( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1343 OF 2009 WITH CIVIL APPLICATION NO.5925 OF 2009 Shri Vitthal Shikshan Prasarak Mandal Umarga, Dist. Osmanabad, Through its Secretary, Gopalrao s/o Tukaram Birajdar (Ghuge) Age: 53 years, Occ: Service, R/o. Plot No.38, Town Centre, Cidco Aurangabad. .. Appellant Versus Aurangabad Municipal Corporation Aurangabad. Through its Commissioner, Aurangabad. .. Respondent ... Mr. Hiraji Gaikwad, Advocate for the appellant. Mrs. Manjusha Deshpande, Advocate for sole respondent. ... CORAM : P.R. BORKAR,J. DATED : 07.04.2010 P.C. :- This appeal is being heard for final disposal at the ( 2 ) stage of admission with the consent of the parties, as per order passed by this Court on 15-09-2009. The appeal is directed against the judgment and order passed by the 5th Joint Civil Judge, S.D. Aurangabad in Special Civil Suit No. 616 of 2008 decided on 20-02-2009 whereby the learned Civil Judge has held that the suit is not maintainable as the Court has no jurisdiction to try the suit in the present form and therefore, the plaint was rejected under Order 7 Rule 11 of the Code of the Civil Procedure. 2. The facts giving rise to this appeal are as follows : As per the appellant - original plaintiff No. 1 Vitthal Shikshan Prasarak Mandal, Umarga District Osmanabad is a registered charitable trust engaged in imparting free education. The appellant - society owns suit premises at Cidco, N-2, Mukundwadi, Aurangabad. It was specifically allotted by Cidco for running a school. The said school is a recognized school, getting full grants. The school is not receiving any rent from the Government. No property tax was imposed on the premises till 2008. However, in the year 2008, the respondent - Corporation issued notice calling upon ( 3 ) the appellant to pay Rs.4,01,152/- as commercial tax, though the premises are exempted from taxes. It is also stated that the necessary rules and laws are not followed before serving the notice. Suit is filed for declaration and injunction. The prayers made are as follows : "A. Decree for declaration that imposition of taxes on house No.N-2 CIDCO, Mukundwadi Aurangabad is illegal, null, and void-ab-initio and without following due procedure. B. The decree for Perpetual Injunction restraining the Defendant to recover taxes on the basis of impugned Demand notice No.13051 dated nil issued under section 128(2) of the Bombay Provincial Municipal Corporation Act for period 1-4-2006 to 31-4-2009 amounting to Rs.4,01,052/- in respect of house No.N-2, CIDCO, Mukundwadi, Aurangabad". 3. Learned Advocate of the appellant argued that the appellant Institution is exempted from general taxes as per Section 132(1)(b) of the Bombay Provincial Municipal Corporations Act, 1949, which reads as follows : "132. (1) The general tax shall be levied in respect of all buildings and lands ( 4 ) in the City except- (b) buildings and lands or portions thereof solely occupied and used for public worship or for a public charitable purpose;" It is argued that since the question raised is whether the appellant Institution is exempted from payment of taxes as per Section 132(1)(b) of the Bombay Provincial Municipal Corporations Act, 1949, (hereinafter referred to as "the Corporations Act,) Civil Court has jurisdiction. It is stated that the appellant does not challenge the valuation and assessment of the taxes. However, Para-7 of the plaint clearly indicates that the procedure followed for the assessment is challenged and it is stated that the assessment was not properly done. In Para-8 of the plaint, it is stated that the defendant has power to impose the taxes but it should be levied according to law and then and then only, it has right to recover the same. Taxes are not imposed as per law and as such, the defendant has no authority to recover the taxes. Learned Advocate of the appellant also drew my attention to Para-5 of the plaint, in which, it is stated that the plaintiff is a charitable trust and building is used ( 5 ) for the charitable purpose only and not for trade or any business and no rent is derived from the said building and therefore, as per the Corporations Act, such building is exempted from paying general taxes. 4. Mrs. Manjusha Desphande, learned Advocate of the respondent Corporation drew my attention to the prayer clauses and argued that the prayer clause-A is clearly beyond the scope of Section 132(1)(b) of the Corporations Act and is covered the scope of Part-III of Chapter XXVI of the Corporations Act and there is a bar of Section 413 of the Corporations Act to the jurisdiction of the Civil Court. She also stated that the Civil Court cannot enter into the question whether levy was according to the procedure or not. 5. Advocates of both the sides have taken me through the provisions of law, so also case laws. Under Section 413 of the Corporations Act, rateable value fixed under this Act, subject to decision of the Judge in case of appeal is final. Various rulings are cited by both the sides. In the case of Sant Kanwarram Education & Social Welfare Society & Ors. vs. ( 6 ) Municipal Corporation of City of Amravati [2008(6) ALL MR 384], the Single Bench of this Court came to the conclusion that the Civil Court can consider the suit for declaration that the plaintiff is exempted from payment of property tax under Section 132(1)(b) of the Corporations Act, 1949. The learned Advocate of the appellant also referred to the Division Bench ruling in the case of Balkrishna Vora vs. Poona Municipal Corporation, 1963 Mh.L.J. 325. Para-4 reads thus : "4. 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 ( 7 ) 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." On the other hand,learned Advocate of the respondent relied upon various judgments. First is the Second Appeal No. 195/1984 decided on 05-03-2004 by the Single Bench of this Court. It is observed that in that case, the plaintiff own houses within area of the Municipal Corporation, Aurangabad and was served with the bills in respect of the houses claiming consolidated property taxes. This was challenged on the ground that tax was exorbitant, unreasonable and procedure under law was not followed. The Court held that such suit is barred by Section 172 of the Maharashtra Municipalities Act. Next case cited is Small Scale Entrepreneurs Association & Ors. vs. State of Maharashtra & Ors. [2007(3) Bom.C.R. 496]. In that case, Division Bench of this Court following another Division Bench ruling in the case of M. Sector Industries vs State of Maharashtra [2002(1) Bom.C.R. 725], held that writ petition would not be ( 8 ) entertained against the levy of property tax by the Municipal Corporation & the remedy is to challenge the same by way of appeal under Section 406 of the Corporations Act, 1949. Another case cited is NDMC vs Satish Chand [2003 LawSuit(SC) 881], of which copy is supplied. In that case, it is held that jurisdiction of Civil Court to entertain the suit is barred. There could be express bar where a Statute itself contains a provision that the jurisdiction of a Civil Court is barred or there could be implied bar when a Statute provide a special remedy to an aggrieved party like a right of appeal as contained in Punjab Municipal Act. In that case, party was challenging the assessment and levy of the taxes in the manner other than as provided under the Act. It was held that the appeal was provided and there was complete remedy to the party aggrieved against the assessment and levy of the tax and the remedy of Civil Court is barred. There is ruling in the case of Dr. Devidas Lotu Bhirud and others vs. Pachora Municipal Council, [AIR 1998 BOMBAY 363, in which it is held that Civil Court has no jurisdiction if there is challenge to the property tax on the ground of wrong method of assessment to appeal is provided. Learned Advocate of ( 9 ) the respondent also relied upon famous case of Dhulabhai etc., vs. State of Madhya Pradesh and another, [AIR 1969 SC 78], wherein various principles laid down regarding exclusion of jurisdiction of Civil Court. 6. I agree with the argument advanced by learned Advocate of the respondent that so far as the procedure followed in levy tax and the correctness of the assessment and levy of tax is concerned, the Corporation Act provides complete machinery under Chapter XXVI particularly Part-III. So, in this case, Civil Court has only limited jurisdiction to consider whether the property of the appellant situated in N-2 Cidco, Mukundnagar, Aurangabad is exempted from property tax under the provisions of Section 132(1)(b). Civil Court has no other jurisdiction. 7. In the circumstances, this first appeal is allowed partly. The order of learned Civil Judge, S.D. Aurangabad dated 20-02-2009 is set aside. The matter is remanded. Civil Court to restore the suit on its file. However, it shall only frame one issue, namely, whether the property of ( 10 ) the appellant-plaintiff is exempt from taxes under Section 132(1)(b) of the Bombay Provincial Municipal Corporations Act,1949. He shall record evidence led by the parties regarding the same and then shall decide the said issue only. Civil Court shall not enter into correctness or legality or otherwise regarding valuation, assessment of the tax. Parties to bear their own costs. First Appeal is disposed of accordingly. 8. In view of the final disposal of the First Appeal, Civil Application No. 5925 of 2009 does not survive and disposed of accordingly. [P.R. BORKAR,J.] sut/APR10/fa1343.09