1 wp-668 -2001 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.668 OF 2001 1. Smt Vijaya Nipun Thakkar ) 2. Smt. Chandraben Ishwardas Thakkar ) 3. Nipun Ishwardas Thakkar ) 4. Jitendra Vasani ) All of Mumbai Indian Inhabitants, ) residing at Jai Shree Ranchhod Dham ) Lokmanya Tilak Road, Dahisar (West) ) Mumbai 400 068 )..Petitioners Versus 1.The Municipal Corporation of ) Greater Mumbai, a stuatutory authority ) establish under the provisions of Bombay ) Municipal Corporation Act 1888 and having ) its office at Mahapalika Marg, V.T.Station ) Mumbai 400 001 ) 2. Dy. Municipal Commissioner of B.M.C. ) having his office at Mahapalika Marg, ) V.T.Station, Mumbai 400 001 )..Respondents Mr. Tushar Bhavsar a/w Mr. Dushyant Purekar i/b Utangale & Co. for the Petitioners Ms P.A. Purandare for the Respondents CORAM : P.B.MAJMUDAR & R.M. SAVANT, JJ. DATE : 11th OCTOBER, 2011. ORAL JUDGMENT (PER SHRI R.M.SAVANT J.) 1 The above Petition filed under Article 226 of the Constitution of India, takes exception to the warrant of attachment dated 30-3-1999, 2 wp-668 -2001 the said warrant of attachment came to be issued as there was a default in the payment of the property tax in respect of the building situated at Village Dahisar bearing Survey No.267 (part), Hissa No. 1/8(part) and C.T.S. No.850 A-A1 situate at Lokmanya Tilak Marg, Dahisra (West) Mumbai 400 068. The property tax is payable in respect of two periods i.e. the period from 1-4-1978 to 30-9-1978 and 1-4-1986 to 30-9-1998, which are mentioned in the original warrant of attachment, a copy of which is produced by the Learned Counsel appearing for the Respondent No.1 corporation. 2 It is the case of the Petitioners that though the ancestors of the Petitioners were the owners of the original structure which stood on the property in question, the said property was taken for redevelopment pursuant to an agreement entered by the ancestral of the Petitioners with one M/s. Jay Vijay. The CC and IOD in respect of the said proposed redevelopment was issued on 14-9-1981 and 15-5-1982 respectively. The part occupancy certificate in respect of the building in question for ground plus two floors was issued on 15-5-1986 and the full occupancy certificate for ground plus four floors was issued on 6-5-1987. The said facts as such are not in dispute. The Learned Counsel for the Petitioners has tendered the said documents by way of compilation, which has been served on the Learned Counsel appearing for the Respondent No.1 Corporation. 3 It is the case of the Petitioners that in so far as, the 3 wp-668 -2001 premises which are in their occupation, they have paid the property tax on pro rata basis for the said premises up to 2011 which includes the period anterior to the issuance of the warrant of attachment i.e. the year 1987 to the year 1999 i.e till the date of issuance of warrant of attachment. It is contended by the Learned Counsel appearing for the Petitioners that in so far as the rest of the premises in the building are concerned, the Respondent No.1 Corporation may proceed against the occupants of the said premises if they have not discharged their liability towards the payment of property tax. 4 The Learned Counsel appearing for the Petitioners places reliance on Section 209 of the said Act to contend that the property tax can be recovered on pro rata basis from the respective occupants of the premises in the building in question and the Corporation is obliged to issue separate bills in that respect. 5 We have heard the Learned Counsel for the parties. As indicated above, the warrant of attachment has been issued on account of the non payment of the property tax for the two periods which we have adverted to in the earlier part of this order. 6 In so far as, the period up to the issuance of full occupancy certificate i.e 16-5-1987 is concerned, in our view, it would be the liability of the erstwhile owners to discharge the said obligation of the property tax to the Respondent No.1 Corporation. The learned Counsel appearing for the Petitioners Shri Bhavsar fairly accepts the said 4 wp-668 -2001 position and on instructions states that up to 16-5-1987 i.e. the date of the issuance of the full completion certificate, the liability for payment of the property tax for the said period would be that of the petitioners and therefore the same would be paid by the Petitioners. 7 In so far as, the period beyond 16-5-1987 is concerned, we are of the view that since it is the case of the Petitioners that they have paid the property tax on pro rata basis for the premises in their occupation, they can make an application to the Assessor and Collector of the Corporation invoking Section 209 of the said Act, for issuance of separate bills in respect of each of the premises in question in the building. On receipt of such an application the Corporation is directed to pass appropriate orders having regard to Section 209 of the said Act. 8 In so far as, the liability of the Petitioners is concerned in respect of the premises occupied by them, the Petitioners can make a representation and annex the evidence in support of their case that they have paid the property tax in respect of the premises in their occupation. The Respondent Corporation may thereafter consider the said material and pass appropriate orders as regards the liability of the Petitioners in respect of the premises in their occupation, as well as the liability which is accepted by the Petitioners upto 16-5-1987. The same to be done within the period mentioned hereinafter. In so far as the rest of the premises in the building are concerned, if the occupants have not paid the property tax in respect of the premises in their occupation, the 5 wp-668 -2001 Respondent No.1 Corporation may independently proceed against them in accordance with law. The Learned Counsel for the Petitioners states that the representation would be made by the Petitioners within a period of 6 weeks from date. On receipt of such representation the Respondent No.1 Corporation to pass appropriate orders in accordance with law and in the light of the observations made in the instant order, within a period of 6 weeks thereafter. In the event, there is a short fall in the payment by the Petitioners of the property tax in respect of the premises in their occupation, the Petitioners to make good the said short fall within a period of 4 weeks of the communication by the Respondent No.1 Corporation. As indicated above, in so far as the other occupants of the building are concerned, if the property tax has not been paid in respect of the premises in their occupation, the Respondent No.1 Corporation to proceed against them in accordance with law. 9. Rule is accordingly made absolute to the aforesaid extent with parties to bear their respective costs. (R.M.Savant, J.) (P.B.Majmudar, J.)