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2010 Supreme(Bom) 1717
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI
Haldiram Foods International Limited
Versus
City of Nagpur Corporation through Municipal Commissioner, Civil Lines & Others
WRIT PETITION NO. 4520 OF 2010
Decided on : 09-12-2010
For the Petitioner:M.G. Bhangde, Senior Advocate with Shri R.M. Bhangde,
Advocate.
For the Respondents:C.S. Kaptan, Advocate.
Headnote:City of Nagpur Corporation Act, 1948 - Section 130-Property tax-Levy of-District Court refused to grant stay-Powers of District Court under Section 130 of Act-Cannot be treated as plenary powers. 2009 (1) SCC 240-Relied on.-The provisions of Section 130(6) of the Act stipulate that pendency of an appeal before the District Court shall not operate to delay or prevent the levy of any tax or installment thereof according to the impugned order of assessment. If after final decision in appeal, the said amount is reduced or cancelled, the Commissioner has to refund to appellant the said amount or excess thereof. It is, therefore obvious that provisions in Chapter XI and Chapter XII are complete code in itself and jurisdiction of Civil Court is barred in the matter. In the light of discussion in the judgment of the Hon’ble Apex Court in the case of Rikhabsao v. Corporation of the City of Nagpur, 2008 All SCR 2735, it is obvious that powers available to District Court under Section 130 cannot be treated as plenary powers.
City of Nagpur Corporation Act, 1948 - Sections 130 and 377-Civil Procedure Code, 1908, Order XLI, Rule 5-Property tax-Levy of-Stay sought against-Power of District Court to grant stay-Power to grant stay on sufficient cause under Order XLI, Rule 5 of CPC not incorporated in Section 130 of Act-Powers under CPC can be exercised by District Court to extent not inconsistent with provisions of Act-Order of District Court, refusing to grant stay in Appeal justified.-The language of Section 130(6) is partly pari materia with the provisions of Order XLI, Rule 5 of Civil Procedure Code. Order XLI, Rule 5 of CPC speaks of stay by appellate Court and its sub-section (1) declares that an appeal shall not operate as stay of proceedings under a decree or appeal. However, the appellate Court has been given power to order to the contrary by granting stay for sufficient cause. This later part which enables appellate Court under Order XLI, Rule 5 of CPC to grant stay on sufficient cause being shown, does not find place in Section 130(6) of the Act. On the contrary, it contains a stipulation about obligation on the Commissioner to refund the amount of tax recovered either in whole or in part as per the decision in that appeal. Section 164 of the Act permits appeal before Magistrate and that appeal is obviously after a liability is crystallized in the shape of a notice of demand. There, there is express application to deposit the amount claimed in Corporation office. When these provisions in Chapters XI and XII constitute complete Code for the petitioner and jurisdiction of Civil Court is barred it is apparent that the power to grant stray not incorporated in Section 130(6) of the Act cannot be imported into it by taking recourse to Section 377 of the Act. Section 377 is a general provision and it is to be noted that the powers under CPC can be exercised to the extent not consistent with the provisions of the Act. It is, therefore, obvious that reading power to grant stay under Order XLI, Rule 5 of CPC in the scheme of Section 130 of the Act because of Section 377 whereof is doing something which is not in consonance with the intention of the Legislature and the spirit of the scheme. Court, therefore, does not find any substance in the contention of the senior Advocate that in appropriate cases, the District Court is empowered by the Act to grant stay in appeals entertained by it under Section 130(1) thereof. For same reasons, recourse to doctrine of implied power is also not open.
This petition filed under Articles 226 and 227 of Constitution of India filed by an assessee challenges the order dated 06.09.2010 passed below Exh. 14 in Miscellaneous Appeal No. 167 of 2010 by District Judge – 3, Nagpur, refusing to grant stay to the assessment and levy of property tax by Nagpur Municipal Corporation. The said appeal has been filed by the petitioner under Section 130 of the City of Nagpur Corporation Act, 1948, (hereinafter referred to the Act) and is still pending. On 16.09.2010, while issuing notices, the petitioner was directed to deposit an amount of Rs.18,67,320/-with the Registry of this Court and accordingly that amount has been deposited. According to the petitioner, corrected tax works out to Rs.18,67,320/- and that was already paid by it. This amount was in addition to that amount already paid.
2. Shri M.G. Bhangde, learned Senior Advocate with Shri R.M. Bhangde, Advocate for the petitioner has urged that refusal to grant stay on the ground that provisions of Section 130 of the Act does not confer that power upon the appellate Court is misconceived. In the alternative, the learned Senior Advocate has also contended that this High Court can in present writ petition grant such interim stay to the petitioner.
3. Shri Kaptan, Advocate for the respondents has not disputed the powers of this Court to grant stay in present matter in writ petition, however, according to him, such power is not available in the scheme of Section 130 of the Act. He, therefore, also requested that the appeal as filed should be directed to be disposed of within a period of 30 days from the date of order of this Court.
4. As the appeal is pending and Corporation has not challenged findings recorded by District Judge – 3, Nagpur, in the impugned order as also power with this Court to grant stay, controversy is only restricted to question whether under Section 130 of the Act, the power to grant stay is available to Court.
5. In this view of the matter, I find it proper to first note the findings which are recorded by District Judge – 3 in favour of the petitioner. District Judge – 3 found that grievance made before it that the order deciding objection raised by the petitioner was passed by Assessing Officer himself, was not in dispute and it was a significant fact revealing violation of principles of natural justice. It also found that the rental value of property since the year 2002 was shown to be increased in the years 2003, 2005 and 2008 and that increase was disproportionate as the said value determined was Rs.9,33,137/-, Rs.13,03,805/- and Rs.76,34,318/respectively. Hence, a prima facie case was made out that there was apparent mistake in assessment and levy of tax on the part of the respondent. It then noticed that the appellant before it (present petitioner) had also failed to produce some documents for correct assessment and levy before the respondent. It then noticed provisions of Section 130(6) of the Act and found that as per said proviso, filing of appeal did not operate as stay and after final decision of appeal in his favour, the assessee was entitled to refund of tax from Municipal Commissioner. It also noticed provisions of Section 164 of the Act and noted that for filing appeal against a notice of demand, the deposit of amount demanded was condition precedent.
6. The petitioner – assessee, after pointing out above facts has raised other challenges to show that the lease deed in favour of the petitioner was itself for a period from 01.10.2005 to 30.09.2020 as per revised arrangement between the parties. Earlier said period was from 2003-04 to 2017-18. Prior to that lease when very same property was with Nagpur Improvement Trust, its annual letting value was assessed at Rs.2,050/- and tax demanded was to the tune of Rs.1,047/- per annum. It is contended that in this situation, impugned notice dated 25.02.2010 assessing tax from 2002 onwards under Section 127 of the Act was not proper. The notice under Se
