WP2381-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2381 OF 2010 M/s.J. Gala Enterprises .. Petitioner Versus MCGM & Ors .. Respondents Ms.Rajni Iyer a/w Sanjay Kadam & Ms.Apeksha Sharma i/by Kadam & Co for the petitioner. Mr.S.S.Pakale a/w Mrs.T.H.Puranik for the respondents. CORAM : S.C.DHARMADHIKARI, J. DATE : 25th January 2011 P.C.: 1] The petitioner is aggrieved by a speaking order, on a complaint against rateable value. 2] By the orders that have been passed by the Corporation, the fixation of the rateable value has been confirmed with effect from 1st June 2008. The respondents have raised a preliminary objection to the maintainability of this petition by pointing out that an Appeal lies under section 217 of the Mumbai Municipal Corporation Act, 1888 WP2381-10 2 (Act for short) to the Chief Judge, Small Causes Court, Mumbai. 3] On the other hand Ms.Iyer, learned Senior Counsel appearing for petitioner has invited my attention to some of the annexures to the petition and has contended that a commencement certificate was granted on 30th August 2007 and the petitioners commenced the construction work. However, on 31st March 2009 the petitioners received six special notices. The rateable value was sought to be revised by relying upon a circular bearing No.AC/2271/MC dated 3rd November 2008. It is contended that the circular would have no application as the commencement certificate was granted on 30th August 2007. The petitioners have proceeded in accordance with the earlier circular. Therefore, when their case is covered by the circular bearing No.AC/15/Gen dated 8th July 1997, (earlier circular), then, the levy, assessment and recovery on the basis of applicability of the new circular is contrary to law. The challenge is to the circular itself and the retrospective application of the same. Therefore, when the legality and constitutionality of the levy is challenged, then, the WP2381-10 3 appeal is not alternate, equally efficacious remedy is her submission. 4] It is not possible to accept this contention of Ms.Iyer for more than one reason. Section 217 of the Act reads thus:- “217. Appeals when and to whom to lie. (1) Subject to the provisions hereinafter contained, appeals against any rateable value [or the capital value, as the case may be,] or tax fixed or charged under this Act shall be heard and determined by the Chief Judge of the Small Causes Court. (2) But no such appeal [shall be entertained] by the said Chief Judge, unless- (a) it is brought within [twenty-one days] after the accrual of the cause of complaint; (b) in the case of an appeal against a rateable value [or the capital value, as the case may be ,] a complaint has previously been made to the Commissioner under section 163, and such complaint has been disposed of; (c) in the case of an appeal against any amendment made in the assessment book under section 167 during the official year, a complaint has been made by the person aggrieved within [twenty-one days] after he first received notice of such amendment, and his complaint has been disposed of; (d) in the case of an appeal against a tax, or in the WP2381-10 4 case of an appeal made against a rateable value [or the capital value; as the case may be,] [the amount of the disputed tax claimed from the appellant, or the amount of the tax chargeable on the basis of the disputed rateable value, up to the date of filing of the appeal, has been deposited by the appellant with the Commissioner [and such appeal is accompanied by a receipt of full amount of tax to which appeal relates].] [(2A) Where the appeal is not filed in accordance with the provisions of clauses (a) to (d) of sub-section (2), it shall be liable to be summarily dismissed.] [(3) In the case of any appeal entertained by the Chief Judge, but not heard by him, before the date of commencement of the Maharashtra Municipal Corporations (Amendment) Act, 1975, the Chief Judge shall not hear and decide such appeal, unless the amount of the dispute tax claimed from the appellant, or the amount of the tax chargeable on the basis of the disputed rateable value, as the case may be, up to the date of filing the appeal, has been deposited by the appellant with the Commissioner within thirty days from the date of publication of a general notice by the Commissioner in this behalf in the local newspapers. The Commissioner shall simultaneously serve on each such appellant a notice under sections 484 and 485 and other relevant provisions of this Act, for intimating the amount to be deposited by the appellant with him. (4) As far as possible, within fifteen days from the expiry of the period of thirty days prescribed under sub-section (3), the Commissioner shall intimate to the Chief Judge the names and other particulars of the appellants who have deposited with him the required amount within the prescribed period and the names and other particulars of the WP2381-10 5 appellants who have not deposited with him such amount within such period, on receipt of such intimation, the Chief Judge shall summarily dismiss the appeal of any appellant who has not deposited the required amount with the Commissioner within the prescribed period. [(5) In the case of any appeal against any rateable value or property tax fixed, or charged under this Act, which may have been entertained by Chief Judge before the commencement of the Act aforesaid or which may be entertained by him after the said date the Chief Judge shall not hear and decide such appeal unless the property tax, if any, payable on the basis of the original rateable value plus eighty per centum, of the property tax claimed from the, appellant on the increased portion of the rateable value of the property out of the property tax claimed under each of the bills which may have been issued, from time to time, since the filing of appeal, is also depopsited with the Commissioner within the period prescribed under the Act. In case of default by the appellant, on getting an intimation to that effect from the Commissioner, at any time before the appeal is decided, the Chief Judge shall summarily, dismiss the appeal: Provided that, in case the appeal is decided in favour of the Corporation interest at 6.25 per centum per annum shall be payable by the applicant on the balance amount of the property tax from the date on which the amount of property tax, was payable: Provided further that, in case the appeal is decided in favour of the appellant and the amount of property tax deposited with the Corporation is more than the property tax payable by him, the Commissioner shall adjust the excess amount of the property tax with interest at 6.25 per centum WP2381-10 6 per annum from the date on which the amount is deposited with the Corporation towards the property taxes payable thereafter].” 5] A bare perusal of the same would indicate that the appeal lies against any rateable value or tax fixed or charged under the Act. The provision of Appeal is worded widely. As held by the Division Bench in the case of M/s.Naman Developers (P) Ltd. & Anr. Vs. Municipal Corporation of Greater Bombay and ors. (Writ Petition No.2465 of 2001) and other Writ Petitions decided on 19th August 2002, the legality, correctness or otherwise, justification of the High rateable value fixed has to be questioned in a statutory appeal under section 217 of the BMC Act, 1888. It is clear that the issues raised in this petition can be safely gone into and considered by the appellate authority. It is not as if there is any restriction on the powers of the learned Chief Judge. In these circumstances, apart from assessment and valuation, even the legality of the levy can be challenged. The Division Bench of this Court in a decision rendered in Writ Petition No.1709 of 2010 dated 19th October 2010, (New Pharma Pvt.Ltd. & WP2381-10 7 Anr. Vs. Municipal Corporation of Brihanmumbai & Ors.) a copy of which has been handed over by Mr.Pakale, has held that all the contentions can be raised before the Appellate Authority. This conclusion of the Division Bench is based on certain decisions of the Supreme Court including the landmark ruling reported in A.I.R. 1977 S.C. 954 (Bata Shoe Company Vs. Jabalpur Municipality). 6] For these reasons, I am unable to accept the contentions of Ms.Iyer. The petitioner has an alternate equally efficacious remedy by way of an appeal, Under section 217 of the Act and all contentions and pleas so also the grounds raised in the petition, including the applicability of the circulars, can be raised before the Appellate Authority. In these circumstances, the petition is dismissed on the ground of availability of alternate, equally efficacious remedy. 7] At this stage it is submitted that the alternate remedy cannot be availed of because of the bar of limitation. However, it is clear that the petition is pending before this Court. It has been disposed of WP2381-10 8 today. Therefore, if the appeal is filed within a period of 15 days from the date of receipt of a copy of this order, the learned Chief Judge shall dispose of the same on merits and the Corporation will not be permitted to raise the bar of limitation. However, in the event, the appeal is not filed within this period, then the same will be dealt with in accordance with law. 8] Petition disposed off in the above terms. No costs. (S.C.DHARMADHIKARI, J)