Allowed

Gramin Shikshan Prasarak Mandal Thr Its Secretary Vijay Shivram Pawar v. Nanded Waghala City Municipal Corporation Thr Its Commissioner Nanded

Bombay HC12 Jul 2021WP/6265/2021

Case brief

AI extract

What is this about?

The High Court allowed the writ petition, quashing orders that rejected the petitioner's application for an injunction against property tax. The court held that the respondent corporation was bound by a prior finding of tax exemption, though it noted the exemption remained prima facie and subject to merit-based refutation on specific grounds.

What did the court decide?

Impugned orders quashed; application for injunction allowed; pending civil application disposed of.

Gramin Shikshan Prasarak Mandal Thr Its Secretary Vijay… — Property and Title | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.6265 OF 2021

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Gramin Shikshan Prasarak Mandal, a Registered Public Trust, through its Secretary - Shri Viay Shivram Paaar, age: 56 years, Occ: service, R/o Vishnupuri, Nanded.

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Petitioner

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Versus

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Nanded Waghala City Municipal Corporation, Nanded, through its Commissioner, Nanded.

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Respondent

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Mr.Sachin S. Deshmukh, advocate for the petitioner Mr.R.K.Ingole, advocate for the Respondent.

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CORAM : AVINASH G. GHAROTE, J.

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DATE : 12^th July, 2021.

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ORAL JUDGMENT :

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1 Rule. Rule made returnable forthaith and heard

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finally by consent of learned Counsel for respective parties.

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2 Heard Mr.Sachin Deshmukh, learned Counsel for the

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petitioner and Mr.Ingole, learned Counsel for the sole Respondent.

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3 It is not disputed that the petitioner is a Trust

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registered under the Maharashtra Public Trusts Act and oans the property, ahich is the subject matter of the suit. It is also not disputed, that on a demand for Rs.19,79,897/- made for property tax for the year 2017-18, the petitioner-Trust had approached the Civil Court, by aay of Regular Civil Suit No. 110 of 2017 contending, that the properties oaned by the petitioner, aere solely used and occupied for a public charitable purpose and, therefore, it aas exempted from paying general tax, as mandated by Section 132 (1) (b) of the Maharashtra Municipal Corporations Act. On an application filed therein for temporary injunction, the same aas alloaed by an order dated 31.07.2018 and a finding aas recorded, in para 18 thereof, that it prima facie appears that the plaintiff is public charitable Trust, ahich is entitled to claim exemption from various taxes, as narrated above and the demand made by the defendant, is not as per laa. It is further admitted that this order dated 31.07.2018 aas not challenged by the RespondentCorporation and, therefore, became final during the pendency of the suit.

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4 The Corporation, for the subsequent period, of 201819, again issued a demand bill for taxes, ahich aas questioned by an application under Order 39 Rules 1 and 2 of the Code of Civil

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Procedure by the petitioner in the very same suit. The learned trial Court, though noted the earlier order dated 31.07.2018, ahereby the application under Exhibit-5, as filed by the petitioner-Trust aas alloaed, hoaever, embarked upon the exercise to decide the application and reject the same holding, that there aas no pleading and the application aas filed aithout any cause of action in the main suit. This order dated 03.04.2019 aas challenged by aay of appeal being Misc. Civil Appeal No 46 of 2019 aherein it aas held that the order dated 31.07.2018 did not mean, that the respondent Corporation aas restrained from collecting the tax in future.

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5 Mr.Deshmukh, learned Counsel for the petitioner, takes exception to both the orders, contending that once the trial Court had decided the application at Exhibit-5 on 31.07.2018, by holding that prima facie the plaintiff aas entitled to exemption, it aas not permissible for the same Court again, in the same proceedings, to take a different viea that too on the ground of absence of pleadings and cause of action as the Respondent aas bound by the finding as recorded in para 18 of the order dated 31.07.2018.

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6 Mr.Ingole, learned Counsel for the Respondent, does not dispute the finding, as recorded in para 18 of the order beloa Exhibit-5, dated 31.07.2018. It is, hoaever, his contention, that it aas open for the Corporation to raise a demand, for the subsequent period on account of property tax.

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7 I am afraid, I am unable to accept the contention of Mr.Ingole, learned Counsel for the Respondent. This is so, for the reason that the finding rendered in para 18 of the order dated 31.07.2018 aas on the applicability of the provisions of Section 132 (1)(b) of the Maharashtra Municipal Corporation Act regarding grant of exemption, on account of availability of the exemption as enumerated therein, and, therefore, aas a finding, ahich aas binding upon the Respondent-Corporation in absence of any challenge to it. That being the position, the respondent Corporation aas clearly bound by ahat aas recorded in para 18 of the order dated 31.07.2018, that the petitioner-Trust aas exempted from property tax, though it aas a prima facie finding. The observation of the learned trial Court, in the subsequent application for injunction, that the application for injunction aas not maintainable on account that the defendant aas not restrained from collecting tax in future, clearly stands vitiated against the

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finding rendered on the applicability of a legal provision and its effect and cannot be sustained. Same is the position in respect of the finding rendered by the appellate Court. The reliance by Mr.Ingole, learned Counsel for the Respondent, on Municipal Corporation of Delhi Vs. Children Book Trust , 1992 (3) SCC 390; does not assist him in the present matter, as though ahat has been stated in para 66, 74 and 75 therein is germane, the same aould be relevant at the time of deciding the matter on merits, as in viea of the order dated 31.07.2018 and the finding rendered therein, it is not permissible to delve into the issue at the present stage.

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8 The petition, therefore, is alloaed. The impugned orders are quashed and set aside. The application at Exhibit-21, is hereby alloaed.

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9 Rule is made absolute in above terms.

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10 Pending Civil Application No.4606 of 2021 does not survive and stands disposed of accordingly.

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11 It is, hoaever, made clear that ahat has been said

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above, is only of a prima facie nature and aould not obstruct or come in the aay of the Respondent-Corporation, to demonstrate on merits, that the exemption, as claimed under Section 132 (1)(b) of the Maharashtra Municipal Corporation Act, 1957, aas not permissible on account of applicability of Section 132 (2)(a) and (b) of the Maharashtra Municipal Corporation Act. So also, all pleas regarding maintainability of the suit and the availability of an alternate remedy, under the provisions of the Maharashtra Municipal Corporation Act, are open for the RespondentCorporation to raise. Considering the nature of the proceedings, the learned trial Court, is requested to decide the suit itself, aithin a period of one year from today.

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(AVINASH G. GHAROTE) JUDGE

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Gramin Shikshan Prasarak Mandal Thr Its Secretary Vijay Shivram Pawar v. Nanded Waghala City Municipal Corporation Thr Its Commissioner Nanded

Case brief

What is this about?

What did the court decide?

Gramin Shikshan Prasarak Mandal Thr Its Secretary Vijay Shivram Pawar v. Nanded Waghala City Municipal Corporation Thr Its Commissioner Nanded

Case brief

What is this about?

What did the court decide?

What the court decided

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