The main legal principle established in the judgment is the implied exclusion of the Civil Court's jurisdiction when a special statute provides for an appeal process and gives finality to the orders passed by the competent authority.

JUDGMENT :

Dr. A.K. RATH, J.

State of Orissa and its functionaries are the appellants against a reversing judgment.

2. The plaintiff-respondent instituted the suit for declaration that the orders passed by the Commercial Tax Officer, Puri, defendant no.3 demanding a sum of Rs.63,119.42 towards arrear tax and Rs.31,569.71 as penalty are illegal, the said amount cannot be recovered in Certificate Proceeding under the Orissa Public Demands Recovery Act (“O.P.D.R. Act”) and permanent injunction. The case of the plaintiff is that he is the registered dealer in petrol, diesel and other lubricants. He is liable to pay tax under the Orissa Motor Spirit (Taxation on Sales) Act, 1946 (“the Act”). The Commercial Tax Officer, defendant no.3 by its order dated 21.11.1974, 31.3.1977, 30.4.1977, 17.7.1978 and 17.4.1979 imposed penalty without issuing prior notice under Section 3(2) of the Act. Thereafter Certificate Case was initiated by defendant no.2 under O.P.D.R. Act to realize the same. Though he challenged the liability of tax and penalty, but no relief was granted to him. The Certificate Officer has no power to adjudicate the matter. The order is an infraction of natural justice. With this factual scenario, he instituted the suit.

3. The defendants filed written statement stating, inter alia, that the plaintiff had submitted three returns for the months of March and April, May to August and September to November, 1977. He is liable to pay the admitted taxes under the Act. The plaintiff did not pay the arrear tax. The action taken by defendant no.3 by imposing penalty on the plaintiff is legal and valid. The suit for permanent injunction is not maintainable. The suit is barred under Section 9 C.P.C.

4. Stemming on the pleadings of the parties, learned trial court struck eight issues. Parties led evidence. Learned trial court dismissed the suit holding inter alia that the order imposing penalty is illegal. The suit is barred under the provisions of the Act and O.P.D.R. Act and, as such, not maintainable. The plaintiff appealed before the learned District Judge, Puri, which was subsequently transferred to the court of the learned Additional Sub-Judge, Puri and renumbered as Title Appeal No.16/134 of 1986/1983. Learned appellate court held that no notice under Section 3(2) of the Act has been served on the plaintiff. The plaintiff is not liable to pay penalty. The Civil Court has jurisdiction to entertain the suit. Held so, it allowed the appeal.

5. The Second Appeal was admitted on the following the substantial question of law.

“Whether the civil court has jurisdiction to entertain the suit against the order passed by the Commercial Tax Officer, Puri under Sec.3(2) of the Orissa Motor Sprit (Taxation on Sales) Act, 1946 read with Rules 27 and 28 of the said Rules framed there under, when a hierarchy of forum is provided in the statute ?”

6. Heard Mr. P.P. Mohanty, learned Additional Standing Counsel (C.T.) for the appellants. None appeared for the respondent.

7. Mr. Mohanty, learned Additional Standing Counsel (C.T.) for the appellants submitted that any person aggrieved by any order passed under sub-section (2) of Section 3 of the Act or under Section 8 may file appeal under Section 28 (I) of the Act within thirty days. Thus, the jurisdiction of the Civil Court is impliedly barred. He placed reliance on the decision of the apex Court in the case of Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and others, AIR 1975 SC 2238 and this Court in the case of Puri Konark Development Authority v. Ratna Bhadra and others, AIR 2002 Orissa 207.

8. Before adverting into the contentions raised by the learned Additional Standing Counsel (C.T.) for the appellants, it will be necessary to set out Section 28 of the Act. Section 28 of the Act reads thus:-

“28. (1) Any person aggrieved by any order passed under sub-section (2) of section 3 or under section 8 may, within thirty days after the date of such order, appeal-

(a) To the Revenue Commissioner, if such o