1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL REVISION APPLICATION NO. 14 OF 2009 Municipal Corporation, Aurangabad ...Petitioner VERSUS Govind s/o Dattatraya Pande ...Respondent ..... Shri P.P.More, advocate for the petitioner ..... Coram : Shrihari. P. Davare, J. Dated : 2nd July, 2009. ORAL ORDER : 1. Perused. Heard Shri P.P.More, learned counsel for the petitioner. None for the respondent, though served. 2. By the present Civil Revision Application, the petitioner has assailed the order passed by the learned 5th Joint Civil Judge, Senior Division, Aurangabad on application below Exh.16 in 2 Regular Civil Suit No. 636 of 2008 on 17.10.2008 and requested to quash and set aside the same. 3. The respondent (original plaintiff) filed Regular Civil Suit No. 636 of 2008 against the petitioner herein for the perpetual injunction requesting to restrain the petitioner herein from recovery of tax of Rs.13,013/- of House No.6-6-191, situated at Padampura, Aurangabad holding the bill of demand dated 15.5.2008 of alleged consolidated property tax as illegal, null and void and at Shanitnath Housing Society, Shanoorwadi, Aurangabad, holding the bill of demand dated 30.1.2008 towards consolidated property Tax as illegal null and void. 4. The petitioner/defendant appeared in the said suit and preferred an application Exh.16 under Section 9 of the Code of Civil Procedure and prayed that the said court has no jurisdiction to entertain and try the said suit, since remedy of appeal under Section 406 of the Bombay Provincial Municipal Corporation Act was available to the plaintiff and relied upon the ratio laid down in the Ruling reported at 2003 (6) Supreme 616 [N.D.M.C. Vs Satish Chand (deceased) by L.R. Ram Chand]. The learned Trial Judge obtained the reply Exh.17 of the plaintiff on the said application and considering the rival contentions rejected the said 3 application Exh.16 vide order dated 17.10.2008. Being aggrieved and dissatisfied by the said order, the petitioner/defendant has challenged the correctness and legality of the said order in the present Civil Revision Application. 5. The main contention of the learned counsel for the petitioner is that alternate efficacious remedy under Section 406 of the Bombay Provincial Municipal Corporation Act was available to the respondent/plaintiff by way of filing appeal before the Commissioner, but without availing the said remedy, the respondent/plaintiff has filed the suit before the Civil Court and the same is not maintainable as per the ratio laid down in the case of N.D.M.C. (supra) and, therefore, it is the contention of the petitioner that application Exh.16 preferred by the petitioner before the said court under Section 9 of the Code of Civil Procedure was required to be allowed holding that the said court has no jurisdiction to entertain and try the said suit. 6. However, after going through the averments in the plaint, it is seen that the plaintiff has challenged the legality and validity of the assessment of levy of property tax on the ground of non-compliance of mandatory provisions of the Taxation Rules, more particularly Rules 9, 13 to 15 of Chapter 8 of the Schedule 4 appended to the Bombay Provincial Municipal Corporation Act and on the said back ground the plaintiff claimed that the disputed bill of demand of the property taxes itself is illegal and without any authority. In substance, the said suit has been filed by the respondent/plaintiff in respect of the question of legality of taxation or liability of assessee to pay the tax is involved. Hence, the remedy of appeal under Section 406 of the Bombay Provincial Municipal Corporation Act cannot be invoked by the respondent/plaintiff, therefor. 7. As regards the Ruling cited by the learned counsel for the petitioner reported at 2003 (6) Supreme 616, it is apparent that the learned Trial Court has aptly dealt with the said Ruling in the impugned order and arrived at the conclusion that the ratio laid down in the said judgment will not be of any aid or assistance to the case of the petitioner/defendant. 8. In the circumstances, the remedy available to the respondent/plaintiff to challenge the legality of taxation or the liability of the asseessee to pay the tax is apparently to file suit before the Civil Court and not the appeal under Section 406 of the Bombay Provincial Municipal Corporation Act and the learned Trial Judge has rightly rejected the application Exh.16 preferred by the 5 petitioner under Section 9 of the Code of Civil Procedure and the said order cannot be faulted with and no interference therein under the revisional jurisdiction is warranted. 9. In the result, present Civil Revision Application fails and same stands dismissed at the admission stage itself. (Shrihari P. Davare, J.) dbm/cra14/09