( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION USJ FIRST APPEAL NO.440 OF 1990 FIRST APPEAL NO.440 OF 1990 FIRST APPEAL NO.440 OF 1990 1. Municipal Corporation of Gr.Bombay 2. Municipal Commissioner of Gr.Bombay ..Appellants V/s. 1.Smt.Gopikabai Dharmaji Kharude 2.Krishna Dharmaji Kharude ..Respondents ...... Mr.R.T.Walawalkar, Special Counsel with J.Xavier for the appellants - BMC None for the Respondents ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 13th April, 2009 DATED : 13th April, 2009 DATED : 13th April, 2009 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. The respondents are the owners of certain properties more particularly set out in paragraph 2 of ( 2 ) Judgment dated 16th December, 1987 passed by learned Additional Chief Judge of the Small Causes in Municipal Appeal No.111 of 1985. The ratable value in respect of the said property was fixed @Rs.32,957/-. Subsequently, on the ground of increase in the permitted increases, the appellants issued notice for revising the ratable value and after hearing the respondents, the ratable value was fixed at Rs.34,740/- net per annum w.e.f. 1st April, 1983. The respondents were aggrieved by the said order of fixing of ratable value and hence preferred Municipal Appeal No.111 of 1985 in the court of Small Causes at Bombay. The learned Additional Chief Judge of Court of Small Causes, Bombay (hereinafter referred to as the "learned Judge") decided the said appeal by order dated 16th December, 1987 and he allowed the appeal and the order dated 16th November, 1984 by which the ratable value was fixed at Rs.34,740/- was set aside and restored the ratable value at Rs.32,957/-. This order dated 16th December, 1987 is challenged in the first appeal. 2. After having considered the record and the arguments advanced by learned advocate Mr.R.T. Walawalkar, following points arise for my determination. ( 3 ) (i) Whether the Municipal Corporation was right in going in for review of ratable value on account of increase in the permitted increases. Ans. - In the affirmative. (ii) Whether the impugned order dated 16th December, 1987 requires interference. Ans. - In the affirmative. As per final order. 3. It is required to be mentioned that respondents have remained absent from time to time and today also respondents were absent when the matter was called. 4. I have heard learned advocate Mr.R.T. Walawalkar in support of the appeal. He submitted that when permitted increases increase, they get added to the rent payable by the tenant and consequently the total amount of rent payable goes up and that is how the Corporation is entitled to go for revision in the ratable value. According to him, the increase in the permitted increases is a ground for changing the ratable value and that was precisely done by the Corporation and that is how order dated 16th November, 1984 was passed increasing the ratable value to ( 4 ) Rs.34,740/-. The learned advocate Mr.Walawalkar had drawn my attention to the impugned judgment and the relevant portion of the judgment is as follows: . "In my opinion, the increase in the permitted increases cannot be a ground for revision of the ratable value fixed by the respondents". 5. Learned advocate Mr.Walawalkar submitted that this view taken by the learned Judge is contrary to the law laid down by the Supreme Court in the case of Bombay Municipal Corporation V/s. The Life Insurance Bombay Municipal Corporation V/s. The Life Insurance Bombay Municipal Corporation V/s. The Life Insurance Corporation of India, Bombay reported in AIR 1970, Corporation of India, Bombay reported in AIR 1970, Corporation of India, Bombay reported in AIR 1970, Supreme Court 1584. He drew my attention to the observations of the Supreme Court in paragraph 6 where the Supreme Court has with reference to the permitted increases and addition of the said amount of permitted increases to the rent payable observed as follows :- . "The obvious implication of the definition of "permitted increase" in Section 5(7) is that such an increase becomes a part of the rent". 6. Learned advocate Mr.Walawalkar submitted that the learned Judge ought to have noted these ( 5 ) observations and should have accepted the stand of the Corporation. 7. I have considered the submission advanced by the learned advocate Mr. Walawalkar and also judgment relied upon by him, which is mentioned aforesaid. A reading of the said judgment would clearly go to show that as and when there is increase in the permitted increases, said increase will be a ground for going in for revision of ratable value as the said permitted increases will be payable by the tenant. For these reasons, the observations of the learned Judge that increase in the permitted increases cannot be a ground for the revision of the ratable value fixed by the Corporation is contrary to well settled principle laid down by the Supreme Court. If this is be so, the view taken by the learned Judge in the impugned judgment is contrary to the provisions of law laid down by the Supreme Court. Hence, the impugned order dated 16th December, 1987 will have to be set aside and the appeal will have to be allowed. For the reasons mentioned aforesaid, point No.1 is answered in the affirmative and point No.2 is answered in the affirmative i.e. the action on the part of the Corporation in refixing the ratable value on account of increase in the permitted increases is proper and that the impugned order required to be set aside. ( 6 ) 8. For the reasons mentioned aforesaid, the following order is passed in appeal. ORDER ORDER ORDER Appeal is allowed. The judgment and order dated 16th December, 1987 passed by learned Additional Chief Judge, Court of Small Causes at Bombay in Municipal Appeal No.111 of 1985 is set aside. In the facts and circumstances of the case, there shall be no order as to costs. (R.Y. (R.Y. (R.Y. GANOO, J.) GANOO, J.) GANOO, J.)