KOLHAPUR ZILLA RAJYA ABKARI PARVANA DHARAK SAMAJIK SEVA SANGH KOLHAPUR Vs. KOLHAPUR MUNICIPAL CORPORATION KOLHAPUR

JUDGEMENT

(1.) The appellant-plaintiff has challenged the impugned judgment and decree passed by the 5th additional District Judge, Kolhapur, dated 5/8/2004, by which a judgment and decree passed by the II Joint Civil judge, J. D. Kolhapur, in Reg. Civil Suit No. 450/1996, dated 5/8/2005, has been confirmed, thereby the suit filed by the appellant to have a declaration under section 38 of Specific Relief Act, 1963, was dismissed with cost. The appellant is an association of retailers of Country Liquor, within the Kolhapur district. The appellant is an association established for the welfare of a person dealing in liquor business. The members of the appellant society are running country liquor shops within the limit of Kolhapur Municipal corporation-respondent. The members are required to obtain licence from the respondents and therefore, they required to pay requisite licence fee, which used to be increased from time to time. It was lastly increased upto Rs. 500/- per year. Some time in the year 1995, the respondent by an Resolution No. 166/10 enhanced the said licence fee at the rate of Rs. 3000/- per year. Therefore, the appellant filed the present suit for declaration and permanent injunction against the respondents.

(2.) The respondent is a Municipal Corporation, established and governed by the provisions of Bombay provincial Municipal Corporation Act, 1949 (hereinafter referred to as a B. P. M. C. Act). The respondent after following due procedure of law and within the provisions of B. P. M. C. Act and Rules made thereunder, by resolution No. 166/10, dated 20th February, 1995, increased the licence fee at the rate of Rs. 3000/- per year, being one of the main source of its revenue. It was also necessary to borne and bear the general increased expenses. Therefore, by invoking the provisions of Section 386 of the B. P. M. C. Act, such licence fee was increased, as provided in Chapter XII of the B. P. M. C. Act.

(3.) Heard the learned advocates appearing for the parties. There is a concurrent finding arrived at by the Courts below, that the suit was bad for want of notice under section 487 of the B. P. M. C. Act. Both the courts come to a clear conclusion based on the material available on the record that the appellant-plaintiff failed to prove that the action of the respondent was in bad faith, illegal and or void, ab-initio. In this background, the suit as filed without issuing Mandatary notice under section 487 of the B. P. M. C. Act, was not maintainable.