-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1503 OF 2001 Sterling Tower Co-op. Hsg. Society Regd. ) Add. Plot No. 36, Samarth Nagar, Cross Road No.3, ) Lokhandwala Complex, Andheri (West), Mumbai-400 053 )..Petitioner versus 1. Municipal Corporation of Gr.Bombay, ) a Public Authority constituted under B.M.C. Act,1888 ) Regd. Add. Mahapalika Bhavan, C.S.T., ) Mumbai-400 001 ) 2. Asstt. Assessor and Collector, B.M.C., K West Ward, ) Opp. BEST Depot, Andheri (West), Mumbai-400 059 ) 3. M/s. R.G. Builders, having their office at ) 911, Raheja Chambers, Nariman Point, ) Mumbai-400 021 ).Respondents Ms. Sumedha Rao for the petitioner. Mr. K.N. Gaikwad for respondent Nos. 1 and 2. CORAM: P.B. MAJMUDAR & R.M. SAVANT , JJ. DATE: JULY 07 , 2009 ORAL JUDGMENT (Per R.M. SAVANT, J.): This petition filed under Article 226 of the Constitution of India seeks to quash and set aside the notice of auction of the Petitioner’s building dated 20th April, 2001 issued by respondent No.1. -2- 2. Such of the facts which are necessary to be cited for our decision in the matter are stated thus. 3. The petitioner’s building has been assessed for property taxes from the year 1992-93. For the period 1992-2000, respondent No.1 raised demand for property taxes to the tune of Rs. 53,91,488/-. Out of the said amount, petitioner had already paid an amount of Rs. 30,34,005/- till December, 2000. It appears that on 25th January, 2001, a warrant of attachment addressed to one Byramjee Jeejibhoy Pvt. Ltd., who are purported to be the owners of the property on which the building of the petitioner stands, was served upon the petitioner society. The petitioner society by its letter dated 21st March, 2001 forwarded the said warrant of attachment to the said Byramjee Jeejibhoy Pvt. Ltd. and respondent No.3, M/s. R.G. Builders. The petitioner by its further letter dated 23rd March, 2001 sought a flat wise breakup of the property taxes from respondent No.2. The said request of the petitioner was not acceded to by respondent No.2 and in turn an auction notice came to be issued by respondent No.1 on 20th April, 2001. By a letter dated 19th May, 2001, the petitioner was called upon to pay Rs. 144/- if it was interested in obtaining flat wise breakup of the property taxes. The petitioner, in compliance with the said letter, on 6th June, 2001, paid the said amount of Rs. 114/-. Thereafter, it appears that on 23rd June, 2001, a poster announcing the auction of the petitioner’s building in Gujarati language was stuck on the petitioner’s building allegedly by respondent -3- No.1. This has given rise to the filing of the present petition. 4. On behalf of respondent Nos. 1 and 2, an affidavit has been filed by one Suresh Mahadeo Chavan, Assistant Assessor and Collector, “K” West Ward, Mumbai. Paragraphs 5 and 6 of the said affidavit are relevant and are reproduced hereunder. “5. I say that as on today all bills involved in the warrant of attachment are already paid on 5.11.2001, 4.3.2002 and 28.6.2002 and therefore the Respondents will not take any action in pursuance of the said warrant of attachment. 6. I say that the Sterling Tower is assessed under No. KW-5611 (O 36)/15-1434-19-4 and the outstanding property taxes as on 31.3.2001 is Rs. 2,57,340/-. I say that if the Petitioners clear the above mentioned outstanding property taxes, the M. C.G.M. Can consider the application of the Petitioners regarding flat wise billing. I say that for flat wise billing it is necessary for the society to make application along with list of bona fide members and AGM report demanding flat wise billing. I say that it is necessary for the society to submit certificate of no outstanding dues upto the last bill along with the application. A statement showing flat wise details of the Sterling Tower which is assessed under No. KW-5611(036)15-1434-19-4 is hereto annexed and marked as Exhibit-1. I say that if application is received and the above conditions are fulfilled by the Petitioners, the individual flat wise bills will be issued with effect from 1.4.2009 as the bills for current year have already been issued. I say that the bunglow, Kotak Villa is assessed under No. KW-5611 (036/2)/15-1435 -38- 7 and the outstanding property taxes against the Kotak Villa as on 30-9-2009 is Rs. 3,79,200/-. I say that the Respondents may be granted liberty to take further necessary action against the owner of Bungalow Kotak Villa if the outstanding property tax as mentioned hereinabove is not paid by him.” -4- 5. A reading of the said paragraphs of the affidavit, therefore, makes it clear that the amount due from the petitioner which was outstanding and for the non-payment of which the warrant of attachment came to be issued has already been paid by the petitioner by making payments on 5th November, 2001, 4th March, 2002 and 28th June, 2002. The amount of property taxes due from the petitioner, according to respondent Nos. 1 and 2, upto 31st March, 2009 is Rs. 2,57,340/-. It has further been averred in paragraph 6 of the affidavit that property tax to the tune of Rs. 3,79,200/- upto 30th September, 2009 is due in respect of a bungalow known as Kotak Villa which is on the same property as the petitioner’s building. We have heard the learned counsel appearing for the parties. 6. The learned counsel for the petitioner drew our attention to the affidavit filed on behalf of the respondents in support of her submissions and submitted that all the amount due by way of property taxes were cleared by the petitioner. The learned counsel further submitted that the petitioner could not be made liable for the property taxes in respect of the bungalow known as Kotak Villa and also prayed that the flat wise breakup should be furnished to the petitioner. The learned counsel relies upon an order passed by this Court on 16th March, 1998 in Writ Petition No. 438 of 1998 in support of her submissions. By the said order, a Division Bench comprising of M.B. Shah, C.J. (as he then was) -5- and A.Y. Sakhare, J. (as he then was) passed an order recording the statement made on behalf of the Corporation that flat wise break up would be furnished to the petitioner society in the said petition. It has further been observed in the said order that in respect of open space and other premises, it would be open for the respondent-Corporation to recover the taxes from the owner/builder or any other person liable for the same. In the instant case also, the learned counsel for respondent Nos. 1 and 2 makes a statement that the flat wise break up would be furnished to the petitioner. In so far as the property taxes in respect of the bungalow Kotak Villa are concerned, in our view, the petitioner cannot be foisted with the payment of the said property taxes and it would be open for respondent Nos. 1 and 2 to proceed against the concerned owner or person who is in occupation of the said bungalow for payment of the same. 7. In so far as the petitioner society is concerned, we accept the statement made on behalf of respondent Nos. 1 and 2 that flat wise break up would be furnished to the petitioner. We accordingly direct that such break up be furnished to the petitioner within a period of four weeks from date. The respondent Nos. 1 and 2 to adjust the amount which has been deposited by the petitioner with the Respondents 1 and 2 pursuant to the interim order passed in the above petition against the property taxes due from the petitioner. The learned counsel for the petitioner states that if, after such adjustment, any amount is due from the petitioner, the same would be paid within four weeks of -6- its due intimation to the petitioner. However, it is made clear that the petitioner would be liable to pay the property taxes in respect of the building and the appurtenant area mentioned in the building plans. 8. We accordingly allow the petition by making the Rule absolute to the aforesaid extent. 9. In the light of the fact that in spite of payment by the petitioner, the attachment was levied and was continued resulting in harassment and prejudice to the petitioner society, in our view, it would be appropriate to impose cost of Rs. 1,000/- on respondent Nos. 1 and 2. The said cost to be paid to the petitioner within a period of six weeks from date. P.B. MAJMUDAR, J. R.M. SAVANT, J.