Thursday, 28 February 2019

When it is not necessary to issue notice to municipal corporation prior to filing of suit against it ?

As per provisions of Section 487 of the said Act a protection is granted with regard to any act done or purported to be done in pursuance or in execution or intended execution of the said Act. In that regard unless a notice is given by the plaintiff with duration of one month and a suit filed within six months of the accrual of the cause of action, such suit cannot be instituted. Having found that the plaintiff Trust was entitled for exemption under Section 132(1)(b) of the said Act it was clear that the Trust was not liable to be assessed for payment of tax. If that be the situation then issuance of the demand notice on 04/01/2011 cannot be said to be an act done in pursuance of or in execution of the provisions of the said Act. In other words there being an exemption from payment of taxes under Section 132(1)(b) of the said Act, there would be no cause to demand such taxes by issuing any demand notice. Moreover, the said demand notice has been held to be illegal. It is thus clear that the demand notice was issued despite the fact that the plaintiff was exempted from payment of taxes. In such situation it will have to be held that the suit was not liable to be dismissed for failure to issue notice under Section 487 of the said Act as present case such notice was not required to be issued.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 645 of 2017

Decided On: 05.07.2018

Gorakshan Sanstha  Vs. Akola Municipal Corporation

Hon'ble Judges/Coram:
A.S. Chandurkar, J.

Citation: 2019(1) MHLJ 776


1. Admit.

Heard finally with consent of learned counsel for the parties.

The facts giving rise to the Second Appeal are briefly stated as under:

The appellant is the original plaintiff which is a public Trust represented by its Secretary. The Trust owned a building within the limits of the defendant Municipal Corporation. According to the Trust the said building was being used for maintaining and taking care of cows. The Municipal Corporation assessed that building for general tax under the provisions of Section 132 of the Maharashtra Municipal Corporations Act, 1949 (for short, the said Act). According to the plaintiff in view of provisions of Section 132(1)(b) of the said Act general tax could not have been assessed on that building. Despite that, notice dated 14/01/2011 was issued to the plaintiff by the Corporation demanding general tax. A suit was thus filed for a declaration that the Trust was exempted from payment of general tax along with a prayer for perpetual injunction. Written statement was filed below Exhibit 16 by the Municipal Corporation. It was pleaded that in view of the provisions of Section 487 of the said Act a prior notice was required to be issued by the plaintiff before filing the suit. As the same was not issued, the suit was not tenable. It was further pleaded that the building in question was not exempted from being assessed for imposing general tax and therefore the notice in question was validly issued. The Trust was undertaking various activities and those activities were not restricted to the maintenance of cows.

Before the trial Court the parties led evidence and thereafter a finding was recorded by the trial Court that the plaintiff was a charitable trust and that provisions of Section 132(1)(b) of the said Act were applicable. The Trust was therefore exempted from paying general tax. The suit was however dismissed on the ground that notice as contemplated by Section 487 of the said Act was not issued by the plaintiff before filing the suit.

The plaintiff filed an appeal challenging that judgment. The appellate Court held that the plaintiff was entitled to rely upon the provisions of Section 132(1)(b) of the said Act and it upheld that finding recorded by the trial Court. It further held that in absence of any notice being issued under Section 487 of the said Act the suit was not tenable. The appeal was accordingly dismissed. Being aggrieved the original plaintiff has filed this second appeal.

2. The learned counsel for the parties have been heard on the following substantial question of law:

"Both the Courts having held that the plaintiff-Trust was entitled for exemption from payment of general tax in view of provisions of Section 132(1)(b) of the said Act and the notice dated 04/01/2011 demanding general tax also having been held to be illegal, whether the suit was liable to be dismissed on the ground that notice under Section 487 of the Maharashtra Municipal Corporations Act, 1949 was not issued before filing the suit?
3. Shri B.N. Mohta, learned counsel for the appellant submitted that it having been held by both the Courts that the plaintiff was a charitable Trust it was entitled to invoke the provisions of Section 132(1)(b) of the said Act for claiming exemption from payment of general tax, the Courts erred in holding that even in such situation notice under Section 487 of the said Act was liable to be issued. Once it was held that the Trust was entitled for exemption from payment of general tax it could not be said that the impugned notice was issued in pursuance of execution of provisions the said Act. In that regard the learned counsel placed reliance on the decisions in Poona City Municipal Corporation v. Dattatraya Nagesh Deodhar, MANU/SC/0229/1964 : 1965 Mh.L.J. 105 : (AIR 1965 SC 555); Namdeo v. Z.P. Bhandara, 1973 Mh.L.J. 36; Municipal Committee i.e. The Municipal Council, Washim v. Purushottam Dattatraya Pande, MANU/MH/0157/1971 : 1974 Mh.L.J. 599; Ratnagiri Municipal Council v. J.S. Khanna and Co. MANU/MH/0331/1986 : 1987 Mh.L.J. 166, Pune Municipal Corporation and Anr. v. Mohan Shrikrishna Assava, MANU/MH/0513/1992 : 1992 (3) Bom.C.R. 540 and Sant Kanwarram Education & Social Welfare Society, Amravati and Ors. v. Municipal Corporation of City of Amravati, MANU/MH/1370/2008 : 2009 (2) AIR Bom R 384.

He thus submitted that that the suit was not liable to be dismissed on technical ground and it was in fact entitled to be decreed.

4. Shri A. De, learned counsel for the respondent supported the impugned judgment. According to him the issuance of the impugned notice was an act empowered to be undertaken in view of the powers conferred on the respondent. The Municipal Corporation was authorized to impose taxes.

It acted within its right in issuing the notice and therefore if that action was to be challenged by filing a suit, the provisions of Section 487 of the said Act were attracted. He urged that the Court was empowered to examine as to whether the suit was maintainable in absence of any statutory notice under Section 487 of the said Act. Said aspect was required to be examined first before entertaining the suit on merits. He placed reliance on the judgment in Akash Impex v. Municipal Corporation of Greater Mumbai, MANU/MH/1655/2013 : 2014 (1) Mh.L.J. 498 : (2014 (3) ABR 12). He thus submitted that the adjudication by both the Courts was legal and just not warranting interference.

5. I have heard the learned counsel for the parties at length and I have perused the records of the case. The trial Court in paragraph 34 of its judgment has recorded a finding that the provisions of Section 132(1)(b) of the said Act were applicable to the plaintiff-Trust and it was therefore exempted from payment of taxes. In paragraph 35 it has been held that the notice dated 04/01/2011 was illegal. These findings have been affirmed by the appellate Court in paragraph 8 of its judgment. Thus both the Courts have concurrently held that the Trust was exempted from levy of general taxes under the provisions of Section 132(1)(b) of the said Act. Thus having found that the Trust was entitled for exemption from levy of taxes and that the issuance of the demand notice dated 04/01/2011 was held to be illegal, the question to be answered is whether the suit could have been dismissed for want of statutory notice under Section 487 of the said Act?.

6. As per provisions of Section 487 of the said Act a protection is granted with regard to any act done or purported to be done in pursuance or in execution or intended execution of the said Act. In that regard unless a notice is given by the plaintiff with duration of one month and a suit filed within six months of the accrual of the cause of action, such suit cannot be instituted. Having found that the plaintiff Trust was entitled for exemption under Section 132(1)(b) of the said Act it was clear that the Trust was not liable to be assessed for payment of tax. If that be the situation then issuance of the demand notice on 04/01/2011 cannot be said to be an act done in pursuance of or in execution of the provisions of the said Act. In other words there being an exemption from payment of taxes under Section 132(1)(b) of the said Act, there would be no cause to demand such taxes by issuing any demand notice. Moreover, the said demand notice has been held to be illegal. It is thus clear that the demand notice was issued despite the fact that the plaintiff was exempted from payment of taxes. In such situation it will have to be held that the suit was not liable to be dismissed for failure to issue notice under Section 487 of the said Act as present case such notice was not required to be issued. The decisions in Pune Municipal Corporation and Anr., Namdev and Municipal Council, Washim (supra) apply to the facts of the present case and support the contentions of the appellant. The decision relied upon by the learned counsel for the respondent is clearly distinguishable.

7. In that view of the matter, substantial question of law as framed is answered by holding that the Courts were not justified in dismissing the suit for want of notice under Section 487 of the said Act. The judgments in R.C.S. No. 165/2011 dated 19/09/2014 as well as R.C.A. No. 878/2014 dated 29/11/2016 are set aside. The suit is decreed in terms of prayer clauses (a) and (b) of the plaint. It is however clarified that the Municipal Corporation is free to take such steps as are permissible in law in future.

The Second Appeal is allowed in aforesaid terms.


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