The State Of Maharashtra Thro. The ... vs M/S Onkar Kaniram And Co. Thro. ...
2021 Latest Caselaw 6182 Bom

                                                    Second Appeal No.178/2021
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                  SECOND APPEAL NO.178 OF 2021 WITH
                   CIVIL APPLICATION NO.4313 OF 2021



 The State 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.242/2006 and

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

by District Judge-5, Dhule in Regular Civil Appeal No.36/2014.

By the impugned judgment and decree, the notice

dated 25/9/2006 issued by the Talathi, Dhule directing the

plaintiff firm to pay Rs.47,860/- towards non-agricultural

taxes/ assessment in respect of the lands Survey No.549/1A,

549/1A-B and 549/1C came to be declared to be bad in law.

Second Appeal No.178/2021 :: 2 ::

The defendants in the suit came to be restrained from taking

any coercive steps against the plaintiff firm on the basis of

aforesaid notice.

The appeal preferred against the judgment and

decree passed in Special Civil Suit No.242/2006 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 notice impugned in the suit was

issued by the Talathi 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

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.

Second Appeal No.178/2021 :: 3 ::

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 Talathi 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.242/2006.

4. So far as regards second ground of objection with

reference to Section 169(2) of the Partnership Act is

concerned, the same has also been rightly addressed by both

Second Appeal No.178/2021 :: 4 ::

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 Talathi 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

Talathi abruptly issued the impugned notice demanding the

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

notice was issued on the basis of an audit report wherein it

was observed that less amount of tax was being levied.

Admittedly, before issuing the impugned notice revising the

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

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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/-