Final Order 1

Order Details: Order below exhibit
Pdf Text: Suit No. 1209/2020. 1 Order below Exh.1.
MHCC010048042020
Presented on : 29-10-2020
Registered on : 03-11-2020
Decided on : 27-11-2020
Duration : 0 years, 0 months, 29 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
L. C. SUIT NO. 1209 OF 2020
Shriniwas Soundra Pandian ...Plaintiff
Versus
Municipal Corporation of Greater Mumbai & Others ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 27th NOVEMBER, 2020.
Mr. A. P. Khanduri, Advocate for Plaintiff.
Mrs. Tondwalkar & Mrs. Mhatre, Advocate for Defendant Nos.1 and 2 /
MCGM.
ORDER BELOW EXHIBIT 1.
This is a suit preferred to challenge Warrant of Attachment
of property dated 07/11/2019 and 29/09/2020. According to plaintiff,
defendant no.1 MCGM has issued a Warrant of Rs.7,71,137/- (Rupees
Seven Lakhs Seventy-one Thousand One Hundred Thirty-seven Only) as
arrears of taxes and intimation to attach the property. Plaintiff is ready
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Suit No. 1209/2020. 2 Order below Exh.1.
to deposit his share of the property. It is claimed for bifurcation of dues
of taxes and injunction against letter of attachment of property.
2. Perused short reply of MCGM vide Exh.2.
3. City Survey No. 191, Survey No.32/7/2 situated at Mohali,
Taluka Kurla, in total admeasuring 10264 sq.ft. is hereinafter referred as
‘suit property’. According to plaintiff, he is possessing and enjoying
three commercial shops and one residential room of 200 sq.ft. as
property in exclusive possession of the plaintiff.
4. Ld. Adv. Khanduri for plaintiff submits that there are three
shops (admeasuring [a] 10 x 36, [b] 12 x 36, [c] 13 x 21) and a
residential premises is admeasuring 200 sq.ft. There is no partition by
metes and bounds between all legal heirs. It was the property of
I.S.Pandian, father of plaintiff. He died in 1999. After demise of
I.S.Pandian, names of all legal heirs were entered into record of rights.
In addition to suit property, there are huge properties of Joint Hindu
Family situated in Tamilnadu. There are various litigations pending
between the parties, therefore the exact share of plaintiff and other co-
owners is yet not separated. In Suit No. 259/2017 preferred by
plaintiff, this Court has granted temporary injunction against other co-
owners and protected the possession of the plaintiff. It is strenuously
urged by ld. advocate for plaintiff that tax dues may be bifurcated as
plaintiff is ready to pay his share. It is prayed for temporary injunction.
5. Ld. Adv. Tondwalkar for MCGM submits that in view of
Section 217 of the MMC Act, this Court does not vest the jurisdiction.
The MCGM has adopted the appropriate procedure as prescribed under
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Suit No. 1209/2020. 3 Order below Exh.1.
Section 202 and 203 of the MMC Act. It is requested to note, there is
no single rupee ever paid by the plaintiff or any other co-owner since
2006. It is added that it is internal family dispute between the co-
owners. To the recent letter sent by the plaintiff, it is informed by the
MCGM that once you clear the dues, further assessment of tax can be
bifurcated. It is requested to peruse letter of the MCGM dated
24/10/2019 and 27/07/2020. It is prayed to dismiss the suit for want
of jurisdiction.
6. This Court has framed preliminary issue of jurisdiction in
roznama dated 05/11/2020. It is coupled with various other issues of
tenability of the suit.
REASONS FOR ORDER
7. On perusal of prayer clause, it is endeavour of the plaintiff
to show that he is ready to pay his share to the extent of area in
possession of plaintiff. Therefore, according to plaintiff, he is not entitle
to pay the total tax dues as mentioned in attachment warrant i.e.
Rs.7,71,137/- (Rupees Seven Lakhs Seventy-one Thousand One
Hundred Thirty-seven Only). It is to note at the inception that entire
area of suit property C.T.S.No. 191 is 10264 sq.ft. According to plaintiff,
he is entitle and ready to pay the tax to the extent of three commercial
shops and one residential room. However, it is not clarified by the
plaintiff that how much area is in independent possession of remaining
co-owners. Obviously, it is in exclusive knowledge of plaintiff and other
co-owners.
8. On perusal of 7/12 extract at page no.24 of the plaint,
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Suit No. 1209/2020. 4 Order below Exh.1.
names of all legal heirs of S.I. Pandian came to be entered into the
record of rights. It appears that it is family dispute between co-owners
as suit property alongwith various properties in Tamilnadu are yet not
divided by metes and bounds. For sake of convenience, the genealogy is
narrated as follows :
Irulandy Soundra (died in 1999)
Subbalaxmi (Wife) – D.3
(4 Sons & 2 Daughters)
Rajan Shriniwas Ganesh Subramaniam Mahadevi Padmavati
(died) (Plff)
Wife – Jaya Selvi
(D-4)
9. According to ld. advocate for MCGM, the issue relating to
municipal taxes, the jurisdiction is exclusively vests with the Small
Causes Court. For sake of convenience, Section 217(1) of the MMC Act
is reproduced as follows :
“Sec. 217(1) Subject to the provisions hereinafter
contained, appeals against any rateable value [or
the capital value, as the case may be,] or tax fixed
or charged under this Act shall be heard and
determined; by the Chief Judge of the Small
Causes Court.”
10. It is replied by ld. Adv. Mr. Khanduri for plaintiff that
plaintiff is claiming relief to bifurcate the liability of payment of tax in
view of Section 209 of the MMC Act. It is true that MCGM can bifurcate
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Suit No. 1209/2020. 5 Order below Exh.1.
the taxes even if the property is jointly owned by the co-owners. On
perusal of record, it is disputed by the MCGM to bifurcate the taxes. The
letters of MCGM dated 24/10/2019 and 27/07/2020 are very clear. As
discussed above, plaintiff has disclosed the area in his possession.
However, to the extent of remaining area, it is not averred by the
plaintiff that how much area is individually occupied by other co-
owners. At this juncture, it is highly impossible to demarcate the
separate possession and to fix individual liability as there is no partition
by metes and bounds.
11. It is surprising to note that defendant no.3 Subbalaxmi,
mother of plaintiff has sold her share to a builder. In para 3 of the
plaint, it is mentioned that defendant no.3 and 4 are formal parties.
There is a checkered history of litigation amongst the co-owners of
plaintiff. It appear from various litigations that plaintiff has cordial
relations and hand in gloves with defendant no.3 and 4. It would be
appropriate to give brief history of old litigation as described in
following table :
Sr. No. Suit No. Details
1. 2723/2005 DID – on 28/02/2012.
2. 478/2010 Filed by plff. Shriniwas – demolition notice was
challenged. Disposed off by judgment on
21/01/2016.
3. 2154/2015 Filed by defts. in present suit.
4. 677/2017 Filed by deft. no.4 Jaya. (Shriniwas is not party.)
5. D.V. Case
237/2015
Before 66th MM, Andheri. Filed by deft. no.4 Jaya.
(Shriniwas is not party.)
6. 259/2017 Preferred by plff. N/m No. 448/2017 – decided by
order on 17/02/2018.
7. 1017/2017 Preferred by deft. no.3 – for injunction on parking
of vehicles.
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Suit No. 1209/2020. 6 Order below Exh.1.
12. It is material to note that plaintiff in present case Mr.
Shriniwas is not party in Suit No. 677/2017 preferred by defendant
no.4 Jaya Selvi and in D.V. Case No. 237/2015 preferred by defendant
no.4 Jaya Selvi. Therefore, it is observed by this Court that plaintiff has
hand in gloves with defendant no.3 and 4.
13. RCS 259/2017 came to be preferred by the plaintiff to
protect his possession. There is no relief claimed by the plaintiff to
separate the property by metes and bounds. There is no relief claimed
by the plaintiff that remaining co-owners be directed to pay their taxes.
Admittedly none has paid the taxes since 2006. Plaintiff has
approached the Court for the relief of bifurcation of taxes when Warrant
of Attachment of the property came to be issued by the MCGM. The
relief claimed in present suit could have been claimed by the plaintiff in
earlier litigation. The additional ground in respect of tenability is bar of
Section 217 of the MMC Act. It is very clear that another issue in
respect of rateable value, fixation of tax and tax charged shall be heard
and determined by the Hon’ble Chief Judge of the Small Causes Court.
Therefore, this Court do not vest the jurisdiction to entertain the suit.
14. Ld. Adv. Khanduri for plaintiff relied over Dhruv Green
Field Ltd. V/s. Hukam Singh And Ors. [2002 ALL SCR 415], Ebrahim
Haji Joonas V/s. Municipal Corporation Of Gr. Bombay [1999(3) ALL
MR 547], Qari Mohammed Zakir Hussain And …. V/s. Municipal
Corporation Of Greater ….. [2002 (2) BomCR 98]. There is no
partition by metes and bounds. The bifurcation of the taxes can be
done after property would be partitioned and shares between the co-
owners will be determined. The jurisdiction of civil court is expressly
barred as specific mechanism is given in Section 217 of the MMC Act.
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Therefore, all case-laws referred by ld. advocate for plaintiff are not
relevant to the present case.
15. To summarize aforesaid discussion, following are the
important points to note :
(i)
(ii)
(iii)
Under the garb of bifurcation of taxes, plaintiff has
challenged a Warrant of Attachment by MCGM for the
dues of taxes of Rs.7,71,137/- (Rupees Seven Lakhs
Seventy-one Thousand One Hundred Thirty-seven
Only). Plaintiff ought to have value the suit for said
amount.
There is no partition by metes and bounds; therefore,
the exact area in possession of each co-owner is not
settled. Therefore, the bifurcation, at this juncture, is
not possible.
Plaintiff has failed to challenge alienation of the
property sold by her mother to a builder. Each co-
owner vests the right in entire property unless it is
separated by metes and bounds. It clearly indicate
vested interest of plaintiff.
16. In view of abovementioned table, it clearly establish hand
in gloves with defendant no.3 and 4. Plaintiff has failed to join other
co-owners of entire property and purchaser of the property from his
mother Subbalaxmi.
17. In short, by showing the bonafides of the plaintiff he has
challenged imposition of taxes and entire charges of Rs.7,71,137/-
(Rupees Seven Lakhs Seventy-one Thousand One Hundred Thirty-seven
Only). Plaintiff is running motor part business under the name and
style of “Ganesh Auto Parts”. He knows to pay various taxes being
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Suit No. 1209/2020. 8 Order below Exh.1.
shopkeeper like sales tax, income tax, GST etc. Last fifteen years
neither there is any endeavour on the part of the plaintiff to get the tax
separated nor he has paid a single rupee by way of municipal tax to the
defendant no.1. Therefore, present suit appears to be abuse of the
process of law to challenge the Warrant of Attachment. In result, suit
deserves to be dismissed. Hence the order :
- ORDER -
1. Suit is dismissed for want of jurisdiction with cost.
2. Plaintiff is at liberty to prefer fresh suit before competent
forum.
3. N/m No. 1790/2020 stands dismissed.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 27/11/2020. Mumbai.
1. Dictated on : 27/11/2020.
2. Transcribed on : 27/11/2020 & 01/12/2020.
3. Signed on : 02/12/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
02/12/2020. 4.29 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 27/11/2020.
Judgment/Order signed by P.O. on 02/12/2020.
Judgment/Order uploaded on 02/12/2020.
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Suit No. 1209/2020. 9 Order below Exh.1.
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