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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.227 OF 2003
APPELLANT: The State of Maharashtra, Agriculture
Department, Mantralaya, Mumbai
Respondent
through its Principal Officer, Training &
(On R.A.) Visit System, Advocate Bonde's Building,
Mangilal Plot, Camp Road, Amravati,
Tq. & Distt. Amravati.
-VERSUS-
RESPONDENTS: Purushottam S/o Madanlal Agrawal
through Lrs:
1-a) Smt. Seeta Purushottam Agrawal
(Widow), aged about 60 years,
1-b) Rajesh Purushottam Agrawal (Son)
Aged about 35 years,
1-c) Sau. Seema Sunil Pitti (Daughter), aged
about 33 years, R/o Kasliwal Classic,
Darga Road, Aurangabad.
Dismissed as per 1-d) Sau. Rekha Nitin Agrawal (Daughter)
Court's order aged about 31 years, R/o Shri Ganesh
dt.7-1-2010 Appt. Pune.
against R-1(d).
1-e) Gajanan Purushottam Agrawal (Son)
aged about 30 years,
1-f) Santosh Purushottam Agrawal (Son)
aged about 29 years.
All R-1(a), (b), (e) & (f) are r/o 'Nilgiri'
Vijay Colony, Congress Nagar Road,
Amravati.
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Shri S. J. Kadu, Assistant Government Pleader for the appellant.
Shri S. V. Sohoni, Advocate for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATED: 08 th JUNE, 2017.
ORAL JUDGMENT :
1. The original defendant in Special Civil Suit No.285 of 1995 has filed this second appeal under Section 100 of the Code of Civil Procedure, 1976 challenging the decree passed by the appellate Court in Regular Civil Appeal No.41/1998.
2. The respondent Purushottam was the owner of Municipal House No.218/7 situated within the limits of Amravati Municipal Corporation. Half portion of the first floor was let out to the Agriculture Department of the State of Maharashtra. An agreement dated 9-3-1995 was entered into between the parties. Rent fixed was Rs.4995/- per month. It was agreed that liability to pay municipal taxes and electrical charges would be that of the lessee while property tax would be paid by the lessor. According to the original respondent, the appellant did not pay rent for the period from 1-4-1995 to 30-6-1995. The Municipal Corporation issued a bill to the appellant for Rs.16,720/- towards municipal taxes. As the amount of Rs.13,486/- towards general tax was not ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:22 ::: sa227.03.odt 3/7 paid, the respondent filed suit for recovery of Rs.29,970/- with interest.
3. According to the appellant, it was not liable to pay general tax as it was infact property tax which was to be paid by the lessor. It agreed that it was liable to pay other municipal taxes. Hence, the liability to pay general tax was denied.
4. The trial Court on consideration of the evidence on record held that the general tax of Rs.13,486/- was, in fact, property tax which was liable to be paid by the respondent. The trial Court, therefore, dismissed the suit. The appellate Court held that general tax could not be equated with property tax and further held that it was the liability of the appellant to pay the same. On that basis, the judgment of the trial Court was set aside and the suit came to be decreed.
5. Being aggrieved by the aforesaid judgment, the original defendant has filed this second appeal. While admitting the appeal the following substantial questions of law came to be framed:
(i) As to whether the lower Appellate Court has correctly decided the case in accordance with law and whether it was justified in quashing and setting ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:22 ::: sa227.03.odt 4/7 aside the judgment and decree passed by the trial Court?
(ii) Whether interpretation of the term "property tax" was correctly made by the lower Appellate Court, in view of the provisions of Section 127 read with sectin129 and 132 of the Bombay Provincial Municipal Corporations Act, 1948?
6. Shri S. J. Kadu, the learned Assistant Government Pleader for the appellant submitted that as per the agreement at Exhibit-42, municipal taxes and electrical charges were to be paid by the lessee while the property taxes were to be paid by the lessor. He submitted that in the demand issued by the Municipal Corporation, the amount of Rs.13,486/- was shown towards the general tax. The general taxes were, in fact, property taxes as this aspect was clarified by the concerned Superintendent as per document at Exhibit-54 dated 28-3-1995. He submitted that the trial Court rightly found that the liability to pay property tax/general tax was that of the respondent and, therefore, the appellant had rightly refused to pay the same. According to him, the appellate Court misinterpreted this aspect of the matter. It was pointed out that besides general taxes, there was demand of other municipal taxes which were paid by the appellant. He, therefore, ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:22 ::: sa227.03.odt 5/7 submitted that the decree passed by the trial Court was liable to be restored.
7. Shri S. V. Sohoni, learned Counsel for the respondent supported the impugned judgment. According to him, the lessor was liable to pay only property tax, while what was demanded was general tax. This amount of general tax was to be paid by the appellant and, therefore, the appellate Court rightly decreed the suit. He referred to the provisions of Section 129 and 132 of the Bombay Provincial Municipal Corporations Act, 1949 (for short the said Act). It was, therefore, submitted that the appeal was liable to be dismissed.
8. I have heard the learned Counsel for the parties at length and I have also gone through the documents on record. As per the lease agreement at Exhibit-42, it was agreed that the liability to pay municipal taxes and electrical charges would be that of the appellant. The property taxes were to be paid by the respondent. As per the demand issued at Exhibits 50, 51 and 54, an amount of Rs.13,486/- was towards general tax, while the balance amount was towards fire tax, tree tax, employment guarantee scheme cess as well as street tax. At Exhibit-54, the Superintendent of the Municipal Corporation had clarified that general tax means property tax. The appellant by examining the ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:22 ::: sa227.03.odt 6/7 Authorized Officer from the Municipal Corporation at Exhibit-53 had sought to bring on record the aspect that general tax means property tax.
9. Provisions of Section 127 (1)(a) of the said Act indicate that the Municipal Corporation has the authority to impose property tax. As per provisions of Section 129(1) of the said Act, various taxes which constitute property tax have been enumerated. Section 129(1)(c) refers to a general tax. In other words, general tax is a component of property tax. The trial Court after taking into consideration this aspect of the matter along with the deposition of PW-3 has held that general tax would mean property tax. This approach of the trial Court is in consonance with the statutory provisions referred to herein above. The appellate Court, however, committed an error when it held that general tax would not mean property tax. It has further misinterpreted the agreement at Exhibit-42 by observing that all taxes imposed by the Municipal Corporation were to be paid by the appellant and those not imposed by the Municipal Corporation were to be paid by the respondent. This interpretation is clearly erroneous in the light of specific stipulation in the agreement that the property taxes would be paid by the building owner.
10. In the light of aforesaid discussion, the substantial ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:22 ::: sa227.03.odt 7/7 questions of law as framed are answered in favour of the appellant. It is held that the interpretation of the term "property tax" was correctly made by the trial Court and the interpretation as made by the appellate Court was incorrect.
11. In the result, the impugned judgment dated 3-12-2002 in Regular Civil Appeal No.41 of 1998 is quashed and set aside. The judgment of the trial Court in Special Civil Suit No.285/1995 dated 29-12-1997 is restored. The said civil suit, therefore, stands dismissed.
12. The second appeal is accordingly allowed with no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:22 :::