V. Krishnamoorthy v. Municipal Corporation Of Greater Mumbai And ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8483 OF 2015 V. Krishnamoorthy ..

Petitioner vs.

Municipal Corporation of Greater Mumbai & Anr.

..

Respondents Mr. Uday P. Bobde i/b. Mr. Mukesh Subramaniam for Petitioner. Ms Oorja Dhond for MCGM - Respondents.

CORAM : M. S. SONAK, J.

DATE: 28 AUGUST 2017 P.C :

1] Not on board. Upon mentioning, taken on production board. 2] Heard Mr. U. P. Bobde for the petitioner.

3] The challenge in this petition is to the order dated 11th February 2015 in terms of which, the Small Causes Court at Mumbai, in its capacity as the appellate authority under the Mumbai Municipal Corporation Act 1888 (MMC Act) has directed the petitioner to deposit the disputed property tax as a pre-condition for entertaining the petitioner's appeal under section 217 of the MMC Act.

4] Mr. Bobde, learned counsel for the petitioner submits that the petitioner's contract was only between the years 2005 and 2007. He 1/3

submits that even during this period, since the site was not handed over to the petitioner, no liability for payment of any property tax can be foisted upon the petitioner. He submits that the demand included property tax for the period post 2007. Mr. Bobde therefore submits that there was no justification requiring the petitioner to deposit the disputed property tax amount as a pre-condition for entertainment of the appeal.

5] The contentions raised by Mr. Bobde basically relate to the merits of the appeal. On basis of such contentions, there is no case made out to fault with the impugned order. The provisions of section 217 of the MMC Act as quoted in the impugned order or even otherwise, it provided that no appeal under section 217 can be entertained unless the pre-conditions therein have been fulfilled. One of the pre-conditions relate to the direction to deposit the tax. 6] In exercise of jurisdiction under Article 227 of the Constitution of India unless, the petitioner, is able to make out a case of very high degree, there is no question of dispensation with statutory requirements with regard to deposit of the disputed tax amount. At least in this case, it cannot be said that the petitioner has made out a case entitling any dispensation or even a partial waiver. In fact, on the basis of pendency of this petition since the year 2015, the petitioner, it appears, has secured some sort of interim protection, 2/3

though, such interim protection does not appear to have been specifically granted. There is no merit in this petition. The petition is accordingly dismissed.

7] There shall however be no order as to costs.

8] At the request of Mr. Bobde, time for deposit is extended upto 29th September 2017. In case the amount is not deposited, the Additional Chief Judge taking up the appeal, is at liberty to dispose of the appeal for failure on the part of the petitioner. However it is made clear that in case the amount is not deposited upto 29th September 2017, then the Municipal Appeal (Stamp) No. 5335 of 2009 pending before the Small Causes Court at Mumbai shall stand dismissed without any further reference either to this Court or to the Small Causes Court.

(M. S. SONAK, J.) Chandka 3/3