IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH === Regular Second Appeal No. 3000 of 2007 Date of Decision: 10.3.2008 Manmohan Lal Gupta --- Appellant Versus Municipal Corporation, Bathinda through its Commissioner --- Respondent --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. Ashish Grover, Advocate for the appellant. --- AJAY KUMAR MITTAL, J. It deserves notice in the first instance that this is plaintiff’s second appeal who failed to get a decree for permanent injunction before the courts below. Another significant fact that is inevitably put in black and white here is that the findings under challenge in this appeal are the concurrent findings of fact recorded by the two courts below and the counsel for the appellant has, as a matter of fact, could not submit much, except raising the formal submission that the findings recorded by the courts below are legally unsustainable. The controversy between the parties which relates to the assessment of house tax can be gauged from the following facts: Admittedly, the plaintiff is the owner in possession of property unit No. 521, situated at Bhatinda, constructed about five decades ago in an area of 300 square yards, which, according to him, is a residential RSA No. 3000 of 2007 2 property and is in his self-occupation. It was pleaded that previously the defendant issued notice to the plaintiff for imposing house-tax on the said property and when the notice was challenged by the plaintiff by means of a suit, the counsel appearing on behalf of the defendant made a statement in the suit proceedings that the defendant will re-assess the house-tax after giving due notice and affording an opportunity of being heard to the plaintiff. The grievance raised in the suit is that the defendant had assessed the house tax and that too, at a much higher rental value, without following the procedure laid down in the Municipal Corporation Act and without affording any opportunity of hearing to the plaintiff. It is further the case of the plaintiff that the defendant had no right to claim house-tax for a period of more than three years but the defendant has claimed house-tax since 1980-81. The plaintiff had filed objections to the said assessment, but the same have not been decided by the defendant. The defendant in the written statement stated that the property in question is the commercial property which has been rented out to M/s. Bhandari Timber Store and M/s. Popular Iron Store. In terms of the order passed in the suit filed by the plaintiff, the unit of the plaintiff was re-assessed for the year 1982-83 by passing a speaking order, after inviting objections and complying with the formalities and giving full opportunity of hearing to the plaintiff. The House Tax Sub Committee assessed the house-tax of Rs. 1161/- of the unit in question and a sum of Rs. 20,878/- is due from the plaintiff. Notice was served on the plaintiff before assessing the house-tax, for the years 1982-83 to 2004-05 and fire cess and interest are also due from the plaintiff. It was pleaded that the defendant has legally issued bill No. 53/73 for the payment of the arrears of house-tax and since the payment was not made, notice under section 137 of the Punjab Municipal Corporation Act, 1976 was served on 2 RSA No. 3000 of 2007 3 the plaintiff requiring him to make the payment within seven days, failing which it was conveyed that the recovery could be effected by attachment of his movable and immovable property. The trial court after framing issues, considering the evidence and hearing counsel for the parties, returned a finding that the claim of the plaintiff was hopelessly time barred. While coming to this conclusion, the trial court observed that there was no explanation as to why the plaintiff did not pay the amount of the bills issued after reassessment. The plaintiff should have challenged the first bill which was received after reassessment. Not only this, the plaintiff had the remedy of filing appeal against the order of reassessment which he did not avail and instead filed the instant suit. In clear terms, the finding of the trial court was that the plaintiff had failed to establish his right to get the relief of injunction. The findings recorded in para 11 of the judgment of the trial court read thus: “The relief claimed by the plaintiff shows that the plaintiff in a clandestine manner has claimed the relief of declaration that the order of assessment Ex. D4 is not legal and valid. The plaintiff has claimed the relief of permanent injunction from realizing the house tax which claimed vide bill Ex. P4. It relates back to the order of assessment Ex. D4, which was passed in the year 1982 after an undertaking in the court by the counsel for the defendant vide statement Ex. P-2. The plaintiff has admitted that he had been receiving the bills of house-tax thereafter. The bills are from Ex. D5 to D15. The plaintiff in the cross-examination has admitted that he has not paid any of the bills. Ultimately the defendant issued notice Ex. D17 claiming house-tax from 1980-81 to 1995-96. The plaintiff again did not make any payment. The defendant then issued notice u/s 137 of the Municipal Corporation Act, 3 RSA No. 3000 of 2007 4 Ex. P-5, claiming the arrears from the plaintiff, failing which the recovery can be effected by attachment of moveable and immovable property of the plaintiff. The plaintiff filed the objection to the said notice. The objections are Ex. P6. The objections were considered and the claim was again made. The intimation was given to the plaintiff vide Ex. D3. The claim of the plaintiff is hopelessly barred by time. The plaintiff in fact wants the restrained order against the order of assessment Ex.D4. There is no explanation as to why the plaintiff did not pay the amount of the bills issued after reassessment. The plaintiff should have challenged the first bill which was received by him after reassessment. The cause of action arose to the plaintiff on the first bill which was issued after reassessment. The plaintiff had the remedy to file an appeal against the order of reassessment when he received the bill. The notice of reassessment was conveyed to his son. The notice bears the signature of his son Neeraj Gupta on the back side. Even if the defendant has not fulfilled certain provisions of law, as on the date of assessment, the right of the plaintiff to challenge the said order is beyond the period of limitation. The plaintiff has failed to establish his right to get the relief of injunction.” The suit was consequently dismissed vide judgment and decree dated 10.10.2006. The first appellate court put the seal of affirmation on the findings returned by the trial court and dismissed the plaintiff’s appeal vide judgment and decree dated 1.3.2007. I have heard learned counsel for the appellant and have perused the record. 4 RSA No. 3000 of 2007 5 Both the courts below have concurrently found that the plaintiff had not been able to show his right to file the instant suit. There is nothing wrong with the findings recorded by the trial court which have been duly affirmed by the first appellate court. Neither the counsel for the appellant could point out any error of law or perversity in the findings so recorded by the courts below nor there is any infirmity therein by which this Court may feel persuaded to interfere therewith. No substantial question of law arises in the appeal for the consideration of this Court. In view of the above, there is no merit in the appeal and the same is accordingly dismissed. (AJAY KUMAR MITTAL) March 10, 2008 JUDGE *RKMALIK* 5