( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 190 OF 1993 Sau. Kusumbai w/o Bhagwat Battawar, R/o Nanded. APPELLANT VERSUS The Nanded Municipal Council, through its Chief Officer, Nanded. RESPONDENT ..... Mr. N.K. Tungar, advocate holding for Mr. P.V. Mandlik, Senior Advocate for the appellant. Mr. S.V. Kurundkar, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 4th December, 2009] ORAL JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by learned 4th Additional District Judge, Nanded in Civil Appeal No. 171/1989 whereby decree rendered by the trial Court in suit bearing R.C.S. No. 155/1987 came to be reversed. ( 2 ) 2. Appellant Smt. Kusumbai is original plaintiff. She filed suit for declaration and injunction. She is owner of house property bearing No. 1-6-891 situated on S.T. workshop road, Nanded, within the local limits of village Jangamwadi. Her case before the trial Court was that she had purchased an open plot alongwith two constructed rooms standing thereon from its previous owner, namely, Sardar Puransingh vide registered sale- deed dated 18-01-1978. She constructed the house property on obtaining necessary construction permission from Village Panchayat, Nasratpur, which is a group Gram Panchayat of adjoining villages, including village Jangamwadi. The Municipal Council, Nanded served notice on her to pay the property tax. She asserted that the Municipal Council had no legal right to issue such demand notice because the house property is not taxable in as much as it is outside the municipal limits. 3. The suit was resisted by respondent – Municipal Council vide written statement (Exh-13). It was contended that the suit was untenable for want of ( 3 ) mandatory notice under section 304 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short, “the MMC Act”). It was further contended that the suit was barred under section 172 of the said Act. It was further contended that the suit house property falls within the municipal limits and as such, the bill of taxation was legal and proper. The respondent – Municipal Council, therefore, sought dismissal of the suit. 4. The trial Court framed certain issues below Exh-19. It was held that the suit house was not within the limits of the Municipal Council and, therefore, the bill No. 040 dated 11-01-1987 was illegally issued. It was held that the appellant (plaintiff) was not liable to pay the taxes shown under the demand bill. Consequently, the suit came to be decreed. The first Appellate Court, however, held that the suit was liable to be dismissed for want of notice under section 304 of the MMC Act as well as it was not tenable under section 172 of the MMC Act. Hence, the appeal was allowed. ( 4 ) 5. Heard learned counsel for the parties. 6. The appeal was admitted for determination of substantial questions of law which were identified as ground Nos. “B” to “E” as shown in the appeal memo. It is not necessary to set out all the grounds. Suffice it to say, the following substantial questions of law need determination. (i) Whether, in the facts and circumstances of the present case, the suit house property falls outside the municipal limits of Nanded Municipal Council and as such, the suit property could not be subjected to imposition of property tax by the respondent ? (ii) Whether the first Appellate Court committed patent error while dismissing the suit for want of notice under section 304 of the MMC Act and taking wrong view that the suit was not maintainable under section 172 of the MMC Act ? ( 5 ) 7. Clinching question is whether the house property is situated within the limits of village Jangamwadi which was not included within the municipal limits. There is no dispute about the fact that after formation of Municipal Corporation in 1997, the area of Jangamwadi village is included in the area of Corporation. The respondent mainly emphasized that the limits of Municipal Council had been determined in accordance with notification published in the Government Gazette of the year 1344 Fasli (1935 AD). It may be noticed that Nanded district was part of erstwhile Hyderabad State at the relevant time. It is of common knowledge that prior to Independence, Nanded district and area of Marathwada region had been the part and parcel of the Hyderabad State, which was ruled by the Ex-Ruler – Nizam. The record does not show that the earlier notification was mutatis mutandis adopted subsequently when the area of Nanded city was determined after the enactment, namely the Maharashtra Municipalities Act. The appellant, on the other hand, placed on record Government gazette dated 5th January, ( 6 ) 1961, which purports to show that village Jangamwadi was included in the Gram Panchayat of four villages including village Nasratpur. The record shows that subsequently village Asadulabad was deleted from the limits of revenue village panchayat Nasratpur by virtue of Government gazettle dated 9th July, 1987. In other words, Jangamwadi and two villages continued to be part and parcel of village panchayat Nasratpur. 8. There cannot be simultaneous inclusion of village Jangamwadi in the municipal limits as well as in the limits of Nasratpur village panchayat. The respondent did not adduce any evidence to show that by virtue of a Government notification, duly published in a gazette, village Jangamwadi was included within the municipal limits. Yet another important aspect is that the appellant constructed house property in pursuance to permission which was granted by the village panchayat, Nasratpur. The respondent never objected to the construction of the appellant’s house property. No notice was sent to the appellant regarding unlawful construction without permission of the ( 7 ) respondent/Municipal Council. It was never alleged that the appellant had committed illegality in the construction of the house property. On the other hand, she was not served with notice calling upon her to pay the municipal property tax. If her construction was found to be without permission of the municipal council, long back necessary action could have been taken, but that was not done. 9. Counsel for the respondent would point out that the sale deed (Exh.50) indicates that land survey No. 12/1 is situated within limits of municipal council and the house property therefore was shown as part of the property within the municipal limits when the sale deed was registered. This does not enure to the benefit of the respondent for the purpose of taxation. Unless there is municipal record to prove that the property is within the limits of municipal council and could be charged with municipal taxes, the property tax could not have been claimed. Obviously, the first Appellate Court committed patent error while reversing findings of the trial Court in this behalf. ( 8 ) 10. So far as objection in respect of want of notice under Section 304 of the Maharashtra (Municipal Councils), (Nagar Panchayats) and Industrial Townships Act, 1965, it may be stated that the bar created under Section 304 is only in respect of action taken by the officers of the municipal council or the servants for their acts which are found to be done in good faith. The purport of Section 303 of the said Act is to protect the municipal officers and servants from civil or criminal actions in the cases where they are found to have acted in good faith. So far as Section 304 of the said Act is concerned, notice is necessary before filing of the suit when anything is done in pursuance to the execution of the Act. In the present case, calling upon the appellant to pay municipal taxes, when the property was not within the municipal limits, cannot be said to be an act done in pursuance of the provisions of the Maharashtra (Municipal Councils), (Nagar Panchayats) and Industrial Townships Act, 1965. Obviously, the appellant could not have been non-suited on account of such technical reason as done by the first Appellate ( 9 ) Court. 11. For the reasons aforestated, I have no hesitation in holding that the impugned Judgment is unsustainable. The first Appellate Court committed patent error while reversing the findings of the trial Court. Hence, the appeal is allowed. The impugned Judgment is set aside and that of the trial Court is confirmed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/sa190-93