Bombay High Court
Deonar Industrial Premises ... vs State Of Maharashtra And 8 Ors on 25 April, 2023
Bench: G.S.Kulkarni, R.N.Laddha
2023:BHC-OS:3726-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3469 OF 2018
WITH
INTERIM APPLICATION NO.1667 OF 2023
IN
WRIT PETITION NO.3469 OF 2018
Deonar Industrial Premises Cooperative
Society Limited registered under the
Maharashtra Cooperative Societies Act
1960, having its office at 14, Majithia
Industrial Estate, Waman Tukaram
Patil Marg, Deonar,Mumbai 400 088. ... Petitioner.
Versus
1. State of Maharashtra
Mantralaya, Nariman Point,Mumbai
To be served through Govt.Pleader.
2. Municipal Corporation of Gr.
Mumbai, Mahapalika Marg, Fort,
Mumbai 400001.
3. Asst.Assessor & Collector, M-East
Ward , Brihanmumbai Mahanagarpalika
Govandi, Mumbai-400043.
4. Executive Engineer, Building Proposal-I
Office of the Dy.Chief Engineer,
Building Proposal Eastern suburbs,
L.B.S.Marg, Vikhroli (West), Mumbai-400083.
Chitra Sonawane. Page No. 1 of 12
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5. The City Survey Officer, Ghatkopar,
Topiwala College Building, Sarojini
Naidu Road, Mulund (W), Mumbai 400080.
6. Jayant Narayan Vaity
7. Ramakant Koli
Both Respondent no 6 and 7 are
Constituted Attorneys of Vaitys,
Adult, Indian Inhabitants
Residing at Vaity Wadi, Deonar
Village Road, Opp.Metal Box,
Deonar, Mumbai-400 088.
8. Shree Anjaneya Estate a partnership
firm, having its office on Ground
Floor Niketan Bldg,
Chembur (E), Mumbai 400071
9. Merit Magnum Constructions,
Formerly known as M/s Vimal Builders,
A partnership firm, having its office at
Samruddi, Office Floor, Plot No.157,
18th Road, Near Ambedkar Garden,
Next to SBI, Chembur (E),
Mumbai-400071. ... Respondents.
.......
Mr. Ponvel Nadarajan, authorized representative of the petitioner.
Ms. Uma Palsuledesai, AGP for State.
Mr. Kunal Waghmare, Advocate for MCGM.
Ms.Shaheda Madraswala a/w Ms.Tanishka Desai, Mr. Kushan Kode
i/b Vashi & Vashi for Respondent No. 9.
Chitra Sonawane. Page No. 2 of 12
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_________________________
CORAM: G.S.KULKARNI &
R.N.LADDHA, JJ.
DATE: 25 APRIL, 2023.
__________________________ P.C.:-
The petitioner is represented by Mr. Ponvel Nadarajan, who is a Secretary and authorized representative of the Deonar Indus-
trial Premises Cooperative Society Limited. Petitioner is claiming to be the owner of the land in question bearing Survey No.34, Hissa No.1 and 3 and CTS No.339, 339/1, 340, 340/1&2, 341, 343, 343/1, 344, 345, 346, and 346/1 to 7 (now amalgamated as CTS No.344) admeasuring 7058 sq. mtrs or thereabout situated at Deonar Village, Taluka Kurla, Mumbai Suburban District, Mum-
bai- 400088, by virtue of the registered Deed of Conveyance dated 18.8.1989 executed in its favour by Vaity family and as sub-divided by further order (at Exhibit 'E' of the interim application) in terms of what is reflected on the property card. It appears that disputes had arisen between the petitioner and Respondent No. 9 regarding Chitra Sonawane. Page No. 3 of 12 ____________________________________________ 25 April 2023.::: Uploaded on - 01/05/2023 ::: Downloaded on - 18/06/2023 13:25:49 :::
6-wp-3469-2018.doc ownership of the land, subject matter of the proceedings before this Court in Suit No.2715 of 2007 filed by respondent no.9 formerly known as Vimal Builders. In such suit, respondent no.9 had filed Notice of Motion No.3514 of 2008 praying for interim reliefs in the Suit; on which orders were passed by the learned Single Judge on 3rd March 2009. The Court had refused to grant the interim reliefs as prayed for. The said orders passed by the learned Single Judge were assailed by respondent no.9, by preferring an Appeal no.161 of 2009 which came to be dismissed by the Division Bench by an order dated 1st December 2011. The following are the rele- vant observations made in paragraphs 7 and 8 of the said order, regarding ownership of the petitioner, which reads thus;
"7. The Vaitys, as observed above, became aware of the Con- veyance in 1995. The Plaintiffs are claiming through them. Obvi- ously, therefore, a Suit by Vaitys or by Plaintiffs, who are claiming under them, for claiming a declaration that the Conveyance in favour of Deonar Society is invalid would now be barred by Law of Limitation. When in 1995 Suit was filed by one of the Vaitys as a representative of all the Vaitys, he was aware of the Conveyance in favour of the Society, therefore, as cause of action for filing a Suit claiming a declaration that the Conveyance in favour of Deonar Society is invalid had accrued to him in view of the provisions of Order 2, Rule 2 of the Code of Civil Procedure, he was obliged to include in the Suit a prayer claiming a declaration that the regis- tered Conveyance in favour of the Deonar Society is invalid and Chitra Sonawane. Page No. 4 of 12 ____________________________________________ 25 April 2023.::: Uploaded on - 01/05/2023 ::: Downloaded on - 18/06/2023 13:25:49 :::
6-wp-3469-2018.doc therefore, should be cancelled. But, he chose not to claim that re- lief. Therefore, in view of the provisions of Order 2, Rule 2 of the Code of Civil Procedure, a Suit by Vaitys or by any person claim- ing through them for a declaration that the Conveyance in favour of Deonar is invalid is barred. It is obvious from what we have ob- served above that the Plaintiffs have no prima-facie case to get a declaration that the Vaitys, through whom they are claiming, con- tinue to be the owners of the property, or, that the Deonar Society has no title to the property. As the Plaintiffs do not have prima facie case, obviously, they are not entitled to any temporary in- junction in their favour. Therefore, there is no question of making enquiry into any other aspect of the matter. What is further to be seen is that in the Agreement, which preceded the Conveyance, there is a clear recital that possession of the land has been handed over by the Vaitys to the Purchasers, who were Promoters of De- onar Society. There is also a recital in the registered Conveyance that the Deonar Society is in possession. As observed above, the Deed of Conveyance in favour of the Deonar Society appears to have become final between the parties. It is a registered document and, therefore, presumption of regularity of that document under the evidence Act attaches to that document and, therefore, any Court atleast at the prima-facie stage will have to go by the recitals in that document.
8. In our opinion, therefore, at this stage, the Court will be justified in holding that in view of the recitals in the registered doc- ument, it is the Deonar Society, which is in possession of the prop- erty. The learned Single Judge has also declined to make any in- terim order in favour of the Plaintiffs and has disposed off the No- tice of Motion, though for slightly different reasons. In our opin- ion, however, in view of the conclusion to which we have reached, we see no reason to disturb the order which is impugned in this Appeal. The Appeal, therefore, fails and is dismissed."
(emphasis supplied)
2. Present petition had been filed by the petitioner, interalia challenging the warrant of attachment dated 25.5.2018, issued by Chitra Sonawane. Page No. 5 of 12 ____________________________________________ 25 April 2023.
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6-wp-3469-2018.doc the Assistant Assessor and Collector M/E Ward of the Municipal Corporation under Sections 202 and 203 of the MMC Act. The challenge was in the context of the method of evaluating the property tax namely by the capital value method, so calculated by the Municipal Corporation by virtue of the amendment to the MMC Act, in terms of Sections 140, 140-A and 216-B of the MMC Act. In such context, the validity of the provisions incorporating the capital value system were interalia upheld by the Division Bench of this Court in Property Owners Association & Others Vs. State of Maharashtra and Ors. 1 and confirmed by the Supreme Court in Municipal Corporation of Greater Mumbai & Ors. Vs. Property Owners' Association & Ors.2. Thus, in our opinion prayers as made in the petition to that effect would not survive. The substantive prayers as made in the petition reads thus :
"a)That this Hon'ble Court may be pleased to issue writ of certiorari and/or any other writ, order, direction in the nature of certiorari and thereby be pleased to declare the provisions of Section 140, 140A & 216B of MMC Act, 1888 as far as Capital Value System is con-
cerned is ultra vires the Constitution of India as the 1 2019 SCC OnLine Bom 706.
2(2023)3 SCC 258.
Chitra Sonawane. Page No. 6 of 12
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6-wp-3469-2018.doc same is arbitrary, discriminatory and against public policy.
b) That this Hon'ble Court may be pleased to issue writ of certiorari and/or any other writ, order, direction in the nature of certiorari and thereby be pleased to quash, set aside Rules for fixing capital value of lands and buildings, w.e.f. 01.04.2010 and w.e.f. 01.04.2015 is ultra vires the Constitution of India as arbitrary, dis- criminatory and against public policy.
c) That this Hon'ble Court may be pleased to issue writ of certiorari and/or any other writ, order, direction in the nature of certiorari and thereby be pleased to quash, set aside and/or raise the Warrant of Attach- ment "A-1" AA&C/MAS/E04/001/ATT/2018-2019 dated 25.05.2018 Exhibit W to the petition levied on the said Land.
d) That this Hon'ble Court may be pleased to issue writ of certiorari and/or any other writ, order, direction in the nature of certiorari and thereby be pleased to or- der and direct Respondent No.3 to remove the lock and deseal the said land.
e)That this Hon'ble Court may be pleased to order and direct respondent no.3 to quash and set aside all the bills levied from 2010 onwards against property tax of Property Account ME0406100660000 of the said Land and make fresh assessment of the property tax for period from 2010 onwards after affording a proper opportunity of hearing to the Petitioner.
f) That this Hon'ble Court may be pleased to direct Respondent No.3 to serve on each member of Peti- tioner for payment of property tax in respect to their share in the said land.
g) That this Hon'ble Court may be pleased to direct Respondent No.3 to correct the records of MCGM to show that name of Petitioner as the assessee for prop- erty tax in respect to the said land.
h) That this Hon'ble Court be pleased to direct Re- spondent No.5 to record the name of petitioner in the property card in respect to the said land. Chitra Sonawane. Page No. 7 of 12
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i) That this Hon'ble Court be pleased to direct Re- spondent No.4 to set aside and quash the IOD and CC issued to respondent no.9 and for demolition of the illegal structure built there on by respondent no.9."
3. The case of the petitioner is also that demand of tax as made by the petitioner was not justified and to that effect, representation was made to the Assistant Assessor and Collector M-East Ward, dated 9th February, 2018, at Exhibit R and further representation dated 1st April 2018. We note from the record that there were no interim orders of any protection granted in the present writ petition. The petitioner, however, has filed interim application no.1667 of 2023 on 21.3.20.2023 in contemplation of a fresh action being initiated by the corporation under the warrant of attachment dated 25th May 2018. The prayers as made in the Interim Application are required to be noted which reads thus ;
a) That pending the hearing and final disposal of the above Petition this Hon'ble Court may be pleased to pass an order of injunction restraining Respondent No.3 from taking any steps in furtherance of the War- rant of Attachment "A-1" AA&C/MAS/E04/001/ ATT/2018-2019 dated 25.05.2018 being Exhibit "W" to the Petition.
b) That pending the hearing and final disposal of the above Petition this Hon'ble Court may be pleased to order and direct Respondent No.3 to grant hearing to Chitra Sonawane. Page No. 8 of 12 ____________________________________________ 25 April 2023.
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6-wp-3469-2018.doc the Applicant on the objections raised by the Appli- cant on the property tax levied from 2010 onwards and pass appropriate order with respect to fixing of Capital Value and levy of property tax.
4. Mr. Ponvel Nadarajan, for the petitioner has drawn our attention to an order dated 24.2.2006 passed by the Designated Officer of the Municipal Corporation in the assessment and collec- tion department, on the application filed by respondent no.9 wherein the Designated Officer of the Municipal Corporation has made the following observations;
"In view of these facts I am of the opinion that the rate of Rs.1410/- per sq.mtr. Adopted for plot of land as- sessed under ward no.M/E-5012(2D) as well for the plot of land for the sample flat under ward no.M/E- 5012(2F)are not justified and deserve the notification at nominal/lesser rate, rating the plot and the sample flat as "Struck with Sterility" and therefore I inclined to proposed to cancel the assessment of R.G. Plot and plot of land for sample flat assessed under ward nos.ME-5012(2E) and ME-5012(2F) respectively and assessed the entire plot of land having total area of 7517.30 sq.mtrs. Under original ward no.ME-
6012(2D) at nominal rate of Rs.5/- NPA having status of "STRUCK WITH STERILITY" and accordingly proposed to modify the R.V. at Rs.5/- NPA(R) w.e.f. 01/04/2004 to meet the end of justice.
As regards the request for consideration of the benefits of vacancy, I do not agree with the considera- tion being the status and assessment of the plot as "struck with sterility". Submitted for favour of perusal of the Assessment and Collector please."Chitra Sonawane. Page No. 9 of 12
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5. It is submitted by Mr.Nadarajan that fresh representation was made by the petitioner to the Assistant Assessor and Collector on 10.12.2022, interalia submitting all documents against the publica- tion of the Public Notice No.NS310ACBMPP-59449-2022-23 u/s 160 of the MMC Act dated 7.11.2022. It was stated in the notice that the current valuation of the property/vacant land under the Capital Value method for the purposes of property tax was not cor- rect.
6. It is on such backdrop, the proceedings are before us. Having heard Mr. Ponvel Nadarajan on behalf of the petitioner and Mr. Kunal Waghmare, learned Counsel for the municipal corporation, in our opinion, it is appropriate that the municipal corporation considers the complaints/representation as made by the petitioner dated 09.02.2018 along with fresh representation dated 10.12.2012 [Exhibit B of the interim application page 18]. The petitioner is also permitted to file additional documents and make brief written submissions before the Assistant Assessor and Collector, M/E Ward within ten days from today.
Chitra Sonawane. Page No. 10 of 12
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7. It is thus, proper that all such representations of the petitioner be decided and appropriate orders passed in regard to assessment of the petitioner's land in question. All rights and contentions of the petitioner are expressly kept open.
9. The petitioner is directed to appear before the Assistant As- sessor and Collector, M/E Ward, at the first instance on 4 th May 2023.
10. The Assistant Assessor and Collector, M/E Ward, shall fix a suitable date of hearing which shall not be later than 2 weeks from 4th May 2023 and after hearing the petitioner, shall pass reasoned order on issues as raised by the petitioner regarding the assessment of the petitioner's land for property tax, within a period of 6 weeks from the date of hearing the petitioner.
11. Needless to observe that the Designated Officer of the Municipal Corporation shall take into consideration all relevant facts and documents as submitted by the petitioner as also on record of the Municipal Corporation.
Chitra Sonawane. Page No. 11 of 12
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12. Till appropriate orders are passed by the Municipal Corporation as directed hereinabove, the Municipal Corporation is directed not to take any coercive action against the petitioner's property under the impugned warrant of attachment.
13. Petition is disposed of along with the interim application. No costs.
14. Needless to observe that the observations made by us in this petition, shall not in any manner influence the contentions of the petitioner or respondent no.9 in any pending proceedings.
[R.N.LADDHA, J.] [G.S.KULKARNI, J.] Chitra Sonawane. Page No. 12 of 12 ____________________________________________ 25 April 2023.
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