Mudholkar, J.:— This is a petition under Art. 226 of the Constitution. The petitioner, the Municipal Corporation of Greater Bombay, have approached this Court for quashing an order of Mr. A.S Sarela, District Judge, Thana, passed in an application made to him by the respondent No. 2 under S. 135(2) of the Indian Railways Act, 1890, and section 3(2) of the Railways (Local Authorities Taxation) Act, 1941. In that application the Western Railway Administration (hereafter referred to as Railway Administration) wanted the determination, if any, of a lump sum payable to the petitioner by way of taxes.
2. Certain facts must be stated. The Railway Administration owns some buildings situate at Malad, which is now within the limits of Greater Bombay. In the year 1908 the local area of Malad was made a notified area under the provisions of the Bombay District Municipal Act, 1901, and a committee known as Malad Notified Area Committee was constituted in respect of it. This committee, inter alia, possessed a power of assessment and recovery of taxes within the area. In the year 1950 the Government of Bombay made Ss. 4 and 7 of the Bombay District Municipal Act, 1901, applicable to the local area of Malad, and directed that from 1-4-1951 a permanent Municipal district shall be formed for the local area of Malad. By the Bombay Municipal (Further Extension of Limits and Schedule BBA (Amendment)) Act, 1956 (Bombay Act LVIII of 1956), the Malad Municipality was abolished and the local area which, prior to the coming into force of the said Act, was under the jurisdiction of the Malad Municipality, became subject to the authority of the Municipal Corporation of Greater Bombay. As a result of this notification, the buildings owned by the Railway Administration and situate at Malad are now within the limits of the Municipal Corporation of greater Bombay.
3. We may mention here that a portion of the Railways which are now under the management of the Western Railway Administration were formerly owned by the B.B and C.I Railway. The assets of this company were taken over by the Government of India in the year 1942 and thereafter they vested in the B.B and C.I Railway Administration. These assets along with those of some other railway systems were amalgamated on 6-11-1951 and constituted into a single unit called the Western Railway Administration.
4. Under S. 135(1) of the Indian Railways Act, a railway administration shall not be liable to pay any tax in aid of the funds of any local authority, unless the Central Government declares by a notification the railway administration to be liable to Pay the tax. In exercise of the powers conferred by this sub-section, the Government of India issued a notification on 23rd August 1911, of which the relevant part is as follows:
“In pursuance of S. 135 of the Indian Railways Act, 1890 (IX of 1890) and in supersession of all previous notifications on the subject the Governor General in Council is pleased to declare that the administration of Bombay Baroda and Central India (including Rajputana and Malwa) Railway shall be liable to pay in aid of the funds of the local authorities set out in the schedule hereto annexed, the taxes specified against each in the second column thereof.”
5. Thereafter follows the schedule. In pursuance of this notification, the Malad Notified Area Committee, and thereafter the Malad Municipal Committee, recovered house and property tax from the R.B and C.I Railway Company, B.B and C.I Railway Administration and the Western Railway Administration till the year 1952-1953 in respect of the buildings owned by it in Malad. For the year 1953-1954 the Malad Municipality increased the rateable value of the buildings belonging to the Railway Administration and called upon it to pay the house and property tax on the footing of the revised rateable value. It may be mentioned that till the year 1952-1953 the Malad Municipality, and before it, the Notified Area Committee, recovered taxes from the Railway Administration only with respect to buildings constructed prior to 1-4-1937. The Railway Administration was not willing to pay these taxes.
6. It may be mentioned here that in the year 1941 a new law was passed by the Central legislature dealing with the question of liability of railways to taxation by the local authorities. That law is the Railways (Local Authorities Taxation) Act, 1941. The provisions of S. 3(2) thereof are as follows:
“While a notification under sub-s. (1) is in force, the railway administration shall be liable to pay to the local authority either the tax mentioned in the notification or in lieu thereof such sum, if any, as a person appointed in this behalf by the Central Government may, having regard to the services rendered to the railway and all the relevant circumstances of the case, from time to time determine to be fair and reasonable. The person so appointed shall be a person who is or has been a Judge of a High Court or a District Judge.”
7. By its application dated 23-3-1956 the Western Railway Administration invoked the jurisdiction of the District Judge, Thana, as the authority constituted under S. 3(2) of the said Act, for determining “such sum, if any” payable by it as tax to the Bombay Municipal Corporation. This application was inquired into by the District Judge, Thana, as the particular area from which this dispute arises is within the limits of the District of Thana. The learned District Judge, after considering the statements filed both by the Railway Administration and the Corporation, came to the conclusion that the properties of the Railway Administration in Malad are not liable to pay any tax whatsoever to the Corporation, because no notification had been issued by the Central Government under sub-s. (1) of S. 3 of the Railways (Local Authorities Taxation) Act, 1941. Certain other questions which were raised on behalf of the Railway Administration were also answered by him; but we need not refer to them, because as we will show presently the application of the Railway Administration to the District Judge, Thana, was not at all maintainable.
8. In the first place, we would like to point out that an application under sub-s. (2) of S. 3 of the Act, Railways (Local Authorities Taxation) Act, 1941, can only be made by a Railway Administration with respect to which a notification has been made by the Government under sub-s. (1) of S. 3 of the Act. It is common ground that no notification whatsoever has been made by the Central Government under the aforesaid provision, whether in respect to the Western Railway Administration, or with respect to its predecessors, the B.B and C.I Railway Co. and the B.B and C.I Railway Administration. Indeed that is the finding of the Authority itself.
9. There is, however, another provision, under which an application for determination of the tax could be made by a Railway Administration. That provision is S. 135(2) of the Indian Railways Act. The provisions of that sub-section are as follows:
“While a notification of the Central Government under clause (1) of this section is in force, the railway administration shall be liable to pay to the local authority either the tax mentioned in the notification or, in lieu thereof, such sum, if any, as an officer appointed in this behalf by the Central Government may, having regard to all the circumstances of the case, from time to time determine to be fair and reasonable.”
10. These provisions are substantially the same as those of sub-s. (2) of S. 3. No doubt, the Railway Administration has stated in its application to the District Judge that it was invoking its jurisdiction under sub-s. (2) of S. 3; but in paragraph 9 of its application it has made a reference to the provisions of S. 135(2) of the Indian Railways Act. We are, therefore, prepared to treat the application of the Railway Administration as one under both the provisions, that is, of S. 3(2) of the Railways (Local Authorities Taxation) Act, 1941, and S. 135(2) of the Indian Railways Act, 1890.
11. Now, in order to attract the provisions of sub-s. (2) of S. 135, not only must there be a notification of the Central Government under sub-sec. (1) of S. 135, but there must be a liability upon the Railway Administration to pay a tax by virtue of the notification. In other words, it is only where the Railway Administration is made prima facie liable to pay a tax to a local authority that it can approach the appropriate authority for determining the quantum of such liability. We may mention that though in the original application made by the Railway Administration its liability to pay the tax by virtue of the notification issued under S. 135(1) was not disputed, in the written statement filed on its behalf subsequently that liability was questioned. It was for this reason that learned District Judge thought it necessary to decide the question as to whether there was any liability on the Railway Administration to pay the tax at all.
12. There is, however, a material aspect of this matter which has been overlooked by the learned District Judge. That is the effect of the stand taken by the Railway Administration in paragraph 1 of its written statement on the submissions made by it in paragraph 10 of its application. In the latter paragraph it seems to proceed on the assumption that the notification of the year 1911 entitles the District Judge to determine ‘such sum, if any,’ as may be found payable by it and has elected to do so, if the District Judge finds that it would be fair and reasonable to order it to pay a particular sum. But in paragraph 1, this is what it says:
“The applicant respectfully submits that in view of the fact that there does not exist any notification of the Government of India either under the provisions of S. 135(1) of the Indian Railways Act, 1890, or under S. 3(1) of the Railways (Local Authorities Taxation) Act, 1941, declaring the liability of The Western Railway Administration to the payment of any tax to the Malad District Municipality, the applicant Administration is not liable in law to pay any tax whatever to the opponent Municipality in the absence of) any such notification. The applicant says that the only notification which was issued by the Government of India under S. 135(1) of the Indian Railways Act, 1890, was dated 24-8-1911 and related to the former B.B and C.I Railway Administration. The liability which was-declared by the said notification of the said B.R and C.I Railway Administration to the Malad (Notified Area) Committee was in respect of housed and property tax. The said B.B and C.I Railway Administration as such ceased to exist with, effect from 6-11-1951 on which date the said B.B and C.I Railway Administration along with the Administrations of the Saurashtra Railway, Jaipur State Railway, Rajasthan Railway and the Section Marwar Junction to Phulad forming part of the ex-Jodhpur Railway Administration, were integrated into one Unit known as the Western Railway Administration. The applicant, therefore, submits that the Western Railway is not just a change of name for the former B.B and C.I Railway Administration but is altogether a distinct, separate and independent unit formed out of the merger of the five different Railway Administrations. In the circumstances and as there does not exist any notification of the Government of India declaring the liability of the Western Railway Administration to pay any tax in aid of the funds of the opponent Municipality, the applicant is not liable to pay any tax ta the opponent Municipality in respect of any of its properties situated within the limits of the opponent Municipality.”
13. No doubt, it has raised certain contentions on the merits also, but they being “without prejudice” to the main contention, cannot survive if the District Judge has no jurisdiction to entertain the application. By raising the contention as to the absence of notification the Railway Administration must be deemed to have amended its original application.
14. Now, where a person seeks from a tribunal an adjudication of a dispute, he must allege and, where disputed, prove that the tribunal has jurisdiction to entertain the proceeding in which the dispute is raised. Thus, in every plaint the plaintiff has to aver that the Court in which it is filed has jurisdiction over the subject-matter of the claim made therein. In the absence of such an averment, the Court must reject it, unless the Court is satisfied from the other averments in the plaint that it has, prima facie, jurisdiction to entertain the plaint and that the plaintiffs omission to make the averment as to jurisdiction is a mere clerical or accidental error. But where a plaintiff lodges his claim and denies the jurisdiction of the Court to entertain it, the Court must throw it out forthwith. The position is not different where an initial averment as to the Court's jurisdiction is withdrawn by the plaintiff, either expressly or by necessary implication, later on.
15. In our opinion, the quotation from paragraph 1 of the Railway Administration's Written Statement displaces the contrary submissions in its application, with the result that the Railway Administration must be held to deny the very jurisdiction of the learned District Judge to deal with the claim. In the face of this denial, there is nothing that the learned District Judge could have done but to dismiss the Railway Administration's application.
16. It is clear that sub-s. (2) of S. 135 empowers the Central Government to appoint an officer only for the limited purpose of determining the quantum of the liability of the Railway Administration to pay the tax leviable by the local authority and not for determining the question of the liability of such Administration to pay a tax at all. If we look to the language of sub-s. (2) of S. 135, it is clear that the existence of liability on the Railway Administration to pay a tax to the local authority is a condition precedent to the exercise of the jurisdiction to determine the quantum of liability under S. 135(2) of the Act. In other words, only a Railway Administration which accepts the position that it is liable to pay a tax that is entitled to approach the appropriate authority under sub-s. (2) of S. 135. It is therefore not competent to such authority to consider, in a proceeding before him under this provision, the very factum of the liability of the Railway Administration to pay the tax of which the amount if any is required to be determined by it.
17. Mr. Baptista who appears for the Railway Administration has strenuously urged that the words “such sum, if any” which occur in sub-s. (2) of section 135 clearly indicate that the authority appointed thereunder has jurisdiction to consider the question of the liability of the Railway Administration to pay tax. The opening words of sub-s. (2) of S. 135 are “while a notification of the Central Government under clause (1) of this section is in force”. Now, once a notification is issued under the aforesaid provision, it would follow that the Exemption of a Railway Administration from liability to pay a tax conferred by the opening words of sub-s. (2) of S. 135 is taken away or modified by that notification. That is a settled and indisputable fact and cannot be questioned before or by the authority approached under S. 135(2). The authority can construe the notification or enquire into the existence of the notification. If it holds that there is no notification, it must straightaway proceed to dismiss the application. It has no power to go into the question of the liability of the Railway Administration to pay a tax at all. Where it chooses to entertain the application, it must function only with respect to a matter which is covered by the notification. In other words, the position is that the District Judge can exercise his functions only in respect to a Railway Administration which is not wholly exempted from paying a tax. The function entrusted to him is a limited one, viz., the determination of the sum, if any, which is payable by a Railway Administration to a local authority by way of taxes. No other function is entrusted to him. The question as to the existence of liability is wholly beyond his jurisdiction to determine. There are also other words in sub-s. (2) of S. 135 which lead to the same effect. The concluding portion of the sub-section to the effect that the officer indicated therein has to determine such sum as appears to him, “fair and reasonable” are pertinent. Now, it may be that he may think that in the circumstances of a particular case it would not be fair and reasonable to order that anything should be paid to a local authority. For covering such a case it was necessary to insert the words “if any” in these provisions. We therefore do not think that the use of these words in this provision entitles the District Judge to determine the question as to the liability of the Railway Administration to pay a tax to a local authority by virtue of the notification of the Government under sub-s. (1) of S. 135.
18. Since that is our view, it would follow that the application of the Railway Administration to the authority was wholly misconceived. It was not obligatory upon the Railway Administration to approach the authority at all in this matter. Indeed, if they dispute the very fact of the liability, then the proper course for it is to go to the ordinary Civil Court for redress and not to the authority appointed under the Railway Act. Since in our opinion the learned District Judge had no jurisdiction to entertain the application, it follows that his findings on the various questions raised by the Railway Administration are inefficacious.
19. Accordingly, we make the rule absolute in terms of the prayer and dismiss the application of the Railway Administration made to the District Judge, Thana. As the point concerning his jurisdiction was not taken by the petitioner before the District Judge, we make no order as to costs.
JC/V.S.B
Rule made absolute.