1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 114 OF 2010 WITH CIVIL APPLICATION NO. 11420 OF 2010 The State of Maharashtra and others ...Appellants Versus M/s Rajmudra Real Estate Pvt. Ltd. ...Respondent ..... Mr. V.H. Dighe, A.G.P. for the appellants Mr. P.M. Shah, senior counsel i/b Mr. M.S. Deshmukh, advocate for respondent. ..... CORAM: S. S. SHINDE, J. DATED: 21ST SEPTEMBER, 2010 PER COURT:- 1 This appeal takes exception to the order dated 15.5.2010 passed by the learned District Judge, Jalgaon in Regular Civil Appeal No. 13 of 2010. 2 On 16.7.2009, the respondent herein who is original plaintiff filed Regular Civil Suit No. 150 of 2009 before the learned C.J.S.D. Jalgaon for declaration and injunction. On 6.11.2009, the trial Court framed 2 preliminary issue i.e. whether the Court has jurisdiction to entertain and try the suit? On 12.1.2010, the trial Court held that the Court has no jurisdiction to try and entertain the suit. 3 Being aggrieved, the respondents herein filed Regular Civil Appeal No. 13 of 2010. The District Court has allowed the said appeal holding that the civil court has jurisdiction to try and entertain the suit and directed the trial court to dispose of the suit as early as possible within a period of five months. Hence, this appeal. 4 Learned A.G.P. appearing for the appellants-State submitted that the appellate court has not properly considered the provision of Section 4 and 5 of the Bombay Revenue Jurisdiction Act, 1876. The lower appellate court has misinterpreted the provisions of said Sections and has wrongly held that the suit is maintainable. Learned A.G.P. further submitted that demand notice was under section 174 of the Maharashtra Land Revenue Code, 1966 and therefore, the remedy which was available to the respondents herein was under Section 247 of the M.L.R. Code. It is further submitted that the appeal was maintainable and the respondents ought to have filed appeal challenging the notice under Section 174 of the M.L.R. Code. Learned A.G.P. also invited my attention to the provisions of Sections 4 and 5 of the said Act and grounds taken in the appeal memo and annexures to the appeal and submitted that this appeal deserves to be allowed. 3 5 On the other hand, learned senior counsel appearing for the respondents submitted that the District Court has rightly placed reliance on the provision of Sections 4 and 5. He invited my attention to the affidavit in reply filed on behalf of the respondent and more particularly para 3, 4 and 5 of the said reply. It is submitted that the Section 9 of C.P.C. Confers jurisdiction on Civil Court in respect of all disputes of civil nature. The exclusion of the jurisdiction of the civil court may not be readily inferred. It is further submitted that some of the reliefs claimed in the suit cannot be considered under the provisions of M.L.R. Code as contended by the learned A.G.P. It is submitted that in the suit, the plaintiffs have even prayed for refund of the amount which is paid by the plaintiffs under protest. The M.L.R. Code or the provisions of of Bombay Revenue Jurisdiction Act, 1876, does not contemplate such type of dispute. There is no machinery provided under this Act to pass money decree in favour of the plaintiff in respect of the excessive amounts realized by defendants by taking recourse to coercive measures. Recovery of amount of non agricultural amount itself is ultra virus and without jurisdiction and demand notice which was issued by the respondent was nullity and unenforceable. Such demand notices are vitiated on account of inherent law and jurisdiction and power. Learned counsel also invited my attention to Sections 4 and 5 of 4 the said Act and submitted that the suit is maintainable in view of the provisions of Section 5 of the said Act. He further invited my attention to the unreported judgment of this court in Second Appeal No. 382 of 1979 and submitted that in some what similar facts, this Court had an occasion to deal with the arguments of the State Government in the said second appeal that in view of the remedy of appeal available under section 247, suit is barred. However, this Court in para 5 of the order passed in the said second appeal held that if the notice is illegal on the face of it and it is unconstitutional because it amount to recovery of tax without the authority of law and Article 265 of the Constitution provided that no tax shall be levied or collected except by authority of law. An unconstitutional order passed by any Officer of the Government need not be appealed against, because the appellant authority with special and limited jurisdiction will not have the authority to decide whether its own acts or the acts of its subordinate are ultra virus the statue or the Constitution. The civil Court's jurisdiction in such cases to entertain a suit for declaration that the act is illegal and ultra virus the statute and/or the Constitution is always held to be quite competent. Learned senior counsel further invited my attention to the judgment of this court in the case of Bharatlal Hemraj Vs. Kondiba Govinda Jadhav and others, reported in 2002 (Suppl) B.C.R. 216 and more particularly para 16 of the said judgment, in which this court 5 has taken a view that if there is no decision or adjudication of rival contentions of the parties, in that case, it cannot be said to be a decision as such nor it can be termed as ‘order’ within the meaning of said expression under section 90. A decision does mean not mere conclusion but it embraces within its fold and reasons forming basis for arriving at ‘conclusion’ as has been held by the Apex Court in (Mukhtiar Singh and Anr. Vs. State of Punjab) reported in 1995(5) SCC 760. The sum and substance of the arguments advanced on behalf of the counsel for the respondent are that the District Court has rightly interpreted Section 4 and 5 of the said Act looking at the reliefs claimed in the suit, and passed impugned order holding that the suit was maintainable. 6 I have given due consideration to the submissions advanced by learned A.G.P. and the learned senior counsel, appearing for the respondent. I have also perused the appeal memo as well as reply filed on behalf of the respondent and also documents placed on record and the judgment cited by the counsel for the respondent. The first contention of the learned A.G.P. that the suit was barred by Section 4 is concerned, there are certain exception carved out in Section 4. In Section 5 of the said Act, it is made clear that there is nothing in Section 4 shall be held to prevent the Civil Court from entertaining the following suits i.e. i) Suit against Government to contest the amount claimed or paid under protect, ii) Recovered as land revenue, on the 6 ground that such amount is in excess of the amount authorized in that behalf by State Government or that such amount had, previous to such claim, payment or recovery being satisfied in whole or in part or that the plaintiff or the persons whom he represents is not the person liable for such amounts. If the prayer in the suit are carefully perused, there is prayer clause “C” for refund of the excessive amount paid by the plaintiff towards cess. It is also relevant to note that the notice, which is subject matter of the suit is merely notice and there is no any order or direction by any subordinate revenue authority so as to prefer appeal under Section 247 of the M.L.R. Code. On careful reading of Section 247 of the Code, the remedy of appeal is made available if any person is aggrieved by any direction or order of Revenue authority. In the present case, it is admitted position that the suit is filed aggrieved by the notice of demand issued by the authority. 7 As contended by learned senior counsel for the respondent and as concluded by this Court, unless there is proper adjudication and some order is passed or directions are issued, remedy of appeal cannot be invoked. It is not necessary to go into the details of other aspects of the matter, since the suit which was filed by the respondent was perfectly maintainable in view of the provisions of Section 5 of the said Act. The reliefs which are claimed in the suit are also required to be adjudicated by the competent civil Court. It is not in dispute that the respondents have paid some amount under protest. There is prayer in 7 the suit for recovery of the said amount. 8 Viewed from any angle, no case is made out to entertain this appeal. The appeal is devoid of any merits. Hence, Appeal from Order stands dismissed. 9 In view of the dismissal of appeal from order, nothing remains to be adjudicated in the civil application and thus civil application No. 11420 of 2010 stands dismissed. Interim relief, if any, stands vacated. *****