P L D 1978 Lahore 498 (PLP)

"(1) Is the suit within time ? (21 Has this Court jurisdiction to entertain the suit ? (3) Is the house-tax assessment illegal, void and unenforceable for the reasons stated in the plaint ? (4) Has the plaintiff been guilty of laches and acquiescence? If so to what effect ? (5) Is the notice under Article 94, Basic Democracies Order, 1959 defective and with what effect ? (6) Relief."

5. The learned trial Judge on the question of limitation arrived at a finding that, as the assessment was made in contravention of the provisions of sections 63-67 of the Act, the same was nullity and did not require to beset aside. Article 120 of the Schedule of the Limitation Act would, therefore, be attracted and the suits having been instituted within the period of six years were in time. He was of the view that Article 14 which provides the period of one year to institute a suit for setting aside an order of any officer of the Government applies in cases where such an order is not nullity in law. On the question of jurisdiction of the civil Court to entertain the suit, he was of the view that as the provisions of the Municipal Act were not fully complied, a civil Court was not barred to try the snit. Dealing with issue No, 4. the learned Judge did not dispute that the plaintiffs-respondents lodged objections against these assessments and the assessments were reduced in all these casts by the Executive Officer of the Municipal Committee. He was, however, of the view that the filing of the objections for the reduction of the tax would not preclude the plaintiffs-respondents frost questioning the validity of the assessment itself. There could be no estoppel against law. The cases according to him did not involve any acquiescence on the part of the plaintiffs respondents. The suits having been filed within the period of limitation as provided under Article 120 of the Limitation Act, question of non-suiting the plaintiffs-respondents on the ground of laches, therefore, did not arise. The decision on all the preliminary matters, therefore, went against the appellant-defendant.

6. Discussing the merits of the case, be found that the assessment for the year 1958-59 teas completed in the year 1957. Question of assessment for the year 1959-60, t. e., the assessment in dispute arose somewhere in February 1959. Referring to certain circumstances he arrived at a finding that no lists were prepared uptill 26-2-1959. Public notice Exh. D 1 inviting objections was, therefore, issued before the preparation of the lists. The assessment lists were then prepared on the basis of the survey carried out by the Taxation Department. The record of the Taxation Department was consulted in March and April 1959. From these facts. he hurriedly arrived at the conclusion that provisions of sections 63-65 of the Act were ignored, and the disputed assessment, therefore, was nullity. The appellant having adopted this assessment for the years 1960-61 and 1961-62, the assessment for these years, therefore, were also illegal and void. He, as noticed above, decreed all the suits.

7. The learned First Appellate Court upheld the findings of the learned trial Court on all these issues. It has highlighted the merits of the case to some extent. It is of the view that the Committee has failed to produce any evidence to show that the lists were prepared and the respondents given a chance to inspect the lists and file objections within the prescribed period. On the question of the jurisdiction of the civil Court to entertain such suits, it has referred to Emreek Singh v. Municipal Cerxmittse, Jehtum (A I B 1936 Lah. 972).

8. Learned council appearing in support or these appeals has questions, the findings of the Courts below on all the issues. He argued that the finding of the Courts below that no assessment lists for the year 1959-60 were prepared, is based on misreading of the evidence. He contended that the house-tax had previously been assessed and it was not a case of new assessment, but that of a revision of the existing assessments. The very fact that the respondents-plaintiffs lodged objections and on their objections, assessments made were reduced, was sufficient to hold that the existing assessments were revised and that the public, inter alia the plaintiffs- respondents were given due notice of the same. According to him, the provisions of section 65 of the Act, are not mandatory and in the absence of any prejudice to the objectors, the assessment cannot be rendered to be nullity if one month's period was not provided for lodging the objections. The plaintiffs-respondents did not allege, much less to have established, that any prejudice had occasioned to them in not providing them one month's period to lodge the objections The objections lodged by the plaintiffs-respondents were not only entertained, but were duly considered and assessment matte considerably reduced in each case. He referred fn Exh. D-9 to Exh. D-14. He referred to Abdul Majid v. Province of West Pakistan and 2 others (P L D 1964 Lah. 531), an Ch. Sandiq Ali v. Collector, Gujranwala and another (P L D 1964 Lah. 255), in support of his plea that section 65 is not mandatory and its non-compliance would not reduce the assessment to nullity. He argued that the question of limitation and the question of the jurisdiction of the civil Court shall have to be seen in the light of the submissions made in regard to the merits of the assessment itself. He referred to section 84 of the Act to contend that the Act itself has provided a right of appeal against the assessment made and the appellate authority while hearing the appeal could refer the matter to the High Court on a point of law. The Act having provided a remedy, it entails an implied bar on the jurisdiction of the civil Courts to entertain such suits. Ire then argued that not only the civil Courts have no jurisdiction to try such suits on the theory of implied bar, section 86 of the Act expressly bars the jurisdiction of the civil Court to try such suits. He referred to Morar v. Borsad Town Municipality (24 Bom. 607), Kasandas Raghunathdas v. The Ankleshvar Municipality (26 Bom. 294), Manessur Dass v. The Collector and Municipal Commissioners of Chopra ( 1 Cal. 409), Chairman, Municipal Board, Chapra v. Basudeo Narain Singh (37 Cal. 374), Chairman, Municipal Board, Chapra v. Babu Basrdeo Narain Singh (5 1 C 321), Municipal Council, Nellore v. Rangayya (19 Mad. 10), and Municipal Committee, Ambala v. Afohander Singh and another (38 P R 1911), in support of this proposition. He also assailed the findings of the two Courts below on the question of estoppel. It was contended that the plaintiffs, respondents having lodged objections before the Executive Officer of the Municipal Committee and having obtained relief from him were estopped to challenge the validity of the assessment by way of suits .

9. Learned counsel appearing for the respondents, on the other hand, argued that the finding of the two Courts below that no assessment lists were prepared, is one of fact and cannot be assailed its second appeal. He then argued that if once this finding is sustained, the other finding of the Courts below regarding the validity of the assessment is rendered unexceptionable. The jurisdiction of the civil Court is affected only in those cases where the actions of the authorities impugned in :he suits are with jurisdiction. If the impugned assessment is nullity, it need not be set aside and a simple suit for declaration and an injunction is sufficient to avoid such assessment. In his submissions, provisions of Article 120 of the Limitation Act were correctly applied in determining the period of limitation. He reiterated A I R 1936 Lah. 972 to argue that the jurisdiction of the civil Courts is not barred in such matters. He concluded that the view of the two Courts below on the question of estoppel is not open to any objection and is well-founded.

10. I have considered the arguments of both sides, and gone through the record of the case carefully. I am of the view that the finding of the learned First Appellate Court that no assessment lists were prepared and that no opportunity wag given to the assesaees to lodge objections cannot be sustained. I am conscious that this Court in second appeal is not entitled to upset the findings of fact, yet if the findings are based on misreading of the evidence or where the evidence does not ,warrant the finding arrived at, this Court in second appeal will be justified t form its own view of facts. It is in the light of this formulation that I am re-appraising the evidence in the case.

11. The plaintiffs with a view to show that no assessment lists were prepared or that, if at all, these were prepared sometime in the month of March and, therefore. the assessees were not given requisite period of one month, as required by section 65 of the Act to lodge objections. They have relied on a number of documents. P-1 is report submitted by a Tax Collector on 23-2-1959 pointing out that the previous assessment was expiring on 31-3-1959 and that this assessment could be adopted for the year 1959-60. this report the Executive Officer ordered "wait and see". Another Tax collector vide Exh. P-2 on 26-2-1959 suggested that the taxation record could be inspected for revising assessment as, the time being short, only this ,nurse was possible. The Executive Officer on 16-3-1959, ordered to make payment to the Taxation Department to meet inspection charges. On 26th of February 1959, according to P-3, Executive officer ordered the issuance of ;t public notice. It has been inferred from these documents that the lists were not at all prepared. This finding, !n my view, is not warranted from this evidence. It appears that instead of carrying out a survey of the town, the Committee decided to take benefit from the survey carried out by the Taxation Department. The record must have been examined between 26-2-1959 and 16-3-1959 when the payments to bear the inspection charges were ordered to be made. Order dated 26-2-1959 on Exh. P-3 appears to have been passed before the lists were actually prepared. However, according to D- 9 to D-14, objections against the preliminary assessment were filed on 30-3-1959. These objections were entertained and almost in all these cases provisional assessments were reduced. It can, therefore, be safely inferred that by 30-3-1959, preliminary, assessment was completed and affected people including the plaintiffs-respondents had lodged objections against this assessment.

12. D. W. 1 Head Clerk of the appellant Committee produced D-1 to show that on 27-2-1959 duo publicity inviting objections was made in town. He, also, produced copy of the order of the Administrator dated 3t-3-1959 by which the assessment was approved by the Administrator. He, then, produced copies from the assessment register Exhs. D-3 to D-8 to show that on the acceptance of the objections filed by the plaintiffs-respondents the proposed assessment was reduced in each case. He deposed that even press W3 19 cross-examination" he had categorically stated that that lists of preliminary assessment we;; drawn in a regular register. Ha, has however, admitted that the register does not show the data on which the assessment was completed, This evidence, therefore. does not warrant the finding, as recorded by the learned First Appellate Court, that no lists ware at all prepared or that no public notice inviting objections was given. I am, however, constrained to hold that it has not been established if one month's notice as envisaged by section 65 was, in fact, given. I am further of the view that the proposed assessment was made on the basis of the survey carried out by the Excise and Taxation Department.

13. Sections 63 to 68 of the Act provide a procedure for assessing the, immovable properties. Section 63 deals with the manner of the preparation of the assessment lists. Section 64 provides that on the completion of the lists, the Committee shall give public notice thereof, and of the place where the list or a copy thereof may be inspected. When the assessment already made is to be revised, as has been done in this case, the procedure is prescribed in section

65. It reads as follows "Section 65.-(1) The committee shall at the time of the publication of such assessment list give public notice of a time, riot less than one month .hereafter, when it will proceed to revise the valuation and assessment 1 and in all cases in which any property is for the first time assessed, or the assessment thereof if increased, it shall also give notice thereof to the owner or occupier of the property. (2) All objections to the valuation and assessment shall be made its writing before the time fixed in the notice, or orally or in writing at that time." After the objections filed under subsection (2) of section 65 are Inquired into, and the revision of the valuation and assessment has been completed, the amendments made in the lists, as required by section 66, shall be authenticated by the Committee. Under section 68, the Committee in its discretion may prepare for the whole or any part of the municipality a new assessment list every year, or to adopt the valuation and assessment contained in the list fop any year, with such alterations as may in particular casts be deemed necessary in the valuation and assessment for the year following, giving to persons affected by such alterations the same notice of the valuation and assessment as if a new assessment list bad been prepared.

14. I have taken the view that full one month's period inviting public objections, as required by section 65 of the Act, had not been given in this case. The existing assessments have otherwise, bran revised. The Commit bas not itself caused a survey to be carried cut and for this purpose particulars have been copied out from the record of the Excise and Taxation Department prepared for a similar purpose ; I do not think that it will render the asses.. meat to a complete nullity. The only thing to be seen, therefore, is if section 65 is mandatory in terms and its non compliance in letter and spirit reduces the assessment to nullity and non-existent in the eye of law or if it is merely directory? The statutory provisions of enabling character such as section 65 of the Act, have an absolute or a directory effect, depending or the real intention of the Legislature. The intention has to be gathered by carefully attending to the whole. scope of the statute. One general rule, although it may also be found to have its exceptions, is that where a provision is expressed in a negative and prohibitory language, it is considered to be a lute and the one expressed in an affirmative language may be considered directory. Where a provision is absolute having an obligatory force, in carries an implied nullification for its disobedience, but where it is merely directory, its non-compliance may not be fatal unless the complaining party is able to show that the non-compliance has worked to its prejudice, In the instant case no such attempt has been made by the plaintiffs-respondents. The plaintiff's-respondents did file objections and, the same were considers and relief was given to the objector in each case. I am, therefore, of the vie that section e5 of the Act, is not absolute in nature and is merely directory Even if the plaintiffs-respondents were not given complete one month's period to lodge objections, it will riot reduce the assessment to nullity. P L D l964 Lah. 531 and P L D 1964 Lah. 255 are authorities in support of the view I have taken. I, therefore, modify the finding of the two Courts below on issue No. 3.

15. Having modified the finding of the two Courts below on Issue No. 3, it will not be possible to sustain their views in regard to the questions of limitation. Article 120 of the Limitation Act applies to cases where of the limitation is not provided elsewhere in the Schedule. However, suit by which a party seeks to set side an act or order of an officer of the Government in his official capacity, as given in Article 14, can be instituted within one year from the date of the act or the order. The authority of the committee to impose tax bas not been questioned. The assessment was authenticated by the Administrator vide Anne:. D-2 on 31-3-1959. I am, therefore, of the view that the two Courts below were net correct in applying Article 1 of the Schedule to determine the period of limitation. Article 14, therefore, would govern the question of limitation. The suits, having admittedly beer filed beyond the period of one year from the date of the authentication of the assessment, i.e., 31-3-1959, were, therefore barred by limitation, I reverse the finding of the two Courts below on Issue No. 1.

16. Now I advert to the question, of jurisdiction of the civil Court to entertain such suits. It is a settled principle that an Infringement of an existing legal right is always actionable in a civil Court unless Its cognizance has expressly or impliedly been barred. A suit is said to be expressly barred when it is barred by another enactment for the time being ire force. This proposition does not pose any difficulty-although with an awareness that the legislative provisions ousting the jurisdiction of plenary Courts are to be construed strictly, The theory of 'implied bar', however, rosy, sometimes, cause some difficulty in its appreciation. A suit is paid to be impliedly barred by general principles of law or on grounds of public policy. One of the general principles of law is that where a special tribunal or a public bad is created by or under the authority of an Act of the Legislature for the purpose of determining rights which are the creation of the Act, then the jurisdiction of that tribunal or of that body is, unless provided otherwise. exclusive and civil Courts cannot take cognizance of such mattes. It will be in the light of these principles that I propose! to examine sore of the provisions of the Act. Section 84 provides that an appeal against the assessment or levy of any or against the refusal to refund any tax under this Act shall lie to the Deputy Commissioner or to such other officer as is empowered by the Local Government in this behalf. Under subsection (2) if on the hearing of an appeal under this section any question as to the liability to, or the principle of assessment of, a tax snags, on which the officer hearings the appeal entertains reasonable doubt, he may, either of his owe; motion or on the application of any person interested, refer the matter to this Court for its opinion. On a reference being made under subsection (2), the subsequent proceedings in the case, us nearly as may be, are to be conducted in conformity with the rule relating to the references to the High Court contained in the Code of Civil Procedure. Section 86 provides that no objection shall be taken to any valuation. or assessment, nor shall the liability of any person to b assessed or taxed be Questioned, in any other manner or by any other authority than as provided in this Act. Under subsection (2) of section 86 no refund of any tax shall be claimable by any person otherwise than in accordance with the provisions of this Act and the rates thereunder. Relying on these provisions of Act, it was argued that a civil Court has no jurisdiction to try such suits. Some cases were cited in .support of the proposition. In majority of the cases the view taken is that the civil Courts have no jurisdiction to interfere with the assessment made unless the same is ultra vires, In 24 Bom. 607 it was held that civil Courts have no jurisdiction to revise the valuation of the houses made by a municipality for the purpose of imposing the house tax. The remedy against over valuation is provided in the shape of an appeal. In 26 Bom. 294 it was held that in the absence of proof of mala fides, perversity or manifest error, civil Courts ought not to interfere with the house valuation made by a municipality for the purpose of taxation, unless there is a breach or the rules prescribed by law for making the valuation. In 5 1 C 321 it was held that -civil Courts have nothing to do with the correctness or otherwise of the valuation made by the municipality. They can only interfere when the assessment is ultra vires. The civil Courts have no jurisdiction to interfere with the assessment even when the rate payer had no proper hearing before the Objection Committee. In 19 Mad. 10 it was held that where house tax was erroneously levied in respect of the house which was completed only -six weeks before the end of the half year, the persons from whore the tax is levied cannot sue the municipality for refund in a civil Court. As the tax had a legal existence and there was no disregard of the provisions levying the to, his remedy is by way of appeal under the Act. In A I R 1936 Lah. 972, the view taken was not different. It was held that jurisdiction of the civil Court to entertain suds is not barred in caves where the assessment is ultra vines of the Act. In 38 P R 1911 the suit was dismissed as the E .plaintiff lead not exhausted an alternative remedy by way of appeal provided under the Act. The finding of the Courts below, therefore, even on Issues No. 2 cannot be sustained.

17. Finding of the Courts below on Issue No. 4 are even erroneous. Their view that as the suits had been filed within the period of limitation as provided by Article 120, the questions of 'estoppel and laches' do not arise appears to be faulty. The proposition has not been appreciated in its true perspective. In a suit under section 42 of the Specific Relief Act, a declatory decree cannot be claimed as a matter of the right. The Court has a discretion to grant or to refuse the same on a review of all circumstances of the case. It is in this context that in such suit pleas of estoppel. laches or acquiescence are raised. The terms "lying by". "acquiescence", "waiver", laches" ate. are often used to plead estoppel against the grant of a declaratory decree. The proposition is not to be confused with the plea of limitation. In the assessment Instant case, the plaintiffs-respondents lodged objections against a preliminary assessment which were not only entertained but almost in all cases, assessments avers reduced. It was, therefore. pleaded that the plaintiffs having acquiesced to the assessment and having filed suit with an inordinate delay were not entitled to discretionary relief. The plea of laches in filing the suits, was, therefore, very relevant in the circumstances of the case. Delay on the part of the plaintiffs to institute suits had quite often been considered a sufficient around to refuse the relief. Although no rigid rule can be laid down, yet it is not matter of absolute right to obtain a declamatory decree. It is discretionary to the Court to grant or not and in every case the Court must exercise its considered judgment as to whether it is reasonable or not, under all the circumstances of the case, to grant the relief prayed for. Judged from this angle, I am of the view that the plaintiffs-respondents in this c.4se were not entitled to any relief. The assessments were authenticated on 31st of March 1959. The objections were considered and were given effect to in the final assessment as is evident from Exhs. D-3 to D-8. The suits were filed in 1961. The plaintiffs denied to have filed any objections, but their denial cannot be accepted, The committee or somebody else could not have thought of filing objections against the preliminary assessment on their behalf. Their denial of filing objections at the trial reflects adversely on their conduct and this circumstance could also be taken into consideration in refusing them this discretionary relief. The findings of the two Courts below on Issue No. 4 are, therefore, reversed. I am inclined to hold that the respondents-plaintiffs were not entitled to get the relief prayed.

18. Before parting with the judgment, another point requires a brief notice. Three appeals, viz.. 57/13, 60/13 and 62/13 out of which have arisen R. S. A. No. 208/65, 209/65 and 204/65 respectively were, dismissed by the First Appellate Court both on merits and on the ground of limitation. This finding of the learned First Appellate Court has been questioned in these appeals. It has been stated that the appeals were hot barred by time as no Intimation of preparation of the copies was given to the appellants. I have considered this aspect of the case. Even if we count the tune from the date of delivery of the judgment and decree of the trial Court, the appeals before the First Appellate Court were barred by time. Since the learned First Appellate Court has refused to condone the delay lea its discretion, I cannot interfere with this finding ire second appeal. R. S. A. Nos. 208/65, 209/65, and 204/65 are, therefore, dismissed. The judgment and decree of the two Courts below in these cases are, therefore, upheld.

19. Since I have reversed the findings of the two Courts below on Issues Nos. 1 to 4, I accept the remaining five appeals, namely. R. S. As. Nos. 20;/65, 206/65, 207/65, 210/65 and 211/65 and set aside -the judgments and decrees of both the Courts below with the result that the suits filed by the plaintiffs -respondents in these cases stand dismissed. There will be no order as to costs. s. A. H. Appeals accepted.