[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1107 OF 2004 M/s. Chemtex Engineering of India Limited, a limited liability company duly registered under the Companies Act 1 of 1956 and having its registered office at Chemtex House, Hiranandani Gardens, Main Street, Powai, Mumbai-400 076. .... Petitioners - Versus - 1. Municipal Corporation of Greater Bombay, a statutory Corporation constituted under the Bombay Municipal Corporation Act, 1888 and having its office at Mahanagarpalika Bhavan, Mahanagarpalika Marg, Bombay 400 001. 2. The Municipal Commissioner of Bombay Municipal Corporation having His [2] office at Mahanagarpalika Bhavan, Mahanagarpalika Marg, Bombay 400 001. 3. State of Maharashtra .... Respondents Shri Shyam Diwan with Ms Lata Bachani i/b M/s. I.R. Joshi & Co. for the Petitioners. Shri K.K. Singhvi with Ms A.R. Joshi for the Respondent Nos.1 and 2. Shri Rajiv Chavan, Asst. Government Pleader, for the Respondent No.3-State. CORAM: CORAM: CORAM: R.M.S. KHANDEPARKAR, J. DATED: DATED: DATED: AUGUST 25, 2004 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned Advocates for the parties. Perused the records. Rule. By consent, the rule made returnable forthwith. The petitioners challenge the Order No.SCR/21/2000-2001, dated 23-2-2004 and the notice dated 31-3-2004 issued by the respondent No.1-Corporation in respect of increase in the rateable value and recovery of proper tax. 2. Few facts relevant for the decision are that the petitioners are the owners of an immovable property [3] known as Chemtex House, situated at Hiranandani Gardens, Main Street, Powai, Mumbai. The respondent-Corporation amended on or about 28-3-2002 the assessment bill by increasing the rateable value of the said property with effect from 1-4-2000 to Rs.1,11,67,410/- while the prior rateable value was Rs.42,81,315/-. Pursuant to receipt of intimation regarding revision of the rateable value, the petitioners lodged a complaint to the concerned authority of the Corporation and the respondents by their order dated 18-4-2002 restored the rateable value to Rs.42,81,315/- with effect from 1-4-2000 and further confirmed that there were no dues outstanding on the part of the petitioners to the respondents. The petitioners thereafter received an intimation dated 22-1-2003 from the respondents to the effect that their earlier decision in respect of the rateable value had been rendered ineffective consequent to the judgment dated 23-10-2002 passed in the Writ Petition No.1531 of 2001 by this Court and that the property was being reassessed at the rate of Rs.1,11,67,410/- per annum with effect from 1-4-2000. The petitioners were called upon to file their objections, if any, within fifteen days from the receipt of said intimation otherwise the rateable value, as intimated, would stand confirmed. The petitioners by their letter dated 30-1-2003 lodged their objections to the reassessment proceedings. Further, by letter dated 7-2-2003 it was informed to the [4] Corporation that there was no further development or change in the circumstances after the order restoring the rateable value to Rs.42,81,351/- so as to warrant the review of the rateable value. It appears that the matter thereafter was sought to be pursued with the Corporation by the petitioners and consequently cognisance of the complaint of the petitioners was taken by the Assessor and Collector of the Corporation and hearing in that regard was fixed on 23-2-2004, on which day the said authority of the Corporation confirmed the revision of the rateable value to Rs.87,53,030/- with effect from 1-4-2000. The petitioners filed appeal against the said order dated 23-2-2004 and the same was filed in the Court of Small Causes on 5-3-2004 under Section 217 of the Mumbai Municipal Corporation Act, 1888, hereinafter called as "the said Act". The petitioners, however, did not deposit any amount over and above the old rateable value nor there was any stay order granted in the appeal. The respondents thereafter by notice dated 31-3-2004 called upon the petitioners to pay the tax demanded for the period from 1-4-2000 onwards aggregating to Rs.2,01,23,120/- within 48-hours from the receipt of the said notice, while threatening the petitioners with issuance of distress warrant in case of failure on their part to pay the said amount. The petitioners thereafter filed the present petition on 15-4-2004 which came up for hearing before this Court on [5] 27-4-2004 and on that day while issuing notice for final disposal of the petition, the respondents were restrained by way of ad-interim relief from taking any steps to enforce the order dated 23-2-2004 or from taking any coercive action against the petitioners till the decision in the petition. The respondents filed their affidavit in reply dated 28-6-2004. 3. It is also necessary to note that there was a Writ Petition bearing No.1531 of 2001 filed in this Court by one Arvind Kottecha against the respondent-Corporation which was disposed of by this Court on 23-10-2002 while recording the statement of the learned Senior Counsel appearing for the respondent-Corporation for withdrawal of certain circulars and consequently holding that all actions taken and the assessment pursuant to the circulars which were withdrawn were rendered ineffective and further that it was open to the respondents to reassess the properties for the purpose of property taxes in accordance with law. It is not in dispute that the petitioners were not a party to the said writ petition or any other similar such petition which was stated to have been disposed of on the said day by this Court. 4. The impugned order and the impugned notice are sought to be challenged on the ground that the [6] respondent-Corporation has no jurisdiction and authority or power to reopen the assessments once finalised, and since the assessment in relation to the rateable value for the financial year 1-4-2001 to 31-3-2002 was finalised by the order of 18-4-2002, it could not have been reopened by the notice dated 22-1-2003 or by order dated 23-2-2004. Secondly, the Corporation is not entitled to levy the property tax retrospectively i.e. for the year prior to the financial year in which or in respect of which the assessment of the rateable value is sought to be done. Thirdly, that there is no change in the circumstances from the date of the previous assessment to warrant or justify the revision of the rateable value, and the decision of the Division Bench in the Writ Petition No.1531 of 2001, dated 23-10-2002, does not entitle the Corporation to reopen the assessment or reassess the properties of the petitioners in relation to which the rateable value was already finalised by the order dated 18-4-2002. The impugned order and the notice, on the other hand, are sought to be justified, while admitting that there is no power under the statute to reopen the assessment, the judgment of this Court in the Writ Petition No.1531 of 2001 specifically empowers the Corporation to reassess the properties for the purpose of property taxes in cases where the assessment was done on the basis of the circulars which were withdrawn and consequently the [7] assessment done on the basis of those circulars were rendered ineffective and the assessment in relation to the petitioners’ properties finalised on 18-4-2002 being one of such assessments, no fault can be found with the impugned order or the notice, and secondly, even though the petitioners were not parties to the Writ Petition No.1531 of 2001, the judgment being of declaratory nature, it is binding on all the assesses of the Corporation whose assessments were rendered ineffective pursuant to the withdrawal of the circulars based on which the assessment of the rateable value of their property was done. 5. Before dealing with the merits of the case, it is necessary to address to the preliminary objection sought to be raised on behalf of the respondents. It is the contention of the respondents that the petitioners have made false statements in the petition and even the justification sought to be given by way of rejoinder discloses suppression of fact. Besides, the petitioners have already filed an appeal and all the points sought to be raised in the petition can very well be dealt with by the Court dealing with the appeal and the party is not entitled to choose both the remedies simultaneously. Drawing attention to ground (j) wherein it has been stated that the impugned order was passed in violation of the principles of natural justice as no opportunity [8] was given to the petitioners to represent their case, it is sought to be contended on behalf of the respondents that the last para in relation to the hearing which took place on 23-2-2004, it was clearly noted therein that "Since Shri V.N. Surve, the representative of the assessee Company has not asked for Speaking Order the entire proceeding of the hearing of the complaint is explained to him and order fixing the R.V. of Rs.87,53,030/- was handed over to him". A sheet of paper stated to be letter of authority and disclosing the signature of a person by name A.N. Shirodkar was also produced in the course of the arguments by the learned counsel for the respondents stating that he was the authorised representative for the petitioners and had filed the said authority and the said paper disclosed the authority to the said Shirodkar on behalf of the petitioners and yet the petitioners in the affidavit filed by Vikrant N. Surve have stated that no representative by name of A.N. Shirodkar had represented the petitioner-company. The learned Advocate appearing for the petitioners, on the other hand, drawing attention to the order of the Division Bench in Appeal No.243 of 2004 in Writ Petition No.410 of 2004 {Indian Express Newspapers (Bombay) Ltd. and {Indian Express Newspapers (Bombay) Ltd. and {Indian Express Newspapers (Bombay) Ltd. and Anr. v. The Municipal Corporation of Greater Mumbai & Anr. v. The Municipal Corporation of Greater Mumbai & Anr. v. The Municipal Corporation of Greater Mumbai & Anr.} Anr.} Anr.}, passed on 13-4-2004 submitted that merely because the petitioners have filed an appeal, that would not [9] disentitle the petitioners from challenging the impugned order and the notice if the petitioners are able to satisfy the Court that the same are without jurisdiction and beyond the statutory powers of the Corporation, while further fairly admitting that the adjudication regarding the merits of the case and about the justification for revision from the financial year 1-4-2002 onwards could be a subject-matter of the appeal, nevertheless, the revision of the assessment for the period prior to 31-3-2002 being without jurisdiction, the same can be adjudicated in writ petition, while restricting the appeal to the period after 31-3-2002 in terms of the order dated 13-4-2004. The learned Advocate, however, also submitted that once the exercise of reassessment being shown to be totally without jurisdiction, nothing would prevent the petitioners from agitating the same in the writ petition and the fate of the appeal would depend upon the order to be passed in the petition. Drawing attention to the proceedings before the investigating officer of the respondent-Corporation which took place on 23-2-2004, the learned Advocate for the respondents submitted that the same would apparently disclose that Shri V.N. Surve, who had appeared on behalf of the petitioners, had requested for postponement of the hearing and when he was asked to argue his case, he had informed that he was instructed merely to seek postponement and he was [10] not in a position to argue the case for the petitioners, and in those circumstances the postponement having been refused, the petitioners are justified in contending about failure on the part of the authorities to comply with the principles of natural justice as there was no fair opportunity to the petitioners to put forth their case before the concerned authority. While contending that the point sought to be raised being in relation to absence of power to the Corporation to reassess the rateable value once finalised, the learned Advocate for the petitioners has sought to rely upon the decisions in the matters of Income-Tax Officer, V Circle, Madras, and Income-Tax Officer, V Circle, Madras, and Income-Tax Officer, V Circle, Madras, and another v. S.K. Habibullah, another v. S.K. Habibullah, another v. S.K. Habibullah, reported in 1962 Vol.44 ITR 809, Commisioner of Income-Tax, Bombay Presidency & Commisioner of Income-Tax, Bombay Presidency & Commisioner of Income-Tax, Bombay Presidency & Aden v. Khemchand Ramdas, Aden v. Khemchand Ramdas, Aden v. Khemchand Ramdas, reported in 1938 Vol.6 ITR 414, M/s. East India Commercial Co. Ltd., Calcutta and M/s. East India Commercial Co. Ltd., Calcutta and M/s. East India Commercial Co. Ltd., Calcutta and another v. Collector of Customs, Calcutta, another v. Collector of Customs, Calcutta, another v. Collector of Customs, Calcutta, reported in AIR 1962 SC 1893 and Whirlpool Corporation v. Registrar Whirlpool Corporation v. Registrar Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, of Trade Marks, Mumbai and others, of Trade Marks, Mumbai and others, reported in AIR 1999 SC 22. 6. As regards the contention regarding false statements and suppression of facts, undoubtedly, the contents of ground (j) of para 13 relates to the contention about failure on the part of the authority to adhere to the principles of natural justice in the matter of giving opportunity of being heard to the petitioners while [11] deciding the matter. However, it is to be noted that the contents of ground (j) relate to the contention sought to be raised on the basis of the facts revealed in the petition and the accompanying materials. Undoubtedly, the evidence in relation to the proceedings before the respondent-authority in possession of the respondents placed by them on record reveal that when the matter came up before the authority on 23-2-2004, Shri V.N. Surve appeared on behalf of the petitioners being their representative. The very first part of the record pertaining to the proceedings of the said day by the Corporation’s officer reveal that Shri Vikrant N. Surve for and on behalf of M/s. Chemtex Engineering of India Limited had appeared and presented written application for postponement of the hearing. However, considering the objections which were sought to be raised by Superintendent Kazi on behalf of the respondent-Corporation for the postponement of the hearing, the investigating officer had asked Shri V.N. Surve to argue his case. To that, he had submitted that since the assessment of the rateable value was already finalised in April, 2002, he had no further arguments in the matter. It is to be noted that the proceeding sheet recorded by the officer nowhere discloses that Shri V.N. Surve who had appeared before the authority to present the written application for postponement of the hearing was empowered to argue the case on behalf of the [12] petitioners or that he was fully conversant with all the facts of the case. On the contrary, the affidavit dated 16-8-2004 filed by Shri V.N. Surve discloses categorical statement to the effect that he had no authority to argue the case and he had appeared before the authority merely to request the postponement of the case. It is another thing that the petitioners could not have presumed that the authority would have acceded to the request for postponement made on behalf of the petitioners but that itself would not lead to the conclusion that Shri Vikrant N. Surve was either competent to argue the case or was fully aware of the facts relevant for decision in the matter. Considering the same, complaint about the failure on the part of the concerned authority to observe the principles of natural justice in as much as that there was no fair opportunity of being heard afforded in the matter, cannot be said to be amounting to making false statement by the petitioners. In fact, it is not a statement of fact but it is rather a submission on behalf of the petitioner based on the facts of the case. Even assuming that it is an incorrect submission, that itself cannot be sufficient to non-suit a party in the writ petition, ignoring the merits of the case. 7. As regards the false statement pertaining to the absence of authority to Shri A.N. Shirodkar and [13] reference to the proceedings before the authority in relation to his appearance on behalf of the petitioners, it is to be noted that undoubtedly, the proceedings dated 11-4-2002 disclose that Shri A.N. Shirodkar had appeared before the Superintendent Shri Moon of the Corporation on behalf of the petitioners but one fails to understand how the appearance of Shri Shirodkar on 11-4-2002 can be related to the proceedings which took place on 23-2-2004. Once it is not in dispute that the hearing of the matter relevant for the decision was fixed on 23-2-2004, merely because Shri A.N. Shirodkar had appeared before the authority on 11-4-2002, that would not be sufficient to contend that there was any false statement about absence of authority to Shirodkar to appear in the matter on 23-2-2004. Besides, as rightly submitted by the learned Advocate for the petitioners, the contention regarding Shirodkar being duly authorised to appear in the matter, is sought to be raised for the first time across the bar when the matter was being heard yesterday and the document in regard to the authority to Shri Shirodkar was also produced yesterday. Besides, even assuming that Shirodkar was authorised to appear on 23-2-2004, the fact remains that the noting of 23-2-2004 pertaining to the appearance on behalf of the petitioners relate to Shri Vikrant N. Surve and not to Shri Shirodkar. Undoubtedly, para 3 of the affidavit of Shri V.N. Surve, filed on 16-8-2004, [14] reveal a statement to the effect that:- "3. I further submit that the Petitioners’ Company has no representative by the name of A.N. Shirodkar. He is not the Tax Consultant of the Petitioner Company nor he had any authority to represent the Petitioners before the Inquiry Officer and therefore the said A.N. Shirodkar (whom the petitioners even do not know) had no authority to represent the Petitioners before the Inquiry Officer on 11th April 2004." It is to be noted that the said statement has been made on oath by the deponent. In answer to that, the learned Advocate for the respondent-Corporation has merely sought to produce the copy of a letter stated to have been issued by the petitioners in favour of A.N. Shirodkar on 11-4-2002. The records also reveal that Shri A.N. Shirodkar had appeared before the Superintendent Moon on 11-4-2002 and objected to the revision of the rateable value. It is also apparent that the said objection was in the proceeding in relation to the petitioner-company. However, once there is a statement on oath disclosing that A.N. Shirodkar [15] had no authority to appear on behalf of the petitioners on 11-4-2002, in case the respondents wanted to dispute the said statement and warrant an order of the nature which would disentitle the petitioners of being heard in the matter, the respondents ought to have filed appropriate affidavit in that regard along with the copy of the alleged authority to A.N. Shirodkar by the petitioners. Serious allegation in the nature of a false statement on behalf of the petitioners cannot be dealt with nor the petitioners can be penalised on mere submission by the learned Advocate on behalf of the respondents in that regard without there being sufficient material placed on record countering the statement made on behalf of the petitioners on oath. Even otherwise, and even assuming that there is an incorrect statement as regards the absence of authority to A.N. Shirodkar by the petitioners, that may call for some penalty but certainly it would not warrant harsh penalty in the nature of the petitioners being shunted out of the Court on that ground if the petitioners are able to disclose total absence of authority to the respondents in relation to the merits of the case pertaining to reassessment of the rateable value. 8. The law on the point that in case the statutory authorities travel beyond the scope of powers given under the statute, nothing prevents the aggrieved party [16] from approaching the Court for relief in exercise of writ jurisdiction, irrespective of availability of the alternative remedy, is well-settled. Here is the case of the petitioners wherein the contentions relate to total absence of power to reassess the rateable value once it is finalised and the clear admission by the learned Counsel on behalf of the respondents that the statute nowhere expressly empowers the Corporation to reopen the assessment regarding the rateable value once finalised. Undisputedly, the reopening of the assessment has been solely on the basis of the Judgment of the High Court in the Writ Petition No.1531 of 2001. In the background of this undisputed fact, and particularly the contention sought to be raised in the petition, applying the law laid down by the Apex Court in the matters of M/s. East India Commercial Co. M/s. East India Commercial Co. M/s. East India Commercial Co. Limited Limited Limited (supra) as well as in Whirlpool Corporation Whirlpool Corporation Whirlpool Corporation (supra) and further the order of the Division Bench in Appeal No.243 of 2004 Appeal No.243 of 2004 Appeal No.243 of 2004 (supra), the petition in relation to reopening of the assessment for the period prior to 31-3-2002 is clearly maintainable. In Appeal No.243 of 2004 the appellants Indian Express Newspapers (Bombay) Limited had sought to challenge the revision of the rateable value for the periods 1-4-2000 to 11-1-2002, 12-1-2002 to 28-2-2002 and 1-3-2002 30-3-2002 wherein all the assessments had already been finalised by an earlier order dated 6-5-2002 and therefore the [17] contention was that those could not have been reopened on the basis of the decision of the Division Bench in the Writ Petition No.1531 of 2001. While observing that considering the decision of this Court in Abdeali Shaikh Abdeali Shaikh Abdeali Shaikh Tayebali Zaidy & Anr. v. The Bombay Housing Area and Tayebali Zaidy & Anr. v. The Bombay Housing Area and Tayebali Zaidy & Anr. v. The Bombay Housing Area and Development Board & Ors., Development Board & Ors., Development Board & Ors., reported in 1988 Mh.L.J. 707, the contention which was raised appeared to be sound, the order passed by the learned single Judge in the Writ Petition No.410 of 2004 dismissing the writ petition solely on the ground of availability of appeal was set aside while restricting the dispute in the writ petition in relation to the period for which the assessment was earlier finalised by the order dated 6-5-2002 and what was subsequently reopened. Though it can be argued that the order dated 13-4-2004 is not a judgment laying down the law in that regard, nevertheless, apart from keeping in mind the judicial discipline and bearing in mind the well-established principles of law that in cases where the petitioner is, prima facie able to disclose total absence of jurisdiction or power to the concerned authority to take action sought to be impugned in the petition, mere availability of alternative remedy by way of an appeal would not be sufficient to dismiss the petition in limine. The preliminary objections sought to be raised on behalf of the respondents, therefore, are devoid of substance and are rejected. [18] 9. Before proceeding to consider the first ground of challenge in relation to the absence of authority, as already noted above, the learned Counsel for the respondents has fairly conceded that there is no express power to reopen the assessment already finalised under the said Act and therefore it is not necessary to deal with the issue as to whether the provisions of law under the said Act empowers the Corporation to reopen the assessments already finalised. Obviously, the assessment once finalised, the Corporation would not be entitled to reopen the same in the absence of statutory provisions. However, it is the contention of the respondents that there is a specific declaration in that regard by this Court in the Writ Petition No.1531 of 2001 pursuant to withdrawal of the circulars. It would be therefore necessary to ascertain what was the decision as such by this Court in the Writ Petition