 Supp (2) Supreme Court Cases 547 , wherein it was held as under:

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“The question for determination before the High Court was whether Municipal Committee, Abohar, had the jurisdiction to impose water tax, in the municipal area, under

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RSA No.1690 of 1989

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Section 61 of the Punjab Municipal Act, 1911 (the Act). Following its earlier judgment in Khalsa Shoe Co. v. Municipal Committee, Ambala City, the High Court answered the question in the negative and against the appellant – Municipal Committee, Abohar.

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The Municipal Committee can impose various taxes enumerated under Section 61 of the Act. Water tax has not been included therein. It is not disputed that Section 61 of the Act was amended in the year 1923. Prior to the amendment, the said section specifically authorized the Municipal Committee to impose water tax. The net result is that by way of amendment in the year 1923, the legislature took away the power of the Municipal Committee to impose water tax in the municipal area. In Khalsa Shoe Co. case, a learned Single Judge of the High Court held as under:

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"The question which now falls to be determined is whether by excluding a tax expressly mentioned in the earlier Acts from the category of taxes mentioned in Section 61(1) of the Act, the legislature still intended to authorise a municipal committee to impose the same tax under Section 61(2) of the Act. In State of Bombay v. R.M.D. Chamarbaugwala , it has been observed that in order to interpret the provisions of a statute it is permissible to a court to take into consideration the history of the legislation. Section 61 of the Punjab Municipal Act, 1911, noticed above, clearly shows that

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RSA No.1690 of 1989

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the legislature had made an express provision for the imposition of water tax. When the Act was amended in the year 1923, the legislature expressly repealed this provision. In this situation, it cannot be said that the legislature entitled the municipal committee to impose the same tax under Section 61(2) of the Act. I am fortified in this conclusion by reading of Section 61(1) of the Act which enumerates the categories of taxes which a municipal committee can impose. If it was desired to give all embracing powers to the municipal committee to impose taxes by inserting Section 61(2) in the Act, then it was a simple thing to do away with the enumeration of the categories of taxes expressly mentioned in Section 61 (1) of the Act."

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We see no ground to interfere with the reasoning of the High Court in Khalsa Shoe Co. case which has been followed in the present case. The appeal is dismissed. No costs.”

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The reliance placed by learned counsel on the notification dated 20.6.1942 is wholly mis-placed. The appellant – Committee cannot derive any authority and jurisdiction to impose tax in the nature of water tax which the legislature in its wisdom had specifically deleted from the statutory provisions of the Act.

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Even as regards the contention raised on behalf of the appellant-Committee that the jurisdiction of the Civil Court was barred in terms of Section 86 of the Act, suffice it to say, that it is now well settled by a catena of judgments that when the very legality and jurisdiction of the

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RSA No.1690 of 1989

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authority to impose and recover tax is under question, the jurisdiction of the Civil Court would not be barred.

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For the reasons recorded above and in the light of the question regarding imposition of water tax being squarely covered by the judgment of Hon'ble the Supreme Court in Kanshi Ram's case (supra), the present appeal is dismissed.

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Appeal dismissed.

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NOVEMBER 21, 2011 SRM

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( TEJINDER SINGH DHINDSA ) JUDGE

(O&M) M.C.Abohar v. Suriender Mohan Ahuja

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(O&M) M.C.Abohar v. Suriender Mohan Ahuja

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