STATE CONSUMER DISPUTE REDRESSAL COMMISSION

BIHAR, PATNA

Appeal No. 367 of 2017

Executive Officer, Nagar Parishad, Motihari, PO & PS- Motihari, East Champaran

                                                                                                                                                                     … Appellant

Versus

Smt. Munni Devi, Wife of Ashok Kumar, Resident of Village/Mohalla- Jamla Road, Ward no. 13, Dharam Samaj Chowk, Motihari, PO and PS- Motihari, District- East Champaran 

                                                                                                                                                                 …. Respondent

Counsel for the Appellant: Adv. Raghwanand & Adv. Surendra Prasad Singh

Counsel for the Respondent: None

Before,

Hon’ble Mr. Justice Sanjay Kumar, President

Mr. Ram Prawesh Das, Member

Md. Shamim Akhtar, Member

Dated 02.08.2023

As per Sanjay Kumar, President.

O r d e r

1. Present appeal has been filed on behalf of appellant/opposite party for setting aside the judgment and order dated 23.11.2017 passed by Ld. District Consumer Forum, Motihari at East Champaran in Consumer complaint case no. 67 of 2016 whereby and whereunder the Ld. District Consumer forum has directed the appellant/opposite party to make adjustment of the difference of amount, excess paid by the complainant after self assessment of holding tax  for the preceding years, and  in case the adjustment is not made, the appellant would be liable to pay fine of Rs. 5,000/- with interest @ 9% p.a from the date of order till its payment. 
2. Briefly stated the facts of the case as disclosed in complaint petition is that complainant has a hotel namely Ashoka Hotel having holding no. 204A in mohalla- Nakched Tola, Ward no. 13, Motihari and complainant is the owner of said hotel and on the roof of said hotel a tower of Reliance Company is installed.
3. It is further stated that the tax collector of Nagar Parishad has realized Rs. 21,416/- as tax which includes holding tax of Rs. 13,341/- and tower fee of Rs. 6,273/- for the year 2013-2014 and difference of Rs. 1,802/- was deposited by the complainant on 13.08.2014 and obtained receipt.
4. It is further contended that at the time of deposit of tax for the year 2015-2016, tower fee of Rs. 3,764.07/- and holding tax of Rs. 10,020.87/- Total Rs. 13,784.94/- upon which 5% rebate was granted accordingly, after deducting Rs. 689.74/- complainant deposited Rs. 13,096/- and obtained the receipt.
5. It is further contended that different mohallas within Nagar Parishad Motihari have been differently categorized in which the building of complainant comes under C grade/category and complainant came to know about it while she was depositing the tax for the year 2015-2016.
6. It was further contended that complainant is less educated and is house wife and knows to put her signature only. Complainant on 04.06.2015 filed a written complaint for refund of excess paid holding tax but no action was taken on such complaint and thereafter on 11.02.2016 she send a legal notice through her lawyer but she did not receive any reply from opposite party.
7. Complainant thereafter, filed a consumer complaint case in the District Consumer Forum, Motihari for refund of excess amount realized by the tax collector of opposite party Motihari Nagar Parishad and for compensation towards physical, mental harassment and pecuniary loss of Rs. 30,289/- with interest. In support of her claim complainant filed an affidavit and photo copy of receipt of amount deposited and copy of legal notice sent to opposite party.
8. Complainant is a consumer and resides within the territorial jurisdiction of District Consumer Forum, Motihari and complaint is not time barred. Notices were issued to opposite party upon which he appeared and filed his written statement.
9. In written statement opposite party has stated that complainant is not a consumer as such complaint case is not maintainable. If any tax is paid in excess then for refund of difference of amount remedy lies under the Municipal Act. District Consumer Forum is not the appropriate forum.
10. It is further stated that in terms of notification issued by the Urban Development and Housing Department, Bihar, Patna dated 08.05.2013 every tax payer and owner of building has to deposit the tax amount based on self assessment. Complainant has deposited the tax amount pursuant to said notification. Complainant had earlier approached the public grievance cell Motihari alleging excess amount realized from her upon which opposite party held an enquiry and submitted report dated 24.09.2015 to the Public Grievances Cell. From the report it is apparent that Nagar Parishad has not realized excess tax amount but has imposed a penalty of Rs. 2,656/-. The holding tax was assessed on the basis of length and breadth mentioned in the form submitted by the complainant and difference of tax was realized from the complainant in accordance with law.
11. After hearing the parties and considering the materials available on record the District Consumer Forum, has held that prima facie it appears that complainant had self assessed the holding tax and deposited it in the office of opposite party for the year 2013-2014 and 2014-2015 in which excess amount has been deposited which has been accepted by the opposite party in their reply as such there was no occasion to impose penalty of Rs. 2,656/- and in terms of Bihar Nagar Palika Adhiniyam 2007 if any excess amount has been deposited by mistake same has to be refunded and as such held that there is deficiency in service by opposite party and directed to adjust the excess of difference of amount in the year 2017-2018 failing which opposite party is liable to pay Rs. 5,000/- to the complainant from the date of order till payment of the amount with interest @9% p.a. till payment of the amount.
12. Aggrieved by judgment and order dated 23.11.2017 passed in complaint case no. 67 of 2016 passed by District Consumer Forum, Motihari appellant/opposite party has preferred this appeal.   
13. It is submitted on behalf of Ld. Counsel for the appellant that Municipal Counsel Motihari is neither a service provider nor the complainant is a consumer. Power to levy taxes including holding tax and fee against tower is statutory function of Municipality and such function does not come within the purview of consumer Protection Act.
14. It was further submitted that the Ld. District Consumer Forum failed to appreciate the provision contained in section 141 of Bihar Municipal Act, 2007 which deals with review of tax assessment. There is statutory provision under section 142 of the Bihar Municipal Act, 2007 for raising dispute with respect to assessment of tax. Further there is provision of statutory appeal under section 143 of the Municipal Act, 2007.
15. Heard the parties.
16. The issue raised in this appeal stands decided by this Commission in case of Executing Officer, Chapra Municipality Vs. Abdul Gaffar since reported in 1996 CPR (2) 299 and para 5 and 6 of which is reproduced below:

                               5. But District Forum, Chapra acted illegally in entertaining the complaints and issuing direction as mentioned above because the Municipal Board in making arrangement for water supply and for drainage, discharges’ functions assigned to it under the Bihar and Odisa Municipality Act, Municipality are creature of that act which also sets out the functions to be performed by them and in performing those functions they do not render service for consideration. Municipalities levy taxes, duties and fees and by paying those levies, a tax payer does not became a consumer. Payment of tax does not constitute “payment of consideration” for the hiring or availing of a service. We are fortified in our view by the decision of the National Commission in the case of Mayor, Calcutta Municipal Corporation Vs. Tarapada Chatterjee and others.

                           6. Hence the District Forum, has acted illegally and exercise jurisdiction not vested in it by law as those cases are not maintainable under the Consumer Protection Act and the orders passed in those complaint cases are nonest in the eyes of law. Hence any subsequent proceeding with regard thereto is illegal and unjustified and the orders passed by the District Forum under Section 27 of the Act can not be sustained.

17. For the reasons as stated above, the judgment and order passed by District Consumer Forum, Motihari is not sustainable in law as well as on fact and is accordingly set aside.
18. Appeal is allowed and the complaint case no. 67 of 2016 filed before the District consumer Forum, Motihari is dismissed as not maintainable.

(Ram Prawesh Das)                                       (Md. Shamim Akhtar)                                                              (Sanjay Kumar,J)

       Member                                                         Member                                                                                  President

Md. Fariduzzama