1 wp720-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.720 OF 2011 Crescent Builders .. Petitioners versus Municipal Corporation of Greater Bombay & Anr .. Respondents Mr.D.D.Madon, Sr.Advocate a/w Mr.S.A.Sawant a/w Mr.H.V.Kode & Mr.J.S.Chandnani for the petitioner. Mr.A.Y.Sakhare, Sr.Advocate a/w Ms.S.M.Modle for B.M.C. CORAM : S.C.DHARMADHIKARI, J. 06th September 2011. P.C.: . By this petition under Article 226 of the Constitution of India, the petitioner-Crescent Builders, a partnership firm, challenges the communication dated 15th October 2010 at Exhibit Q to the writ petition, by which it has been informed by the Municipal Corporation of Greater Bombay that the fixation of the rateable value based upon which the property taxes are computed is appropriate. 2 wp720-11.doc 2 Mr.Madon, learned senior counsel appearing on behalf of the petitioners submitted that the communication presupposes that the rateable value has been computed in terms of the legal provisions so also a circular dated 8th July 1997. He submits that the circular itself clarifies that with a view to make a residential building under Slum Rehabilitation Schemes, more viable decision was taken that for the land under construction under the SDRD/SRA proposal and redevelopment proposal under Rule 33(7) of the DC Rules, the assessment of the property taxes would be by adopting 25% of the market value prevailing in the area/normal rates. 3 Mr.Madon submits that the assessment has not been done in terms of the circular and, therefore, it is illegal and arbitrary. The rateable value could not have been computed de hors the circular and any assessment in terms of the said rateable value so also demand for payment of taxes in pursuance thereof is not binding on the petitioner. The writ petition to question these actions, therefore, is maintainable and is not barred by availability of appeal under section 217 of the Mumbai Municipal Corporation Act, 1888. 3 wp720-11.doc 4 Mr.Madon submits that in any event, availability of an alternate remedy is not absolute bar for entertaining a writ petition and if the order and action is without jurisdiction and wholly illegal, the petitioner cannot be relegated to such a remedy. For all these reasons, this writ petition be entertained and the ad-interim order be continued. 5 Mr.Madon relies upon the following decisions in support of his submissions: (1) Skyline Construction Co & Anr Vs. Municipal Corporation of Greater Mumbai (Writ Petition NO. 1279 of 2001) decided on 9th July 2009; (2)Rialto Co-operative Housing Society Ltd Vs. Municipal Corporation of Greater Bombay & Ors (1998(1) Bom.C.R.397); (3)Dalamal Tower Premises Co-operative Society Ltd & Anr Vs. Municipal Corporation of Brihan Mumbai & Ors (2004(6) Bom.C.R. 497). 4 wp720-11.doc 6 On the other hand, Mr.Sakhare, learned senior counsel appearing on behalf of the respondents invites my attention to the affidavit in reply and submits that the petition is barred by delay and latches. He submits that in that behalf, it has been pointed out by the Assistant Assessor and Collector, D Ward that special notice was issued when the rateable value was sought to be revised. The notice has been served but no complaint has been received from the petitioner. He submits that the bills have been issued as early as in 2007 based on the revision or fixation of the rateable value for the period 1st April 2006 onwards. It is too late in the day to entertain a writ petition and particularly when no complaint or grievance is raised with regard to such fixation by the petitioner under section 167 of the Act. In these circumstances and when certain general complaints received have already been disposed off, the communication at Exhibit Q cannot be treated as an order so as to enable the petitioners to invoke the writ jurisdiction. Infact, it is a communication in response and in reply to certain letters of the petitioners. That is not something which must be seen in isolation but an information of the exercise undertaken in terms of the statutory provisions which can be questioned by way of filing an 5 wp720-11.doc appeal. There are disputed questions of fact inasmuch as the Corporation maintains that the circulars have been adhered to and there is no deviation from the policy for fixation of rateable value prescribed therein or otherwise in terms of the statute. For all these reasons and when there is gross and unexplained delay, this writ petition should not be entertained. 7 Mr.Sakhare has distinguished the judgments which have been relied upon by Mr.Madon and urged that when the action was found to be completely without jurisdiction and wholly illegal and unconstitutional, that the extra-ordinary remedy was allowed to be availed of. That is not a rule in all matters. Everything depends upon facts and circumstances of each case and no general rule is laid down in any of these decisions. Therefore, this petition be dismissed. 8 Upon a perusal of the petition it is clear that it is filed by a partnership firm carrying on business as developer and builder. On the own showing of the petitioner, subject immovable property which has been described in para 5 of the petition was reserved for 6 wp720-11.doc purpose of housing for dishoused and municipal primary school. There were about 14 buildings accommodating therein 278 residential tenants, 3 residential-cum-commercial tenants, two commercial tenants and 3 others. They are all tenants of the Corporation. The buildings are constructed prior to 1940. The tenants organised themselves into Co-operative Housing Society by name “Janata Nagar Co-operative Housing Society Ltd” and through architects M/s.Mhatre and Associates so also the petitioner as developers, submitted proposal for redevelopment of the said land to the Deputy Municipal Commissioner (Improvements) under the Development Control Regulation 33(7) of the Development Control Regulation of Greater Mumbai, 1991. The proposal of redevelopment was scrutinised and letter of intent dated 5th August 1996 and 3rd February 1997 was issued. There were resolutions and decisions of the appropriate and competent authorities in the Corporation and thereafter there was a Tripartite Agreement. The property in question was to be redeveloped in accordance with these approvals. Thereafter, the construction was undertaken and there is reference to the commencement certificate and No Objection Certificate for sale building. Thus, it is the case of the 7 wp720-11.doc petitioners that they completed construction of four rehabilitation buildings and they were handed over to the tenants of the Corporation. Thus, their rehabilitation was complete and thereafter the sale component was taken up for development. 9 The property was assessed for payment of property taxes according to the petitioners on the basis that it is land under construction. The petitioners, therefore, urged that the assessment for the purposes of payment of property taxes should be on the basis that it is land under construction. The rateable value comes to Rs.4,91,145/- only. That is how reliance on the circulars has been placed. In para 9 of the petition a guarded statement is made that it appears that rateable value in respect of land came to be fixed at Rs.19,64,045.00/- with effect from 1st April 1996. The notice/intimation of fixing of the rateable value of the cost recovery of building, however, appears to have been not received by the petitioners so far as the petitioners are aware. Hence, the petition could not be heard, nor objections of the petitioners could be considered before fixing the rateable value. When the petitioners came to know about the fixation, they started objecting and when 8 wp720-11.doc they received demand for payment of Rs.90,36,248/- as property taxes, that they addressed several letters. 10 To my mind, these averments themselves raise a dispute inasmuch as the Corporation has pointed out that for each of the assessment years/period in question, special notices were issued, they have been received by the petitioners and there has been no complaint and/or objection and what is now argued on the basis of these averments, is an afterthought. 11 Mr.Madon submits that there is no proof of the special notices having been issued in terms of sections 162 to 167 of the Act, but it is not possible to accept this contention straightaway. On affidavit the Assistant Assessor and Collector has pointed out the details of each of the notices, which are termed as special notices in terms of the relevant statutory provisions, the date of the issuance and the date of receipt of the same (see the tabulated chart, Pgs.81-82). If these notices have been indeed issued and there is just for the assessment year 2009-2010 one general complaint, which is an aspect argued and emphasised by the Corporation throughout, 9 wp720-11.doc then, to my mind, the objection that petition raises disputed questions of fact and, therefore, cannot be entertained, must be accepted. 12 This is not a forum where the issues relating to assessment and valuation of property taxes can be raised for the first time and only on the basis of certain calculation after the petitioners received a demand for payment of property taxes, factual aspects cannot be decided. Precisely, for this reason the statute has provided a mechanism and culminating in filing of an Appeal before the Chief Judge of the Court of Small Causes. The appeals can be filed questioning not only the bills and taxes demanded, but even the rateable value fixed and the outcome of the complaint objecting to the said fixation. Thus, the said mechanism provided must be resorted to and it is not as if the issues raised with regard to non- adherence to the circular and policy guidelines while fixation of rateable value in cases of properties, which are being developed and particularly municipal properties, cannot be raised before the appellate forum. The provisions to question all this being available and all contentions in that behalf can be raised by the petitioners 10 wp720-11.doc before that appellate authority, to my mind, the writ petition cannot be entertained. 13 Prima facie, there is some substance in the contention and objections with regard to the delay and latches. The petitioners have merely addressed certain letters and based upon the same, the municipal communication has been received. It is not a order in the sense understood by the petitioners. It is only re-inforcement of what has been done and the stand taken throughout is that this circular has been adhered to, the policy directives and guidelines have been followed and applied and rateable value has been computed in accordance with law. If there is dispute with regard to the same, then, on the basis of certain statements and which too are not reflecting the admitted facts, the petitioner cannot approach this Court in writ jurisdiction. 14 All the decisions that have been brought to my notice were rendered in the backdrop of the peculiar facts. There, the land was assessed not as LUC. The contention was that the levy from inception was unconstitutional, arbitrary and illegal. In those 11 wp720-11.doc peculiar facts and by applying the rule that availability of alternate remedy is not absolute bar for entertaining a writ petition under Article 226 of the Constitution of India that the writ petitions have been entertained. It is not as if the principles laid down in these decisions are not applicable. However, their applicability depends upon the facts of each case. In the instant case, the petitioners do not assert anywhere that the rateable value has been fixed without hearing them or that they had no opportunity to raise any objections. The petitioners are non-committal and make vague so also guarded statements in this behalf. Thus, they cannot assert that the levy is ab initio void and illegal. When the Corporation has pointed out the receipt of special notices by the petitioner and that aspect is being denied, then, to my mind, a writ petition is not a remedy for the petitioners. More so, when the assessment and the demand of property taxes for the period 2006 onwards is sought to be questioned for the first time by filing a writ petition in the year 2010. For the aforementioned reasons, the writ petition fails and it is accordingly dismissed. 15 It is urged that the notice, a copy of which is annexed to the 12 wp720-11.doc reply is not a notice under section 162 of the Act and informing the petitioner that they can raise objections to the fixation of the rateable value. In the absence of any rejoinder or any documents to show that the petitioner indeed did not receive special notices, then, merely on the basis of the oral statements and denials such a plea cannot be raised. The special notices with their details including date of receipt have been clearly mentioned in the chart which is referred to in the affidavit in reply of the Corporation. To my mind, it is not possible to accept such contentions straightaway on the basis of the disputed facts that the petitioners cannot invoke writ jurisdiction. If there were no notices, then, prima facie the reference to the general complaint that is made by the petitioners will not find place in the very chart which is referred to in the affidavit of the Corporation. For all these reasons, the writ petition is dismissed. No costs. 16 At this stage, it is prayed that the ad-interim order be continued for a period of four weeks to enable the petitioner to challenge this order in a higher Court or file an appeal. Mr.Sakhare opposes this request on the ground that the taxes to the tune of 13 wp720-11.doc Rs.90 lakhs have not been paid and now, the arrears are to the tune of Rs.2 crores and above. 17 When I have held that the petition itself is not maintainable as it raises disputed questions of fact and the petitioners have am alternate and equally efficacious remedy available to them in law, which they could have availed of, then, it is not possible to continue the ad-interim order. The request in that behalf is rejected. (S.C.DHARMADHIKARI, J)