Admit.

Heard finally with consent of learned counsel for the parties.

The facts giving rise to the Second Appeal are briefly stated as under :

The appellant is the original plaintiff which is a public Trust represented by its Secretary. The Trust owned a building within the limits of the defendant Municipal Corporation. According to the Trust the said building was being used for maintaining and taking care of cows. The Municipal Corporation assessed that building for general tax under the provisions of Section 132 of the Maharashtra Municipal Corporations Act, 1949 (for short, the said Act). According to the plaintiff in view of provisions of Section 132(1)(b) of the said Act general tax could not have been assessed on that building. Despite that, notice dated 14/01/2011 was issued to the plaintiff by the Corporation demanding general tax. A suit was thus filed for a declaration that the Trust was exempted from payment of general tax along with a prayer for perpetual injunction. Written statement was filed below Exhibit-16 by the Municipal Corporation. It was pleaded that in view of the provisions of Section 487 of the said Act a prior notice was required to be issued by the plaintiff before filing the suit. As the same was not issued, the suit was not tenable. It was further pleaded that the building in question was not exempted from being assessed for imposing general tax and therefore the notice in question was validly issued. The Trust was undertaking various activities and those activities were not restricted to the maintenance of cows.

2. Before the trial Court the parties led evidence and thereafter a finding was recorded by the trial Court that the plaintiff was a charitable trust and that provisions of Section 132(1)(b) of the said Act were applicable. The Trust was therefore exempted from paying general tax. The suit was however dismissed on the ground that notice as contemplated by Section 487 of the said Act was not issued by the plaintiff before filing the suit.

The plaintiff filed an appeal challenging that judgment. The appellate Court held that the plaintiff was entitled to rely upon the provisions of Section 132(1)(b) of the said Act and it upheld that finding recorded by the trial Court. It further held that in absence of any notice being issued under Section 487 of the said Act the suit was not tenable. The appeal was accordingly dismissed. Being aggrieved the original plaintiff has filed this second appeal.

3. The learned counsel for the parties have been heard on the following substantial question of law :

“Both the Courts having held that the plaintiff-Trust was entitled for exemption from payment of general tax in view of provisions of Section 132(1)(b) of the said Act and the notice dated 04/01/2011 demanding general tax also having been held to be illegal, whether the suit was liable to be dismissed on the ground that notice under Section 487 of the Maharashtra Municipal Corporations Act, 1949 was not issued before filing the suit ?

4. Shri B.N. Mohta, learned counsel for the appellant submitted that it having been held by both the Courts that the plaintiff was a charitable Trust it was entitled to invoke the provisions of Section 132(1)(b) of the said Act for claiming exemption from payment of general tax, the Courts erred in holding that even in such situation notice under Section 487 of the said Act was liable to be issued. Once it was held that the Trust was entitled for exemption from payment of general tax it could not be said that the impugned notice was issued in pursuance of execution of provisions the said Act. In that regard the learned counsel placed reliance on the decisions in Poona City Municipal Corporation vs. Dattatraya Nagesh Deodhar 1965 Mh.L.J. 105, Namdeo vs. Z.P. Bhandara 1973 Mh.L.J. 36, Municipal Committee i.e. The Municipal Council, Washim vs. Purushottam Dattatraya Pande, 1974 Mh.L.J. 599, Ratnagiri Municipal Council vs. J.S. Khanna and Co. 1987 Mh.L.J. 166, Pune Municipal