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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1734 of 2013
1. Ishwardas Sawaldas Mukhi,
Aged about 67 years,
R/o Jain Mandir Ward,
Hinganghat, Dist. Wardha.
2. M/s. Gima Manufacturing
Private Limited
(Through Its Director),
Ward No.40, Hinganghat,
Dist. Wardha.
3. Chandragauri Kishorbhai
Jobanputra,
Aged 63 years,
Jain Mandir Ward,
Hinganghat, Dist. Wardha.
4. R.S.R. Mohta Spinning and
Weaving Mills Limited
(Through Its Director),
Ram Mandir Ward,
Hinganghat, Dist. Wardha.
5. Parmanand Laduramji Tapadiya,
Aged 67 years,
Civil Lines, Wardha,
Dist. Wardha.
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6. Premlatadevi Basantkumar Mohta,
Aged 52 years,
Hinganghat, Dist. Wardha.
7. Sangharkshit s/o Hari Om Khalatkar,
Aged Major,
Occupation - Labour,
Ward No.15, Hinganghat,
Dist. Wardha. ... Petitioners
Versus
1. The State of Maharashtra
(Through Its Secretary, Urban
Development Department),
Mantralaya,
Mumbai-32.
2. The Municipal Council,
Hinganghat, Dist. Wardha
(Through Its Chief Officer).
3. The Municipal Council,
Wardha, Dist. Wardha
(Through Its Chief Officer).
4. The Municipal Council,
Ballarpur, Dist. Chandrapur
(Through Its Chief Officer). ... Respondents
Shri M.G. Bhangde, Senior Advocate, assisted by
Shri R.M. Bhangde, Advocate for Petitioners.
Shri M.K. Pathan, Assistant Government Pleader for Respondent
No.1.
Shri Anand S. Deshpande, Advocate for Respondent No.2.
Shri Abhay Sambre, Advocate for Respondent No.3.
Shri S.A. Sahu, Advocate, holding for Shri M.I. Dhatrak, Advocate
for Respondent No.4.
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CORAM : R.K. DESHPANDE & M.G. GIRATKAR, JJ.
DATE OF RESERVING THE JUDGMENT : 7-12-2017
DATE OF PRONOUNCING THE JUDGMENT : 13-12-2017
JUDGMENT (Per : R.K. DESHPANDE, J.) :
1. This petition challenges the provision of Section 170(c) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 ("the said Act"), requiring the petitioners to deposit the full amount of the bill of payment of property tax as a condition precedent for entertaining an appeal against it before the Judicial Magistrate. Consequently, the bills issued to the petitioners demanding the taxes in respect of their properties, are also challenged.
2. According to the petitioners, the bills presented by the Municipal Council to them under Section 150 of the said Act shows the enormous enhancement in the rateable value of property and the taxes levied upon them as per the old and new rates are given in the bills annexed to the petition, and the comparative chart of it, ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:48:05 ::: 4 wp1734.13.odt is reproduced below :
Sr.No. Name Old & New Tax Page No.
1. Petitioner No.1: Old Tax : Rs.970/- 44
Ishwardas Sawaldas
Mukhi New Tax : Rs.19,415/-
2. Petitioner No.2: Gima Old Tax : Rs.25,137/- 47-49
Manufacturing Pvt. Ltd.
New Tax : Rs.50,721/-
3. Petitioner No.3: Old Tax : Rs.760/- 50-51
Chandragauri
Jobanputra New Tax : Rs.5,693/-
4. Petitioner No.4: R.S.R. Old Tax : Rs.27,410/-
Mohta Spinning and Weaving Mills Ltd. New Tax : Rs.20,47,562/-
5. Petitioner No.5: Old Tax : Rs.2,383/- 52-53 Parmanand Tapadiya New Tax : Rs.14,378/-
6. Petitioner No.6: Old Tax : Rs.9,622/- 92 Premlatadevi Mohta New Tax : Rs.13,430/-
7. Petitioner No.7: Old Tax : Rs.31/- 55-56 Sangharashit Khadtkar New Tax : Rs.396/-
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wp1734.13.odt Section 169(2)(b) of the said Act provides a right of appeal before the Magistrate, challenging the bill issued under Section 150 of the said Act. Section 170(c)(i) of the said Act prohibits entertaining of an appeal unless the full amount of the bill is deposited in the Municipal Office and hence the said provision is under challenge in this petition.
3. Shri M.G. Bhangde, the learned Senior Advocate, assisted by Shri R.M. Bhangde, Advocate, appearing for the petitioners, has taken us through the entire Scheme running from the provision of Section 113 of the said Act, more particularly the provisions of Sections 114, 115, 117, 118, 119, 120, 121, 150, 169 and 170, and it is urged that there is no adjudication with reasons to reject any objection to the determination of the rateable value under Section 114, and the preparation of the assessment list under Section 115 of the said Act. Relying upon para 5 of the decision of the Apex Court in the case of Union of India and another v. Cynamide India Ltd. and another, reported in (1987) 2 SCC 720, it is urged that the ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:48:05 ::: 6 wp1734.13.odt preparation of assessment list under Section 115 of the said Act is a quasi legislative process in which it is not permissible to read the principles of natural justice. Relying upon the another decision of the Apex Court in the case of Ajay Singh and another v. State of Chhattisgarh and another, reported in (2017) 3 SCC 330, it is urged that the inherent and essential principles of adjudication like adherence to doctrine of audi alteram partem, rules pertaining to fundamental adjective and seminal substantive law are required to be followed with ultimate reasoned verdict while delivering the judgment, and these attributes are missing in the process of preparation of assessment list under Section 115 of the said Act.
4. It is also urged that it is the first opportunity to challenge the bill of the property tax presented under Section 150 before the Judicial Magistrate under Section 169(2)(b) of the said Act. According to him, the title of the bill to the provision of Section 169 of the said Act is a misnomer and in fact it is the original jurisdiction of a plenary nature made under the Act coupled with the bar of institution of the suit under Section 172 to challenge the bill issued under Section 150 of the said Act. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:48:05 ::: 7
wp1734.13.odt Reliance is placed upon the decisions of the Apex Court in the cases of Mardia Chemicals Ltd. and others v. Union of India and others, reported in (2004) 4 SCC 311, and Union of India v. R. Gandhi, President, Madras Bar Association, reported in (2010) 11 SCC 1, to urge that an appeal under Section 169(2)(b) of the said Act is not a creature of Statute but it is to enforce the fundamental right under Article 14 of the Constitution of India, which cannot be subject to any such condition. He submits that the provision is arbitrary inasmuch as it does not even give discretion to the Magistrate to waive such deposit in appropriate cases and it is the entire amount of bill, which is required to be deposited. He further submits that the condition is onerous, making the right of appeal absolutely illusory and alternatively, therefore, on that ground also, the provision is required to be struck down.
5. Shri Pathan, the learned Assistant Government Pleader, appearing for the respondent No.1, relies upon the decision of the Division Bench of this Court in the case of Walchandnagar Industries Ltd., Mumbai v. Municipal Corporation of the City of Pune ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:48:05 ::: 8 wp1734.13.odt and others, reported in 2014(2) Mh.L.J. 852, to urge that the entire controversy is dealt with in the said decision and there is no scope left open to take a different view of the matter.
6. Section 169 of the said Act deals with the appeals to the Magistrates, and the provision of sub-section (2)(b) thereof being relevant for this case, is reproduced below :
"169. Appeals to Magistrates or Committee.-- (2) Appeal against any claim for taxes on buildings and lands or both including other dues, in relation thereto, if any, included in the bill presented to any person under Section 150 may be made, at the discretion of the assessee.--
(b) directly to any Judicial Magistrate or Bench of such Magistrates by whom under the direction of the Sessions Judge such class of cases is to be tried :
Provided that an appeal against the decision of the Property Tax Appeal Committee under clause (a) shall lie to the Judicial Magistrate or Bench of such Magistrates referred to in clause (b)."
7. The procedure for preferring an appeal is provided under Section 170 of the said Act, which is reproduced below : ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:48:05 ::: 9
wp1734.13.odt "170. Procedure in appeal.--No appeal under the last preceding section shall be entertained unless.--
(a) the appeal,--
(i) under sub-section (1) or under clause (b) of sub-section (2) of Section 169 is brought within thirty days next after the presentation of the bill complained of;
(ii) under clause (a) of sub-section (2) of Section 169, to the Property Tax Appeal Committee is brought within thirty days next after the presentation of t he bill complained of; and
(iii) under the proviso to sub-section (2) of Section 169, to the Judicial Magistrate against the decision of the Property Tax Appeal Committee is, brought within thirty days next after the decision of that Committee :
(b) an application in writing stating the grounds on which the claim of the Council is disputed, has been made to the Council in the case of a tax on buildings or lands or both within the time fixed in the notice given under Sections 119 or 123 of the assessment or alteration thereof, according to which the bill is prepared; and
(c)(i) the appellant under sub-section (1) or sub-section (2), as the case may be of Section 169 has paid in the municipal office the full amount included in the bill; and
(ii) Where the appeal is not filed in accordance with the provisions of Section 169 and this section, it shall be liable to be summarily dismissed."::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:48:05 ::: 10
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8. We have gone through the averments made in the petition and we find that appeal is preferred by the petitioners under Section 169(2)(b) of the said Act before the Judicial Magistrate challenging the bills issued under Section 150 by the Municipal Council demanding the property tax. Since Section 170(c)(i) creates an absolute bar to entertain an appeal under Section 169(2) of the said Act without payment of the entire amount in the Municipal Office, the said provision is the subject-matter of challenge on the ground that it is arbitrary and violative of Article 14 of the Constitution of India.
9. After hearing the rival arguments, we find that the controversy is fully covered by the decision of the Division Bench of this Court in Walchandnagar Industries Ltd.'s case, cited supra. It is not in dispute that in the said decision, the Division Bench of this Court considered the provision of Section 406(2)(e) of the Bombay Provincial Municipal Corporation Act, 1949 (now known as "Maharashtra Municipal Corporation Act"), containing the requirement of deposit of the entire amount with the Commissioner of Municipal Corporation as a condition precedent to entertain any ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:48:05 ::: 11 wp1734.13.odt appeal challenging the presentation of the bill demanding property tax. The Division Bench considered the provision of Chapter VIII of the Taxation Rules, containing Rules 15, 16, 17, 18 and 19, which are undisputedly in pari materia with the provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, contained in Sections 113, 114, 115, 117, 119, 120, 169 and 170.
10. No doubt, that the arguments raised by Shri Bhangde, the learned Senior Advocate for the petitioners, based upon the decision of the Apex Court in the cases of Union of India and another v. Cynamide India Ltd. and another and Ajay Singh and another v. State of Chhattisgarh and another, cited supra, are attractive on the aspect of preparation of assessment list, which can be termed as a quasi legislative process, not involving any adjudication, like one in judicial proceedings. According to him, there is more the reason to hold that the provision of appeal is a misnomer and it is the original and initial proceedings. We have also seen paras 101 and 102 of the decision of the Apex Court in the case of R. Gandhi, President, Madras Bar Association, cited ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:48:05 ::: 12 wp1734.13.odt supra, on the fundamental right under Article 14 of the Constitution of India, which includes a right to have the person's rights, adjudicated by a forum which exercises the judicial power in an impartial and independent manner consistent with the recognized principles of adjudication.
11. The object of the provision is to avoid making of frivolous claims upon imposition of tax after taking into consideration the objection raised to the determination of rateable value. After taking into consideration the various pari materia provisions, the validity of Section 406(2)(e) containing the requirement of deposit of the entire amount of bill as a condition precedent for entertaining an appeal is upheld, by the Division Bench of this Court in the case of Walchandnagar Industries Ltd., cited supra. In our view, the contentions as urged above, are inherently connected with the question as to whether an appeal under Section 160 of the said Act is purely a misnomer and in fact it deals with the original or initial proceedings, which argument is rejected by the Division Bench of this Court in the aforestated decision. The judicial propriety therefore demands us to follow the same view, which ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:48:05 ::: 13 wp1734.13.odt according to us is a possible view of the matter and merely because we find that the other view is also possible, it would not be proper for us even to refer the matter to a larger Bench on the ground that certain aspects are not considered by the Division Bench of this Court. We respect the said view, which holds the field since 2014.
12. Following the decision of the Division Bench of this Court in Walchandnagar Industries Ltd.'s case, cited supra, and for the reasons stated therein, we do not find the provision of Section 170(c)(i) of the said Act to be unconstitutional. Consequently, the challenge to the bills of property taxes no longer survives.
13. The petition is dismissed. Rule stands discharged. No order as to costs.
(M.G. Giratkar, J.) (R.K. Deshpande, J.)
14. After pronouncement of the judgment, the learned counsel for the petitioner prays for continuation of interim order ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:48:05 ::: 14 wp1734.13.odt operating in this petition for a period of six weeks.
The prayer is opposed by the other side.
However, in view of the fact that the interim order is operating till this date, the same shall continue for a further period of six weeks from today; at the end of which, it shall stand automatically vacated without reference to the Court.
(M.G. Giratkar, J.) (R.K. Deshpande, J.)
Lanjewar, PS
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