1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.832 OF 2001 Skylark Co-operative Housing Society Ltd. Through its Secretary Shri B.D.Bhardwaj, having its office at Skylark Society, Survey No.161, Juhu Versova Link Road, Andheri (W), Mumbai – 400 053. .....Petitioner V/s. 1. The State of Maharashtra, through the Secretary in the Department of Revenue and Forest, Mantralaya, Mumbai. 2. The Collector of Mumbai, Old Custome House, Mumbai – 400 023. 3. Additional Commissioner for Revenue, Konkan Division, being having office at M.G.Road, Mumbai – 400 023. 4. The Municipal Commissioner, Municipal Corporation of Brhianmumbai, Mahapalika Bhavan, Mahapalika Road, Mumbai – 400 001. 5. The Assistant Assessor and Collector, K West /ward Office, having his Office at Assessment & Collection Department, Paliram Road, Opp. BEST Depot, Andheri (W), Mumbai – 400 053. ..... Respondents Mr.D.A.Nalawade, for the petitioner. Mrs.Madhubala Kajale, A.G.P., for the respondent Nos.1 to 3 and 5. Mr.H.C.Pimple, for the respondent – BMC. 2 CORAM :P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE : JUNE 19, 2009 ORAL JUDGMENT (Per P.B.Majmudar, J. ) :- 1. By way of this petition, the petitioner-Society has challenged the issuance of warrant of attachment dated 28-02-2001 under Section 203 and 207A(3) of the Bombay Municipal Corporation Act, for recovery of purported arrears of property tax in respect of the land and structure held by the petitioner’s society. The petitioner is a co-operative housing society. It is the case of the petitioner that because of certain illegalities committed by the then Chief Promoter of the society in inducting various persons as members of the society, a show cause notice was issued to the Chief Promoter of the society to rectify the breaches of conditions of allotment of the land. Pursuant to the show cause notice, respondent No.2 resumed the possession of the land on 22-06-1994. Subsequently, an order was passed to return the land in question together with the structure of the society on payment of penalty of Rs.2.5 lakhs. Subsequently, possession was handed over to the society on 20-12-1995 on the payment of penalty amount. Thereafter, respondent No.5 issued notice of attachment for non-payment of property tax for the intervening period from 01-10-1993 to 31-03-1995. Certain correspondence were entered 3 into between the parties in this behalf. The petitioner’s society was subjected to show cause notice under Section 207A(2) on 07-07-2000 in connection with the demand of property tax for the intervening period from 01-04-1994 to 31-03-1996. It is the case of the petitioner’s society that since the society was not in physical possession of the said property, as the society was dispossessed of the land for the said period, the society is not liable to pay property tax for the intervening period as aforesaid. The warrant of attachment was issued for the last outstanding amount of the property tax. The petitioner has therefore, approached this Court challenging the said decision. 2. The learned counsel for the petitioner submitted that the petitioner society has already deposited the amount before the authority in view of the interim order passed by this Court and the attachment is now lifted. He further submitted that the petitioner society was not liable to pay property tax as it was not in physical possession. The Assistant Assessor and Collector by his order dated 19-06-2000, rejected the representation of the petitioner which was addressed to the Municipal Corporation dated 05-11-1999 by giving detailed reasons. 3. In our view, the complaint/representation should have been attended to at the higher level and the reasoning given by the said Officer cannot be said to be a reasoned order, as the real issue raised by the 4 petitioner is not dealt with in the order. Considering the facts and circumstances of the case, while setting aside the order dated 19-06-2000, in our view, this petition should be treated to be a representation addressed to the Joint Municipal Commissioner, Bombay. The petitioner society may send a copy of this petition to the Joint Municipal Commissioner, which may be treated as a representation made on behalf of the petitioner. A copy of this order may be sent to the Joint Municipal Commissioner. After receiving the same from the petitioner, the Joint Municipal Commissioner shall decide the said representation of the petitioner after affording a reasonable opportunity of hearing to the petitioner in this behalf. The Joint Municipal Commissioner may intimate the date of hearing to the petitioner on which date the petitioner can attend the matter and submit his say. The Joint Municipal Corporation shall consider the representation of the petitioner and may pass appropriate order in accordance with law on such representation and as stated earlier, the petitioner to supply copy of the petition as well as produce copy of the order before the said officer on or before 10-07-2009. In case the decision is taken in favour of the petitioner, whatever amount deposited by the petitioner with the Department should be adjusted as per rules and regulation of the Corporation and even question of paying interest in this behalf shall be considered in accordance with law as the 5 petitioner has deposited the amount since long. It is clarified that at the time of deciding the representation, it is for the Officer to consider as to whether the petitioner can be said to be in actual possession of the property or not and if not, what is its effect. The authority shall also consider the effect of resumption order passed by the State Government as well as say of the petitioner that since the land was resumed, the society was not in physical possession. 4. The writ petition is accordingly allowed to the aforesaid extent, with no order as to costs. ( R.M.SAVANT, J. ) (P.B.MAJMUDAR, J.)