Friday, 30 September 2016

Whether plaint can returned to avail remedy of Appeal U/S 406 of Maharashtra municipal corporation Act?

 On the other hand, learned counsel for the respondent
submitted   with   reference   to   Section   106   of   the   Maharashtra
Municipalities Act that specific remedy of appeal against any rateable
value or the capital value, as the case may be, or tax fixed or charged
under  the  Act shall  be  heard and determined by the  Judge before

whom the appeal is provided against such levy of tax or rateable value
or charges.   Thus, according to learned counsel for the respondent,
specific statutory remedy of appeal is provided which is statutory right
of plaintiff / appellant, and therefore, learned Judge was right to arrive
at a conclusion that Civil court had no jurisdiction to entertain and try
the suit.  Reference is made to a ruling in Dai Ichi Karkaria Ltd. vs.
Pimpri Chinchwad Municipal Corporation & Ors. decided by Single
Judge of this court in Appeal from Order No.714 of 2013 decided on
29.7.2013.  Learned counsel for the respondent invited my attention to
the fact that Section 406 of the BPMC Act was considered as also
earlier ruling by this court in  Titan Industries Limited, Mumbai vs.
Thane   Municipal   Corporation   and   Ors.  reported   in  2011   (6)
Mah.L.J. 228 on the point that Civil court has no jurisdiction to decide
the issue regarding levy of octroi in view of statutory remedy of appeal
under Section 406 of the BPMC Act.  The contention regarding issue of
limitation also appears to have been dealt with by this court in   Dai
Ichi Karkaria's case, in paragraph 9, as in that case tax was levied
after   23   years,   and   there   was   an   argument   that   it   is   barred   by
limitation.  This court specifically observed that “the court which has
jurisdiction   would   decide   the   issue   and   not   the   court   not   having
jurisdiction.”  In other words, consensus of ruling in Titan Industries

Limited, Mumbai, case   as also in Dai Ichi Karkaria's case, appears
that the plaintiff has to be relegated to the specific statutory remedy of
appeal available under Section 406 of the BPMC Act on the ground that
Civil court would have no jurisdiction to entertain and try the suit.  My
attention is also invited to the fact that in  Dai Ichi Karkaria's case,
Special Leave Petition was preferred and it was dismissed by Hon'ble
Supreme Court of India by observation that if the petitioner pursues the
remedy under Section 406 of the BPMC Act, 1949, within 30 days from
today,  the  time   granted   in  the   order   dated   31.10.2012   shall  stand
extended to that date.   Even otherwise, delay occurred due to time
spent   bonafide   to   pursue   the   litigation   has   to   be   condoned   when
remedy prescribed by the statute is availed of, which was not availed
of,   on   account   of   bonafide   –   but   wrong   impression   that   ordinary
remedy is available by way of civil suit.
5 Having   considered   the   submissions   at   the   bar   and   the
rulings referred to before this court, I am of the opinion that impugned
order is legal and correct. Learned counsel for the appellant prayed that
plaint may be returned to the appellant so that it's contents can be
relied upon along with memorandum of appeal before the appellate
authority concerned because the plaintiff relegated to avail of statutory
remedy of appeal under Section 406 of BPMC Act.  

6 Hence, instead of dismissal of the suit, the order passed by
the court below is modified to the effect that plaint in the suit shall be
returned to the plaintiff to enable him to avail of statutory remedy of
appeal by filing the  plaint along with appropriate memorandum of
appeal before the appellate authority concerned, in view of Section 406
of the BPMC Act, 1949.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1169 OF 2013
WITH
CIVIL APPLICATION NO.2960 OF 2013
IN
FIRST APPEAL NO.1169 OF 2013
GREAVE COTTON LIMITED 
V/s.
PIMPRI CHINCHWAD MUNICIPAL CORPORATION 
CORAM: A. P. BHANGALE, J.
DATE    : 23rd SEPTEMBER, 2013.
Citation:2014(1) MHLJ655

1 Heard submissions at the bar.  The appeal is against oral
order below Exhibit 1 in Special Civil Suit No.459 of 2010 passed by 7th
Civil Judge, Senior Division, Pune, on 18.7.2012, when preliminary
issue was raised regarding jurisdiction of the Civil court to entertain
and try the suit in view of specific remedy provided of appeal under
Section   406   of   the   Bombay   Provincial   Municipal   Corporation   Act

(hereinafter referred to as BPMC Act).   Learned Judge after hearing
submissions considered that efficacious remedy which is available to
the plaintiff was not exhausted by the plaintiff and that there was no
any   other   remedy   to   challenge   the   unlawful   levy   of   octroi   by   the
defendant.     Learned   Judge   after   making   reference   to   a   ruling   in
Abdulla Bin Ali vs. Galappa  reported in  AIR 1985 Supreme Court
577, scrutinized the plaint to note the averments about the dispute as
to deficit payment of octroi for the period 1999 to 2001 on the basis of
which Municipal Corporation of Pimpri­Chinchwad demanded the tax
arrears which according to the plaintiff was illegal demand, as the
plaintiff contended that all those dues were already cleared and the
demand of octroi is null and void.  According to the plaintiff, there was
no any express provision to bar jurisdiction of Civil court to decide
about the legality and the powers of the Municipal authority to demand
the   taxes,   while   defendant   had   contended   that   Civil   court   had   no
jurisdiction, considering the provisions under Section 406 of the BPMC
Act.     Learned   Judge   also   referred   to   Constitutional   Bench   ruling
reported in Dhulabai vs. State of M.P. reported in AIR 1969 Supreme
Court 78 to observe that jurisdiction of Civil court to entertain and try
a suit may be barred by an express provision of a statutes or even
impliedly.  

2 Dispute  in  this appeal was in  substance relating  to the
assessment of the tax for the period from the year 1999 to 2001 which
was challenged in the suit.  Learned Judge considered the remedy of
appeal statutorily available under Section 406 of the BPMC Act and
held that plaintiff has to move to avail of the statutory remedy of
appeal on the ground that the civil court had no jurisdiction to grant
relief to the plaintiff for want of jurisdiction under Section 9 of Code of
Civil Procedure.  The civil suit was held not maintainable and the issue
of jurisdiction was decided against the plaintiff.  Hence this appeal.
3 Learned counsel for the appellant made reference to ruling
in American Refrigerator Company vs. Pimpri Chinchwad Municipal
Corporation reported in 1991(2) Bom.C.R. 642 which was in a writ
petition before the Division Bench of this court.  In paragraph 13 of the
ruling while quoting submissions with reference to Section 169 of the
Maharashtra   Municipalities   Act   1965,   wherein   remedy   of   appeal   is
provided against any claim for taxes or other dues, Division Bench of
this court made observations that the petition was admitted as far back
as February 1983 and an interim order was also passed in favour of the
petitioners on their depositing in court a sum of Rs.10,000/­. Thus in
the facts and circumstances of the case, after a lapse of more than 7

years, Division Bench of this court considered that it would not be fair
on it's part to now deny to the petitioners any relief only on the ground
that they should have availed of the statutory remedy of an appeal
under Section 169. Thus, in the facts and circumstances of that case,
considering that demand after a period of 9 years, this court felt as to
how such question could have been entertained or decided in an appeal
under Section 169.  Thus, it appears that invoking the exercise of writ
jurisdiction the rule was made absolute by this court, in the facts and
circumstances of that case, by setting aside the demand made by Pune
Chinchwad   Municipal   Corporation,   long   pending   since   prior   to
30.8.1979.   Thus, according to learned counsel for the appellant, it
must be left to the civil court to entertain the suit and to decide the
question regarding bar of limitation and other question as to whether
Pimpri   Chinchwad   Municipal   Corporation   is   entitled   to   levy   the
demand after lapse of say 9 years.  
4 On the other hand, learned counsel for the respondent
submitted   with   reference   to   Section   106   of   the   Maharashtra
Municipalities Act that specific remedy of appeal against any rateable
value or the capital value, as the case may be, or tax fixed or charged
under  the  Act shall  be  heard and determined by the  Judge before

whom the appeal is provided against such levy of tax or rateable value
or charges.   Thus, according to learned counsel for the respondent,
specific statutory remedy of appeal is provided which is statutory right
of plaintiff / appellant, and therefore, learned Judge was right to arrive
at a conclusion that Civil court had no jurisdiction to entertain and try
the suit.  Reference is made to a ruling in Dai Ichi Karkaria Ltd. vs.
Pimpri Chinchwad Municipal Corporation & Ors. decided by Single
Judge of this court in Appeal from Order No.714 of 2013 decided on
29.7.2013.  Learned counsel for the respondent invited my attention to
the fact that Section 406 of the BPMC Act was considered as also
earlier ruling by this court in  Titan Industries Limited, Mumbai vs.
Thane   Municipal   Corporation   and   Ors.  reported   in  2011   (6)
Mah.L.J. 228 on the point that Civil court has no jurisdiction to decide
the issue regarding levy of octroi in view of statutory remedy of appeal
under Section 406 of the BPMC Act.  The contention regarding issue of
limitation also appears to have been dealt with by this court in   Dai
Ichi Karkaria's case, in paragraph 9, as in that case tax was levied
after   23   years,   and   there   was   an   argument   that   it   is   barred   by
limitation.  This court specifically observed that “the court which has
jurisdiction   would   decide   the   issue   and   not   the   court   not   having
jurisdiction.”  In other words, consensus of ruling in Titan Industries

Limited, Mumbai, case   as also in Dai Ichi Karkaria's case, appears
that the plaintiff has to be relegated to the specific statutory remedy of
appeal available under Section 406 of the BPMC Act on the ground that
Civil court would have no jurisdiction to entertain and try the suit.  My
attention is also invited to the fact that in  Dai Ichi Karkaria's case,
Special Leave Petition was preferred and it was dismissed by Hon'ble
Supreme Court of India by observation that if the petitioner pursues the
remedy under Section 406 of the BPMC Act, 1949, within 30 days from
today,  the  time   granted   in  the   order   dated   31.10.2012   shall  stand
extended to that date.   Even otherwise, delay occurred due to time
spent   bonafide   to   pursue   the   litigation   has   to   be   condoned   when
remedy prescribed by the statute is availed of, which was not availed
of,   on   account   of   bonafide   –   but   wrong   impression   that   ordinary
remedy is available by way of civil suit.
5 Having   considered   the   submissions   at   the   bar   and   the
rulings referred to before this court, I am of the opinion that impugned
order is legal and correct. Learned counsel for the appellant prayed that
plaint may be returned to the appellant so that it's contents can be
relied upon along with memorandum of appeal before the appellate
authority concerned because the plaintiff relegated to avail of statutory
remedy of appeal under Section 406 of BPMC Act.  

6 Hence, instead of dismissal of the suit, the order passed by
the court below is modified to the effect that plaint in the suit shall be
returned to the plaintiff to enable him to avail of statutory remedy of
appeal by filing the  plaint along with appropriate memorandum of
appeal before the appellate authority concerned, in view of Section 406
of the BPMC Act, 1949.
7 Interim order will continue for a period of Four Weeks.
8 First Appeal is disposed of accordingly.
9 Civil Application No.2960 of 2013 would not survive and
stands disposed of.
(A. P. BHANGALE, J.)

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