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Judgment
K. Sampath, J.—The facts in the appeals are common respondents are same; questions involved are identical. There was joint trial common
judgment by the trial court, joint hearing of the appeals and disposal by a common judgment of the lower appellate Court. Suits were filed by the
appellants in each of the appeals for a declaration that they were not liable to pay Urban Land tax as per the provisions of the Urban Land Tax
Act, 1975, hereinafter referred to as ''the Act'', as they held the properties mentioned in the respective schedules to the plaint as tenants in
common; and for permanent injunctions restraining the respondents from collecting any such tax. The suits were decreed by the trial court. But on
appeal by the respondents, the decision of the trial Court was reversed and the appeals were allowed and the suits were dismissed. On merits,
both the courts below found in favour of the appellants. But on the question of maintainability while the trial court held that the suits were
maintainable, the lower appellate court found that the Act was a complete Code in itself and that civil suits were barred u/s 38 of the Act.
Aggrieved, the present Second Appeals have been filed. At the time of admission, the following common substantial question of law was framed
for consideration in the Second Appeals.
While under Muslim Personal Law of inheritance the heirs hold the property with their crystallized shares not holding the same as agents and
managers for each other, if such position stands altered if they purchase the property jointly in their names?
As already observed, both the courts concurrently found that the appellants in the appeals were not liable to pay urban land tax. The only point
to be decided in the Second Appeals is, ""Whether the Civil Court has jurisdiction to entertain the suit when there is an express bar under the Act.
The Trial Court drew a distinction between what was prescribed under the Act regarding jurisdiction of the Court and the prayer in the suits as
one for injunction, and held that the Civil Court had jurisdiction. However, the lower appellate court differed by saying that u/s 38 of the Act, a
Civil Courts jurisdiction was clearly ousted'' and the parties remedy lay only in moving the appellate authorities provided under the Act.
Mr. T.V. Lakshmanan, the learned counsel for the appellants in all the Second Appeals relied on the decisions reported in. Firm Seth Radha
Kishan (deceased) represented by Firm Seth Radha Kishan (Deceased) Represented by Hari Kishan and Others Vs. The Administrator,
Municipal Committee, Ludhiana, SCJ page 395) and the decisions of the Supreme Court reported in Katikara Chintamani Dora and Others Vs.
Guntreddi Annamanaidu and Others, and submitted that the authorities under the Act had no jurisdiction to entertain the objections of the
appellants and that the appellants were questioning the very provisions of the Act as not applicable to them and therefore, the suits were
maintainable.
Per contra, Mr. T. Mathi, learned Government Pleader (Tax) submitted that there were adequate provisions and safeguards provided under the
Act, that the authorities had ample power to exempt and any property from the applicability of the Act; that the Act was a complete code, that
there was an express bar and that the suits were therefore not maintainable.
So far as the substantial question of law raised at the time of admission is concerned, I may immediately refer to the decision of this Court in
Ameena Bi alias Sahebzadi v. Asst. Commissioner of Urban Land Tax, Tiruchirapalli North (92 L.W. 103) wherein Natarajan, J. (as he then was)
held that in a matter arising under the Urban Land Tax Act inheritance by the heirs of an owner upon his death was as tenants in common and that
absence of metes and bounds was of no consequence and that assessment jointly upon all the heirs was not legal. The learned Judge held that their
share in the property was crystallised and inheritance had taken place so instant the original owner died. Having regard to this established position,
it has to be held that the appellants were not liable to be taxed for their holding, under the Act.
The next question to be decided is whether the Civil Court has jurisdiction to entertain the suit. Willes, J. In Wolverhampton New Water-Works
v. Hawkesford (1859) 6 C.B.(N.S.) 336 & 356 has set out the three classes of cases in which a liability may be established founded upon a
statute; as follows:-.
One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of
remedy different from the remedy which existed at common law there, unless the statute contains words which expressly or by necessary
implication exclude the common law remedy the party suing has his election to pursue either that or the statutory remedy. The second class of case
is, where the statute gives the right to sue merely, but provides, no particular form of remedy there, the party can only proceed by action at
common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a
special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue
the course applicable to cases of the second class.
In Mayor and Councilors of East Fremantle v. Annois (1902 A.C.213) it was held as follows:-
A suit in a Civil Court will lie to question the order of a Tribunal created by a statute, even if its order is expressly or by necessary implication made
final if the said Tribunal abuses its power or does not act under the Act, but in violation of its provisions.
The decision in Wolverhampton ''s case was approved in AIR 1940 105 (Privy Council) the Privy Council stated it is settled law that the
exclusion of the jurisdiction of the Civil Court is not to be readily inferred but such exclusion must be explicitly expressed or clearly implied and the
High Courts of India also accepted the principles and applied them to the above situation. The test is also ""whether the power has been
exceeded?"" Abuse is only one form of excess.
In Dhuplal Singh Vs. Ramdhani Dusadh and Others, , a Division Bench of the Patna High Court held as follows:-
When these revenue courts act with jurisdiction the Civil Court cannot interfere. But where the revenue courts act without jurisdiction, a Civil Court
can and must interfere.
In Lee. V. Showmen''s Guild of Great Britain (1952) All E.R.1175), Rorrier, LJ. stated as follows:-
The proper tribunals for the determination of legal disputes in this country are the courts and they are the only tribunals which, by training and
experience, and assisted by properly qualified advocates, are fitted for the task, and that naturally the courts jealously uphold and safeguard the
prima facie privilege of every man to resort to them for the determination and enforcement of his legal rights.
In K.S. Soosai Udayar and another v. S. Andiyappan Ambalam and others (1959 I M.L.J.195 = (1958) 71 L.W. 857) Ramachandra Iyer, J.
(as he then was) pointed out that the right to obtain ryotwari patta was not Common Law right of the ryot who was holding under the landholder in
an estate, and that the said right was conferred on him by virtue of the Act and such right is a. creature of the statute and the remedy provided by
the statute should be deemed to be the exclusive remedy on the basis of the third category of the cases mentioned in the judgment of Willes, J. In
Wolverhampton ''s case ((1859) 6 C.B. (N.S.) 336 and 356).
In Firm Seth Radha Kishan (Deceased) Represented by Hari Kishan and Others Vs. The Administrator, Municipal Committee, Ludhiana, the
Supreme Court held as follows:-
Under Section 9 of the CPC the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognisance is either expressly or
impliedly barred. A statute, therefore, expressly or by necessary implication. Can bar the jurisdiction of Civil Courts in respect of a particular
matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of Civil
Courts. The statute may specifically provide for ousting the jurisdiction of civil Courts; even if there was no such specific exclusion, if it creates a
liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The
same principle would apply if the statute had provided for the particular forum in which the remedy could be had.
In Katikara Chintamani Dora & others v. Gunreddi Annamnaidu & others (AIR 1974 (2) SCR 655), the Supreme Court held as follows:-
The exclusion of the jurisdiction of the Civil Court would be subject to two limitations. First, the Civil Courts have jurisdiction to examine into cases
where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of
judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive.
In S. Balasubramanian v. Shamsu Thalreez and others (98 Law Weekly 536), a Division Bench of this Court, while dealing with the Tamil
Nadu Agricultural Lands (Record of Tenancy Rights) Act 10 of 1969, held as follows:-
Where an authority is constituted under an Act of legislature, conferring on him jurisdiction, for the purpose of determining questions arising under it
and if that authority has exercised the jurisdiction vested in him and has rendered his determination and further more as against the said
determination, the machinery for further agitation has also been delineated in the Act itself, than the general remedy of suit before a Civil Court will
be barred. This is more so when the provisions of the Act say that the determination of the ultimate authority under it is final. There are exceptions
to the above rule, such as where orders have been obtained by fraud, collusion, etc.
The Bench followed the Full Bench decision of this Court in Periathambi Goundan v. The District Revenue Officer, Coimbatore and Others (AIR
1980 Madras 180 - 93 Law Weekly 169) and held that ""when the authority constituted under Act 10/69 has decided the ultimate question under
the Act within his jurisdiction and competency and which he is enjoined to decide in the proceedings under the Act, it is not open to the Civil Court
in a subsequent suit to sit in judgment over the same, as if it is an appellate authority and render a different decision.
In Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, certain principles have been laid down regarding exclusion of
jurisdiction. The principles relevant for this case are the following:
Where the statute gives a finality to the orders of the special tribunals the Civil Courts jurisdiction must he held to be excluded if there is
adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the
provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of
judicial procedure.
Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the
sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes
necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and
provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by
the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High
Court cannot go into that question on a revision or reference from the decision of the Tribunals.
Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not He if
the orders of the authorities are declared to be final or there is an express prohibition in the particular Act must be examined because it is a relevant
enquiry.
In Maxwell on Statutes, it has been stated as follows:-
Where indeed a new duty or cause of action is created by statute, and a; special jurisdiction out of the course of common law is prescribed there is
no ouster of the ordinary-courts for they never had any.
Bearing the above principles in mind, if we examine the case on hand, it would be clear that civil suits are barred. There are authorities
provided under the Act for adjudication on the questions raised by the appellants in the Second Appeals and there are also appellate authorities
provided to sit in judgment over the orders passed by the lower authorities. This is a case which would clearly come within Class-3 of
Wolverhamton ''s case, namely, where a liability not existing at Common Law is created by a statute which at the same time gives a special and
particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course
applicable to cases of the second class. It has therefore to be held that the suits were not at all maintainable and the second substantial question of
law raised by me will have, therefore, to be answered against the appellants in the Second Appeals. Accordingly, the Second Appeals are
dismissed. However, it is open to the appellants to invoke the provisions of the Act to seek the remedy they want. If and when such proceedings
are taken by the appellants, the respondents will give adequate consideration to the fact that the appellants had bona fide prosecuted the
proceedings before the Civil Court culminating in the present Second Appeals. This the respondents will have to do having regard to the
established legal position that the appellants own the property as only tenants in common and they would not be liable under the Tamil Nadu Urban
Land Tax Act, 1975. There will be no order as to costs.