ASN 1 Appeal-686.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.686 OF 2011 IN WRIT PETITION NO.1201 OF 2011 Bakhtawar Commercial Co.op. Society Ltd. And anr. ..Appellants. Vs. The Municipal Corporation of Greater Mumbai and ors. ..Respondents. Mr. Milind Sathe,Sr. Consel along with Ms. Sanaya Dadachanji and Mr. A.R. Kaushik Advocates i/by M/s. Manilal Kher Ambalal & Co. for the Appellants. Mrs. Geeta Joglekar for respondent B.M.C. CORAM : MOHIT S. SHAH, C. J. AND SMT. ROSHAN DALVI, J. DATE : 18 October 2011 PC: Appeal is admitted. 2 With the consent of the learned counsel for the parties appeal is taken up for final disposal. 3 The appellants challenge the order dated 5 September 2011 of the learned Trial Judge of this Court dismissing their Writ Petition ASN 2 Appeal-686.sxw challenging the Special Notice dated 29 March 2001 of the respondent Municipal Corporation under Section 167 of the Bombay Provincial Municipal Corporation Act 1988 and the order passed by the Investigating officer dated 24 March 2004, so also further notice issued under the said provisions and the order of the Investigating Officer. 4 The learned Single Judge has dismissed the writ petition only on the ground that an alternate and equally efficacious remedy by way of an appeal to the Small Causes Court is available to the appellants and therefore, the writ petition is not required to be entertained. 5 The learned counsel for the appellants submits that the controversy raised in this petition is the subject matter of the writ petition and the appeal pending before this court . As a matter of fact after the learned Single Judge of this Court allowed the writ petition in case of Dalamal Tower Premises Co-operative Society Ltd. and anr. Vs. Municipal Corporation of Brihan Mumbai and ors. 2005 Vol. 107(1) Bom.L.R. 843, this Court allowed the appeal against the said judgment and the matter was carried before the Apex Court. By order dated 8 March 2011, the Supreme Court set aside the judgment of the Division Bench and remanded the matter to this Court to decide the matter after taking into consideration a decision of the Supreme Court in Municipal Corporation of Greater Mumbai Vs. Kamla Mills Ltd. 2003(6) S.C.C.315. It is further submitted that when the matter was heard by the Division Bench, there was difference of opinion between the learned Judges and therefore, the Division bench has passed order ASN 3 Appeal-686.sxw dated 9 September 2011 for reference to the third learned Judge. It is therefore, submitted that since the dispute raised in the present appeal and the petition is also same question of law which has been raised and the same is pending before this Court, the appellants- petitioners may not be permitted to seek alternate remedy of filing appeal before the Court of Small Causes but this Court may entertain this appeal and petition and pass interim order, as passed by the Supreme Court on 11 September 2006 in Special Leave to Appeal (Civil) No.12046 of 2006 which has been continued from time to time and is ordered to continue during the pendency of Appeal No.801 of 2004 before this Court. The order of the Supreme Court at Page 92 reads as under:- “The recovery on the basis of revised enhanced assessment from the appellants is stayed subject to the condition that besides the undisputed amount, the appellants also deposit with the respondent -Corporation fifty per cent of the difference between the assessment and the revised enhanced assessment within a period of six weeks and also give an undertaking that in case the appeal is dismissed and revised assessment is upheld, the balance amount would be paid with interest at the rate of 6-1/4%. Likewise, the Principal Assessor and Collector, on behalf of the Commissioner and the Corporation will file an undertaking that in case the appeals are allowed and revised assessment is set aside, fifty per cent of the payment made on the basis of the revised assessment wold be refunded to the appellants with the same rate of interest i.e. 6.1/4%.” ASN 4 Appeal-686.sxw 6 The learned counsel for the Municipal Corporation submitted that the appellants must avail the alternate remedy before the Small Causes Court and deposit the entire amount claimed in that court as per law. She contends that the appellants’ action is not bonafide and made to avoid the deposit in court claimed and defraud the revenue and delay the payment. 7 Having heard the learned counsel for the parties, we are of the view that, same question of law which is raised in the present appeal- writ petition is pending before this Court bearing Appeal No.801 of 2004, it would be in the fitness of the things to allow this appeal and set aside the order dated 5 September 2011 and also to admit Writ Petition No.1201 of 2011 and to pass the same interim order which is operating during the pendency of Appeal No.801 of 2004. 8 The learned counsel for the Municipal Corporation has placed on record the statement of computation of the Municipal taxes for the period from 1 April, 2004 till 30 September 2011 which has been filed by the MMC in the Small Causes Court in the appeal filed by the appellants. It is indicated therein that against the total amount for which the Municipal Corporation has issued bill of Rs.16,09,21,635/-. The appellants petitioners have so far paid only Rs.2,28,88,500/- and therefore, the balance amount of Rs.13,80,33,135/- is due and payable by the appellants-petitioners to the Municipal Corporation. The learned counsel for the appellants-petitioners submits that the appellants do not admit that the aforesaid amounts are due and payable .The appellants ASN 5 Appeal-686.sxw have not received the bill for all the period covered by the said statement and that the appellants received the bills only for the period upto 31 March 2006. This tantamounts to disputed facts which cannot be agitated in a writ petition .Such contention can be taken up only before the Small Causes Court upon depositing the entire amount claimed as payable. 9 However, following the interim order passed by the Supreme Court, we direct that appellants-petitioners shall deposit with the Municipal Corporation 50% of the aforesaid balance amount of Rs. 13,80,33,135/- for the period from 1 April 2004 to 30 September 2011 within six weeks from today. The Respondent Municipal Corporation shall accept the amount so deposited without prejudice to the rights and contentions of the parties. 10 In case the aforesaid amount is not deposited within he aforesaid time limit, this interim order shall stand vacated and the writ petition stands dismissed. . 13 The appellants are permitted to approach the Municipal Corporation for arithmetical correction of the calculations, if any, in the aforesaid amount after depositing the amount as directed above. 11 Appeal is disposed of accordingly. CHIEF JUSTICE ( SMT. ROSHAN DALVI, J. )