Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment In L.C.Suit no.948-2018
Received on : 19.03.2018
Registered on : 03.04.2018
Decided on : 07.06.2018
Duration : Y M D
00 02 19
CNR :MHCCO1 0037512018
Exh. no. 5
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
L.C. SUIT NO.948 OF 2018
Miss. Santoshkumari Chamanalal ]
Mujaral @ Ms. Sandeep Kaur ]
Age 39 years, Occ: Self employed ]
residing at Mujaral House, 112C ]
2nd Clive Cross Lane, Dana Bunder ]
Mumbai400 009 ]
Through Constituted Attorney ]court05
Chamanlal Dhaniram Sharma ]......Plaintiff.
Versus
The Municipal Corporation of ]
Greater Mumbai, An incorporated ]
Body Having office at ]
Mahapalika Bhavan, Mahapalika ]
Marg, Fort Mumbai and Ward ]
Office at B/Ward, Opp. J.J. ]
Hospital, Mumbai 400 001. ].... Defendant.
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 07th June, 2018.
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2 Judgment In L.C.Suit no.948-2018
Claim : For injunction.
Mr. Akhilesh Upadhyay, advocate for plaintiff.
Mr. Rawade, advocate for defendants.
JUDGMENT ON PRELIMINARY ISSUE
1. The plaintiff has instituted the suit seeking relief in the
form of mandatory injunction for directing the defendant Corporation
to reissue fresh assessments and property tax bill pertaining to her
property named Mujaral House, located at 112C, 2 nd Clive Cross Lane,
Dana Bunder, Mumbai (for short, ''suit property'').
2. By way of consequential reliefs, the plaintiff has prayed for
prohibitory injunction for restraining the defendant from taking any
action against the suit property and disturbing possession of the
plaintiff.
3. When the matter was initially argued, the Learned
Advocate for defendant raised an objection as to jurisdiction of this
Court on the ground that the matter relates to recovery of property tax
and for that an appeal under Section 217 of Mumbai Municipal
Corporation Act (for short, ''MMC Act'') is required to be preferred by
the plaintiff.
4. After going through the averments made in the plaint and
hearing submissions made by both the Learned Advocates, the following
preliminary issue is decided for the reasons stated below:
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3 Judgment In L.C.Suit no.948-2018
PRELIMINARY ISSUE DECISION
Whether this Court has jurisdiction to entertain try and
decide this suit?
In the negative
REASONS
As to issue no.1.
4. Heard respective advocates at length. Perused the
averments made in the plaint and the copies of documents annexed to
the plaint.
5. In short, it is the case of the plaintiff that the land below
suit property is owned by the Bombay Port Trust and the same was
leased out to the mother of the plaintiff. Accordingly, the suit property
was construed on the said land. It is occupied by various tenants and
shop owners. The building was constructed in 1989, consisting of
basement, ground floor and two upper floors.
6. After the sad demise of the parents of the plaintiff, the
plaintiff came to know about the suit property in or about 2005 and
further about huge arrears of property tax. The defendant accepted the
tax Rs. 11,188/ being full and final payment upto 01.10.2009 from the
plaintiff. However, thereafter, from time to time the plaintiff received
notices issued by the defendant about the property taxes. The plaintiff
learnt about the change in the capital value. The Learned Advocate for
plaintiff submitted that the defendant did not consider the fact that the
property is occupied by the tenants. It assessed the suit property on the
basis of capital value. According to the plaintiff, now the defendant is
claiming arrears of tax about Rs. 39,35,150/ illegally and has issued
notice for attachment of the suit property.
7. The Learned Advocate for the plaintiff submitted that the
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4 Judgment In L.C.Suit no.948-2018
defendant has wrongly assessed the suit property. Therefore, a suit for
declaration has been instituted and the same is maintainable.
According to him, civil suit is tenable, unless it is specifically so barred.
On the other hand, the learned advocate for the defendant submitted
that the provisions of Section 217 of MMC Act takes away jurisdiction of
the Civil Court and confers the same on the Small Cause Court.
8. Considering the rival submissions and the averments made
in the plaint, it appears that the plaintiff has challenged the assessment
of municipal taxes made by the defendant. In fact, the plaintiff has
challenged the rateable value and the tax fixed by the defendant. By
this suit, the plaintiff is seeking the mandatory direction that the
defendant should issue fresh assessment and property tax bills
pertaining to the suit property. In fact, the plaintiff is challenging the
fixations of rateable value and levy tax for which the forum in the form
of Small Cause Court has been provided under section 217 of MMC Act.
Therefore, the said jurisdiction cannot be stretched to the City Civil
Court by drafting the plaint in suitable language. An appeal would lie
under Section 217 of the MMC Act in respect of the subject matter of
the suit. Therefore, there is substance in the submissions made on
behalf of the defendant. Thus, it can well be concluded that this Court
has no jurisdiction to entertain, try and decide this Court. Accordingly,
the preliminary issue is answered in the negative and the following
order is passed:
ORDER
1. This Court has no jurisdiction to entertain, try
and decide this suit.
2. The plaintiff is set at liberty to prefer an
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5 Judgment In L.C.Suit no.948-2018
appeal before the Small Cause Court at
Mumbai, within a period of thirty days from
today.
3. The parties to bear their own costs of the
suit.
4. Accordingly, the suit is disposed of.
Sd/
(M.S. Deshpande)
Ad hoc Judge,
Dated: 07.6.2018 City Civil Court, Mumbai.
Dictated on : 07/06/2018.
Transcribed on : 08/06/2018.
Signed by HHJ on : 11/06/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGN
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.06.2018 at 5.05 pm
NAME OF STENOGRAPHER : Mrs. K.S. Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
07.06.2018
JUDGMENT/ORDER signed by
P.O. on
08.06.2018
JUDGMENT/ORDER uploaded
on
11.06.2018
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