Whether the court can frame issues placing burden of proof on Municipal Corporation to prove that it has levied property taxes by following due procedure of law?

  The application filed by the petitioner/ plaintiff to

frame the additional issue, so as to cast burden upon the

defendant to prove that the defendant levied the taxes by

following due procedure of law came to be rejected. It is the

contention of the plaintiff that the defendant has not adhered to

the procedure. In para 7 of the plaint, the plaintiff has averred

that the defendant has not followed the procedure laid down in

Chapter VIII of Schedule of the Bombay Provincial Municipal

Corporations Act. It is for the plaintiff to aver and prove as to

how the procedure has not been followed. Vide the issue sought

to be framed, the plaintiff wants to cast burden upon the

defendant. It is for the plaintiff first to aver and then to lead

evidence to the effect that the defendant has not followed the

procedure as laid down in Chapter VIII and thereafter the burden

would shift on the defendant to show that the procedure has

been followed. It is the plaintiff who is seeking the relief from

the Court and against the defendant.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

WRIT PETITION NO.1740 OF 2015

Marathwada Shikshan Prasarak Mandal Vs  The Municipal Corporation, Aurangabad

CORAM: S.V. GANGAPURWALA, J.

DATED: 23rd March, 2016.

1. The application filed by the petitioner/ plaintiff to

frame the additional issue, so as to cast burden upon the

defendant to prove that the defendant levied the taxes by

following due procedure of law came to be rejected. It is the

contention of the plaintiff that the defendant has not adhered to

the procedure. In para 7 of the plaint, the plaintiff has averred

that the defendant has not followed the procedure laid down in

Chapter VIII of Schedule of the Bombay Provincial Municipal

Corporations Act. It is for the plaintiff to aver and prove as to

how the procedure has not been followed. Vide the issue sought

to be framed, the plaintiff wants to cast burden upon the

defendant. It is for the plaintiff first to aver and then to lead

evidence to the effect that the defendant has not followed the

procedure as laid down in Chapter VIII and thereafter the burden

would shift on the defendant to show that the procedure has

been followed. It is the plaintiff who is seeking the relief from

the Court and against the defendant.

2. Mr. Chaudhary, the learned counsel for petitioner, in

alternate, submits that, the said issue be framed in a manner it

casts burden upon the plaintiff, as according to the learned

counsel, the defendant cannot charge the taxes except in

accordance with the procedure of law.

3. In light of the above, the impugned order is not

interfered with. However, the Court may frame the issue as

suggested by the plaintiff as under :

"Whether the plaintiff proves that the taxes

levied as alleged in the impugned bills are

without following due procedure of law as

contemplated under the Maharashtra

Municipal Corporations Act."

2. Writ Petition accordingly disposed of.

( S.V. GANGAPURWALA, J.)

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