: # : IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.380 OF 1992 PETITION NO.380 OF 1992 PETITION NO.380 OF 1992 Nashik Municipal Corporation ...Petitioner V/s. Jazu Management and Partnership & Ors. ...Respondents Mr.V.A. Gangal with Mr.Ashok Gude and Mr.Atul Deshmukh for the Petitioner. . Mr.N.V. Walawalkar i/b. Mr.V.B. Rajure for Respondent Nos.1 to 4. CORAM CORAM CORAM : SMT.NISHITA MHATRE, J. : SMT.NISHITA MHATRE, J. : SMT.NISHITA MHATRE, J. DATE DATE DATE : 20TH NOVEMBER, 2008. : 20TH NOVEMBER, 2008. : 20TH NOVEMBER, 2008. ORAL ORAL ORAL JUDGMENT :- JUDGMENT :- JUDGMENT :- . The petitioner is the Nasik Municipal Council. It has impugned the order passed by the Joint Civil Judge, Senior Division, Nasik in Municipal Appeal No.199 of 1985 as well as the order passed by the Appellate Court in Civil Miscellaneous Appeal No.300 of 1987. 2. The Nasik Municipal Corporation was established on 7th November, 1982. Three Municipal Councils were included within the area of Nasik Municipal Corporation. The Nasik Road and Deolali Municipal Council was one of the Councils which felt within the Corporation area. 3. The respondents own a commercial complex situate at Bytco Corner, Nasik Road, Nasik. It admeasures about 17,604 sq.ft. A completion certificate was issued to the respondents on 31st March, 1984 in respect of this building. A notice was issued by the Corporation under section 127 of the Bombay Provincial Municipal Corporation Act, 1949. This notice, according to the Corporation, was for deciding the first assessment and annual rateable value of the respondents’ property. An objection was raised by the respondents on 20th March, 1985 to the proposal of the Corporation to fix the annual rateable value @ Rs.1,04,580/-. A second notice was issued directing the respondents to appear before the Standing Committee to resolve the issue of fixing he annual rateable value. The Corporation after considering the documentary evidence on record submitted by the respondents fixed the annual rateable value @ Rs.1,26,360/- on 13th September, 1985 and a bill was issued to the respondents accordingly. The respondents made payment of the entire amount within the stipulated time. However, they filed Municipal Appeal No.199 of 1985 before the Civil Judge, Senior Division, Nasik contesting the rate fixed by the Corporation. The Appeal was resisted by the Corporation by filing an affidavit-in-reply. The Corporation pointed out that the building consisted of the ground plus one floor out of which seven commercial shops and 28 lodging rooms existed in the premises. The petitioners contended that the annual rateable value was fixed after taking into consideration the rent received by the respondents for the premises and the annual income from the property thereby fixing the annual letting value @ Rs.1.50 per sq.ft. 4. By an order dated 30th June, 1986, the Municipal Appeal was allowed by a Joint Civil Judge, Senior Division, Nasik. Being aggrieved by that order, the petitioners preferred an Appeal before the Additional District Judge, Nasik being Civil Miscellaneous Appeal No.300 of 1987. The petitioners’ Appeal was dismissed with costs. Thus, the annual letting value of the shop premises admeasuring 3,516 sq.ft. was determined at Rs.37,800/- while the annual letting value for the lodge admeasuring 3,504 sq.ft. was fixed at Rs.23,126.40. 5. Having heard the learned Counsel for the parties and after perusing the impugned order, I am of the view that the evidence which was produced by both the parties before the Civil Judge, Senior Division, Nasik was scanty. In my opinion, the finding arrived at by the learned Judge is unsustainable on the basis of the evidence on record. 6. It is submitted on behalf of the Corporation that both the Courts below have erred in fixing the rateable value which is far less than that which is paid by others in the surrounding area, including by the Bank which is in the same building. It is submitted that the findings of both the Courts below do not take into consideration well settled principles of law while fixing the rateable value. It is, therefore, submitted that the judgments must be set aside and the demand made by the Corporation should be allowed. 7. The learned Counsel for the respondents on the other hand has submitted that after the amalgamation of three Municipal Councils, there was no resolution placed on record to indicate whether the buildings situated in the area of Nasik Road and Deolali Municipal Council would be covered by the rates that prevailed in the area earlier or whether they would be covered by the annual rateable value which was fixed in the other two erstwhile Municipal Councils. He submits that the resolution dated 22nd October, 1982 passed by the Government for amalgamating the three Municipal Councils does not in any manner specify at what rate the rateable value is to be fixed. 8. On perusal of the notification, I find that it would be difficult without there being any further evidence on record to ascertain what should be the rateable value; whether the rates would be the same as were paid in the area of the erstwhile Municipal Council in which the building was situated or in the area which was in the erstwhile Nasik Municipal Council. All these issues would have to be proved by cogent evidence on record. Therefore, in my opinion, it would be necessary to set aside the impugned orders and remand Municipal Appeal No.199 of 1985 to the Civil Judge, Senior Division, Nasik for a fresh hearing. It is made clear that amount payable by the respondents as per the rates which would be fixed in the Municipal Appeal would be set off against the amounts already deposited by the petitioners for the annual rateable value for the period from 1984 to 1989. 9. The Writ Petition is allowed. Municipal Appeal No.199 of 1985 is remanded to the Civil Judge, Senior Division, Nasik. The parties are permitted to lead additional evidence, if so advised. 10. Rule made absolute. No costs.