The Government Of Maharashtra ... vs M/S Onkar Kaniram And Co. Thro. ...
2021 Latest Caselaw 6171 Bom

                                                    Second Appeal No.179/2021
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                  SECOND APPEAL NO.179 OF 2021 WITH
                   CIVIL APPLICATION NO.4314 OF 2021



 The Government of Maharashtra & ors.                ... APPELLANTS

          VERSUS

 M/s Onkar Kaniram and Co.                           ... RESPONDENT

                               .......
 Shri P.K. Lakhotiya, A.G.P. for appellants
                               .......

                                  CORAM :       R. G. AVACHAT, J.

                                  DATE :        7th APRIL , 2021

 ORDER:

The challenge in this Second Appeal is to the

judgment and decree dated 7/3/2011, passed by Civil Judge,

Senior Division, Dhule in Special Civil Suit No.82/2004 and

confirmed by judgment and decree dated 10/1/2020, passed

by District Judge-5, Dhule in Regular Civil Appeal No.35/2014.

By the impugned judgment and decree, the

notices dated 18/12/2002 and 28/12/2003 issued by Sub-

Divisional Officer (S.D.O.), Dhule directing the plaintiff firm to

pay Rs.1,19,780/- towards non-agricultural taxes/ assessment

in respect of the lands Survey No.549/1A, 549/1A-B and

Second Appeal No.179/2021 :: 2 ::

549/1C came to be declared to be bad in law. The defendants

in the suit came to be restrained from taking any coercive

steps against the plaintiff firm on the basis of aforesaid

notices. The defendants were also directed to refund the sum

of Rs.1,19,780/- to the plaintiff firm with interest @ 6% p.a.

thereon from the date of the suit till the date of payment.

The appeal preferred against the judgment and

decree passed in Special Civil Suit No.82/2004 came to be

dismissed. The original defendants are, therefore, in this

Second Appeal.

2. Heard Shri P.K. Lakhotiya, learned A.G.P. for the

appellants. He would submit that, by virtue of Sections 4 and

11 of the Maharashtra Revenue Jurisdiction Act (for short the

Act), the Civil Court did not have jurisdiction to entertain the

suit. The decree impugned in this Second Appeal is,

therefore, non est. He would further submit that, the suit has

been filed by the partnership firm. In view of Section 69(2) of

the Indian Partnership Act, the suit is not maintainable by an

unregistered partnership firm. The learned A.G.P. would

further submit that, since the notices impugned in the suit

were issued by the S.D.O. in exercise of jurisdiction under the

Maharashtra Land Revenue Code, 1966 (for short MLRC), a

remedy of appeal is available thereagainst in view of Section

Second Appeal No.179/2021 :: 3 ::

247 of the MLRC. According to learned A.G.P., the plaintiff

firm did not have a right of hearing before revision of N.A.

assessment is made by the revenue authorities.

3. Perused the judgment impugned in this Second

Appeal. Considered the submissions made by the learned

A.G.P. In my view, no substantial question of law does arise

in this appeal. All the grounds raised for admission of this

Second Appeal have duly been addressed by both the courts

below.

So far as regards jurisdiction of the Civil Court to

entertain and try the suit is concerned, it is to be stated that,

the legality of the notices issued by the S.D.O. was challenged

in the suit. The issue has no longer been res integra in view

of the following judgments :-

(1) 1987(2) Bom.C.R. 237 State of Maharashtra Vs. Mrs. Nargis Mewawala

(2) 2007(1) Mh.L.J. 819 Gopinath Pensalwar Vs. State of Maharashtra

(3) 1965 Mh.L.J. 226 (SC) Municipal Council, Khurai Vs. Kamal Kumar

The trial Court, relying on the aforesaid

authorities, held the Civil Court to have jurisdiction to

entertain the suit, being Special Civil Suit No.82/2004.

Second Appeal No.179/2021 :: 4 ::

4. So far as regards second ground of objection with

reference to Section 69(2) of the Partnership Act is

concerned, the same has also been rightly addressed by both

the courts below. In case of M/s Haldiram Bhujiawala & anr.

Vs. M/s Anand Kumar Deepak Kumar & anr., AIR 2000 SC

1287, it has been held that a suit by unregistered firm is not

barred under Section 69(2) if a statutory right or a common

law right is being enforced.

What had been challenged in the suit was an act

of the S.D.O. in issuance of notice of demand of N.A.

assessment/ tax. No right arising out of any contract was

sought to be enforced in the suit.

5. So far as regards the third submission is

concerned, it is to be stated that, although a remedy of

appeal is available under Section 247 of the MLRC, no

provision bars the suit wherein challenge is to legality of

issuance of N.A. assessment.

6. It was the case of the plaintiff firm that it had

been paying the N.A. assessment of the land used by it for

industrial purpose at a rate fixed in the year 1982-83. The

S.D.O. abruptly issued the impugned notices demanding the

revised N.A. assessment/ tax. Admittedly, the impugned

notices were issued on the basis of an audit report wherein it

Second Appeal No.179/2021 :: 5 ::

was observed that less amount of tax was being levied.

Admittedly, before issuing the impugned notices revising the

N.A. tax, no procedure contemplated under Sections 111 to

114 of the MLRC had been followed.

7. For the reasons given hereinabove, no substantial

question of law is involved in this Second Appeal. The Second

Appeal, therefore, stands dismissed.

In view of dismissal of the Second Appeal, nothing

survives in the Civil Application and the Civil Application also

stands dismissed.

( R. G. AVACHAT ) JUDGE

fmp/-