This contention of the respondent/Public Trust can be certainly raised in an appeal under Section 406 of the said Act. The exemption claimed by it, is under Section 132(1)(b) of the said Act, which is a ground that can be agitated in the appeal. It is not as if the respondent/Public Trust is prohibited from raising such a ground in the appeal or that the "Judge" does not have the authority to deal with such a ground of challenge while exercising appellate power under Section 406 of the said Act. The said contention of the respondent/Public Trust is covered under the expression "appeals against rateable value or the capital value as the case may be or tax fixed or charged under this Act" used in Section 406 of the said Act. {Para 15}
16. A perusal of the other relevant provisions of the said Act show that under Section 410 thereof, if on hearing of an appeal a question of law or construction of a document arises, the Judge may draw a statement of the facts of the case and refer such questions with his own opinion on the point for a decision of the District Court. Under Section 411 of the said Act, an appeal shall lie to the District Court from any decision of the Judge in an appeal under Section 406 thereof, by which a rateable value or capital value as the case may be is fixed or upon a question of law or usage or the construction of a document. The question whether tax is to be fixed at the rate at which the Municipal Corporation claims or it has to be nil as claimed by the respondent based on Section 132(1)(b) of the Act, can also be a subject matter of such appeal under Section 411 of the Act. Further Section 413 of the said Act provides that the decision of the District Court in an appeal under Section 411 of the Act shall be final.
17. Thus, the provisions of the aforesaid Act provide a scheme wherein the grievance of the respondent/Public Trust can be fully taken care of and, therefore, the jurisdiction of the Civil Court is impliedly ousted. Applying the propositions culled out by the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Dhulabhai (supra), it becomes evident that the aforesaid Act, with which we are concerned in the present case, is covered under proposition Nos. 2 and 6. In the present case, there is no question of a challenge to the vires of any provision of the aforesaid Act and the claim of the respondent/Public Trust that the notice and bills issued by the appellant/Municipal Corporation are illegal because the respondent is entitled for exemption from payment of property tax, is a question that can very well be decided in the mechanism provided as per the aforesaid provisions of the said Act.
18. In this context, the contents of the plaint of the respondent/Public Trust need to be appreciated. The entire grievance of the respondent is that it is undertaking educational activities in the building in question and that, therefore, under Section 132(1)(b) of the said Act, it is exempt from levy of tax. It is also claimed that tax is being claimed retrospectively by the appellant/Municipal Corporation, which cannot be done. In my opinion, all these are facets of "tax fixed or charged" or the rateable value applied by the appellant/Municipal Corporation, while raising bills against the respondent/Public Trust. If the contents of the plaint are appreciated in the proper perspective, it becomes evident that there is force in the contention raised on behalf of the appellant/Municipal Corporation that the respondent/Public Trust has filed the civil suit, instead of appeal under Section 406 of the said Act, only to avoid the mandatory deposit of disputed tax claimed by the appellant/Municipal Corporation, under Section 406(2)(e) of the Act, before the appeal can be heard or decided by the Judge. Although, this aspect may not be relevant to decide as to whether the jurisdiction of the Civil Court is ousted, it does demonstrate that in such cases, by clever drafting assessees may claim that civil suit is maintainable by contending that the very levy of the tax by the Municipal Corporation is "illegal" and that there is no remedy other than filing of suit before the Civil Court. It is for the assessees like the respondent/Public Trust to demonstrate as to why the grievance sought to be raised by them cannot be addressed under the scheme manifested by the above quoted provisions of the said Act.
19. In the present case, the learned Counsel for the respondent/Public Trust has heavily relied upon the judgment of this Court in the case of Balkrishna Vora v. Poona Municipal Corporation (cited supra). In the aforesaid case, the Court was concerned with the question that the tax levied or sought to be recovered was ultra vires the powers of the Corporation. In such a situation, it was held by this Court that the machinery provided under the aforesaid Act would not be sufficient for the assessee to air his grievance and thereupon, the Court held that the jurisdiction of the Civil Court could not be said to have been ousted and that the suit was maintainable. But, in the instant case, the nature of the grievance of the respondent/Public Trust is not such that it cannot be redressed under the machinery of the aforesaid Act. Therefore, the reliance placed on the said judgment of this Court is misplaced.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Appeal Against Order (AO) No. 34 of 2017
Decided On: 14.02.2018
Akola Municipal Corporation Vs. Shri Akola Gujrati Samaj
Hon'ble Judges/Coram:
Manish Pitale, J.
Citation: MANU/MH/0239/2018
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