Bombay High Court
Dr. Devidas Lotu Bhirud & Others vs Pachora Municipal Council & Others on 6 May, 1998
Equivalent citations: 1998(4)BOMCR748, AIR 1998 BOMBAY 363, (1998) 4 BOM CR 748
Author: R.G. Deshpande
Bench: R.G. Deshpande
ORDER R.G. Deshpande, J.
1. Regular Civil Suit No. 9 of 1998 was filed in the Court of learned Civil Judge, Junior Division, Pachora, by the present petitioners who are the original plaintiffs, the suit was filed in the representative capacity, challenging the validity, legality and propriety of the assessment done by the present respondent/original defendant/Municipal Council, Pachora for the year 1995-96. The main challenge in the said suit was that the annual letting value of the properly should have been determined by the Municipal Council on the basis of the recognised methods as contemplated under section 114 of the Maharashtra Municipal Council, Nagar Panchayats and Industrial Townships Act, 1965 (which is hereinafter referred to as "the Act" for the purposes of brevity).
2. It was the case of the petitioners that the Municipal Council should have fixed the rateable value of the properties on the basis of annual letting value at which the building or the property is reasonably expected to be let on hypothecated basis or for which it is actually let on yearly basis. It is the case of the petitioners that the Municipal Council has adopted an altogether different method or mode of fixing the annual letting value on the floor area basis of the structure and, then, multiplying it by certain value. According to the petitioners, the method adopted by the Municipal Council is contrary to section 114 of the Act and hence it is challenged as illegal, ultra vires, illusory, arbitrary, oppressive etc. The second challenge as is revealed from the record is that the Municipal Council applied higher rates for per square metre to the building used for business purposes than the building used for residential purposes and such kind of discrimination is not recognised by section 114 of the Act. The method of taxation in regard to the entertainment houses, such as, theatres, the method is also wrongly adopted as per the petitioners. It was also the case that since the provisions of the Bombay Rent Act were applicable to the Pachora Municipal area, the respondent should have considered the relevant provisions of that Act and rateable value ought not to been fixed exceeding the limit of standard rent. The challenge, therefore, is that the Municipal Council fixed the taxation exceeding the limit of standard rent and thereby the rateable value of the property has been shown excessive and in most arbitrary manner. One of the challenge which is raised in the suit is that the assessment list was not authenticated by the Valuation Officer as required by section 121 of the Act and was not also published in accordance with the provisions of the Act.
3. In the above-said suit, the present respondent filed a say denying the various allegations made in the plaint. By Exh. 27, the respondent-Municipal Council also raised a preliminary objection about the jurisdiction of the Civil Court to entertain the suit, in view of the specific provision of section 172 of the Act. Another objection is also raised in Exh. 27 i.e. on the ground of mandatory notice as per the provisions of the Act.
4. For the purposes of the present Revision Application, this Court is concerned as regards the point of jurisdiction only of the civil Court to entertain the suit and this Court would refrain itself from making comments on any other points and the merits of the case in this Revision.
5. The preliminary point was decided by the learned Civil Judge, Jr. Dn., Pachora by his order dated 12th March, 1998 holding that in view of the provisions of section 172 of the Act, ihe trial Court had no jurisdiction to entertain the suit and the learned Judge of the trial Court, therefore, ordered for return of the plaint under Order 7, Rule 10 of the Civil Procedure Code for presentation to the proper authority with the further direction that the plaintiffs i.e. present petitioners were at liberty to file appeal before the appropriate forum in accordance with the provisions of the Act, but naturally subject to the question of limitation. It is this order which is under challenge in this Revision Application.
6. This matter was argued at length, rule is made returnable forthwith and with the consent of both the parties and the matter is heard finally.
7. Heard Shri S.C. Bora, the learned Counsel appearing on behalf of the petitioners; whereas Shri R.N. Dhorde, learned Counsel appearing for respondent Municipal Council. I have heard both the learned Counsel at length.
8. Shri S.C. Bora, vehemently urged that the Council is constituted under the Municipal Councils Act, 1965. As per the provisions of section 105 in Chapter IX, the Municipal Council is empowered to levy the taxes, amongst others, a consolidated property tax on the land or the buildings or both, situated within the Municipal area and the same being passed on their rateable value in accordance with section 114 of the Act. Section 114 states that in order to fix the rateable value on any building or land assessable to property tax, there shall be deducted from the amount of the rent for which such building or land might reasonable be expected to let, or for which it is actually let from year to year, whichever is greater a sum equal to 10% of the said annual rent and the said deduction shall be in lieu of the allowance for repairs or on any other count whatsoever. Shri Bora argued that it provides that while fixing such rateable value, the Chief Officer shall consult the Director of Town Planning or an Officer authorised by them. Section 113 of the Act pertains to the appointment of the authorised Valuation Officer, whereas section 115 deals with the preparation of the assessment list. Shri Bora contended that it is an obligation on the part of the Chief Officer to prepare the assessment list of all buildings or lands in the Municipal area and the list must be in the prescribed form. Section 116 to 121 prescribed the procedure for preparation, publication and finalisation of assessment list. Section 124 pertains to preparation of new assessment list and periodical revision of rateable value. It is the challenge of Mr. Bora, that the respondent -Council has fixed the rateable value of the property situated within the limits of the Municipal Council on the basis of the measurement of the floor area snd not on the basis of actual annual rent or the expected reasonable hypothetical annual rent. Shri Bora contended that such a method is not contemplated under section 114 of the Act and, therefore, fixing the rateable value of the properties on the basis of measurement of floor area and not on the basis of annual letting value is ultra vires the provisions of section 114 of the Act and unconstitutional also, in as much as, according to Shri Bora, when the statute prescribes that a thing must be done in a particular manner then no other manner can be adopted else it would be null and void and in contravention of provisions of Article 14 of the Constitution of India. According to Shri Bora, such power of assessment indicates arbitrariness and unreasonableness on the part of the State. Shri Bora, therefore, urged that the order dated 12-3-1998 passed below Exh. 27 in Regular Civil Suit No. 9/98 by the learned Civil Judge, J.D. Pachora is wrong, unreasonable, without application of mind and, therefore, he sought for setting it aside and further sought for the relief to the effect that his suit be held to be maintainable before the learned Civil Judge, J. D. Pachora.
9. Shri Bora in support of his contentions also argued that the challenge in the suit does not pertain to the legality and propriety of the assessment list prepared for the year 1995-96 but it goes to the Every root i.e. regarding the authority of the Municipal Council to levy the tax on property on the basis not recognised or not authorised by faw and he, therefore, sought the same to be declared as ultra vires the provisions of the Act.
10. It is the defence of the Municipal Council which is apparent through its say which was filed before the Court below and also through its say to the application for temporary injunction, that it was the stand of the Municipal Council that a remedy by way of an appeal against the impugned action of the Municipal Council was already provided under section 169 of the Act and according to the Municipal council the jurisdiction of the Civil Court to entertain the tax matter as regards the property has been specifically barred and as such the Civil Cour! should not entertain, try and decide the suit. Through it's say, the Municipal Council tried to suggest that the property tax has not been assessed by the Municipal Council, but the same is assessed as per the rates prescribed by the Deputy Director of Town Planning, Nasik and that the Municipal Council had no concern with the assessment of the tax or the preparation of the property tax assessment list. However, it is not disputed by the Municipal Council that the property tax is levied as per the measurement of the area. It is also made clear by the Municipal Council that the assessment of tax has been levied in accordance with the Circular dated 30-11-1994 of the State Government by the authorised Valuation Officer. In short, the Municipal Council wanted to suggest that it is in accordance with the Government's direction through that Circular the tax has been levied. Taking the advantage, Shri Bora contended that, in fact, the State Government had no authority whatsoever to unnecessary interfere in the working of the Municipal Council and if the tax is levied as per the direction of the Government in its Citcular then such a levy of the tax would be said to be by the authorised persons, particularly when it is the duty of the Municipal Council itself to do that work. Shri Bora, also tried to challenge the levy on that ground also. According to Shri Bora, the whole action on the part of the respondent Municipal Council clearly indicates that levy of tax is made not in accordance with the mode prescribed but in the most arbitrary manner and, therefore, Shri Bora contended that the same is ultra-vires to the provisions of the Ac! and, therefore, according to Shri Bora the provisions of section 169 and the bar of section 172 of the Act can have no impact whatsoever on the present type of suit where the very vires of the act of the Council is under challenge. Shri Bora, therefore, stated that the suit was very much maintainable and the learned Judge should have entertained the suit and should have decided the same in accordance with the law.
11. As against the above-said arguments of Shri Bora, Shri R.N. Dhorde, the learned Counsel appearing on behalf of the respondent-Municipal Council urged that the petitioners did not come to the Court with clean hands and particularly when the petitioners did not disclose all the true and relevant facts. By that he wanted to suggest that the petitioners did suppress some of the important facts and therefore, they are not entitled to the relief(s) sought for. He, therefore, sought for dismissal of the Revision at the stage of admission itself. The fact, according to Shri Dhorde which is not disclosed in the present revision is that prior to the filing of the civil suit in the representative capacity by the petitioners, various other persons who were aggrieved by the order of assessment of the Municipal Council had filed nearly 104 appeals previously and, again, now about 150 persons approximately have filed their appeals challenging the said same valuation. The appeals are filed before the learned Civil Judge, J.D. Pachora challenging the said order of assessment. Shri Dhorde, wanted to suggest that the suit in the instant matter which is filed in the representative capacity, cannot be said to be in the representative capacity at all as many of the tax payers who are also aggrieved by the said act of the Municipal Council, have already exhausted the remedy of an appeal, as provided in the Act. Shri Dhorde, therefore, contended that under the grab of representative suit, the present petitioners are trying to safeguard their personal interest only. What is argued by Shri Dhorde appeared to be correct and, in fact, by not disclosing such a fact, the petitioners have definitely earned some discredit. However this Court will not give any due importance as the point involved is as to whether the suit could have been entertained by the Civil Court nor is this Court in any way influenced by non-disclosure of that fact. The matter is being decided only on the point as regards the maintainability of the suit.
12. Shri Dhorde argued that the tax which was to be recovered was for the year 1995-96 and the bills were immediately served upon the petitioners; the same was also the case as regards 1996-97 and 1997-98 which are yet unpaid. Shri Dhorde argued that the respondent is the statutory body which has to incur very many expenses including that of salary of the employees and that the petitioners have unnecessarily filed the suit thereby putting the respondent Council at a tremendous financial loss. Shri Dhorde argued that even for the taxes for the year 1995-96 the suit is filed in the year 1998 and to be precise on 3rd of February 1998; even latches on the part of the petitioners should also be considered while deciding the matter. Shri Dhorde further pointed out that earlier also, Nagarik Samasya Niwaran Samiti had filed an appeal in the matter in accordance with the provisions of the Act. The said Samiti and others were heard by the appellate authority and the appellate authority itself had reduced the tax by 35% taking into consideration the complete and relevant record. Shri Dhorde further argued that the suit itself was not maintainable in accordance with the provisions of the Act and, according to him various judicial pronouncements and in view of the mandatory provisions oi section 169 to 171 of the Act, the suit was not maintainable. He, therefore, sought for upholding the decision given by the learned Judge of the trial Court.
13. With the help of the learned Counsel of both the sides, I have gone through the order dated 12-3-1998 passed by the learned Judge of the trial Court and also heard both the Counsel at great length.
14. Shri Bora, states that the suit is maintainable because the validity of the Act itself it challenged and, in support of his contention, Shri Bora relied on very many decisions of the High Court as welt as Apex Court of the country. To understand the rival contentions, it would be very much necessary in the present case to have a look at the Scheme of the Act. The controversy in the matter is regarding as to whether was the Municipal Counsel justified in calculating the rateable value as per the mode it has adopted i.e. on the floor area and as to whether the controversy falls beyond the scope and ambit of section 169 of the Act.
15. Chapter IX of the Act deals with the subject of Municipal Taxation. Section 105 deals with the imposition of compulsory taxes; whereas section 108 deals with the imposition of other taxes which are voluntary in nature. Section 113 onwards deal with the assessment and liability to tax on buildings and lands etc. Section 113 contemplates appointment of authorised Valuation Officer; whereas section 114 lay down as to how the rateable value should be determined. Section 115 to section 118 deal with the preparation of assessment list etc. and its publication. It is clear from the provision of section 115 that the Chief Officer has to cause the assessment list of the lands and buildings within the Municipal area to be prepared in the specified form and after preparation of the said list in accordance with the provision of section 117, the Chief Officer submits the same to the authorised Valuation Officer who scrutinises that list and then returns to the Chief Officer, Municipal Council. Thereafter, the Chief Officer is supposed to publish a public notice of the said list, with an intention to enable the assessee to inspect the list. Section 119 also contemplates public notice about the facts stated and objections if the tax is increased. If the objections are raised within the prescribed time against the valuation or assessment, then the same will be investigated into as per section 120 by the authorised Valuation Officer who after hearing the objector, determines the valuation and assessment may vary or may retain the same as per his discretion. Section 121 provides for authentication of list for assessment and section 122 the said authenticated list is made conclusive. On the basis of this list which is treated as final list forms the basis for preparation of the bills as per the assessment list. Naturally the list so prepared and finalised is to be a conclusive one and subject to appeal or revision, as provided under section 169 of the Act. If we have a minute look at the above-said provisions in Chapter IX, it is clear that the statute provides a complete procedure for assessing the rateable value and also the rights and liabilities of the assess including the right to assessee to challenge the assessment. It would not be wrong if it is observed that the Act has provided a complete Code in itself so far as regards the tax-matter is concerned including that of remedy of an appeal.
16. A minute scan of the other relevant provisions of the Act and which are necessary for the purposes of the decision of the present Revision would show that sections 114, 169 and 172 could be said to be relevant for determination of the point in issue and it is, therefore, necessary, at this stage, to reproduce section 114 which is as under :-
"Section 114 : Rateable value how to be determined.---
(1) In order to fix the rateable value of any building or land assessable to a property tax, there shall be deducted from the amount of rent for which such building or land might reasonably be expected to let, or for which it is actually let, from year to year, whichever is greater, a sum equal to then per centum of the said annual rent, and the said deduction shall be in lieu of all allowances for repairs or on any other account whatever.
(Provided that, while fixing such rateable value of the Chief Officer shall consult the Director of Town Wanning or an Officer authorised by them).
(2) The value of any machinery contained or situate in or upon any building or land shall not be included in the rateable value of such building or land."
From plain reading of the above-said section 114, it is clear that rateable value has to be determined on the basis of the annual letting value of the property. However if we look at the provisions of section 2 of the Act, i.e. definition clause, the Act does not give the definition of "annual letting value". If it is so then, naturally, the Court is required to find out the provisions from other Acts to have the assistance thereof to know what is "annual letting value". Annual Letting Value has been considered in Bombay Provincial Municipal Corporations Act, 1949 which in its Clause (a) of sub-section (1) of section 2, defines as under :-
"Annual letting value means the annual rent for which any building or land might reasonably be expected to let from year to year with reference to its use. The annual rent has also include all payment as regard to be made to the owner by a person (other than owner)."
Thus from that provision it is clear that the said provision contemplates expected annual rent shall be the basis in calculating the rateable value. It is, therefore, obvious that the Muncipal Council cannot apply its unique and arbitrary method in determining the rateable value, contrary to the provisions.
17. From the earlier provisions of section 113 of the Act, it is clear that the Government has appointed the Valuation Officer for all the Municipal Councils and has issued certain guidelines for determining the annual letting value. As per these guidelines, the Muncipal Councils are supposed to divide the properties in three different zones, namely (1) residential zone, (2) commercial zone and (3) industrial zone : and after such a division is made, the annual letting value has to be determined by applying four methods depending on the use of the property. These four methods, in short, can be mentioned : (1) rental method (2) comparative method; (3) capital method (4) profit basis method. However we need not go into the details thereof at this stage. As per section 114 of the Act, the annual letting value is to be calculated and that too in conformity with the provisions in the notification issued by the Government in Notification No : MUN. (M) 2969/4924/N dated June 26, 1970. In the instant case, the Valuation Officer, Jalgaon by his letter dated June 19, 1992 did formulate some guidelines but definitely in conformity with provisions of the Act. The Valuation Officer has also considered the standard rent which the property was or is likely to fetch and then fixed the rate as per the square feet area of the property. Though this is point of challenge as is raised in the present Revision and which according to Shri Bora, is beyond the jurisdiction of the authority concerned as according to Shri Bora, this method of calculation would be said to be unknown to law. The question remains as to whether was it not competent for the appellate authority to go into this question in an appeal under section 169 of the Act and to find out as to whether was the civil suit only the remedy to challenge the same. Shri Bora argued that annual letting value, could not have been determined by the method, adopted by the Valuation Officer as according to him, it is in sheer contravention of section 114 of the Act and hence ultra vires and illegal. He, therefore, contended that this point could not have been gone into by the appellate authority under section 169 of the Act and according to him, civil suit is the only remedy open. At the outset, I must say that it is very hard to digest this argument of Shri Bora as in the instant case the appellate authority could have gone into the question of method adopted by the Valuation Officer. The said point this Court will be making clear in the subsequent paragraphs of this judgment. However, in support of his contention, Shri Bora, heavily relied on the decisions of the Supreme Court in the matter of Lokmanya Mills v. Barshi Borouch Municipality. In the said case, the Municipal Council, Barshi with the approval of the State Government issued certain rules determining the annual letting value which was at the rate of Rs. 40 for every 100 sq. ft. In a suit at the instance of the assessee therein challenging the validity of the said rules, it was observed that the rental value can be calculated on the floor area of the structure was not on the capital value of the annual rent for which the building might have been reasonably be expected to let and hence was illegal and ultra-vires. From the judgment, it is clear that if the rate is to be valued on the basis of the capital value of the building tax must be valued according to same recognised method of valuation. If the rate is to be levied on the basis of annual letting value, the building must be valued at the annual rent which hypothecated tenant may pay in respect of the said building. It is, therefore, observed in that judgment that since the Municipal Council ignored both the methods of valuation and adopted the method not sanctioned by the Act, therefore, the assessment was declared to be illegal. Yet another decision is relied on by Shri Bora in support of his contentions, in the case of Dhulabhai v. State of M.P. and another. It is a case under Madhya Bharat Sales Tax Act. The point as regards exclusion of the jurisdiction of the Civil Court was for consideration in the said decision. After considering the facts of that case. Their Lordships of the Supreme Court laid down certain propositions of law which are as under :
(1) Whether the statute gives a finality to the orders of the Special tribunals the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provisions, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but it is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra-vires cannot be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Whether the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of Ihe authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply; Case Law discussed.
On the basis of the above-said propositions and in the circumstances of that case, the Apex Court of the country observed that the Civil suit in question in that case for declaration that the provisions of the law relating to assessment under the M.R Sales Tax Act (30 of 1950) were ultra-vires and then directed for relund of the amount of the tax which, according to their Lordships, was recovered illegally. While dealing with the matter, Their Lordships observed that there was no bar under section 17 of that Act, in that case.
18. Keeping in view the above-said proposition, we look into the matter in hand. It is no doubt true that the jurisdiction of the Civil Court cannot be easily excluded in every case, but the jurisdiction of the Civil Court is excluded where the statute gives finality to the orders and to find out the same, the Scheme of the Act has to be necessarily taken into consideration. The second thing to be considered is if under that statute a liability is created, then it is necessary to find out as to whether the statute creates an effective machinery for the redressal of the grievances pertaining to any law or facts arising therein. It is already observed in the previous paragraphs of this judgment that sections 105 to 122 of the present Act provides a complete machinery and detailed procedure as regards imposition of taxes and it further includes most valuable provisions as regards rights of the aggrieved person or assessee to file an appeal before the Magistrate in accordance with the provisions of section 169 of the Act. Section 171 also provides for revistonal remedy to the higher authorities against the ofder of the Magistrate which if we look at this stage provides an inbuilt scheme in that respect, and it will be seen that there is hardly any method which can escape from the consideration either of the appellate authority or of the Revisional authority. The legislature in its wisdom, therefore, has rightly framed the provisions of section 172 thereby imposing a bar to challenge the levy valuation or assessment in any other manner except as provided under the Act. It would be appropriate at this stage to reproduce the relevant provisions of sections 169, 171 and 172 which are as under:-
Section 169 : Appeal to (Magistrate or tribunal) :
(1) Appeals against any claim for taxes (except taxes on buildings and lands or both) or other dues included in a bill presented to any person under section 150 or any other provisions of this Act, may be made to any Judicial Magistrate or Bench of such Magistrate by whom under the direction of the Sessions Judge such class of cases is to be tried.
(2) Appeal against any claim for taxes on buildings and lands or both together with other dues in relation thereto, if any, included in the bill presented to any person under section 150 may be made, at the discretion of the assessee.
Section 171 : Revision By Court :
The decision of the Magistrate or Bench of Magistrate in any appeal made under section 169 shall, at the instance of either party, be subject to the revision by the Court to which appeals against the decision of such Magistrate or Bench of Magistrates ordinarily lie.
Section 172 : Bar of other proceedings :
No objection shall be taken to any valuation, assessment or levy nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act.
From the above said provisions, it is absolutely clear and without slightest doubt that the above-said provisions are quite exhaustive and give the complete remedy to the aggrieved party. Hence prima fade, we see that the scheme of Chapter IX and X provides a complete procedure right from the stage and taking into consideration the basis for the assessment to the stage of appeal and revision if the assessee is aggrieved by the same. At the cost of repetition it can be said that Chapter IX read with the provisions of sections 169, 171, 172 could be said to be a complete Code in itself. If we read the provisions of section 172 above, it is absolutely clear that there is no scope to raise any objection to any valuation assessment or levy or to the liability of any person to be assessed or taxed in any other manner or by way of any other authority as is provided in the Act itself and hence it would not be wrong if the Court comes to the conclusion that there is a specific bar on the jurisdiction of the Civil Court by implication. In the instant case, we see that the sum and substance of the contention raised on behalf of the petitioners is that the Muncipal authorities have not calculated the annual letting value on the annual rent basis but according to the petitioners, an extraordinary mode has been adopted by adopting the procedure of floor area by multiplying the said area with certain value which, according to the petitioners, is against the provisions of law. Though per se there appeared to be some substance in this argument but if scrutinised with proper perspective, it would be seen that it is hollow. In the case of Dhulabhai v. State of M.P. (cited supra) we get the principles as regards conferring of jurisdiction on the Civil Court. The first being if the provisions of the statute is to be challenged, such a vires cannot be adjudicated upon by the authority under the Act and if the authority failed to comply with any of the provisions of the Act or has acted not in conformity with the provisions of the Act then, in that case, the Civil Court may entertain the suit. To find out the challenge in the present case, one has to see the contentions as raised in the plaint. From the papers before this Court, it is clear that there does not appear to be any challenge to any of the provisions of the Act of 1965. The vires of any of the provisions of the Act is not challenged. But what is challenged is that the authority under the Municipality failed to follow the proper procedure as contemplated under the Act in levying tax. In short, it is the procedure which is adopted is under challenge. There cannot be any dispute that imposing of the tax is an act well within the jurisdiction of the Municipal Council. The procedure which is adopted, if is challenged, cannot be said to be challenged under any provisions of the Act but a simple challenge to the mode of implementation of that procedure prescribed under the Act. If a wrong procedure is adopted that would not by itself be termed as unconstitutional but it can be said to be a remediable defect and if the matter is looked at from this angle adoption of an erroneous procedure by the authority concerned in levying the tax could be conveniently gone into and if necessary can be quashed and set aside by the authority under section 169 of the Act. Bare use of the words ultra-vires is not sufficient to lake out the matter from the scope of section 169 and to confer the jurisdiction on the Civil Court. This Court is, therefore, of the opinion that merely because a wrong procedure is adopted, it would not straightaway result into ousting of the jurisdiction of the authority under the Act. Shri Bora, brought to my notice the decision reported in 1977 Mah.L.J. 735 in the case of Municipal Council. Morshi v. Tulshiram. In that case, an appeal under section 169 was preferred by the assessee challenging that he was not served with the notice under section 119 of the Act. In that case, a suit was decreed as the assessee had been prevented of an opportunity of raising an objection or opposing the assessment; the same was maintained by the Supreme Court. The matter had gone to the High Court in which the High Court observed," the appeal under section 169 is related to challenge against quantum of assessment and valuation and it is not open in such an appeal to challenge the legality or validity of tax." In that matter, therefore, revision was allowed and the matter was remanded back to the lower Court for fresh enquiry since there was a challenge to the assessment on other grounds also.
19. As against the above said arguments of Shri Bora, Shri Dhorde, emphatically urged that the decision in the matter of Municipal Council, Morshi, v. Tulshiram (cited supra) has been held to be no more a good law. In support of his contention he relied on the decision in the matter of Chief Officer, Sangamner Municipal Council v. Narayandas. He also relied on the decision of the High Court reported in (Second Appeal No. 525 with 527 of 1994 decided on 10-2-1995). Shri Dhorde also relied on the decisions reported in 1982 Mh.L.J. 866 in the matter of Dagdabai v. Municipal Council, Aurangabad, and in the matter of Bata Shoe Co. Ltd. v. Jabalpur Corporation. In Gandhi Agencies, Barshi v. Municipal Council, Barshi, the matter relate to section 172 of the Act and section 9 of the Civil Procedure Code. In the matter of Chief Officer, Sangamner Municipal Council v. Narayandas (cited supra) the subject was that the suit was filed for declaration challenging the legality and validity of the assessment on the ground that no procedure was followed by the authority concerned relating to levy of the tax. While dealing with the matter in the above-said judgment; the decision : Bata Shoe Company, was followed. The observations from the said judgment are more than clear which are as under :-
"When a person challenges the procedure ultimately he challenges the assessment itself. Wrong, arbitrary method of levy of tax is nothing but challenge to the assessment."
The following observations are reproduced from paragraph 8 of the judgment reported in 1989 Mh.L.J. 26 :-
"It is plain from this sub-section that any valuation, assessment or levy and the liability of any person to be assessed or taxes can be questioned only in the manner prescribed by the Act and by the authority mentioned in the Act and in no other manner or any other authority. Since the sub-section expressly prohibits a challenge to a valuation, assessment or levy "in any other manner then is provided in this Act" and since the Act has devised its own special machinery for inquiring into and adjudicating upon such challenges, the common remedy of a suit stands necessarily excluded and cannot be availed of by a person aggrieved by an order of assessment to Octroi duty. Similarly, the sub-section excludes expressly the power of "any other authority than is provided in this Act" to entertain an objection to any valuation, assessment or levy of Octroi. This part of the provision is in the nature of ouster of the jurisdiction of the Civil Court at least by necessary implication, to entertain objection to any valuation, assessment or levy. This is the evidence intendment, meaning and implication of the provision."
The further observations are as follows :
"If a provision merely giving finality to an order could be construed as ousting the Civil Court's jurisdiction, section 84(3) of the Act, which is far more expressive, can legitimately be construed to have the same effect. It excludes in terms a challenge to the various things therein mentioned in any other manner or by any other authority than provided in the Act."
Thus, it is clear that having regard to the complete procedure under section 113 to 120 of the Maharashtra Municipalities Act, it gives complete redressal of remedy to the aggrieved party to challenge the assessment and, therefore, the jurisdiction of the Civil Court can be said to have been completely barred in the present matter. is also referred to in other matters cited above. The sum and substance from all these judgments and the ratio thereto can be said to be that the suits are not maintainable in view of the specific bar of section 172 of the Act and that the valuation of assessment, the legality can be challenged before the authority under the Act. The decision in the Dagdabai's case 1982 Mh.L.J. 862 is also on the same lines and since all these matters have been based on the decision , I restrained myself from giving the details of those cases.
20. Thus, it is clear that the judgment reported in 1977 Mh.L.J. 354 i.e. in the matter of Morshi Municipal Council v. Tulshiram is no more a good law in view of the decision in the matter of Bata Shoe Co. Since the other judgments of the High Court have lollowed , it will have to be held that in view of the judgment of the Supreme Court in Bata Shoe Co.'s case, the judgment of Morshi Municipal Council v. Tulshiram can be said to have been held as no more a good law.
21. Shri Dhorde, in support of his contention relied on the decisions reported in Nandanvan Co-operative Industrial Estate, Ltd., Thane v. Municipal Council, Thane, , and . In the matter Shrikant v. Corporation of City of Belgaon, , this is a matter pertaining to property tax and jurisdiction of the Civil Court is excluded by special statute, namely, Rule 25 of the Rules under Schedule III of the Karnataka Municipal Corporation Act. There appears to be that a representative suit was filed in the Civil Court by house owners for declaration that enhancement of rate of property tax was-excessive, arbitrary, unreasonable and illegal. However it appears that there was no challenge on the ground of non-compliance of the provisions of the Municipal Corporations Act. Shri Dhorde, relying on this judgment also argued that since the matter under challenge in the present suit is as regards non-observance of correct procedure by the authority under the Pachora Municipal Council could have been conveniently dealt with by the authority under the Act under section 169. Section 172 of the Act immediately comes into play and the jurisdiction of the Civil Court can be said to have been barred. Shri Dhorde also argued that since the jurisdiction of the Civil Court is specifically barred by the special statute, it cannot be invoked merely on the ground alleging that the procedure under the Act is not followed. If the procedure under the Act is not followed, it is welt within the competence of the authority under section 169 to set the same right by directing the Municipal Council to consider the matter as would be directed by the authority in his judgment. It is no doubt true that the jurisdiction of the Civil Court cannot be readily excluded. However that does not mean that it cannot be excluded in appropriate cases particularly when a complete procedure is laid down and authority dealing with the same can also be said to be competent to go into that question.
22. The learned Counsel for both sides, cited various other decisions. However in view oi the observations above, this Court feel it not necessary to go through all the judgments as the taw as laid down in in the matter of Bata Shoe Company is a lighthouse to guide in every respect.
23. In view of the above-said observations, this Court has no hesitation in observing that the learned Judge of the trial Court after having written a painstaking order has reached to the just and right conclusion that the civil suit was not maintainable and he was right in returning the plaint under Order 7, Rule 10 of the Civil Procedure Code. The order passed by the learned Judge is just and perfect. There is neither an error in law committed by him nor does there appear to be any jurisdictional error on his part. There is no substance in the present revision. The Revision application stands rejected. Rule is, accordingly, discharged. However in the circumstances of the case, no order as to costs. Needless to mention that the interim order passed earlier stands automatically vacated.
24. Application rejected.