Mukesh K. Bajapa vs Municipal Corporation Of Gr. ...
2003 Latest Caselaw 69 Bom

JUDGMENT

D.G. Karnik, J.

1. Heard the learned counsel for both the sides.

2. The respondent Municipal Corporation issued a notice to the appellant on 7th May 1987 under Section 347 and 351 of the Mumbai Municipal Corporation Act 1888 (hereinafter referred to as 'the Act') for the removal of the unauthorized construction and structure. Earlier, by order dated 7th March 1990, the respondent Municipal Corporation had granted the request for regularization of the unauthorized construction subject to certain conditions including payment of security, deposit of Rs. 1,50,000/- and a penalty of Rs. 21,350/-.

3. Being aggrieved by the impugned notice of 7th March, 1987 issued under Section 347 and 351 of the Act, the appellant filed a suit in the City Civil Court Bombay bearing suit No. 4212/90 interalia, for a declaration that the order of regularization directing payment of the security deposit and penalty was illegal and also for a declaration that the impugned notice of demolition under Section 346 read with Section 351 of the Act was illegal and void. The appellant valued the suit under Section 6(iv)(j) of the Bombay Court Fees Act and paid a fixed court fees stamp of Rs. 30/- By an impugned order dated 20th January 1994, the learned City Civil Judge held that the suit has not been properly valued and valuation under Section 6(iv)(j) of the Bombay Court Fees Act. The learned trial judge however, did not hold nor indicated under which section of the Bombay Court Fees Act the suit fell. The learned City Civil Judge held that the appellant was seeking to avoid a payment of Rs. 1,71,350/(Rs. 1,50,000-/ security deposit and Rs. 21,350-/ penalty amount) and therefore, suit ought to have been valued at Rs. 1,71,350-/. Thereupon, the Court held that the suit was beyond it's pecuniary jurisdiction and returned the plaint for presentation to proper court. This order is challenged in this appeal.

4. The learned counsel for the respondent was unable to show under what section of the Bombay Court Fees Act the suit would fall. On perusing the provisions of the Bombay Court Fees Act, Prima facie it appears the suit could fall under Section 6(iv)(a), if not under Section 6(iv)(j) of the Bombay Court Fees Act. Assuming that it fell under Section 6(iv)(a), the Court fee is 1/4th ad valeram of fee leviable on the amount of fina or penalty sought to be recovered. According to the scale prescribed under Article 1 of Schedule I. Again it must be remembered that out of the amount of Rs. 1,71,250-/, only a sum of Rs. 21,230-/ was claimed by way of penalty/fine and the balance of Rs. 1,50,000-/ was only the security deposit and the suit for injunction against recovery of the security deposit would not fall under Section 6(iv)(a) of the Bombay Court Fees Act. Under Section 8 of the Suits Valuation Act, valuation for the purpose of the Court Fees and valuation for the purpose of Jurisdiction is the same. Therefore, it cannot be said that the suit should have been valued in the sum of Rs. 1,71,350-/ for the purpose of Jurisdiction.

5. It may also be noted that Section 8 of the Bombay Court Fees Act prescribes that if Court is of the opinion that the subject matter of the suit has been wrongly valued, the Court can revise the valuation. The Court did not exercise the power under Section 8 of the Bombay Court Fees Act. If such power was to be exercised, obviously, the plaintiff would have to be given an opportunity of hearing. In the present case, no opportunity of hearing was given to the appellant and the order dated 21st January 1994 returning the plaint was passed without hearing the plaintiff. Thus, the learned trial court clearly erred in returning the plaint without first holding an enquiry under Section 8 and without giving the plaintiff an opportunity of being heard to show that the valuation was proper.

6. Hence, the impugned order is set aside. The suit is restored to be taken on file of City Civil Judge. If the learned Judge feels that the valuation made by the plaintiff is not proper, he is entitled to hold an enquiry under Section 8 and after giving an opportunity of being heard to the plaintiff to revise the valuation. If after hearing, the Court comes to the conclusion that on revision of valuation, it would have no jurisdiction, it would pass an appropriate order on that regard.

7. The appellant shall have liberty to apply to the trial court regarding the interim relief as well as refund of the deposit made in pursuance to the order of this Court dated 8th March 1994.

All concerned to act a copy of the order authenticated by the Court's Sheristedar/Associate.