Ishwardas Sawaldas Mukhi And ... vs The State Of Maharashtra Through ...
2017 Latest Caselaw 9565 Bom

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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,

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is reproduced below :

     Sr.No.                Name                  Old & New Tax              Page No.


                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/-

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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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

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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.

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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

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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 :

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"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."

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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

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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

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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

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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

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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