DATE OF DISPOSAL: 26.11.2018.
Sri Karuna Kar Nayak, President.
The complainant Manoj Kumar Sahu has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Party ( in short the O.P.) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that having a house at Gate Bazar, Aska Road Street, Ward No.17 of Berhampur Municipal Corporation for which he is required to deposit holding tax, etc. to the O.P. In notice No.56 dated 26.05.2002 the O.P. has noticed to the complainant U/s 147(2) of O.M.Act, 1950 proposing to revise the Holding tax from Rs.3.37 to Rs.1792/- per quarter for the above house of dimension 8’ X 50’ bearing Assessment No. 12000 and the complainant was asked to file objection if any within 30 days of receipt of the notice which was received on 21.08.2002. The aforesaid notice dated 26.05.2002 neither contains the valuation particulars as prescribed under Rule 516-B (2) of O.M.Rules, 1953 nor any instruction to inspect at the Municipality office is forth-coming. Since information of revaluation of the house are kept hidden, the complainant could not file objection in time and requested the O.P. for supply of the above information and for extension of time. The information required was never made available to the complainant for a long period of two and half years. The O.P. even though the revision has not been finalized, issued demand notice No.3502 dated 07.02.2005 U/S 161 of O.M.Act, 1950 to pay Rs.19,725/- within 15 days towards holding tax and the complainant filed another representation on dated 18.02.2005 requesting for supply of required information. Inspite of request for several times, the O.P. avoided for submission of required information as called for by the complainant for which the complainant obtained the same under R.T.I. Act, 2005. The information sheet revealed that there has been illegal imposition of water tax. On receipt of the said information the complainant filed his objection on 29.09.2012 against the amount of Rs.1792/- per quarter towards holding tax. On receipt of the objection, instead of finalizing the revision as per Section 143 (4) of O.M.Act, 1950 read with Rule-516 B(5) of O.M.Rules, 1953, the complainant was advised to prefer appeal before the competent authority in letter No.3386 dated 7.3.2013. The complainant filed appeal petition to the appropriate authority on 25.03.2013 U/s 153 of O.M.Act, 1950. But the aforesaid appeal could not be heard for which the complainant withdrawn the appeal on 30.05.2014. The complainant filed another petition to the O.P. on 03.04.2014 to reassess the revision with consideration of objections. The O.P. instead of considering the objections fixed the holding tax at Rs.1867/- from Rs.1792/- per quarter. The aforesaid fixation of holding tax at Rs.1867/- was communicated in order No. 5553 dated 12.06.2014. The complainant obtained the details of revision of holding tax at Rs.1867/- per quarters under R.T.I. Act, which shows that there has been improper and excess measurement of the house in question. This is very unconstitutional. The measurement of a house taken once by an authority may not be more on measurement taken again by the same authority for the same house. The calculation sheet further shows that there is illegal imposition of Rs.546.46 towards water tax, even though the complainant is vehemently objecting for the same. The complainant is regularly making payment to the Public Health Department towards water tax for consumption of water. While the matter stood thus, the O.P. deputed some of his officials on 28.07.2014 at about 11.30 A.M. without any previous notice and demanded the house tax from 2002-03 to up-to-date and locked the house and the complainant forcibly paid Rs.95,220/- due from 2002-03 to 2014-15vide ICICI Bank cheque No. 357404 dated 28.07.2014. The Municipality is allowing 5% rebate for current taxes to the house owners who is paying it during April and May of the financial year. So the complainant is also eligible to avail the above rebate for the holding tax due from 2002-03 to 2014-15, as if it is a current demand, because the O.P. finalized the revision on 12.06.2014. But the O.P. did not allow it to the complainant even though he requested during forcible collection on 28.07.2014. Imposition of water tax by the O.P. under holding tax is not only illegal but also unlawful. The complainant is required to pay the revised holding tax per quarter excepting water tax as stated hereunder which is proposed by the O.P. in the first time.
(a) Tax for holding (general purpose) : Rs. 437.31
(b) Water tax : Nil
(c) Drainage tax :Rs. 349.17
(d) Lighting tax : Rs. 349.17
(e) Scavenging tax : Rs. 131.36
Total : Rs.1267.01
Or Rs.1267.00
Alleging deficiency in service on the part of the O.P. the complainant prayed to direct the O.P. to cancel the order No.5556 dt.12.06.2014 and exempt the water tax of Rs.525.45 imposed, fix up the revised holding tax per quarter for the house, allow 5% rebate on the holding tax due from the date of effect of this revision i.e. from 01.07.2002 to till disposal of the case, refund the excess amount of Rs.33,832.85 collected forcibly on 28.07.2014,compensation Rs.30,000/- and cost of Rs.5000/- in the best interest of justice.
3. Upon notice the O.P. filed version through his advocate. It is stated that the allegations and averments made in the complaint petition are all not true and correct and the complainant is put to strict proof of those allegations which are not specifically admitted herein are deemed to have been denied. The allegation made in Paras 1 & 2 of the petition that the complainant is having a house at Gate Bazar, Radio station Road, Ward No. 17 of Berhampur Municipal Corporation and he is required to deposit the holding tax before the O.P. is true and correct. It is also true and correct that the O.P. under section 147 (2) of Orissa Municipal Act issued notice vide No. 56 dated 26.05.2002 for revised holding tax per quarter. As per the notice the complainant was asked to file objection, if any, within 30 days of receipt of the notice. But the allegations in Para 3 of the petition that the notice dated 26.05.2002 neither shows the valuation particulars as prescribed under rule 516-B(2) of Orissa Municipal Rules, 1953 is self creation of the present complainant. The allegations in Para 4 of the petition that the information of revaluation to the house are kept hidden. So the complainant was not able to file objection in time are self created and self explanatory allegations. The allegations of availability of the information required by the complainant after long period of 2 1/2years is sufficient to threw the complaint petition as the statute says, any objection under the Act is required to be filed within the stipulated period. The allegations in Para 6 of the present petition clearly shows that the complainant participated in the hearing of the objection, but to cause delay in disposal of the appropriate proceedings, not cooperating for quick disposal of the proceedings, caused delay by filing repeated representations. The complainant withdrew the appeal on 30.05.2014. That means the complainant approaching the appropriate authority found that he has no ground for the appeal, so withdrew the appeal from the appropriate authority. The complaint in Para 8 of the complaint petition specifically admitted that he filed his objection on 29.09.2012. In this situation the allegation and averments made in paras 10 and 11 of the petition are created only to mislead the court, without placing the real and material facts. If he has no papers, then how and under what circumstances, he foiled the objection against the notice of the O.P. on 29.09.2012. As the complainant intentionally not only avoided the possession of the O.P. but also withdrew the appeal, which he preferred before the appropriate appellate authority. So the O.P. as per the law of the land proceeded on 28.07.2014. Hence in the proceeding as narrated in para 12 of the petition is not illegal. So the present complaint is bound to accept the same and also after acceptance of the penalty and submission of the cheque, he has no right to agitate the same before this Hon’ble court, for the self same cause of action. In this case the present complainant willfully violated the provisions for which a notice under section 147 (2) of Orissa Municipal Act was required to be issued. The allegation of water tax collected by Municipality is against the provisions of Section 133 of Orissa Municipal Act is self creation after disposal of the objection before the appropriate authority and also disposal of the appeal before the appropriate appellate authority. The present petition is filed only to mislead the court and also to cause harassment to a public authority without any sufficient reason and cause. This court is also not competent to consider the imposition of the tax, because appropriate court is there and also the complainant in his petition has specifically admitted about the approaching to appropriate authority and also the appellate authority. The present petition is also barred by law of limitation. As the appropriate authority by considering the objection adjudicated the matter the present complainant filed the appeal and subsequently withdrew the same, the same is sufficient to throw the petition and also the present petition before this Hon’ble court for the reliefs is not sustainable in law and facts of the case. Hence the O.P. prayed to dismiss the case subject to payment of cost, in the interest of justice.
4. On the date of hearing of the case, we heard the learned counsel for the complainant due to long absence of the O.P. and his counsels. Perused the case record, written version, written argument and the materials placed on it. We have also thoughtfully considered the submissions made before us by the learned counsel for the complainant. The Hon’ble National CDR Commission, New Delhi has held in case of Mayor, Calcutta Municipal Corporation versus Tarapada Chatarjee and ors, 1994 (1) CPR 87 that payment of tax to Government which goes into consolidated fund of Union of India or State cannot constitute payment of consideration for hiring or availing of service. In similar context the Madras State Commission in the Commissioner Mannergudi Municipality versus Consumer Protection Council, 1993(1) CPR 191 held that house tax collected by the Municipality is a tax and not a fee for any service rendered by the Municipality in the matter of laying, and maintenance of road, water supply and drainages facility and the complaint against the O.Ps is not maintainable as the complainant cannot be considered to be a consumer.
5. Considering the factual position of the case, and decision of law the complainant’s case is dismissed against the O.P. on merit and the complainant is at liberty to file his complaint before any other Forum having competent jurisdiction for redressal of his grievance and he may avail the benefits under Section 14 of the Limitation Act 1963 in the best interest of justice.
The order is pronounced on this day of 26th November 2018 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of www.confonet.nic.in for posting in internet and thereafter the file be consigned to record room.
