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2016 (7) TMI 1676 - BOMBAY HIGH COURTInclusion of MIDC's notified area, i.e., TTC-Thane-Belapur Industrial Area in Notification dated 17 December 1991, by which, NMMC came to be constituted - petitioners contend that the MIDC is the Special Planning Authority insofar as such notified area is concerned and therefore, it is only the MIDC, which is competent to levy any tax, cess or other charges upon the petitioner's industries/properties, which are located within such notified area. HELD THAT:- There is no merit in the contention of Mr. E.A. Sasi that the property taxes or cess levied by the NMMC had not been challenged in case of Small Scale Entrepreneurs Association [[2010 (7) TMI 957 - BOMBAY HIGH COURT]] and that the challenge was only restricted to the Notification dated 17 December 1991, to the extent, the notification, whilst constituting the NMMC had included within its jurisdictional area, the MIDC's notified area, wherein, the petitioners' properties/industries are located. Once, the challenge to such inclusion came to be negatived, as a corollary therefore, the NMMC was held entitled to levy property taxes and other taxes upon the petitioners' industries, though, such industries may be stated to be located within the MIDC's notified area. Insofar as the challenge to validity of Rule 41 as aforesaid is concerned, it must be noted that nothing prevented the Small Scale Entrepreneurs Association from raising such challenge in Writ Petition No. 2787 of 2001, which has since been disposed of on 8 July 2010. It is impermissible for parties to raise challenges in installments, when it is apparent that the entire purpose for institution of Writ Petition No. 2787 of 2001 was to question the levy of property taxes or other taxes by the NMMC, insofar as the petitioners' properties/industries, which are located within MIDC's notified area are concerned. The petitioners have not disclosed as to whether in pursuance of liberty granted by this Court in Writ Petition No. 2787 of 2001, the petitioner had instituted appeals under Section 406 of the MMC Act in order to question the levy of cess. Possibly, the petitioners have avoided taking such route because Section 406(8) of the MMC Act, inter alia provides no appeal under sub-section (6) shall be entertained unless the amount of disputed tax claimed from the appellant has been deposited by the appellant with the Commissioner. By adding some challenge to the vires of the provisions of the MMC Act or the rules made thereunder, so as to evade the requirement of pre-deposit, as mandated in Section 406(8) of the MMC Act. The extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India is not meant to by-pass the statutory remedies otherwise available under the MMC Act - Rule is discharged in Writ Petition No.8506 of 2016 and interim order is hereby vacated.
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