RSA No. 3745 of 1987 1 In the High Court of Punjab and Haryana, Chandigarh. RSA No. 3745 of 1987 (O&M) Date of Decision: 05.08.2010 Balabh Dass ....appellant Versus Municipal Committee, Malerkotla ....Respondents. Coram:- Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. A.P. Bhandari, Advocate for the appellant. ... Alok Singh, J. Present second appeal is filed challenging the judgement dated 21.5.1986 passed by the Sub Judge, Ist Class, Malerkotla as well as the judgement and decree dated 5.8.1987 passed by the First Appellate Court/Additional District Judge, Sangrur, whereby both the Courts below have decreed the suit filed by the plaintiff and have held the notice issued by the defendant – Municipal Committee, Malerkotla, under Section 81 of the Punjab Municipal Act, 1911 (hereinafter referred to as the Act) for recovery of the arrears of house tax, as hopelessly time-barred. Brief facts of the present case, inter-alia, are that plaintiff has RSA No. 3745 of 1987 2 filed suit against defendant – Municipal Committee, Malerkotla, for mandatory junction against the Municipal Committee directing it not to recover Rs.1850/- on account of arrears of house tax from 1975 to 1977 as the same is barred by time; plaintiff is the owner of property No.XIV/161/A situated at Malerkotla and it is a residential and self acquired property. It was constructed in the year 1973-74. The defendant – Municipal Committee has proceeded against the plaintiff under Section 81 of the Act in the month of January 1985 for the recovery of arrears of alleged house tax for the period from 1975 to 1977; proceedings pursuant to notice under Section 81 of the Act initiated in January 1985 for the alleged arrears of house tax from 1975-77 is hopelessly time-barred. Defendant contested the suit by filing written statement. Main defence taken by the defendant before the trial Court was that there is no time limit for the recovery of arrears of house tax and Civil Court has no jurisdiction to try and hear the suit; plaintiff has an alternative remedy to file appeal against the order passed in proceedings under Section 81 of the Act. The trial Court vide impugned judgement dated 21.5.1986 has held that the provisions of Limitation Act are applicable if the Municipal Committee proposes to recover arrears of house tax by initiating proceedings under Section 81 of the Act before the Magistrate. The trial Court further held that the Civil Court has jurisdiction over the matter, if it finds that the notice or action of the Municipal Committee is without jurisdiction or ipso facto illegal. The trial Court having found that proceedings under Section 81 of the Act are time-barred and having found that notice under Section 81 of the Act was without jurisdiction after the expiry of the period of three years and ipso facto illegal, decreed the suit of RSA No. 3745 of 1987 3 the plaintiff vide judgement dated 21.5.1985. Feeling aggrieved from the judgement dated 21.5.1985, defendant preferred first appeal bearing No.75/86, which was dismissed by the Appellate Court/Additional District Judge, Sangrur vide judgement dated 5.8.1987. Learned counsel for the appellant herein stated that as to whether Limitation Act is applicable in proceedings under Section 81 of the Act, is a substantial question of law. He further argued that Civil Court has absolutely no jurisdiction to hear and decide the case challenging the notice/proceedings under Section 81 of the Act. In the present appeal, following substantial questions of law are formulated: - (i) As to whether provisions of Limitation Act are applicable in the proceedings under Section 81 of the Act ? (ii) As to whether the Civil Court has jurisdiction ? Substantial question No.(i): Learned Single Judge of this Court in the matter of Faqir Chand and others Vs. Municipal Committee, Sultanpur Lodhi 1984 PLJ 109 in paragraphs 4 and 6 has held as under: - “4. The only question that needs determination in the present case is whether a right is created to realise certain categories of dues without any limitation of time under section 81 of the Punjab Municipal Act, 1911 (hereinafter referred to as the `Act'), which reads as under :- " 81. Recovery of taxes etc.- (1) Any arrears of any tax, water-rate (rent) fee or any other money claimable by a committee under this Act, may be recovered on application to a Magistrate having jurisdiction within the RSA No. 3745 of 1987 4 limits of the municipality, or in any other place where the person from whom the money is claimable may for the time being be resident, by the distress and sale of any movable property within the limits of his jurisdiction belonging to such person. The costs of such proceedings shall be recoverable from the defaulter in the same manner as the said arrears. (2) An application made under sub-section (1) shall be in writing and shall be signed by the president, a vice- president or the secretary of the committee, but it shall not be necessary to present it in person." As would appear from the terms of section 81 of the Act, it provides a summary procedure for the recovery of any arrears of any tax, water-rate (rent) fee or any other money claimable by a committee under the Act. On an application made by the committee, a Magistrate having jurisdiction may recover the arrears claimable by a committee by the distress and sale of any movable property belonging to the defaulter. Under this section a summary procedure is provided for the recovery of certain categories of dues with the object of avoiding all complications involved in litigation. The provisions of this section cannot be construed to mean that even though the Municipal Committee had lost the remedy to recover the amount in a court of law, it still retained the right to recover it by invoking the coercive machinery. Section 81 of the Act only provides a special procedure for the recovery of the claimable RSA No. 3745 of 1987 5 money and does not constitute a source of foundation of a right to claim the money otherwise time barred. Consequently, I hold that the procedure prescribed under section 81 of the Act cannot be resorted to by a Municipal Committee for the recovery of the time barred dues. In the view I am taking, I find full support from the judgment in Kalu Ram's case (supra) which has been affirmed by Supreme Court in New Delhi Municipal Committee's case (supra).” In view of the judgement passed by the learned Single Judge of this Court while placing reliance on the judgement of the Apex Court in the matter of Delhi Municipal Committee Vs. Kalu Ram and another, AIR 1976 SCC 1637, I find that provisions of Limitation Act are fully applicable in a proceeding under Section 81 of the Act. Substantial question No.1 is answered accordingly. Substantial question No.(ii): Undisputedly, proceedings under Section 81 of the Act were initiated for the first time in the month of January 1985 for the recovery of arrears of house tax for the period 1975- 77. In view of the finding recorded against substantial question No.1, proceedings initiated in the month of January 1985 were clearly time-barred end without jurisdiction. In opinion of this Court, the Civil Court has jurisdiction in a matter of challenge to notice or proceedings under Section 81 of the Act if Notice or proceedings under Section 81 of the Act are totally without jurisdiction and ipso facto illegal. Since proceedings initiated in the month of January 1985 were hopelessly time-barred and hence were ipso facto illegal and void ab initio, hence, Civil Court has jurisdiction in the present matter. RSA No. 3745 of 1987 6 In view of the observations recorded hereinabove, appeal is devoid of merit and hence is dismissed. ( Alok Singh ) Judge 05.08.2010 sk.