Criminal Writ Petition No.59 of 2005,ALONG WITH Cri. W. P. No.60 of 2005

4th July, 2006

Petitioner Counsel: Mr. B. R. WARMA
Respondent Counsel: Mr. A. S. GOLEGAONKAR

Cases Cited:
Dr. Devidas Latu Bhirud Vs. Pachora Municipal Council, 1998(4) Bom.C.R. 748 [Para 4]
Municipal Corporation of Aurangabad Vs. Shaikh Mohammed s/o. Shaikh Yusufsaheb, 2004(3) ALL MR 532=2004(3) Mh.L.J. 964 [Para 4]

JUDGMENT

JUDGMENT :- By these two writ petitions, the petitioners have challenged the bills of demand issued by the Municipal Council, Amalner, as the Judicial Magistrate, First Class, Amalner by the impugned order dated 2.9.2004 dismissed the appeal by holding that civil Suit No.82 of 1995 arising out of the similarly situated contracts between the parties, is still pending. The suit is pertaining to the demand bill of the similarly situated premises, based on the contract between the respondents and other persons of Amalner. That particular suit is filed by the petitioner as President of an Association.

2. The petitioner therefore, preferred revision from the common order dated 2.9.2004 before the Additional Sessions Judge, Amalner. The Sessions Judge has also dismissed the said revision by further observing that the disputed bills which were issued on the basis of the order dated 15.12.2001 passed in R.C.S. No.82 of 1995. The dispute between the parties is to the legality of the licence fee. The petitioner has also adopted the remedy of filing the suit challenging the demand bills for recovery of the licence fee.

3. The Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (Municipality Act) deals with the recovery of Municipal Claims/dues in Chapter X from Section 149 to Section 172. It provides the recovery of any money claimable under this Act; the presentation of bill for "sums due" to Council and discount for prompt payment; the procedure of issuing notice of demand and/or issuance of warrant. The power is also provided to enforce the warrant. Section 169 further provides the Appeal before the Magistrate or Committee against any claim for taxes or "other dues" included a bill presented to any person under Section 150 or any other provisions of this Act. Section 150 provides the presentation of a bill for any accounts becomes "due" to the Council. Section 151 further provides the procedure after notice of demand issued, including of filing appeal.

4. Considering the whole scheme, the appeal as contemplated under Section 169 of Municipal Council Act including the appeal against demand of other dues, the appeal is therefore, maintainable. On the contrary, as the remedy available under the Special Act i.e. Municipal Council Act, there is no reason that the parties to approach the Civil Court for such declaration as claimed. In Dr. Devidas Latu Bhirud & Ors. Vs. Pachora Municipal Council & Ors (1998(4) Bom.C.R. 748), this Court (Aurangabad Bench) has observed that though jurisdiction for civil court cannot be excluded easily, in view of Sections 169 to 172 of Municipality Act which provides an exhaustive machinery by way of appeal and revision. The Legislature has wisely placed bar on jurisdiction of civil courts. Another judgment Municipal Corporation of Aurangabad Vs. Shaikh Mohammed s/o Shaikh Yusufsaheb (2004(3) Mh.L.J. 964 : 2004(3) ALL MR 532) (Aurangabad Bench), has further held that valuation or assessment or levy of liability of any person to be assessed or taxed, cannot be questioned by filing a suit. The remedy provided under Section 169 of filing of appeal before the Magistrate and revision against the order of Magistrate will have to be availed of.

5. In the present case, admittedly, the parties have preferred the appeal under Section 169 of the Act. Both the courts below, therefore, according to me failed to exercise the jurisdiction as contemplated under the scheme of the Municipality Act. The filing of the suit in no way takes away their power to decide the challenge made to the demand bills in question. Being a statutory appellate authority and/or revisional authority they are bound to decide all issues relating to those demand bills or its challenge, within the framework of law.

6. The decision on Exh.5 i.e. injunction application cannot be termed as final decree to overlook the issue raised in the main suit. However, without touching to that aspect, in the present case, admittedly, the suit is still pending. The period of challenge in the said suit is upto the year 1995. The demand notice in question ranges from 1995-2001. The appellate authority and/or revisional authority, therefore, need to adjudicate the said objection and/or challenge made by the petitioner in accordance with law. It is difficult to accept the reasoning recorded by the courts below that the petitioner or such other persons cannot challenge the legality of the demand bills by filing an Appeal. The parties, on the contrary, have statutory right to challenge the said demand bills by filing appeals and/or revision as available under the Muncipality Act. The filing of such declaratory, suit cannot be a hurdle for the parties, as well as for the authorities to proceed in accordance with law, while deciding the objections raised on such demand bills, unless ordered otherwise.

7. In view of this, both the impugned orders dated 25.1.2005 passed by the Additional Sessions judge, Amalner and the order dated 2.9.2004 passed by the J.M.F.C., Amalner are quashed and set aside. The parties are directed to appear before the Revisional Court i.e. the Additional Sessions Judge Amalner on 24.7.2006. The Sessions Judge, Amalner is expected to dispose of the revision on merit within a reasonable time, by giving full opportunity to both the parties. The Additional Sessions Judge being a statutory authority has full power to consider the whole scheme of the Act while deciding the merits of the matter.

8. The learned counsel appearing for the petitioner makes a statement that the by order dated 25.2.2005 this Court has directed to deposit Rs.41,875/- as a condition for interim relief in terms of prayer clause (b). The petitioners have deposited the whole amount. The learned counsel appearing for the Municipal Council, Amalner seeks permission to withdraw the said amount. Being a public body, I see there is no reason to withhold the money. The Municipal Council is permitted to withdraw the said amount on condition that this will be adjusted in the account of the petitioner after final decision by the revisional court.

9. In view of the aforesaid circumstances, the writ petitions are partly allowed and disposed of accordingly.

Petitions partly allowed.