Bombay High Court
Biswa Bandhu Sen vs Municipal Corporation Of Greater ... on 17 August, 1981
JUDGMENT M.L. Pendse, J.
1. By this petition filed under Article 226 of the Constitution of India, the petitioner is challenging the legality of the action of the Corporation whereby the rateable value of his flat B/7 in Shiv Darshan Central Railway Co-operative Housing Society Ltd. was increased from Rs. 1490/- to Rs. 3670/-.
2. The petitioner is member of Co-operative Housing Society and is in occupation of flat which belongs to the society. The society owns the building and the share holders, who are the members, are entitled to possess and occupy the flat therein in accordance with the bye-laws of the society. Under the bye-laws each of the member is allotted a flat by subscription of particular number of shares. The rateable value of the entire building was fixed by the Municipal Corporation and on fixation of such amount the society used to recover the amount of tax from its members.
3. In August 1975, the Corporation decided to revalue the amount of rateable value and thereupon notice under section 162(2) of the Bombay Municipal Corporation Act (hereinafter referred to as the Act) was served on the society. The secretary of the society appeared before the authorities in pursuance of the notice along with some of the members. After hearing the parties the rateable value of the property was revised. While arriving at the revised rateable value, the authorities have taken into consideration the fact that some of the flats were given by the members to the licensees on receipt of an amount of compensation. The amount of compensation was taken into consideration and after deducting 20 percent of the same, the balance amount was considered as the rateable value in respect of flats which were given to the licensees. The petitioner is one of the members who has let out his flat to a licensee on receipt of compensation of Rs. 440/-. The rateable value of the flat held by the petitioner was determined at the rate of Rs. 352/- and the annual rating value was determined at the rate of Rs. 3670/-. On the strength or such valuation, the rateable value of the entire property was fixed and the taxes were levied. The society in its turn by letter dated August 22, 1977 called upon the petitioner to pay the taxes on the revised rateable value with effect from April 1, 1976. The petitioner has thereafter approached this Court for the reliefs mentioned hereinabove.
4. Shri Dhanuka, the learned Counsel appearing in support of the petition, has raised two contentions to challenge the action of the Corporation. Shri Dhanuka first submitted that it was necessary for the Corporation to serve the special notice upon the petitioner as contemplated under section 162(2) of the Act. I do not find any merit in this submission. The property stands in the record of the Corporation in the name of the society and the section demands service of notice upon the owner. Shri Dhanuka urges that even an occupier is entitled to a notice and relies upon the judgment of the learned Single Judge of this Court in Vinnakota Venkata Krishna Sharma v. The Municipal Corporation of Greater Bombay, Misc. Petition No. 1131 of 1977, delivered on December 19, 1980 reported in 1981 Bom.C.R. 995. In my judgment, it is not necessary to determine the correctness of the submission. Even assuming that such a notice was necessary to be served upon the petitioner, in the present case I have no hesitation in holding that the petitioner had ample notice of the proceedings adopted by the Corporations. It is not in dispute that the secretary of the society circulated a notice to its all members when the Corporation decided to revise the rateable value. In fact some of the members did attend the hearing before the authorities. In these circumstances, it is futile for Shri Dhanuka to claim that the entire proceedings of fixing rateable value was bad because of absence of service upon the petitioner.
5. The second contention urged by the learned Counsel is that the Corporation was in error to revising the rateable value on the basis of compensation received by member from his licensee. On behalf of the Corporation Shri Jayant Shankar Gupte, the Assistant Assessor and Collector has filed a return duly sworn on June 30, 1980. By annexure attached to this return, it is claimed that the system adopted by the Corporation in revising the ratable value of the building is to find out what amount of compensation is received by the member/owner of each of the flat. Shri Dhanuka submits that this practice adopted by the Corporation is totally irregular and relies upon the judgment of the Division Bench of this Court in (First Appeal No. 393 of 1975)2, delivered on October 28, 1980. The submission of the learned Counsel deserves acceptance. Before the Division Bench the identical question came up for consideration. The Corporation has revised the rateable value by taking into consideration the fact that certain flats in a housing society were let out by the members on receipt of compensation. The rateable value was determined with reference to the amount of compensation. In appeal preferred by the society before the Court to Small Causes, the revision of rateable value was struck down on the ground that the procedure adopted in arriving at the rateable value was irregular. The Corporation carried an appeal before this Court and the Division Bench has dismissed the appeal holding that the Corporation had no right to take into account the amount of compensation received by the member for the purpose of fixation of rateable value. The complaint of Shri Dhanuka that the identical procedure was followed while determining the rateable value of the society is correct, and therefore, the same result as in the case before the Division Bench must follow.
6. Mrs. Chheda, appearing on behalf of the Corporation, urged that granting relief to the petitioner would amount to disturbance of fixation of rateable value of the entire building. Her submission is that the rateable value of the entire building has already been fixed by and the society had not filed any appeal against that order. That may be so, but the procedure adopted in arriving at the rateable value was clearly erroneous and contrary to the dictum laid down by this Court. In these circumstances it would be futile to claim that the petitioner should be deprived of the relief sought to the petition. It may be that other members of the society have accepted the decision, but it is open for the petitioner to challenge it as it directly affects his valuable right and interest in the property. In view of this the petition must succeed.
7. Accordingly, the rule is made absolute and it is directed that the petitioner would not be liable to pay the increased taxes on the strength of revision of rateable value. In the circumstances of the case there will be no order as to costs.