1 wp1115-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1115 OF 2011 Rustomjee’s Ozone CHS Ltd .. Petitioner versus Brihan Mumbai Mahangarpalika .. Respondent Mr.S.C.Naidu a/w Mr.Shiv Malhotra for the petitioner. Ms.T.Puranik for respondent Nos.1 and 2. Mr.Dahibawker for respondent No.4. CORAM : S.C.DHARMADHIKARI, J. 30th August 2011. P.C.: . This is a writ petition by a Co-operative Housing Society. It seeks the following reliefs: “a) That this Hon’ble Court be pleased to exercise its jurisdiction under Article 226 of the Constitution of India and issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, direction or order under Articles 226 of the Constitution of India, calling for the records and proceedings pertaining to the case of the petitioner leading to the impugned orders dated 13.01.2010, 08.12.2010 and 22.03.2011 being at Exhibit A, A1, A2, A3, D and F hereto and after examining the legality, validity, propriety and correctness thereof be pleased to further quash and/or set aside the impugned 2 wp1115-11.doc orders dated 13.01.2010, 08.12.2010 and 22.03.2011 being at Exhibit A, A1, A2, A3, D and F hereto. b) That this Hon’ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent No.3 to decide a fresh the rateable value of the property bearing Ward No.P/S-2705(3), A/c No.47-003-02-8 and PS-2705(3E), A/c No.47-0003-07-9 of BMC on hearing the petitioners and pass a speaking order on merits.” 2 An affidavit in reply is filed by respondent Nos.1 to 3 in which two objections have been raised. Firstly, the writ petition involves disputed questions of facts and, therefore, it should not be entertained and secondly, the petitioner has an alternate and equally efficacious remedy of an Appeal before the Court of Small Causes in terms of section 217 of the Mumbai Municipal Corporation Act, 1888. 3 To counter these objections, it is contended on behalf of the petitioner that the writ petition questions the orders of the Municipal Corporation of Greater Bombay in determining the rateable value for the purposes of recovery of property taxes. It is contended that there is no compliance with the statutory provisions and particularly section 162(2) of the Mumbai Municipal Corporation Act and 3 wp1115-11.doc sections 164 and 165 of the said Act. Therefore, the writ petition is maintainable. Further, it is urged that although the entire amount demanded by way of property taxes have been deposited, now, to file a statutory appeal would mean that for every year, when the assessment is done, during the pendency of the appeal, the petitioner will have to pay the property taxes at the rateable value disputed and challenged in this writ petition. It is submitted that the rateable value itself could not have been determined in the manner, which has been done and there is complete non compliance with the applicable provisions. Further, the respondent No.4 is a developer, who has developed the immovable property upon which the buildings have been constructed and the petitioner-Society has been handed over the affairs and are managing it. The petitioner- Society has not been given any notice. If the special notice has not been given to the Society, then, there is no compliance with the statutory provisions. Therefore, the rateable value that has been determined by orders, copies of which are at Annexures A, A1, A2, A3 and the communications at Annexure D dated 8th December 2010 and at Annexure F dated 22nd March 2011, are contrary to the mandate of the provisions. In such circumstances, the remedy of 4 wp1115-11.doc appeal is not available. The very basis of the levy is not tenanble in law. Based on such illegal and unconstitutional act, the property taxes cannot be recovered. All these plea cannot be raised in Appeal. The appeal could lie only when there is an order passed in terms of section 165. For all these reasons, this writ petition should be entertained. 4 In the affidavit in reply, so also the communications that are impugned, it has been pointed out that the assessment of property bearing Award No.2705(3), Account No.47-0003-02-8 assessed as “under construction plot” was modified on account of sub division and new construction with effect from 1st June 2009 when balance plot of land for F Tower was retained under the same Ward number, the new constructed plot consist of Tower 8A to 8E was assessed to municipal tax by assigning new Ward No.PS 2705(3E), Account No.47-0003-07-9. The newly constructed plot was assessed to municipal tax as per the guidelines issued by Corporation vide Circular No.AC/148/Gen. dated 27th August 2008. 5 On assessment of properties, special notices to that effect in 5 wp1115-11.doc pursuance of section 167 of the said Act, were served on respondent No.4 on 15th November 2010 whereunder it is clearly mentioned that complaint must be made by written application and lodged within 15 days from the receipt of special notice. However, no complaints were received from the respondent No.4- builder and developer. Moreover, in reply to the letter dated 10th October 2010, certified copies of inspection for the year 2009-2010 pertaining to both the properties are issued to the Society. In response to the letter dated 20th November 2010 of the Society, it was informed that MCGM is switching over to new tax policy from rateable value to capital value from 1st April 2010. The rules for implementation of capital value are not finalised till date. The same will be declared in due course. On finalisation of the capital value rules, the Society will be called for hearing in relation to their grievances. However, the Society was advised to pay the outstanding amount of property taxes quantified at Rs.2,00,23,996/- for the period that has been specified in the communication. 6 Thus, the Corporation has through out maintained that in so far as the switch over in the policy is concerned, on finalisation of 6 wp1115-11.doc the rules the general complaints would be entertained. 7 As far as the subject assessment is concerned, the property taxes have been assessed and the bills have been raised on the basis that the respondent No.4-developer to whom the notice was issued, did not show any cause. The petitioner may claim that the property has been handed over to them for management and administration after the occupation certificate for 5th Toewr was obtained sometime in February 2009 and for the 6th Tower, the occupation certificate was obtained some time in January 2010. However, it is the case of the petitioner that the assessment notices/order dated 13th January 2010 for the period 2009-2010, are alleged to have been served by the Assessor and the Collector- respondent No.3 on the respondent No.4-developer sometime on 15th February 2010. The actual notices/order is showing date of issue as 12th January 2010. The petitioner now may claim that they were not aware of these notices and orders because, they did not receive the same. However, on their own showing in para 4(b) of the writ petition, they state that they are aware of the assessment and the orders in relation thereto. The petition, therefore, clearly 7 wp1115-11.doc raises a dispute about the Assessment and valuation of property taxes. It may be the case of the petitioners that prior to 1st November 2010, all flat owners have paid their property tax and maintenance bill, directly to the developer which includes the bill accompanying the order dated 15th February 2010, yet, it is their case that the assessment is arbitrary and illegal. Throughout the petition and annexures thereto, it is clear that what the petitioners are seeking to canvas are submissions related to assessment and valuation of the property taxes. As the bills have been raised, the petitioners are fully aware that they have to resort to the remedy of an appeal in terms of the statutory provisions. Yet, they have filed this writ petition. 8 It is clear from a reading of the writ petition and the affidavit that has been filed on behalf of the MCGM, that disputes cannot be resolved in the limited jurisdiction of this Court. As to how the liability to pay property tax needs to be apportioned and for what period is a matter between the petitioner and respondent No.4. Today, it is claimed that the property taxes as demanded have been paid. There is a dispute as to whether they have been paid by the 8 wp1115-11.doc petitioner or the respondent No.4. Be that as it may, if the petitioners are making a grievance that there is non compliance with the statutory provisions and, therefore, the levy itself is illegal, nothing prevents them from filing an appeal in terms of the statutory provisions and claiming all reliefs not only in relation to the legality of the levy, but also by disputing the assessment and valuation of the property taxes. It is their case that they have visited the office of respondent No.3 requesting him to pass a reasoned order on their application dated 20th November 2010 as contemplated under section 165 of the BMC Act after giving them a hearing. It is on account of not giving them a hearing and passing an order, that they are unable to file an appeal. Pertinently, the bills raised, Assessment made and the demand, all are prior events. Yet, with all this, the petitioner-Society claims to have paid property taxes as demanded. In such circumstances and when the MMC has stated that there is complete compliance with the statutory provisions inasmuch as all notices were issued to respondent No.4 and now a dispute is raised that the respondent No.4 has handed over the management and administration of the property of the petitioner, all the more a writ petition under Article 226 of the Constitution of India 9 wp1115-11.doc is not the remedy of the petitioners. In the affidavit in reply, which is filed by the respondents, it has been pointed out as under: “8) The newly constructed buildings i.e A,B,C,D,E towers was assessed to municipal tax as per guidelines issued by Corporation under Circular No.AC/148/Gen dated 27.8.2009 and special notices to that effect under section 167 of the MMC Act were served on M/s.Keystone Realtors Pvt Ltd on 15.2.2010. However inspite of the special notice no complaint was received. The property tax has therefore approved as under:- Ward No.& A/c.No Period Amount PS-2705(3) 470003-02-8 201020 87,195/- PS-2705(3E) 47-0003-07-9 200911 13,28,933/- 200921 2,05,072/- 201010 63,07,439/- 201020 1,02,50,357/- ---------------------- Total : 2,00,23,996/- ---------------------- 9) I say that the petitioner has thereafter deposited the amount of Rs.2,00,23,996 on 21st June 2011 however Rs. 3,02,132/- in respect of account No.PS-2705 (3E) 47-0003-07-9 for period 01/10/2010 to 31/03/2011 is still outstanding. 10) These respondents have already issued a letter dated 21.7.2011 to the petitioner calling upon him to pay the said amount.” 10 wp1115-11.doc 9 In these circumstances, to my mind, the petitioner has an alternate and equally efficacious remedy of filing an appeal. The apprehension of the learned counsel that the appeal may not be entertained can be taken care of inasmuch as respondent Nos.1 to 3 have themselves made a statement that the writ petition is not maintainable as the appeal is an alternate and equally efficacious remedy. The respondent Nos.1 to 3 will not raise plea of limitation, provided, the appeal is filed within a period of four weeks from the date of receipt of this order. Therefore, if appeal is filed within this period, the same shall be entertained by the Court of Small Causes and decided in accordance with law. Within this period even the respondent No.4 is free to file appeal if it is so advised. All contentions in relation to the levy, assessment and valuation of the property taxes are kept open. 10 In the view that has been taken and in the light of peculiar facts emerging from the record since the taxes have been assessed and duly paid, any larger controversy need not be decided. The appeal be directed not only against the 11 wp1115-11.doc communications which are referred to in the writ petition, but, also to dispute the quantum in the bills raised on the parties. I have, therefore, no doubt in my mind that if the appeal is filed by the petitioner, it will be entertained by the Court of Small Causes in terms of statutory provisions which have been referred to in the affidavit of the respondent. (S.C.DHARMADHIKARI, J)