Bombay High Court
In The High Court Of Judicature At ... vs Sohoni on 8 June, 2017
Bench: A.S. Chandurkar
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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
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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
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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,
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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
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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
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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/
