-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1279 OF 2001 1. Skyline Construction Co., a proprietory firm having ) its office at RNA House, 3rd floor, Opp. Akbarallys, Fort, ) Mumbai-400 023. ) 2. Mrs. Saranga Aggarwal of Mumbai, Indian Inhabitant, ) Proprietress of Petitioner No.1, having her office at ) RNA House, 3rd floor, Opp.Akbarallys, Fort, ) Mumbai-400 023. ).Petitioners versus 1. Municipal Corporation of Greater Mumbai ) having its office at Mahapalika Building, ) Mahapalika Marg, Mumbai-400 001. ) 2. Municipal Commissioner, having his office at ) Mahapalika Building, Mahapalika Marg, ) Mumbai-400 001. ) 3. Assessor and Collector, “P” South Ward, Mitha Nagar, ) Municipal Corporation School Compound, ) Goregaon (West), Mumbai-400 067 ) 4. Assistant Assessor and Collector, ) “P” South Ward, Mitha Nagar, Municipal Corporation ) School Compound, Goregaon (West), Mumbai-400 067 ).Respondents Dr. Milind Sathe, Senior Advocate, with Mr. Kunal Chima, instructed by Mr. Y.M. Chaudhari, for the petitioners. Mr. K.N. Gaikwad for the respondents. CORAM: P.B. MAJMUDAR & R.M. SAVANT , JJ. DATE: JULY 09 , 2009 -2- ORAL JUDGMENT (Per R.M. SAVANT, J.): This petition takes exception to the two notices both dated 28th February, 2000, issued by the respondent No.3 and the order dated 30th November, 2000, passed by the said respondent. 2. The petitioners at the relevant time were the holders of the property bearing Survey Nos. 105 (Part.4), III (Part 1) 125 (Part.5), 122/2 (Part), 120/3(Part), 120/4, 121, 105 /1(Part) situated at Village Goregaon admeasuring about 44000 sq.mtrs. The dispute in the petition is as regards payment of the property tax in respect of the said property. The petitioners’ property has been assessed to property tax on 1st April, 1970. The entire property was vacant land and was assessed on the basis of the rateable value of Rs. 4975/- on which the annual tax payable was Rs. 3384/-. It seems that the petitioners acquired the rights in respect of the said property from its earlier holders M/s. Kooper Cannel and Cafford Ltd. The said property was assessed as vacant land and the petitioners have been paying property tax regularly. 3. Sometime in the year 1999, the petitioners submitted plans for construction of a building/buildings in the above property in respect of a portion admeasuring 3544 sq.mtrs. Commencement certificate was issued by respondent No.1 on 25th June, 1999 and on 14th October, 1999 I.O.D. was issued . The Respondent No.2 issued two notices to the petitioners under Section 167 of the -3- Bombay Municipal Corporation Act, 1888, indicating to the petitioners that the respondents proposed to increase the rateable value on the basis that the said piece of land was “land being built upon”. The said increase was sought to be made effective from 1st November, 1999. The petitioners were asked to file a complaint if they so desired. 4. The petitioners by a communication dated 24th March, 2000 addressed to the Assessor and Collector recorded the complaint about the proposed revision in the rateable value. The petitioners were heard in the matter on 30th November, 2000 by the said Officer pursuant to which he passed an order on the same day. The petitioners in the said complaint, inter alia, pointed out that the property has all along been assessed as a vacant plot of land and that there was no justification whatsoever to change the assessment and rateable value in any manner whatsoever. The respondents by the endorsement made on the notice dated 30th November, 2000 confirmed the proposed revision in the rateable value. It is on the basis of the said enhanced rateable value that two bills were issued. The same resulted in the filing of the present petition. We have heard the learned counsel appearing for the parties. 5. Dr. Milind Sathe, learned senior counsel appearing for the -4- petitioners, relying upon the judgment of the Apex Court in the matter of The Municipal Corporation of Greater Bombay vs. M/s. Polychem Ltd.1 , submitted that the land under construction could not be taxed differently than the open vacant land. Paragraphs 21 and 22 of the said report are relevant and are reproduced hereunder. “21. The above mentioned authorities of this Court, which were cited before us, enable us to hold that the mode of assessment in every case must be directed towards finding out the annual letting value of land which is the basis of rating of land, and, by definition, “land” includes land which is either being built upon or has been built upon. Nevertheless,a reference to the provisions of the Act shows that, after a building has been completed, the letting value of the building, which becomes part of land, will be the primary or determining factor in fixing the annual rent for which the land which has been built upon “might reasonably be expected to be let from year to year”. All that Section 154 seems to contemplate, by mentioning “land or building”, is that land which is vacant or which has not been built upon may be treated,for purposes of valuation, on a different footing from land which has actually been built upon. But, relevant provisions of the Act do not mention and seem to take no account, for purposes of rating, of any building which is only in the course of being constructed although Section 3 (r) of the Act makes it clear that land which is being built upon is also “land”. Hence, so long as a building is not completed or constructed to such an extent that at least a partial completion notice can be given so that the completed portion can be occupied and let, the land can, for purposes of rating, be equated with or treated as vacant land. It is only when the building which is being put up is in such a state that it is actually and legally capable of occupation that the letting value of the building can enter into computation for rating “Rebus sic stantibus.” Although, the definition of land, which is rateable covers three kinds of “land”, yet, for the purposes of rating, Section 154 recognises only two categories. Therefore, all “land” must fall in one of these two categories for purposes 1 AIR 1974 SC 1779 -5- of rating and not outside. 22. The doctrine of sterility, in the context of the provisions we have to construe, cannot apply here. In England, what happens is that when land, which is in the process of being built upon, is equated with vacant land, which is not yielding any profit, it ceases to be rateable land. But, under the statute we have before us, all “land” whether vacant, or in the process of being built upon, or built upon, is rateable according to the well settled principles. All that can be said is that, so long as a building being constructed on some land is not in a state fit for occupation, its rateable value should not be more or less than that of land which is vacant. That however, is not the object of the respondent in invoking the doctrine of sterility. What has happened in the case before us is that the land which was being assessed as rateable so long as it was vacant land has been treated as entirely outside the scope or sphere of rateability just because a building is being erected upon it. As we find no statutory provision which has the effect of conferring such an immunity or exemption upon land which is being built upon, we cannot uphold a conclusion which produces such a startling result.” 6. Reliance is also placed by the learned senior Counsel for the petitioners on a judgement of a learned single Judge of this Court (R.M. Lodha, J. as he then was)in the case of Rialto Co-operative Housing Society Ltd. vs. Municipal Corporation of Greater Bombay and others.1 The learned single Judge, relying upon the Supreme Court judgment (supra), has, inter alia, held that the land under construction could not be treated differently than the vacant land. 7. On behalf of the Respondents, the learned counsel Shri Gaikwad drew our attention to the order passed by the Assistant Assessor and Collector of 1 1998 (1) Bom. C.R. 397 -6- the respondent No.1 dated 30th November, 2000 and submitted that the petitioners in fact had accepted the rateable value fixed as, in the hearing before the said Officer, the representative of the petitioners has stated that the rateable value fixed by the office is fair and reasonable. The learned counsel for the petitioners submitted that the said statement has been disputed by the petitioners in the affidavit-in-rejoinder filed by them. 8. It appears that before the Assessor and Collector of the respondent No.1-Corporation, the representative of the petitioners had not produced the building plans in question. The building plans in question, in our view, are material or germane for a decision in the matter as it is the contention of the petitioners that respondent No.1 could not fix a different rateable value for the land under construction. 9. Though a submission is sought to be advanced on behalf of the respondent-Corporation that the petitioners have an alternate efficacious remedy by way of an appeal before the Small Causes Court. In view of the fact that the above petition was admitted and pending disposal for the last eight years, we are not inclined to accept the said submission. In this connection, a useful reference could be made to the judgments of the Apex Court in the cases of I. Hirday Narain vs. Income-tax Officer, Bareilly1 and Raj Soni vs. Air Officer in 1 1970 (2) SCC 355 -7- charge Administration and another1. In Hirday Narain’s (supra), the Supreme Court in para 13 observed thus: “An order under Section 35 of the Income-tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income-tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by Section 33-A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits. The High Court observed that under Section 35 of the Indian Income-tax Act, 1922, the jurisdiction of the Income-tax Officer is discretionary. If thereby it is intended that the Income- tax Officer has discretion to exercise or not to exercise the power to rectify, that view is in our judgment erroneous. Section 356 enacts that the Commissioner or Appellate Assistant Commissioner or the Income-tax Officer may rectify any mistake apparent from the record. If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right – public or private – of a citizen.” In Raj Soni (supra), the Supreme Court in paragraph 12 has held as under: “12. It is not necessary and we do not propose to go into the question in this case as to whether the petition is maintainable under Article 32 of the Constitution, because this petition has 1 (1990) 3 SCC 261 -8- been pending in this Court since 1981. The petitioner’s claim is just. It will, therefore, be a travesty of justice to send her to any other forum at this stage. In any case the petitioner seeks to enforce her statutory right under Section 8 of the Act read with Rule 110 of the Rules with a further contention that she has been discriminated in the matter of superannuation so much so that other teachers similarly situated were retired at the age of 60 years whereas the petitioner has been singled out and retired at the age of 58 years. ” The judgments cited supra lay down that just because an alternate remedy is available, a party should not be relegated to the same, moreso, in a situation where the writ jurisdiction is invoked and the writ petition is pending for some length of time. 10. In our view, since the petitioners had not produced the approved plans before the Assessor and Collector and since the dispute devolves round the aspect of exigibility of the land under construction, it would be just and proper to set aside the impugned order dated 30th November, 2000 and the consequential revised rateable value fixed by respondent No.1 and remit the matter to Respondent No.3 for a de novo decision. On remand, the petitioners would produce the approved plans of the building/s in question as also other material which they deem fit. The Respondent No.3 to re-consider the said issue in the light of the judgments of the Apex Court as well as the judgment of the learned single Judge of this Court cited supra. The learned senior counsel for the petitioners states that the petitioners would cooperate with the early disposal of the said proceedings. The said decision to be rendered by Respondent No.3 -9- within a period of two months of the first date of hearing. In case the decision of Respondent No.3 is adverse to the petitioners, the interim order which is prevailing in the present petition to0 the effect that no coercive steps shall be taken for recovery of the enhanced property tax , to operate for a period of four weeks of the receipt of the order by the petitioners. 11. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. P.B. MAJMUDAR, J. R.M. SAVANT, J.