1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVN. APPLICATION NO. 727 OF 2009 Thane Municipal Corporation ... Applicant v/s Mahendra Hotels Pvt. Ltd. ... Respondent Mr.R.S.Apte i/by Mr.N.R.Bubna for the applicant. Mr.K.S.Dewal for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 22ND FEBRUARY, 2010 P.C.: 1. The civil revision application has been preferred against the order passed by the Trial Court concluding that the Trial Court does have jurisdiction to decide the suit. The respondent/plaintiff has filed the suit contending that no tax is payable by it on the suit property. It is contended that the property tax is not leviable in respect of the suit premises, in any manner and, therefore, they cannot be in arrears in payment of property tax. The respondent has also further contended that the proposed auction of the suit building for recovery of property tax is illegal. 2 2. The applicant has raised a preliminary objection regarding maintainability of the suit before the City Civil Court by contending that the plaintiff had a right of an appeal under Section 406 of the Bombay Provincial Municipal Corporation Act, 1949 (in short, “B.P.M.C. Act”). It is contended that, in view of this provision, the Civil Court had no jurisdiction to decide the dispute between the parties. Accordingly, a preliminary issue was framed by the Trial Court. That issue has been answered by the Trial Court by concluding that the plaintiff had not challenged the quantum of the property tax levied by the Corporation but had in fact challenged the action of the Corporation of recovering property tax on the suit premises without issuing an occupation certificate. 3. The learned counsel appearing for the appellant submits that the frame of the suit indicates that, what is challenged by the plaintiff is the procedure adopted by the Corporation for issuing the notice for recovery of tax as well as the auction of the suit building. He submits that the plaintiff has not stated anywhere in the plaint that the levy of the property tax in respect of the suit building is ultra virus. He further submits that a careful reading of the plaint and the reliefs claimed therein would indicate that the 3 plaintiff’s aim was to challenge the procedure adopted for recovery of the property tax and not the power itself of the Corporation to levy such tax. 4. The learned advocate appearing for the respondent submits that the Trial Court has correctly appreciated the pleadings on record and found that it has jurisdiction to decide the appeal. He draws my attention to the pleadings contained in paragraphs 28, 29 and 30 of the plaint in support of his submission that the plaintiff can challenge the power to levy the property tax by the Corporation in a civil suit by relying on the judgment of the Division Bench of this Court in the case of Balkrishna Dharamdas Vora v/s The Poona Municipal Corporation, reported in 1962 Bom.L.R. Vol.LXV 119. 5. I have perused the plaint with the assistance of the learned counsel appearing for the parties. In my opinion, the pleadings in the suit indicate that, what is challenged is the power of the Corporation to levy property tax on the suit building without issuance of an occupancy certificate. The quantum of the tax levied has not been challenged. Therefore, the Trial Court has committed no error in concluding that the Civil Court has jurisdiction. The Division Bench in the aforesaid judgment has considered 4 the provisions of Section 406 and 411 of the B.P.M.C. Act. It has observed that a suit can be entertained to challenge the legality of the imposition of tax or the liability of an assessee to pay the tax. The Division Bench has considered the earlier judgments of this Court in Ankleshwar Municipality v/s. Chhotalal, reported in (1954) 57 Bom.L.R. 547 and Gopal Mills Co. Ltd. v/s Broach Bor. Mun., reported in (1955) 58 Bom.L.R. 300, and has held thus - “However, the words used in Section 406(1) of the Act, in our view, do not cover the vires of the tax or the legality of the tax which is sought to be levied. It provides for appeals against rateable value or tax fixed or charged, and, in our view, looking to the general scheme of the Act, by the words “tax fixed or charged” what was meant was the amount or quantum of tax and not the legality of the same. This view is further strengthened by Section 413 which gives finality to the rateable value fixed under the Act and the amount or the sum claimed and nothing else. Exclusion of the jurisdiction of the civil Court is not to be lightly inferred. There is no express provision by which the jurisdiction of the civil Court is excluded in all matters that the Commissioner may be able to decide. Moreover, finality is given only to decisions regarding the rateable value and the amount of tax and not to any other matter that the Commissioner may incidentally decide. It seems that the scope of the disputes that fall to be decided under the rules of assessment and in appeals under Sections 406 and 411 was intended to be limited and for a good reason. There is no scope for testing the decision in any superior Courts with the result that the parties may in complicated cases suffer substantially. It seems to us, therefore, that it is always open for the civil Court to entertain a suit where the question is one of legality of the taxation or the liability of the assessee to pay the tax.” 5 6. In my view, the Trial Court has not committed any jurisdictional error while concluding that it has jurisdiction to entertain the suit. 7. Civil revision application stands dismissed. ..... 6