1981 Supreme(MP) 605

H. G. Mishra, J.
Indore Nagar Palika Nigam v. Ramakant.
S. A. No. 81 of 1971 (I); Decided on 26-10-1981.

Headnote:(1) Civil PC., 1908 -- S. 9 -- jurisdiction of Civil Court under -- when barred in respect of taxation statute -- procedure and machinery for assessment and recovery already provided under such statute -- jurisdiction -- is barred assessment not authorised under statute -- such assessment and recovery can be challenged in Civil Court.

        (2) Municipal Corporation Act, 1956 (MP) -- S. 146 -- notice for assessment property tax under -- cannot be issued for assessment of tax retrospection -- such assessment is not authorised.

        (3) Municipal Corporation Act, 1956 (MP) -- S. 401 (1) and (2) - suit for injunction against unauthorised assessment of property tax -- does not fall into any of the categories enumerated under sub -- section (1) -- sub section (2) has no application -- such suit is not barred after six months.

        This is an appeal by the defendant Corporation against the judgment and decree dated 20th November 1970 passed by the Fourth Additional District Judge, Indore whereby after reversing the judgment and decree dated 28th March, 1970 passed by the Fourth Civil Judge Class 1, Indore a decree for permanent injunction has been passed in favour of the plaintiffd`respondents restraining the defendant Corporation from recovering house tax imposed illegally with retrospective effect in the year 1964.

        It is no longer in dispute between the parties that a number of Gumtis situated in Snehlataganj Main Road, Indore opposite Bhandari Mills. are in occupation of the plaintiffd`respondents as their business premises. The defendant-appellant Corporation through its community made assessment of those Gumtis in the year 1964. After issuing notices to the plaintiff respondents under section 146 of the M. P. Municipal Corporation Act, 1956 (Act, No. 23 of 1956 hereinafter referred to as the Act).

        Held: It is true that procedure and machinery for assessment of the tax in question has been provided inter alia in section 143 to 149 of the Act and the procedure and machinery for recovery of tax is provided in sections 173 to 188. Furthermore, section 149 by its sub-section (1) provides that no objection shall be taken to any valuation or assessment nor shall the liability of any person to be assessed or taxed be questioned in any other manner or by any other authority than as provided in this Act. By sub-section (3) of S.189 it has also been provided. No refund of any tax shall be claimed by any person otherwise than in accordance with the provisions of this Act and the rules and the bye-laws made, thereunder. Section 147 of the Act lays down the procedure regarding deLi"Very of notice of objection to the valuation. Section 148 lays down the manner of investigation into the Objections by the Commissioner. Section 149 makes the decision of Municipal Commissioner appeasable in certain cases. Sub-section (1) of section 149 provides that if any dispute arises as to the liability of any land or building to assessment or as to the basis or principle of assessment or as to the amount of tax assessed, an appeal shall lie from the decision of the Municipal Commissioner to the District Court, whose decision shall be final. Sub-section (4) of section 149 provides that no appeal shall be admitted under this section unless an objection has been preferred under section 148. Generally speaking when a statute lays down for procedure and provides machinery in respect of assessment and recovery of a tax the assessment or recovery can be challenged only in the manner provided by the Act and Civil Court has no jurisdiction to order refund of the amount, However, if the assessment is not auhorised by a provision of the Act, the assessment and or recovery of the tax can be challenged in Civil Court as the assessment and or recovery cannot be said to be an act done or purporting to have been done under that Act. I am fortified in the view that I am taking by a ratio of Bata Shoe Co. (Private) Ltd. Calcutta v. Municipal Board Bhopal (1963 JLJ 486).

        None of the aforesaid provisions of the Act authorise imposition and assessment of tax for period preceding the financial year in which the notice for assessment is issued. The financial year commences from 1st of April. In absence of express provision conferring power for imposition and assessment of tax for period prior to the financial year in which notice under section 146 of the Act has been issued, the assessment for period preceding such financial year has to be treated as unauthorised by the Act. It is law well established that no statute should be construed to have a retrospective operation unless such a construction appears very clearly from the provisions in terms of the Act or arises by necessary and distinct implication. Moreover a statute is not to be construed to have a greater retrospective operation then its language renders necessary. Accordingly, the Municipal Commissioner has power in proceedings for assessment initiated on a notice under section 146 of the Act to assess tax with effect from the commencement of the financial year of the issuance of the notice and not for any period prior to it. This is also the view taken by this Court in Civil Revision No. 691 of 1965 Gurubux Singh v. Indore Municipal Corporation, Indore decided on 21-1-1966.

        The act of assessment in proceeding originated by the notice under section 146 of the Act for period anterior to the financial year of the issuance of that notice being assessment retrospective effect is beyond the authority conferred by law on the Municipal Commissioner as discussed above. Such an act cannot be regarded to have been done or purporting to have been done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act or any rule or bye-law made thereunder. Accordingly, the present suit cannot be regarded to be a suit falling within the ambit of sub-section (1) of section 401 of the Act. Use of the words Such nit in sub-section (2) makes it abundantly clear that the special period of limitation prescribed thereby applies only to suits which fall within sub-section (1) of section 401 of the Act Accordingly, the present suit cannot be held to be time barred on the strength of the provisions placed in section 491 (2) of the Act. 1963 JLJ 486, 1966 JLJ 53 and C. R. No. 691 of 1965 decided on 21-11-1966 relied on. Appeal dismissed.