1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO. 996 OF 2007 WITH CIVIL APPLICATION NO.1831 OF 2007 M/s. Ranka Jewellers A Partnership Firm carrying on its Business at:- 1141, Raviwar Peth, Ranka Corner, Pune-411 002 Through its partner Shri Anil Pukharaj Ranka Adul, Occ: Business, Residing at:-49, Mukund Nagar, Ratan Bungalow, Pune 411 037 2 Shri Anil Pukhraj Ranka, Age 36 yrs., Occ: Business, Residing at : 49, Mukund Nagar, Ratan Bungalow, Pune 411 037 ...Appellants. v. Pune Municipal Corporation Shivaji Nagar, Pune 411 005 ...Respondents. Mr.A.V.Anturkar i/by Sugandh Deshmukh, advs. For the Appellants. Mr.S.M.Gorwadkar, adv. For the Respondent/PMC. CORAM : J.H. BHATIA, J. DATED : 7th September , 2009 ORAL JUDGMENT: 1 Heard the learned counsel for the Parties 2 To state in brief, the present appellant filed an appeal before 2 the Small Cause Court at Pune under Section 406 of the Bombay Provincial Municipal Corporation Act, 1949 (In brief “Corporation Act”) against the order of imposition of octroi duty on certain goods imported within the city. It was partly allowed. Against that judgment Municipal Commissioner, Pune preferred Civil Appeal No.590 of 2006. That appeal was also partly allowed and the present appellant was directed to pay the amount of Rs.45,000/- as octroi duty with interest. That judgment is sought to be challenged in this appeal termed as Second Appeal. Mr. Gorwadkar the learned counsel for the respondent/Municipal Corporation has taken preliminary objection to the tenability of this appeal before the High Court. According to him, there is provision of two appeals under the Corporation Act and the Second Appeal lies to the District Court, which has been exhausted and the judgment of the District Court in Second Appeal becomes final and there is no provision for further appeal against that judgment before the High Court. According to him, if any party is aggrieved by the judgment in Second Appeal before the District Court the only remedy may be writ petition before the High Court. 3 Mr. Anturkar the learned counsel for the respondents contended that in view of the provisions of Section 141 of the C.P.C. , 3 procedure laid down in Civil Procedure Code is applicable to all the proceedings in any Court of civil jurisdiction, and, therefore, if the judgment has been delivered in the appeal, the second appeal will lie before the High Court under the C.P.C. 4 It may be noted that appeal against the rateable value or tax fixation under the Corporation Act shall be heard and determined by the Judge and the Judge under that Act means the judge of the Small Causes Court at Pune. Therefore, first appeal is to be heard by the Judge of the Small Causes Court under Section 406. Against the judgment in the First Appeal, further appeal is provided to the District Court under Section 411. Section 411 reads as follows: “411 Appeals to the District Court.- An appeal shall lie to the District Court,- (a) from any decision of the judge in an appeal under section 406 by which a rateable value in excess of two thousand rupees is fixed, and (b) from any other decision of the said Judge in an appeal under the said section, upon a question of law or usage having the force of law or the construction of a document: Provided that no such appeal shall be heard by the District Court unless it is filed within one month from the date of the decision of the Judge. “ If provisions of Section 411 are carefully read, it becomes clear that 4 appeal lies to the District Court only on the question of law or usage having force of law or consideration of documents. Thus, the second Appeal is provided for and it lies to the District Court under Section 411. 5 Section 413 reads as follows: “413. Unappealed values and taxes and decisions on appeal to be final-(1) Every rateable value fixed under this Act against which no complaint is made as hereinbefore provided, and the amount of every sum claimed from any person under this Act on account of any tax, if no appeal therefrom is made as hereinbefore provided, and the decision of the judge aforesaid upon any appeal against any such value or tax if no appeal is made therefrom under section 411 and if such appeal is made the decision of the district court in such appeal shall be final. (2) Effect shall be given by the Commissioner to every decision of the said Judge on any appeal against any value or tax. On careful perusal of this section 413 , it becomes clear that in three situations, the order pertaining to rateable value or fixation of tax becomes final. Firstly, when no appeal is preferred against such fixation and the claim of any amount towards the tax. That order becomes final. Secondly, when appeal is preferred before the Judge, decision of the judge becomes final if no further appeal is preferred to the District Court and thirdly, if an appeal is preferred against the order in appeal before the District Judge, the decision of the District Court in appeal under Section 5 411 becomes final. It is settled position of law that appeal is statutory right provided under the law. The Corporation Act provides for two appeals, one before the Small Cause Court Judge and another before the District Court. There is no provision for third appeal under the said Act. 6 Section 434 of the Corporation Act reads as follows: “434 Code of Civil Procedure to apply.-(1) Save as expressly provided by this Chapter the provisions of the Code of Civil Procedure, 1908 (V of 1908) relating to appeals from original decrees shall apply to appeals to the Judge from the orders of the Commissioner and relating to appeals from appellate decrees shall apply to appeals to the District Court. (2) All other matters for which no specific provision has been made under this Act shall be governed by such rules as the [State] Government may from time to time make after consultation with the High Court.” From this it is clear that provisions of C.P.C. relating to the First Appeals and Second Appeals, shall be applicable to the appeals before the Judge of the Small Causes Court and before the District Court respectively. In view of this specific provision about the applicability of the C.P.C. to the appeals, there is no scope to take recourse to the provisions under section 141 of the C.P.C. In fact on reading provisions of Section 434, it becomes clear that proceeding from original order passed by the Commissioner is equated with the original decree of the Civil Procedure 6 Code and against that the first appeal lies to the Small Causes Court and second appeal lies to the District Court. The learned counsel for the parties concede that no rules have been framed by the State Government under sub-section 2 of Section 434. There is no provision in the Corporation Act which provides for any third appeal to the High Court and, therefore, it must be held that a further appeal, which would be rather third appeal cannot be filed before the High Court. Taking into consideration all these facts and legal position, I find substance in the contention of Mr. Gorwadkar. Therefore, this appeal is not tenable under the law and is liable to be dismissed on that ground itself. 7 Appeal stands disposed off as not tenable under the law. It is made clear that it does not take away the right of the appellant to prefer any writ petition if it is permissible under the law. 8 Registry to take note of this Judgment. (J.H. BHATIA,J.)