Municipal Committee vs Garib Chand and Another

V.K. Jhanji, J.—This is plaintiffs second appeal.

Plaintiff (respondent herein) was carrying on the business of liquor vend. For the year, 1982-83, the Municipal Committee, Bhatinda (petitioner herein) imposed sales-tax u/s 61(l)(b) of the Punjab Municipal Act, 1911 (hereinafter referred to as the Act). As a result of the tax, a demand notice was issued by the Municipal Committee to the plaintiff for a sum of Rs. 10,334.85. The demand notice was served some where in the year 1985 i.e. within three years from the raising of the demand. The said demand notice was challenged by the plaintiff before this Court in Civil Writ Petition No. 4046 of 1985, The demand notice was quashed with a further direction to the Municipal Committee that reasonable opportunity of hearing be given to the plaintiff before any demand is raised. The Municipal Committee instead of complying with the direction of this Court, again raised a demand of Rs. 10,340/- vide Memo dated 13.2.1986. This notice again was challenged in this Court and after hearing the plaintiff, the writ petition was disposed of with a direction to the Municipal Committee that the plaintiff be given adequate opportunity of hearing before the assessment order is passed. The order of the Division Bench passed in Civil Writ Petition No. 947 of 1986 on 21.5.1986 reads as under :-

"The learned counsel for respondent No. 2 has stated that Annexure P-4 may be quashed and the petitioner directed to appear before the Executive Officer for framing a fresh assessment on same date fixed by this Court. Accordingly, Annexure P-4 is quashed and the petitioner is directed to appear before the Executive Officer on June 16, 1986, who will after affording him adequate opportunity of hearing, frame a fresh assessment. If the petitioner fails to appear on the date fixed, the Executive Officer shall be entitled to frame an ex-parte assessment."

In accordance with the above said direction, the plaintiff appeared before the Executive Officer through his counsel and he was afforded opportunity of hearing before the order came to be passed on 27.1.1987. This order was challenged by the plaintiff in the suit out of which the present appeal has arisen. Trial Court, on the basis of evidence brought on record, dismissed the suit and in appeal filed by the plaintiff, the judgment and decree of the trial Court has been set aside only on the ground that the demand raised by the petitioner for the year 1982-83 is barred by limitation. In this appeal by the Municipal Committee, it has been argued by the learned counsel for the appellant that the judgment of the trial Court cannot be sustained for the reasons that neither the objection with regard to the demand being barred was taken in the written statement nor an issue in this regard was framed by the trial Court. He contended that the issue of limitation being the question of fact ought to have been raised and this having not been done, the Appellate Court was not justified in reversing the well considered judgment of the trial Court on the ground of limitation alone.

In answer to these submissions, the learned counsel for the plaintiff contended that the suit has rightly been dismissed being barred by time. In support of his argument, he has placed reliance on a judgment reported in Municipal Committee, Bhatinda v. Jaswant Rai 1990 2 98 P.L.R. 402.

Having heard the learned counsel for the parties, I am of the view that the judgment and decree of the first Appellate Court cannot be. sustained. In the plaint itself, the case of the plaintiff is that for the year 1982-83 demand was raised in the year 1985 but that demand notice was challenged by the plaintiff in two writ petitions and in pursuance of order dated 21.6.1986 passed in C.W.P. No. 947 of 1986, the order was passed by the Municipal Committee on 27.1.1987. This order was order passed after affording an opportunity of hearing to the plaintiff. As has been made out by the first Appellate Court, the demand had not been raised for the first time in the year 1985. Rather, the demand was raised within time but since this Court found that no adequate opportunity of hearing had been given to the plaintiff, the demand notice was quashed and the Municipal Committee was directed to frame fresh assessment after affording opportunity of hearing to the plaintiff. Order dated 27.1.1987 has been passed in pursuance of the order of this Court passed in C.W.P. No. 947 of 1986 and in continuation of the proceedings which had been initiated by the Municipal Committee much before 1985. Accordingly, the demand raised by the Municipal Committee for the year 1982-83 is not barred by limitation. The judgment cited by the learned counsel for the plaintiff has no application to the facts of the present case as in that case, the demand for house-tax had been raised after three years. However, this is not the position in this case.

For the reasons recorded above, this appeal shall stand allowed and the judgment and decree of the first Appellate Court shall stand set aside and that of the trial Court dismissing the suit shall be maintained.