Bombay High Court
Jindal Ply Films Ltd vs Navi Mumbai Municipal Corporation Thr. ... on 9 June, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:22605
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1325 OF 2022
Jindal Poly Films Ltd.
A Limited Company duly incorporated and
registered under the Companies Act 1956
having office at B-102, Poonam
Chambers, Worli, Mumbai ..Petitioner
Versus
Navi Mumbai Municipal Corporation,
through its Commissioner having office address
at 1st Floor, Belapur Bhawan, CBD, ...Respondent
Navi Mumbai 400 614.
Mr. Amrut Joshi, i/b Mr. Tejas S. Mahamuni, for the Petitioner.
Mr. Sandip D. Ghaterao, for the Respondent.
CORAM: N. J. JAMADAR, J.
JUDGMENT RESERVED ON : 15th APRIL 2025
JUDGMENT PRONOUNCED ON : 9th JUNE 2025
JUDGMENT:
1. Rule.
2. Rule made returnable forthwith and, with the consent of the
ARUN
RAMCHANDRA
SANKPAL
counsel for the parties, heard finally.
17:26:12 +0530 3. The Petitioner takes exception to an order dated 27 th April 2021
passed by the learned Civil Judge, Senior Division, Thane, on an
Application for production of additional evidence, in Municipal Appeal
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No. 16 of 2004 (Exhibit "48"), whereby the said Application preferred by
the Petitioner came to be rejected holding, inter alia, that the Petitioner-
Appellant failed to satisfy the conditions prescribed in Rule 27 of Order
41 of the Code of Civil Procedure 1908 ("the Code") for grant of
permission to lead additional evidence.
4. Shorn of unnecessary details, the background facts leading to this
Petition can be stated as under:
5. The Petitioner was engaged in import of various types of goods
which were stored in its godown at Navi Mumbai, before sale. The
Petitioner had imported goods into the area of Navi Mumbai Municipal
Corporation, the Respondent, for use, consumption or sale therein.
Under the provisions of Section 127 (2)(aa) of the Maharashtra
Municipal Corporations Act 1949 ("the Act of 1949"), as it then stood,
the Respondent was authorized to levy cess on those goods. The
Petitioner was assessed under the Bombay Provincial Municipal
Corporation (Cess on Entry of Goods) Rules 1996 ("the Rules of 1996").
The Petitioner had filed returns claiming refund of the cess paid by it
under Rule 49 of the Rules 1996, claiming that the goods were exported
outside the city.
6. Under Rule 25(3) of the Rules 1996, assessment proceedings
were initiated. Eventually, by an Assessment Order dated 17th April
2004, the Deputy Municipal Commissioner (Cess), disallowed the refund
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claimed by the Petitioner holding, inter alia, that the sale and delivery of
goods was completed within the limits of Navi Mumbai and the goods
were not exported, as claimed. The Petitioner was held liable to pay
total dues of Rs.18,64,533/-.
7. Being aggrieved, the Petitioner preferred an Appeal under the
provisions of Section 406 of the Act of 1949, being Municipal Appeal No.
16 of 2004, before the learned Civil judge, Thane. It may not be
necessary to elaborately note that the proceedings which ensued in the
said Appeal. Suffice to note that the Respondent filed a Written
Statement, issues were settled and, by an order dated 13 th January
2020,an Application preferred by the Petitioner to amend the Appeal
memo came to be allowed.
8. Thereafter, the Petitioner preferred an Application seeking
permission to produce additional evidence (Exhibit "48") asserting that
the Petitioner had transferred the goods from the godown at Navi
Mumbai to various other branch offices of the Petitioner and the said
fact was evidenced by the check-post receipts, account books, gate pass-
delivery challans as well as sales register etc. However, the concerned
Deputy Municipal Commissioner (Cess) did not take on record and
consider those documents. It was, therefore, necessary to allow the
Petitioner to produce additional evidence before the learned Judge.
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9. The Application was resisted on behalf of the Respondent by
filing a Reply contending, inter alia, that the proceeding before the
learned Judge was an Appeal under Section 406 of the Act of 1949 and
not the original proceeding. Therefore, the Petitioner was not entitled to
lead additional evidence as a matter of right. On facts as well, the
Respondent countered the claim of the Petitioner. It was contended that
the documents, then produced by the Petitioner, were duly considered
by the Assessing Officer.
10. By the impugned order, the learned Judge was persuaded to
reject the Application observing that the proceeding before the learned
Judge under Section 406 of the Act of 1949 was required to be treated
as an Appeal and, thus, the Petitioner-Appellant was required to satisfy
the conditions prescribed under Order 41 Rule 27 of the Code.
11. Being aggrieved the Petitioner has invoked the writ jurisdiction.
12. I have heard Mr. Amrut Joshi, the learned Counsel for the
Petitioner, and Mr. Sandeep Ghaterao, the learned Counsel for the
Respondent, at some length. With the assistance of the learned Counsel
for the parties, I have perused the material on record.
13. Mr. Joshi, the learned Counsel for the Petitioner, would urge that
the learned Civil Judge was clearly in error in holding that the
proceeding under Section 406 of the Act of 1949 was an appellate
proceeding, despite thitherto following the procedure prescribed for a
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suit by allowing the Respondent to file Written Statement, framing the
issues, accepting the Affidavit in lieu of examination-in-chief and even
permitting the Petitioner to amend the Appeal memo.
14. Mr. Joshi strenuously submitted that the learned Civil Judge
misdirected himself in placing reliance on the judgment in the case of
Walchandnagar Industries Ltd, Mumbai Vs Municipal Corporation of the
City of Pune & Ors,1 which was rendered in a completely different
context. Amplifying the submission, Mr Joshi would urge that a variety
of orders are appellable under Section 406 of the Act 1949. In the case
of Walchandnagar Industries Ltd, Mumbai (Supra), the challenge was to
clause (e) of Section 406 of the Act of 1949 which warrants a pre-
deposit before the Appeal is entertained. In that context, the Division
Bench has held that the proceeding under Section 406 of the Act of
1949 cannot be styled or compared to "initial or original proceeding".
The challenge in the instant case arose out of the dis-allowance of a
claim for refund of the cess collected under Section 127(2)(aa), as it
then stood, and, thus, the ratio of the decision in the case of
Walchandnagar Industries Ltd, Mumbai, could not have been readily
imported.
15. Mr. Joshi would urge that, it is trite that the a decision is only an
authority for what it actually decides and not what logically flows from
the said decision. To this end, reliance was placed on the judgment
1 2014 (2) Mh.L.J. 852.
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of the Supreme Court in the cases of Union of India and Others Vs
Dhanwanti Devi and Others2 and Oriental Engineering Company Ltd Vs
Smt Raj Kumari and Others.3
16. Mr Joshi would submit that the provisions contained in Order 41
Rule 27 of the Code had no application to the Application in question.
Laying emphasis on the fact that, the learned Civil Judge has allowed a
Plaint to be filed by the Petitioner, accepted the Written Statement
thereto on behalf of the Respondent, framed issues as per Order 14 of
the Code, allowed the amendment to be carried out in the Plaint and
even permitted the Affidavit in lieu of examination-in-chief to be filed on
behalf of the Petitioner, Mr. Joshi urged that, when the Petitioner
intended to produce the relevant documents on record by way of
additional evidence, the learned Civil Judge unjustifiably applied the
provisions contained in Order 41 Rule 27 of the Code. Even the
determination on the said count, according to Mr. Joshi, is infirm.
17. In any event, Mr. Joshi would urge, the Appeal is a continuation
of the suit or/original proceeding. The powers of the Appellate Court are
co-extensive with that of the Trial court. Thus, there was no prohibition
for the learned Civil Judge to take the documents on record. A strong
reliance was placed by Mr. Joshi on a judgment of learned Single Judge
of this Court in the case of Shri Brijlal Biyani Vidya Niketan Shikshan
2 (1996) 6 SCC 44.
3 2007 (12) SCC 768.
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Prasarak Mandal & Anr Vs. Bharti W/o Khanderao Dabhade & Anr. 4 Mr.
Joshi further submitted that production of the additional evidence
would assist the Court in arriving at a just decision of the case and the
Respondent-Corporation would not suffer any prejudice whatsoever if
the additional documents are permitted to be tendered in evidence.
18. Per contra, Mr. Ghaterao, the learned Counsel for the Respondent,
would submit that the controversy sought to be raised by the Petitioner
is no-longer res integra. The Division Bench Judgment of this Court in
the case of Walchandnagar Industries Ltd, Mumbai (Supra) rules in clear
and explicit terms that the proceeding under Section 406 of the Act of
1949 cannot be styled or compared to "initial or original proceeding".
Secondly, in view of the provisions contained in Section 434 of the Act of
1949, the provisions of the Code relating to Appeals from original
decrees apply to Appeals to the Judge from the orders of the
Commissioner. Thus, the learned Civil Judge was well within his rights
in holding that the proceeding under Section 46 of the Act of 1949 was
an Appellate proceeding and it was incumbent upon the Petitioner to
satisfy the conditions prescribed under Rule 27 of Order 41.
19. To buttress these submissions, apart from the decision in the case
of Walchandnagar Industries Ltd, Mumbai (Supra), Mr. Ghaterao placed
reliance on the judgment of this Court in the cases of Wandleside
National Conductors Ltd Vs Municipal Corporation For The City of Pune
4 2015 SCC OnLine Bom 5035.
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& Others,5 and Titan Industries Ltd, Mumbai Vs Thane Municipal
Corporation and Ors6 and a judgment of the Gujarat High Court in the
case of Jamnagar Municipal Corporation Vs Mrudala Mahendra Parmar. 7
20. Mr. Ghaterao further submitted that, even otherwise, the
Petitioner does not deserve the permission to adduce additional
evidence. In fact, the Petitioner had preferred such an Application
seeking permission to adduce additional evidence in the year 2013 and
the said Application was rejected on 13th August 2013. Thus on the same
set of facts, the Petitioner could not have filed another application
seeking identical relief.
21. Lastly, Mr. Ghaterao would urge that, by no stretch of
imagination, the essential conditions for grant of the permission to lead
additional evidence at appellate stage can be said to have been fulfilled.
For this purpose, Mr. Ghaterao placed reliance on the judgment of the
Supreme Court in the case of Union of India Vs Ibrahim Uddin & Anr 8
and a judgment of learned Single Judge of this Court in the case of
Sandipan Namdeo Garje Vs Surendra Waman Kathavte9.
22. I have given anxious consideration to the submissions canvassed
across the bar. The core controversy lies in a narrow compass. What is
5 1989 Mh.L.J. 755
6 2011 (6) Mh.L.J. 228.
7 2009 SCC OnLine Guj 1897.
8 (2012) 8 SCC 148.
9 Civil Revision Application No. 614 of 2018, decided on 8 th January
2019.
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the nature of the proceeding under Section 406 of the Act of 1949
before the learned Judge? To explore an answer, it may be necessary to
note few provisions of the Act 1949.
23. Under Clause 29 of Section 2 of the Act of 1949 the "Judge"
means, in the city of Pune, the Judge of the Court of the small cause,
and, in any other city, the Civil Judge (Senior Division) having
jurisdiction in the city. Chapter XXVI of the Act of 1949 contains a
fasciculous provisions under the heading, "Proceedings Before Judge,
District Judge and Magistrate". Part-III of Chapter XXVI, provides for
Appeals against the Valuations and Taxes. The relevant part of Section
406 reads as under:
"406. Appeals when and to whom to lie.
(1) Subject to the provisions hereinafter
contained, appeals against any rateable value or
the capital value, as the case may be or tax fixed or
charged under this Act shall be heard and
determined by the Judge.
(2) No such appeal shall be entertained unless--
(a) it is brought within fifteen days
after the accrual of the cause of
complaint;
(b) in the case of an appeal against a
rateable value or the capital value, as
the case may be, a complaint has
previously been made to the
Commissioner as provided under this
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Act and such complaint has been
disposed of;
(c) in the case of an appeal against
any tax including interest and penalty
imposed in respect of which provision
exists under this Act for a complaint to
be made to the Commissioner against
the demand, such complaint has
previously been made and disposed
of ;
(d) in the case of an appeal against
any amendment made in the
assessment book for property taxes
during the official year, a complaint
has been made by the person
aggrieved within twenty one days
after he first received notice of such
amendment and his complaint has
been disposed of;
(e) in the case of an appeal against a
tax, or in the case of an appeal made
against a rateable value or the capital
value, as the case may be, the amount
of the disputed tax claimed from the
appellant, or the amount of the tax
chargeable on the basis of the dispute
rateable value, or the capital value, as
the case may be up to the date of filing
the appeal, has been deposited by the
appellant with the Commissioner.
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(2A) Where the appeal is not filed in accordance with
the provisions of clauses (a) to (e) of sub-section (2), it
shall be liable to be summarily dismissed."
24. It would be contextually relevant to note that under Section 127
(2)(aa), which came to be deleted by the Act of 42 of 2017, the
Corporation was empowered to impose a cess on entry of goods into the
limits of the City for consumption, use or sale therein to be levied in lieu
of Octroi with the previous sanction of the State Government.
25. Section 152A of the Act of 1949, which was also deleted by the
Act of 42 of 2017, contained provisions relating to levy of cess.
26. At this stage, it must be noted that there is no dispute over the
fact that the cess was then levied in accordance with the provisions of
the Act of 1949. In fact, the assessment proceedings were commenced
after the Petitioner claimed refund under Rule 49 of the Rules 1996.
The controversy between the parties revolves around the question as to
whether the Petitioner had exported the goods and was thus entitled to
claim refund.
27. Evidently, Section 406 provides for an Appeal against the levy of
tax charged under the Act of 1949. The thrust of the submission of Mr.
Joshi was that though expression "Appeal" has been used in Section 406
of the Act of 1949, yet, the proceeding before the Judge has the
trappings of a suit-original proceeding. An endeavour was made by Mr.
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Joshi to draw home the point that reckoning the said nature of the
proceeding under Section 406 of the Act of 1949, the learned Judge had
followed the procedure which is compatible with the trial of the suit.
The learned Civil Judge was thus not justified in importing the principle
contained in Order 41 Rule 27 of the Code while deciding the
Application seeking permission to seek additional evidence by
misconstruing the ratio of the judgment in the case of Walchandnagar
Industries Ltd, Mumbai (Supra).
28. At this juncture, it may be apposite to note the controversy that
was resolved in Walchandnagar Industries Ltd, Mumbai (Supra). In the
said case, the Constitutional validity of Section 406 (2)(e) of the Act of
1949 warranting pre-deposit of the amount of rateable value or capital
value or disputed tax, was challenged. One of the submissions canvassed
on behalf of the Petitioner was that the styling of the provision under
Section 406 of the Act of 1949 as an "Appeal" was a misnomer since the
original proceeding was in fact before a judicial authority. Thus the
imposition of any pre-condition of deposit of the entire disputed tax
claimed for entertainment of the said proceeding was ex-facie arbitrary,
unreasonable, unconstitutional and null and void.
29. The Division Bench of this Court adverted to the provisions
contained in Section 406 of the Act of 1949 and the Taxation Rules and
came to the conclusion that the proceeding under Section 406 of the
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Act of 1949 cannot be styled or compared to initial or original
proceeding. The Division Bench sought support to its conclusion from
the observations of the Supreme Court in the case of Gujarat Agro
Industries Co. Ltd Vs Municipal Corporation of the City of Ahmedabad
and Ors.10 In the said case, the Supreme Court had observed in
paragraph 11 as under:
"We also note that under clause (c) of sub-
section (2) of Section 406, a complaint lies to
the Municipal Commissioner against imposition
of any property tax and only after that when the
complaint is disposed of that appeal can be
filed. Appeal to the court as provided in clause
(e) may appear to be rather a second appeal."
30. A painstaking effort was made by Mr. Joshi to draw home the
point that the aforesaid Division Bench judgment was in the context of
the challenge to the validity of Clause (e) Section 406 (2) of the Act of
1989. It does not govern all Appeals before the learned Judge which can
be filed under the provisions of Section 406 of the Act of 1949. An
Appeal against dis-allowance of the refund under Rule 49 and
assessment of cess under Rule 25 of the Rules 1996 stands on a
completely different footing, urged Mr. Joshi.
31. I find it difficult to agree with the aforesaid submission of Mr.
Joshi. The observations of the Supreme Court in the case of Gujarat Agro
10 (1999) 4 SCC 468.
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Industries Co. Ltd (Supra), extracted above, indicate the true import of
the proceeding under Section 406 of the Act of 1949 before the learned
Judge. The Legislature has consciously provided remedy of Appeal in
certain cases while allowing filing of original proceedings as well before
the learned Judge. For instance, under Section 417 of the Act of 1949,
the owner of a building or land may apply to the Judge when he is
prevented by the occupier of the land from complying with any
provision of the said Act. Whereas, apart from Section 406, under
Section 414 also, the Appeals lie to the Judge against the orders of the
Commissioner in the specified cases.
32. Moreover, under Part X of Chapter XXVI of the Act of 1949,
'Miscellaneous' provisions have been made in relation to the proceeding
before the Judge, District Judge and Magistrate. Section 434 expressly
makes the provisions of the Code applicable to the proceeding before the
Judge. It reads as under :
"434. Code of Civil Procedure to apply.
(1) Save as expressly provided by this Chapter
the provisions of the Code of Civil Procedure,
1908 relating to appeals from original decrees,
shall apply to appeals to the Judge from the
orders of the Commissioner and relating to
appeals from appellate decrees shall apply to
appeals to the District Court.
(2) All other matters for which no specific
provision has been made under this Act shall be
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governed by such rules as the State Government
may from time to time make after consultation
with the High Court."
33. In view of the clear and explicit provision that the provisions of
the Code relating to Appeals from the original decree shall apply to
Appeals to the Judge from the orders of the Commissioner, and relating
to Appeals from appellate decrees shall apply to the appeals to the
District Court, the submission of Mr. Joshi that the procedure which is
applicable to the original proceeding before the Trial Court is required to
be followed while hearing the Appeal by the Judge, under Section 406
of the Act of 1949, simply does not merit countenance. The only outlet
provided by sub-section (1) of Section 434 is the saving clause, "save as
expressly provided by this Chapter", with which sub-section (1) of
Section 434 begins.
34. Indeed there are provisions which are not compatible with the
provisions relating to the Appeals from the original decrees. Section 408
of the Act of 1949, provides for reference of the dispute to arbitration,
in a pending Appeal, with the consent of the parties, and, thereupon, the
Application for reference shall be treated to have been made in a suit
and the Judge would be treated to be a "Court" within the meaning of
the Arbitration and Conciliation Act 1996. Under Section 418 of the Act
of 1949, for the purpose of any enquiry or the proceeding under the said
Act, the Judge may summon and enforce the attendance of
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witnesses and compel them to give evidence and compel the production
of the documents and in all matters relating to such enquiry or
proceeding, the Judge shall be guided generally by the provisions of the
said Act, as far as the same are applicable.
35. Save and except the aforesaid departure and the other provisions
contained in Chapter XXVI, in an Appeal under Section 406, the Judge is
required to follow the procedure relating to the Appeals against the
original decrees. From this standpoint as well, the endeavour of Mr.
Joshi to carve out a distinction in the matter of the Application of the
Division Bench judgment in the case of Walchandnagar Industries Ltd,
Mumbai (Supra), does not merit acceptance.
36. It is true, if the provisions contained in Section 418 of the Act of
1949 are liberally construed, and in the light of the nature and tenor of
the Appeal under Section 406 before the learned Judge, the provisions
contained in Order 41 Rule 27 of the Code may not be applicable with
the strict rigor as they apply in case of an Appeal against a decree passed
by a civil court. Yet, the facts of the case at hand appear to be quite
gross. The impugned order was passed by the Assessing Officer on 17 th
April 2004. The Appeal came to be filed in the year 2004. On the own
showing of the Petitioner, the Petitioner had initially filed an application
for adducing the evidence (Exhibit "29") and the said application was
rejected by an order dated 13th August 2013. Thereafter,
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the Petitioner filed an application to remit the matter back to the Deputy
Municipal Commissioner (Cess) for hearing after providing an
opportunity to adduce evidence. The said Application was sub-judice.
After the amendment in the Appeal memo, the Petitioner again filed the
instant application seeking permission to lead additional evidence,
though the first application was rejected by the learned Judge on 13 th
August 2013 itself.
37. The situation which thus obtains is that, after over 20 years of the
assessment order, the Appeal has not progressed to the stage of the
hearing.
38. In these circumstances, the learned Judge was fully justified in
holding that a case for permission to file additional evidence at the
appellate stage was not made out.
39. The fact that the learned Judge had initially permitted the
Respondent to file the Written Statement, issues were settled and
amendment was allowed etc, do not imply that the learned Judge ought
to continue with the procedure applicable to an original proceeding.
40. Resultantly, in exercise of the supervisory jurisdiction, this Court
does not find any infirmity in the impugned order.
41. Hence, the following order.
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:ORDER:
(i) Petition stands dismissed.
(ii) No costs.
(iii) Rule discharged.
[N. J. JAMADAR, J.]
