bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 4908 OF 1994 PETITION NO. 4908 OF 1994 PETITION NO. 4908 OF 1994 The Municipal Corporation of City of Poona ... Petitioner v/s Mr.Nitin Jayant Mulay ... Respondent Mr.R.G.Ketkar for the petitioner. Mr.A.G.Damle for the respondent. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 26TH MARCH, 2008. 26TH MARCH, 2008. 26TH MARCH, 2008. ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. This petition challenges the order of the Small Causes Court, Pune, dated 9.2.1993 passed in an Appeal filed challenging the rateable value fixed by the petitioner. The respondent is the owner of unit No.8 which consists of an area of 195.96 sq.ft. Initially, this property was owned by one C.V.Kulkarni, who then sold the said unit to M/s.Girme Brothers who, thereafter, sold the said unit to the respondent. Some improvements were carried out in the property, involving an RCC construction. The rateable value was, therefore, fixed at a higher rate i.e. Rs.3400/- per sq.ft. with effect from 1.4.1988. 2 2. Aggrieved by this decision of the Municipal Corporation, the respondent preferred an appeal under the Bombay Provincial Municipal Corporations Act, 1949 (in short, "B.P.M.C. Act") being Municipal Appeal No.222 of 1990 in the Small Causes Court at Pune. Several contentions were raised in the appeal. The principle contention was that, no notice was issued to the respondent prior to fixing the rateable value and that the rateable value ought not to be more than Rs.1370/- on the basis of the calculations shown in the appeal memo. 3. The appeal was resisted by the petitioner Corporation and in the written statement it was contended that notice had been issued to C.V.Kulkarni who was shown as the owner of the property in the registers maintained by the Corporation. Notice was also issued to M/s.Girme Brothers i.e. the subsequent owner. 4. The Small Causes Court, by its impugned order had reduced the rateable value to Rs.1400/- per sq.ft. with effect from 1.4.1990. The Court held that no notice was issued to the respondent although he was the owner of the unit. The standard rent of Rs.0.70 ps. per sq.ft. which was fixed in the year 1983 in respect of the 3 adjoining property was accepted as the basis for the purposes of calculating the standard rent for the suit premises. On this basis, the Court drew the conclusion that the standard rent should be more than Rs.0.70 ps. per sq.ft. and thus calculated the rateable value to be Rs.1400/- per sq.ft. with effect from 1.4.1990. 5. Mr.Ketkar, learned advocate appearing for the petitioner takes exception to the findings drawn by the Small Causes Court. He points out that notice is required to be issued to the person whose name is mentioned in the registers maintained by the Corporation. Any transfer of premises is to be intimated to the Corporation. The respondent had not intimated the Corporation of the transfer of the premises to his name and, therefore, notice was not issued to the respondent but to the erstwhile owners. The learned advocate then points out that the Small Causes Court has erred in relying on the instance of the year 1983 where the standard rent was fixed at Rs.0.70 ps. per sq.ft. He draws my attention to the fact that the notice was for a subsequent period i.e. for the year 1989 onwards and, therefore, the question of relying on instance of 1983 does not arise. He submits that the rateable value fixed by the Corporation was on the basis of the assessment of properties in the same 4 locality for the year 1989-90. According to the learned advocate, in fact, although notice issued proposed levy of rateable value at a higher rate, the Assessing Authority reduced the rate after considering the instances of 1989-90. The learned advocate also contends that the new construction was of RCC which is evident from the notice dated 5.12.1989 issued to the respondent and, therefore, the rateable value would have to be fixed on that basis. 6. Mr.Damle, learned advocate appearing for the respondent submits that the Small Causes Court has drawn proper inferences and, therefore, there is no need for this Court to interfere in the order in its writ jurisdiction. He submits that the petitioner could well have issued notice to the respondent and not to the erstwhile owners since they have mentioned the respondent’s name in the notice dated 5.12.1989. Apart from this, the learned advocate submits that there was material on record to indicate that the standard rent of Rs.0.70 ps. per sq.ft. fixed in 1983 was the proper yardstick for calculating the rateable value. The learned Judge, while deciding the appeal, had increased it to Rs.1400/- per sq.ft. and, therefore, there is no need to interfere in the impugned order, submits Mr.Damle. 5 7. After considering the submissions of the learned advocates and on perusal of the impugned order, I find that the Small Causes Court has erred in its conclusions. The learned Judge has wrongly held that the notice was necessary to be issued to the respondent when there was nothing on record to indicate that the respondent had informed the petitioner of the transfer of the property to his name. Besides this, accepting the standard rent fixed in 1983 to be the basis for calculations of the rateable value, in my view, is incorrect. A completion certificate for the premises in question was issued by the petitioner Corporation in 1988. The assessment was made in the year 1989-90 and, therefore, the learned Judge ought to have considered the rates fixed during that period. It is inconceivable that when the standard rent was fixed in the year 1983, the standard rent should remain static in the year 1989-90. The inferences drawn by the learned Judge while calculating the standard rent are without any basis since neither party had led any evidence before the Court. In my view, therefore, the impugned order must be set aside. 8. The impugned order is quashed and set aside. Rule made absolute with no order as to costs. 6 9. Municipal Appeal No.222 of 1990 is remanded to the Small Causes Court, Pune for being heard afresh. 10. Parties are at liberty to file additional pleadings, if any, and lead evidence in support of their contentions. 11. The Small Causes Court shall dispose of the appeal within six months from the date of this order. (SMT.NISHITA (SMT.NISHITA (SMT.NISHITA MHATRE, J.) MHATRE, J.) MHATRE, J.)