Bombay High Court

Panhala Hill Station Muncipal ... vs Grand Hotel Pvt.Ltd. on 24 September, 2008

Bench: A.S. Oka

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION


                CRIMINAL WRIT PETITION NO.1468 OF 2008




                                                                         
    Panhala Hill Station Muncipal Council.             ..Petitioner.
            versus
    Grand Hotel Pvt.Ltd., Mumbai & Anr.                ..Respondents.




                                                 
                CRIMINAL WRIT PETITION NO.1469 OF 2008

    Panhala Hill Station Muncipal Council.             ..Petitioner.




                                                
            versus
    Mahalaxmi Resorts/Prasad Tours
    and Travels & Anr.                                 ..Respondents.

                 CRIMINAL WRIT PETITION NO.1470 OF 2008




                                         
    Panhala Hill Station Muncipal Council.             ..Petitioner.
                 versus

    and Travels & Anr.
                          
    Mahalaxmi Resorts/Prasad Tours
                                                       ..Respondents.

                 CRIMINAL WRIT PETITION NO.1471 OF 2008
                         
    Panhala Hill Station Muncipal Council.             ..Petitioner.
                 versus
    Grand Hotel Pvt.Ltd. & Anr.                        ..Respondents.
                              ....
      


    Mr.S.S. Patwardhan, for the Petitioner.
    Mr.Amit Borkar, for the Respondent No.1, in Crim.
   



    W.P.No.1468/2008.
    Mr. Y.S.Shinde, APP, for the Respondent-State, in
    Crim.W.P.No.1468/2008.
                              ....





                                      CORAM : A.S.OKA, J.

DATE : 24th September 2008.

P.C.:

1. Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

first respondent. This order is being passed dealing

with a preliminary objection raised by the learned

counsel appearing for the first respondent. For

consideration of the said preliminary objection, it will

be necessary to refer the facts of the case in brief

leading to filing of criminal writ petition

no.1468/2008.

2. The first respondent preferred an appeal under

section 169 of the Maharashtra Municipal Councils, Nagar

Panchayat and Industrial Townships Act, 1965

(hereinafter referred to as 'the said Act of 1965') for

challenging

petitioner

bill dated 17th November 2006 issued by the

Municipal Council and the order dated 12th

September 2006 passed by the petitioner. In the said

appeal, an application was moved by the petitioner -

Municipal Council contending that the first respondent

had not complied with the mandatory provisions of the

said Act of 1965 regarding the deposit of the disputed

tax amount and therefore, the appeal may be dismissed.

There was a separate application filed by the first

respondent praying for stay of the operation of the

order passed by the Authorised Valuation Officer fixing

the rateable value and the stay of the bill issued on

the basis of the said order. The learned Magistrate by

order dated 20th February 2008 disposed of the aforesaid

two applications. The prayer made by the first

respondent for stay of order of the Authorised Valuation

Officer was rejected. The prayer made by the petitioner

for dismissal of the appeal was also rejected. However,

the first respondent was permitted to lead evidence.

The first respondent was directed to deposit one-fourth

of the tax bill amount before adducing the evidence. A

revision application was filed by the first respondent

for challenging the said order dated 20th February 2008.

The revision application was partly allowed by the

impugned order dated 6th June 2008. The learend

Sessions Judge stayed the operation of the bill till the

disposal

of the pending appeal under section 169 of the

said Act of 1965. This order has been challenged by the

petitioner- Municipal Council by filing this petition

under Article 227 of the Constitution of India. The

other three petitions have been filed by the petitioner

for challenging the similar orders passed in the

companion appeals preferred by the first respondent.

3. The learned counsel appearing for the first

respondent submitted that a remedy of preferring a

revision application under section 115 of the Code of

Civil Procedure, 1908 (hereinafter referred to as 'the

said Code of 1908') is available to the petitioner and

therefore, these criminal writ petitions are not

maintainable. He placed reliance on a decision of a

Division Bench of this Court in the case of The Lokmanya

Mills Limited, Barsi v/s. The Municipal Borough of

Barsi [XLI Bom.L.R. 937]. He also placed reliance on a

decision of a Full Bench of this Court in the case of

V.B. D'Monte v/s. Bandra Borough Municipality [1950

I.L.R. 522]. The submission is that as held by the

aforesaid two decisions, these petitions raise a civil

dispute and therefore, apart from the fact that the

petitions will lie on the civil side, a remedy of filing

revision application under section 115 of the said Code

of 1908 is available. He submitted that a Division

Bench

Limited of

(supra)

this Court in the case of The Lokmanya

was dealing with section 110 of Mills

the

Bombay Municipal Boroughs Act, 1925 (hereinafter

referred to as 'the said Act of 1925'). The provisions

of section 110 of the said Act of 1925 are similar to

provisions of the section 169 of the said Act of 1965.

He, therefore, submitted that the criminal writ

petitions under Article 227 of the Constitution of India

are not maintainable.

4. The learend counsel for the petitoner invited my

attention to the decision of the Single Judge of this

Court in the case of Taherali Mulla Ibrahim Bohri v/s

Municipal Council, Akola [1978 Mh.L.J. 359]. He

submitted that while dealing with a civil revision

application arising out of the order passed in an appeal

under section 169 of the said Act of 1965, the argument

advanced by the learned counsel appearing for the first

respondent in these petitions has been expressly

rejected by the learned Single Judge of this Court. He

placed reliance on a decision of a Division Bench of

this Court in the case of Nagpur Cable Operators'

Association v/s. The Commissioner of Police and

another, [1995 (2) Mh.L.J. 753]. He submitted that as

the impugned orders have been passed by the Courts

constituted under the Code of Criminal Procedure, 1973

(hereinafter

this

referred to as 'the said Code of

petition will lie on the criminal side.

1973'),

He relied

upon the relevant provisions of the Bombay High Court

(Appellate Side) Rules, 1960 (hereinafter referred to as

'the Appellate Side Rules'). He submitted that when the

Division Bench and the Full Bench decided the matters

arising out of the said Act of 1925, the Appellate Side

Rules were not in force, and therefore, irrespective of

the nature of controversy involved in these petitions,

the same will have to be treated as petitions on the

criminal side considering the Appellate Side Rules. He

has placed on record a chart showing the forum of

appeals provided under the various State enactments for

challenging levy of property taxes. He pointed out that

only in case of the said Act of 1965 and the Maharashtra

Zilla Parishads and Panchayat Samities Act, 1961,

appeals are provided before the learend Magistrate and

under other enactments the appeals are provided either

before Civil Court/ Court of Small Causes or Panchayat

Samiti.

5. I have carefully considered the submissions. In

the present case, the main appeal under section 169 of

the said Act of 1965 is still pending and the impugned

order passed by the learned Sessions Judge will operate

as interim order till the disposal of the said appeals

under section 169 of the said Act of 1965.

6. Under the provisions of section 169 of the said

Act of 1965, an appeal is provided before the Court of a

Judicial Magistrate, which is established under the

provisions of the said Code of 1973. It will be

necessary to refer to rules framed by this Court under

Article 227 of the Constitution of India relating to

appeals under section 169 of the said Act of 1965. Rule

2 of the said Rules provides that such appeal shall be

instituted by presentation of a petition of appeal to

the Judicial Magistrate having jurisdiction to hear the

case. Rule 3 provides that the petiton of appeal shall

be verified in the manner prescribed for verification of

the plaint under the said Code of 1908. The rules

provide that the written reply can be filed by a

Municipal Council after service of notice. The said

reply is to be verified in the manner prescribed for

verification of a written statement under the said Code

of 1908. Rule 9 provides that no party to the appeal

shall be entitled to lead evidence in addition to what

has been lead in proceeding held under section 119 or

section 123 of the said Act of 1965, unless permitted by

the learned Magistrate. Rule 10 provides for an

application being made by a party for seeking permission

to lead additional evidence. When the learned Magitrate

permits

that the

additional evidence to be led, Rule 11 provides

learend Magistrate may allow any fact to be

proved by an affidavit, subject however to provisions of

Order XIX of the Code of 1908. Rule 13 provides that

Rules 15 to 19, 21, 30, 31 and 36 of Order XLI of the

said Code of 1908 shall, so far as may be, apply to the

appeals under section 169 of the said Act of 1965. A

revision application is provided under section 171 of

the said Act of 1965 against the orders passed by the

learned Magistrate in an appeal under section 169 of the

said Act of 1965. Rule 15 provides that the said

revision applications which are filed before the Court

of Sessions shall be numbered as miscellenous criminal

applications and should be shown in the Register in

Form-III prescribed by the Criminal Manual.

7. In the case of The Lokmanya Mills Limited

(supra), a civil revision application preferred by an

appellant in an appeal under section 110 of the said Act

of 1925 came up before a Division Bench of this Court.

An appeal under section 110 of the said Act of 1925

preferred by the applicant before this Court was

dismissed by the learned Magistrate. A revision

application against the said order was dismissed by the

Sessions Court and being aggrieved by the said orders, a

revison application under section 115 of the said Code

of 1908

was filed by the applicant before this

The revision application which was filed before a Single Court.

Judge of this Court was referred to the Larger Bench.

Against an order passed in an appeal under section 110

of the said Act of 1925, a revision application was

provided under section 111 of the said Act of 1925. The

revision was maintainable either before a Bench of the

learned Magistrates or before the Sessions Court as the

case may be. A reference was made to the Division Bench

in view of difference of opinion in two cases viz.

Ahmedabad Municipality v/s. Vadilal [(1928) 30

Bom.L.R.1084] and Surat Municipality v/s Hamiduddin

[(1937) 40 Bom.L.R.387]. The Division Bench agreed with

the view expressed by a learned Single Judge of this

Court in the case of Surat Municipality v/s Hamiduddin

[40 Bom.L.R. 387] holding that this Court had

jurisdiction under section 115 of the said Code of 1908

to entertain an application in revision against an order

in revision passed under section 111 of the said Act of

1925, but such revision application shall be sparingly

entertained.

8. It will be nnecessary to refer to the decison of

the Full Bench of this Court in the case of V.B.D'Monte

(supra). This was a case where an appeal under section

110 of the said Act of 1925 filed before a learned

Magistrate

application was

dismissed and a criminal

was filed in this Court for challenging the revision

order of the learned Magistrate. The question which was

referred to the Full Bench was whether the revision

application lay on the civil side or the criminal side

of this Court. Though the Full Bench observed that the

Bench was not considering the question whether a

revision application will lie under the Code of Criminal

Procedure or under the said Code of 1908, the Full Bench

observed that the decision in the case of Lokmanya Mills

Limited (supra) lays down correct principles which have

been followed by several decisions of this Court. The

Full Bench considered all the relevant decisions on the

point and held that the matter coming before this Court

in such revision application was being of a civil

nature, the revision application lies to this Court on

its civil side.

9. The decision of the learned Single Judge of this

Court in the case of Tahir Mulla (supra) holds that a

civil revision application will not lie against an order

passed by the Sessions Court in revision under section

171 of the said Act of 1965. On plain reading of the

provisions of section 169 and section 171 of the said

Act of 1965 as well as sections 110 and 111 of the said

Act of 1925, the provisions appears to be similar. It

appears

Court

that the decision of the Division Bench of this

in the case of The Lokmanya Mills Limited (supra)

was not cited before the leanred Judge while hearing the

case of Taherali Mulla Ibrahim Bohri (supra). It is,

therefore, obvious that the decisoin in the case of

Taherali Mulla Ibrahim Bohri (supra) cannot be read as a

binding precedent.

10. However, the matter does not rest here. There

are subsequent developments. When the Division Bench in

the case of The Lokmanya Mills Limited (supra) and the

Full Bench in the case of V.B.D'Monte (supra) decided

the matters, the Appellate Side Rules were not in force

and the same were brought into force in the year 1960.

Moreover, section 115 was extensively amended in the

year 2002. The amendment to section 115 was brought

into force with effect from 1st July 2002. By the

amendment, a proviso was introduced to sub-section (1)

of section 115 of the said Code of 1908. The amended

section 115 reads thus :-

"115. Revision.- (1) The High Court may call

for the record of any case which has been

decided by any Court subordinate to such High

Court and in which no appeal lies thereto, and

if such subordinate Court appears -

(a)

to have exercised a jurisdiction not vested

in it by law, or

(b) to have failed to exercise a jurisdiction so

vested, or

(c) to have acted in the exercise of its

jurisdiction illegally or with material

irregularity, the High Court may make such order

in the case as it thinks fit.

[Provided that the High Court shall not, under

this section, vary or reverse any order made, or

any order deciding an issue, in the course of a

suit or other proceeding, except where the

order, if it had been made in favour of the

party applying for revision, would have finally

disposed of the suit or other proceedings.]"

11. In view of the decision of this Court in the

case of the Lokmanya Mills Limited, a revision

application under section 115 of the said Code of 1908

could have been filed against the order passed in the

revision under section 171 of the said Act of 1965.




                                                
    However,           in the present case, in view of 2002 amendment

    to     section

    application

                                ig   of the said Code of 1908,

                          will not be maintainable.
                                                                           a

                                                                  Because even
                                                                                 revision

                                                                                           if
                              
    the     revision           application in this Court is allowed,                       it

    would        not     finally dispose of the appeal under                      section

    169     of the said Act of 1965 pending before the                            learned
      


    Magistrate.            Therefore, though the decision in the case
   



    of     the        Lokmanya Mills Limited (supra) holds                     good,       by

    virtue        of     the amendment to the said Code of 1908,                          the

    remedy        of     filing        a civil revision        application             under





    section        115     is        not     available in    the      present            case.

    Therefore,           in absence of any further appeal or revision

provided under the said Act of 1965, the petitioner will

have to invoke jurisdiction under Article 227 of the

Constitution of India for challenging the impugned

order.

12. Rule 2 of Chapter-I of Part-I of the Appellate

Side Rules provides that save as otherwise expressly

provided by the said Rules, a Single Judge may dispose

of various categories of matters provided therein. Rule

2 of Chapter-I of Part-I divides the matters into two

categories, viz. Civil and Criminal. Clause - I of

Rule 2 deals with civil proceedings and clause - II

deals with criminal proceedings. The sub-clause (i) of

clause-II of Rule 2 reads thus :-

"(i)

All applications under Article 227 of

Constitution of India challenging the orders and the

decisions of the Courts constituted under the

Code of Criminal Procedure."

13. Therefore, the Appellate Side Rules treat all

applications under Article 227 of the Constitution of

India filed for challenging the orders and decisions of

the Courts constituted under the said Code of 1973 as

falling in criminal business of this court. In this

context, it will be necessary to refer to a decision of

a Division Bench of this Court in the case of Nagpur

Cable Operators' Association (supra). The learned

counsel appearing for the first respondent submitted

that in view of the decision of the Apex Court in the

case of Narayan v/s. Ishwar [1965 SCC 1818], it will be

necessary to determine in each case whether the

proceeding is of a civil nature or is of a criminal

nature. He invited my attention to paragraph 21 of the

said decision. The relevant part of paragraph 21 reads

thus :-

"21. In the light of the aforesaid legal

position explaining the nature of proceedings

under Article 226 of the Constitution and the

classification whether the said proceedings is

civil

Appellate

or criminal, when the provisions of

Side Rules are looked into, it the

would

be found that all applications under Article 227

of the Constitution challenging the orders and

decisions of the Courts constituted under the

Criminal Procedure Code are dealt with on the

side of criminal business of the Appellate Side

of this Court, but the said clause (1) of Part

II Criminal of rule 2 of Chapter I is not all

exhaustive. Rule 2-B of Chapter I, as observed

above, states that all petitions/applications

under Articles 26/227 of the Constitution

arising out of or relating to the order of

penalty or confiscation or an order in the

nature thereof or an order otherwise of penal

character and passed under any Special Statute

shall be heard and decided by the Division Bench

hearing writ petitions. This rule only

allocates that the class of

petitions/applications under Articles 226 and/or

27 of the Constitution of India mentioned in

rule 2-B shall be decided by the Division Bench

hearing writ petitions, but does not classify

the nature of proceedings whether the said writ

petition/application shall be criminal or civil

writ petition. Applying the tests laid down by

are of

the Apex Court in Narayan Row's case (supra), we

the view that if the writ

petition/application under Articles 226 and/or

227 of the Constitution arises out or relates to

a proceeding in which, if carried to its

conclusion ultimately it may result in sentence

of death ot by way of imprisonment, fine or

forfeiture of the property then such writ

petition/application under Article 26 of the

Constitution of India and/or under Article 227

of the Constitution, should be treated as a

"criminal writ petition" and styled as such."

14. It will be necessary to refer to the directions

issued by a Division Bench of this Court to the

Registrar of this Court which are set out in paragraph

22 of the said decision. Paragraph 22 of said decision

reads thus :-

"2. We would, therefore, direct the Registrar

(Appellate Side), the High Court of Judicature

at Bombay to take steps in implementing the

following directions immediately :-

(i) Every petition/ application under Articles

226 and 227 of the Constitution of India should

be

styled as 'Civil Writ Petition' or 'Criminal

Writ Petition', as the case may be.

                     
            (ii)     Every petition/application under                 Articles

            226/227     of the Constitution of India                 presented
      


            through         the      Counsel       or        where           such
   



            petition/application        is     presented        in     person,

            should     be accompanied by the Certificate of the

counsel or petitioner in person, as the case may

be, that such petition/application is 'Criminal

Writ Petition' or 'Civil Writ Petition'.

(iii) The Registry should examine such Writ

Petition filed under Articles 226 and 227 of the

Constitution of India styled as "Civil Writ

Petition" or "Criminal Writ Petition" by finding

out the nature of the relief/reliefs claimed in

such writ petition and the grounds of such

relief/reliefs and if the Registry finds that

the Writ Petition has been wrongly styled, such

objection must be raised.

(iv) Civil Writ Petitions should be registered

by the office in the separate Register under the

title, "Civil Writ Petitions Under Articles 226

and 227 of the Constitution of India."

             Expression
                        ig        'Special        Civil

occurring in clause (vi) of Rule 10 of Chapter V Applications'

of Appellate Side Rules be read as 'Civil Writ

Petitions'. This is so done to continue with

the existing practice since 1980.

(v) Criminal Writ Petitions should be registered

under the separate head in Register maintained

by the office bearing the title, "Applications

under the Constitution" under Chapter XXVI, Rule

4(6) of Appellate Side Rules."

15. The Division Bench specifically observed that

all applications under Article 227 of the Constitution

of India challenging orders and decisions of the Courts

constituted under the said Code of 1973 are dealt with

on the side of the criminal business of the Appellate

Side of this Court by virtue of sub-clause (i) of

clause-II of Rule 2 of Chapter-I of Part-I of the

Appellate Side Rules. The Division Bench observed that

the said clause is not at all exhaustive. Therefore,

the Divison Bench held that in addition to applications

under Article 227 of the Constitution of India

challenging the orders and decisions of the Courts