1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO. 1218 OF 2009 . Mirza Mahmoodbeg Rasoolbeg & Anr. ..Petitioners. vs. Municipal Corporation of Greater Mumbai & Ors. ..Respondents. .... Mr.R.M. Nakhwa, i/b. Vasant Dhawan, for Petitioners. Ms. T.H. Puranik, for Respondent Nos.1 to 5. .... CORAM : S.J.KATHAWALLA, J. DATE : 25TH AUGUST 2009. P.C. By this writ petition, the petitioners have challenged the warrant of attachment no. A/Attch/72/04 /2007-08, dated 1 st January 2008 and the auction sale notice dated 19 th September 2008, issued by the respondent Corporation. 2. The petitioners are the owners of the building situate at 233, Perin Nariman Street, Fort, Mumbai-400 001 and the building is assessed by the Municipal Corporation under assessment no.A-2103-2104, account no.A-12-0191-001, property no. (New) 00306854, in the name of the petitioners. The said building consists of ground and three upper floors. The said building is occupied by 2 the tenants. The petitioners have stated that the second floor of the building is divided into two portions, i.e. front portion and rear portion, each of the said portions is having independent entrance. 3. It is the case of the petitioners that respondent nos. 6, 7 and 8 in breach of the terms of tenancy and in violation of the provisions of the Maharashtra Rent Control Act, 1999 have parted with the possession of the suit premises in favour of third parties and have allowed them to occupy the said floors independently under secret arrangement. Thus, according to the petitioners, respondent nos. 6, 7 and 8 have unlawfully sublet and/or transferred their interest and/or have given on leave and licence basis the first and second floors to third parties without obtaining oral/ written consent of the petitioners. According to the petitioners because of the respondent nos. 6, 7 and 8 unlawful act of subletting and recovering exorbitant amounts by way of compensation/ charges, the Mumbai Municipal Corporation has increased the rateable value of the said building. In view of the increase in the rateable value, there is also steep increase in the municipal taxes and repair cess. The rateable value of the said 3 building earlier was Rs.3,155/-. However, on account of unlawful acts committed by respondent nos. 6, 7 and 8, the rateable value is increased to Rs.1,78,875/- . 4. The petitioners have stated that respondent nos.6, 7 and 8 have caused unlawful loss to the petitioners and as such, are liable to pay to the petitioners the differences in property taxes on the basis of rent payable by respondent nos.6, 7 and 8 and actual amount of property taxes levied by the Municipal Corporation as also repair cess. 5. According to the petitioners on 10 th December 2007, he lodged a complaint against the increase in the rateable value with the Office of the Assessor and Collector, ‘A’ Ward of Mumbai Municipal Corporation. However, during the pendency of the said complaint, without hearing the petitioners, the Office of the Assessor and Collector, ‘A’ Ward, issued a warrant of attachment, in respect of the petitioners’ property. The petitioners have submitted that under the provisions of the Maharashtra Rent Control Act, 1999, respondent nos.6, 7 and 8 are liable to pay the differences in the property taxes 4 and repair cess on the basis of rent payable by him as also increase in the property taxes and repair cess as the same has been increased due to unlawful act of respondent nos.6, 7 and 8 under the provisions of the Bombay Municipal Corporation Act, 1888. The petitioners have stated that respondent no.4 issued a notice under section 164 of the Bombay Municipal Corporation Act for investigation and disposal of the complaints under sections 162 to 165 of the Bombay Municipal Corporation Act, 1888 and fixed the hearing on 28 th January 2008 though the attachment notice was dated 1 st January 2008. The petitioners have therefore submitted that the said warrant of attachment has been issued by the respondent Corporation without taking cognizance of the pending complaints by the petitioners and without giving any hearing to the petitioners. It is submitted that the warrant of attachment is issued without resorting to the remedy of recovery of property taxes from the tenants, members/ occupant holders under section 146(1) of the Bombay Municipal Corporation Act, 1888 and is therefore issued without application of mind, which is contrary to the provisions of sections 209, 209A of the Bombay 5 Municipal Corporation Act, 1888 and that the notice has not been served upon the actual occupier, demanding the taxes under section 212. 6. The petitioners have also pointed out the auction sale did take place but since the property has its own problems qua location etc., there were no takers. In view thereof, the warrant of attachment and auction notice have become infructuous. 7. However, when this Court inquired with the learned Advocate appearing for the Corporation as to why such warrants of attachment are issued by the Corporation without giving any opportunity to the concerned party of a hearing, it is submitted that the Corporation will give hearing and pass fresh orders if the Court so directs. The following order is therefore passed only with the intention of avoiding further litigation on the same aspect. (i) The respondent Corporation shall after giving a hearing to the petitioners and to respondent nos. 6, 7 and 8, if necessary, and after considering their written submissions and/or documents in support filed by them if any, pass fresh orders calling 6 upon the parties to pay the rateable value qua the relevant period. (ii) The petitioners shall appear before the Investigating Officer, ‘A’ Ward on 7 th September 2009 at 11.00 a.m. when the Investigating Officer shall pass necessary directions as regards the hearing in the matter. 8. Writ petition is accordingly disposed of with no order as to costs. [ S.J.KATHAWALLA, J. ]