KBP[RESERVED-5-8-09] CRWP1468-08.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1468 OF 2008 WITH CRIMINAL WRIT PETITION NO. 1471 OF 2008 Panhala Hill Station Municipal Council, Panhala ..Petitioner Vs. Grand Hotel Pvt. Ltd., Mumbai and anr. ..Respondents WITH CRIMINAL WRIT PETITION NO.1469 OF 2008 WITH CRIMINAL WRIT PETITION NO.1470 OF 2008 Panhala Hill Station Municipal Council, Panhala ..Petitioner Vs. Mahalaxmi Resorts/Prasad Tours and Travels. ..Respondent ......... Mr. S.S. Patvardhan for the petitioner in all the petitions. Mr. Amit Borkar for the respondent No.1 in all the petitions. Ms. S.V. Gajare, APP for the State. ......... CORAM : A.S.OKA, J.. RESERVED ON : 18 th July, 2009. PRONOUNCED ON : 17 th September, 2009. JUDGMENT : 1] These Writ Petitions can be disposed of by a common judgment. The facts leading to the filing of these petitions are more or less similar. KBP[RESERVED-5-8-09] CRWP1468-08.sxw 2 Therefore, for the sake of convenience a reference is made to the facts of Writ Petition No.1458 of 2008. 2] The petitioner is the Municipal Council constituted under the provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as “the said Act”). The respondent preferred an appeal under Section 169 of the said Act before the learned Judicial Magistrate First Class. By the said appeal, the 1 st respondent challenged the bill dated 17 th November, 2006 issued by the petitioner Municipal Council, by which property taxes were claimed by the petitioner Municipal Council on the basis of rateable value of Rs.1,57,982/-. The petitioner Municipal Council made an application in the said appeal praying for dismissal of the appeal on the ground that compliance was not made by the respondent of the requirement of sub clause (ii) A clause “c” of Section 170 of the said Act. The respondent made an application in the said appeal praying for stay of order of the petitioner fixing rateable value and stay of operation of the bill which was the subject matter of challenge. By order dated 20 th February, 2008, the learned Magistrate rejected the prayer for dismissal of the appeal and directed the respondent to deposit 1/4 th of the disputed tax bill amount with the petitioner before entering into the witness box for adducing the evidence. The respondent, being aggrieved by the said order, preferred a Revision Application before the Sessions Court. By the impugned judgment and order dated 6 th June, 2008, the Revision Application was allowed and the direction given by the learned Magistrate to deposit ¼ of the disputed tax bill amount with the petitioner was set aside. The bill which was the subject matter of challenge in the appeal was stayed till the final disposal of the appeal. This order has been impugned by the petitioner in the present petition. By judgment and order dated 24 th September, 2008, this Court rejected the preliminary objection raised by the learned counsel for the KBP[RESERVED-5-8-09] CRWP1468-08.sxw 3 first respondent regarding maintainability of the writ petition. 3] The learned counsel for the petitioner submitted that the operation of the bill could not have been stayed by the Sessions Court. He submitted that the Sessions Court completely ignored the fact that compliance was not made by the respondent of the mandatory requirement of the Clause “c” of Section170 of the said Act. He submitted that the Revision Application was not maintainable. He submitted that in an appeal under section 169 of the said Act, there is no provision under which interim relief can be granted. He, therefore, submitted that the impugned order is perverse and deserves to be set aside. He pointed out that no reasons have been assigned by the learned Sessions Judge for staying the operation of the bill. The learned counsel for first respondent pointed that the rateable value of Rs.1,57,982/- is exorbitant. He submitted that the first respondent has complied with the requirement of sub clause (ii) (A) of clause “c” of Section 170 of the said Act. He submitted that the first respondent is ready to furnish security for the bill amount which is subject matter of challenge. He, therefore, submitted that no interference is called for with the impugned order. 4] I have carefully considered the submissions. As stated above, these petitions arise out of an appeal preferred under Section 169 (2) of the said Act challenging the bills of property taxes issued by the petitioner Council. Section 170 of the said Act reads thus: 170.Procedure in appeal.- No [appeal under the last preceding section] shall be entertained unless- (a) the appeal, (i) under sub-section (1) or under clause (b) of sub-section (2) of section 169 is brought within [thirty days], next after the presentation of the bill complained of; KBP[RESERVED-5-8-09] CRWP1468-08.sxw 4 (ii) under clause (a) of sub-section (2) of section 169, to the Property Tax Appeal Committee is brought within [thirty days], next after the presentation of the bill complained of; and (iii) under the proviso to sub-section (2) of section 169, to the Judicial Magistrate against the decision of the Property Tax Appeal Committee is, brought within [thirty days] next after the decision of the Committee; [Provided that, in cases where the persons to whom the notices of demand or bills have been served after the 1 st April 1995, and who have not been able to file appeals against such claim for taxes made in the bills to the Property Tax Appeal Committee within ninety days next, after the coming into force of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships (Amendment) Act, 1996. (b) an application in writing stating the grounds on which the claim of the Council is disputed, has been made to the Council in the case of a tax on buildings or lands or both within the time fixed in the notice given under Sections 119 or 123 of the assessment or alteration thereof, according to which the bill is prepared; and (c) (i) the appellant under sub-section (1) of section 169 has paid in the municipal office the full amount included in the bill; and (ii) the appellant under sub-section (2) of Section 169 has paid in the municipal office, (A) the full amount of tax as paid by him for the last preceding assessment year; (B) in respect of new properties being assessed for the KBP[RESERVED-5-8-09] CRWP1468-08.sxw 5 first time, thirty per cent of the amount of tax claimed in the bill by the Council;] 5] As the appeals subject matter of these writ petitions are under Sub- Section 2 of Section 169, Sub-clause (ii) of clause “c” of Section 170 of the said Act will be applicable. Sub-clause (ii)(B) will not apply in this case. Therefore, as a condition precedent for entertaining the appeals, the 1 st respondent will have to comply with Sub-Clause (ii) A of Clause (c) of Section 170 by depositing full amount of tax as paid by the first respondent for the last preceding assessment year. The appeals subject matter of these petitions can be entertained provided compliance is made by the first respondent with the requirement of Sub-Clause (ii)(A) of Clause (c) referred to above. The learned Counsel appearing for the first respondent submitted that the respondent has already complied with the said requirement. The learned counsel for the petitioner did not accept the said submission. This factual aspect cannot be gone into in a writ petition, and therefore, the learned Magistrate will have to hear the parties on this aspect and will have to decide whether compliance has been made by the first respondent. If compliance is not made, the appeals preferred by the first respondent cannot be entertained. 6] The other question is whether the Sessions Court was justified in staying the operation of bill which was the subject matter of challenge in the appeal. Under the proviso of Section 165 of the said Act, the learned Magistrate before whom appeal under Section 169 of the said Act is pending or the Sessions Court before which a Revision Application under Section 170 is pending, is empowered to stay the operation of the warrant issued for recovery of amount payable under the bills issued. In the present case, the petitioner has offered to give security in the bill amount to the satisfaction of the learned Magistrate. Apart from the said statement, considering the facts KBP[RESERVED-5-8-09] CRWP1468-08.sxw 6 of the case, the petitioner will have to secure the bill amount. 7] As the first respondent has stated that the due compliance has been made with the statutory requirement of Section 170 of the said Act and as the first respondent has offered to furnish the security for the bill amount, it is not necessary to go into the wider question regarding the maintainability of the Revision Application. 8] Hence, Writ Petitions are disposed of by passing following order: a) The impugned judgment and orders are modified. b) The first respondent shall furnish a security for the bill amount which is the subject matter of the challenge in appeals under Section 169 of the said Act. The security shall be furnished to the satisfaction of the learned Magistrate within a period of eight weeks from today. The petitioner Municipal Council shall be heard before accepting the security. c) On security being furnished by the first respondent within the stipulated time, the warrant issued by the petitioner for recovery of bill amount shall not be executed till the disposal of the appeals. For the time being the warrant shall not be executed for a period of eight weeks from today. d) The learned Magistrate will hear the parties and will decide the question whether the compliance has been made by the first respondent with the requirement of Sub-Clause (ii) A of Clause (c) of Section 170 of the said Act. The learned Magistrate will hear both the parties on the said aspect and will permit them to file documents. If it is found that the compliance has not been made by the first respondent, the appeals preferred by the first respondent shall not be entertained. e) All contentions of the parties on merits in the pending appeals are expressly kept open. ( A.S.OKA, J. )