DHORAJI NAGARPALIKA Vs. MOHANDI HADIBHAI BUDHWANI OF DHORAJI

JUDGEMENT

(1.) THE present appeal has been filed by the appellant -Dhoraji Nagarpalika raising the substantial questions of law, as mentioned in paragraph -5 of the memo of appeal, of which, at the time of admission, some of them were considered for admission as follows:

(2.) THE facts of the case briefly summarised are that Regular Civil Suit No.72 of 1976 was filed by the respondent -original plaintiff for challenging the assessment of tax levied by the Municipality on the basis of annual letting value on various grounds raised therein, inter alia, non -compliance of the procedure, as provided under Section 108 of the Gujarat Municipalities Act, 1963 ("the Act" for short), and that as the notice, as required under the law, was not issued, the assessment was illegal. The said suit came to be dismissed by the judgement and order dated 22nd January, 1980 by the learned Civil Judge (J.D.), Dhoraji, against which Regular Civil Appeal No.15 of 1981 came to be filed by the appellant -original plaintiff on various grounds, as contended in the memo, inter alia, that the trial Court has erred in holding that the notice of the Municipality is illegal, ultra vires, null and void and also that the trial Court has erred in holding that individual notice is not mandatory and thereby has erred in appreciating the evidence and also appreciating the provisions of the Act. The said appeal came to be allowed by the learned Extra Assistant Judge, Rajkot District, Gondal vide the judgement and order dated 31st July, 1981. It is against this judgement and order that the present second appeal has been preferred by the appellant -Municipality raising the substantial questions of law as stated above.

(3.) MR . Mehul S. Shah, learned Advocate for Mr. S.M. Shah, learned Advocate for the appellant, submitted that the lower Appellate Court has failed to appreciate, interpret and construe the provisions of Section 138 of the Act. He submitted that in view of the specific provisions of Section 138 of the Act, the jurisdiction of the Civil Court is barred and if the respondent was aggrieved with the assessment, further recourse could have been taken, as provided under the Act, and the civil suit would not have been maintainable unless the powers exercised were ultra vires or where the property was not liable for assessment of tax at all. Mr. Shah contended that it is not in dispute from a bare perusal of the records and proceedings that the property in question was liable for assessment of municipal tax. Therefore, the question as to whether the assessment of tax is made proper or it is excess or it is not as per the procedure prescribed, can be adjudicated upon by adopting the further recourse, as provided under the Act, and not by filing the civil suit. In support of his contention, he has referred to a judgement of the Bombay High Court in the case of Gopal Mills Co. Ltd. vs. The Broach Borough Municipality, reported at 1955 B.L.R. 800 and submitted that the provisions of the Bombay Municipal Borough Act, as prevailed then, have been interpreted therein and it has been specifically observed by the Division Bench of the Bombay High Court that the jurisdiction of the Civil Court to decide the questions, which are to be decided by the Magistrate, is barred. He pointedly referred to the observations made with regard to the provisions of Section 111 of the Bombay Municipal Boroughs Act, 1925 as under: