wp3587-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3587 OF 2011 M/s.Geet Publicity .. Petitioner Versus Assessor & Collector (B Ward) Brihan Mumbai Mahanagar Palika and Anr. .. Respondents Mr.Aniruddha Joshi with A.Dasgupta i/b. Jhangiani Narula & Associates for petitioners Mr.M.M.Malvankar for respondent No.1 CORAM : S.C.DHARMADHIKARI, J. DATE : 8th July 2011. P.C.: 1] This petition under Article 227 is directed against the order of the Additional Chief Judge of Court of Small Causes, Mumbai dated 31st March 2011, directing the appellants to deposit Rs.69,10,380/- on or before 30th April 2011, failing which the appeal filed to challenge the action of the Corporation leving, assessing and recovering property tax will stand dismissed. 2] The argument of the petitioner is that the property taxes are being sought to be recovered in respect of the wp3587-11.doc 2 advertisement/ hoarding which has been erected by the petitioner. It is submitted that the Kiosk is a moveable property and does not amount to a structure and/or “building” as defined in the B.M.C.Act and, therefore, there cannot be any assessment for levy of taxes. 3] It is not necessary to go into this question for the purpose of present petition because the same is the subject matter of the pending appeal. The other issue raised for consideration of this Court is that if the hoarding or advertisement is displayed pursuant to an agreement between the petitioner and the third party and that period having come to an end or that the hoarding is fixed and displayed for certain period or limited duration, the Corporation cannot, without anything more, straight away recover the property tax for the entire assessment year. In other words, the property taxes qua the hoarding or advertisement must be seen distinctly from that of the property tax on the building/ property. 4] Even this issue need not be decided in the peculiar facts of this case, because it is stated by the petitioners in this petition that they executed an agreement dated 15th December 2005 with Maharashtra State Road Development Corporation for display of advertisement on Electric Poles at various flyovers, which agreement was for a period of three years and wp3587-11.doc 3 came to an end on 14th December 2008. The petitioner had installed Kiosk i.e. Movable acrylic boxes on the poles. The rateable value has been fixed with effect from 1st April 2007. The petitioners were aggrieved and dis-satisfied with the assessment made vide order dated 3rd February 2010. The property taxes are demanded on the basis that during this period, the advertisements were displayed. However, if the demand is with effect from 1st April 2007, then, the commensurate liability to pay tax would be till such time as the advertisement was displayed or in any event, till the agreement was in force. Beyond that period, petitioner's liability to pay tax will not arise. 5] Since there are alternative pleas which have also been raised, interest of justice would be served if without prejudice to the rights and contentions of both sides, it is directed that on deposit of Rs.39,50,000/- within a period of two months from the date of receipt of a copy of this order, the Additional Chief Judge, Court of Small Causes shall revive the appeal preferred by the petitioner for disposal of the same on merits and in accordance with law. Needless to state that the deposit will be without prejudice to the rights and contentions of both sides and it is clarified that no opinion is expressed on the contentions of parties. wp3587-11.doc 4 6] Needless to further state that if no compliance is made the impugned order will stand confirmed and the petition to then stand dismissed without further reference to Court. 7] Writ petition is disposed off accordingly. No costs. (S.C.DHARMADHIKARI, J)