Bombay High Court
Gamdevi vs Municipal Corporation Of Greater on 26 November, 2013
Bench: V.M. Kanade, M.S. Sonak
wp 386.12
dss
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.386 OF 2012
Vishva-Villa Cooperative Housing )
Society Limited a society )
registered under the provisions of )
MCS Act and having its registered )
Office at 16, Laburmum Road )
Gamdevi, Bombay-400 007 ) ... Petitioner
Vs.
1. Municipal Corporation of Greater )
Mumbai, a statutory body )
incorporated under the Bombay )
Municipal Corporation Act, )
having their office at B.M.C. )
Building Mahapalika Marg, )
Mumbai-400 001. )
2. Maharashtra Housing and Area )
Development Authority )
a statutory authority incorporated )
and established under the provisions )
of Maharashtra Housing and Area )
Development Act, Having its office )
at Griha Nirman Bhavan, Bandra(E) )
Bombay-400 051. )
3. The State of Maharashtra )
through the Housing and Special )
Assistant of Maharashtra, )
Mantralaya, Mumbai. ) ... Respondents
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wp 386.12
***
Mr. S.N. Vaishnawa with Ms Nupur Mukherjee i/b. N.N. Vaishnawa &
Co., for the Petitioner.
Mr. Vinod Mahadik for Respondent No.1.
Mr. D.A. Nalawade, Government Pleader a/w. Ms Madhubala Kajale,
AGP for Respondent Nos.2 and 3.
***
CORAM : V. M. KANADE, AND
M. S. SONAK, JJ.
DATE : NOVEMBER 26, 2013
ORAL JUDGMENT :-(Per V. M. Kanade, J.)
1. The Petitioner has filed this petition under Article 226 of the
Constitution of India, seeking appropriate writ, order or direction for
quashing the letter dated 9th January 2010, which is annexed at Exh.O,
letter dated 2nd February 2008, which is annexed as Exh.M and also
circular dated 17th October 2007, which is annexed as Exh.N in this
Petition.
2. Brief facts which are relevant for the purpose of deciding this
petition are as under:-
The Petitioner is the Cooperative Housing Society. One
Chimanlal Amritlal Trust owned a plot of land bearing C.T.S. No.489
at Malbar Hill and Cumballa Hill Division, being Plot No.63,
Gamdevi Estate, Laburmum Road, Gamdevi, Mumbai-400 007-. On
this plot, there was a old building, which was occupied by thirteen
wp 386.12
tenants. The tenants and the trustees of the said Trust have entered into
an agreement dated 30th March, 1994 and it was agreed that the said
building is to be demolished and thereafter a new building would be
constructed on the said land.
3. Thereafter an application was preferred by the Petitioner to the
MHADA Authority, who were pleased to grant NOC for
redevelopment of the said property by their order dated 28 th July,
1994. The Corporation also issued Intimation of Disapproval (IOD) by
their letter dated 18th May, 1996. A Commencement Certificate was
also issued by the Corporation by their letter dated 26 th May, 1997. It
is an admitted position that the said building was demolished in the
year 1996 for the purpose of repairs and reconstruction and thereafter
a new building was reconstructed in the year 2000.
4. Thereafter Respondent No.1 Corporation assessed the said
building in category 'A' by order dated 2nd May 2000. The construction
of the new building was completed on 10 th April 2000. However, the
Corporation has claimed repair cess of the said building from 1996 to
2000 from the Petitioner. A representation was made by the Trustees of
the Trust by their letter dated 6th March, 2000, which is addressed to
Asst. Assessor and Collector of 'D' Ward. It was contended that the
Petitioner was entitled to exemption from repair cess since the
building was not in existence after 1996 till 2000. Correspondence
wp 386.12
was exchanged in between the Petitioner, Respondent No.1-
Corporation and the Asst. Assessor and Collector. The Asst. Assessor
and Collector asked the Trustees of the Trust to submit a list of
documents mentioned in the letter and accordingly compliance was
made by the Trustees and all the documents which were demanded by
the Asst. Assessor & Collector were submitted within the time
prescribed by the said letter. The grievance of the Petitioner is that in-
spite of compliance of all the requisitions made by the Respondents,
Respondent No.1 vide letter dated 19th January 2010 directed the
Petitioner to pay the repair cess immediately from 1 st October, 1996 to
5th March, 2000 amounting to Rs.9,92,874/-.
5. Being aggrieved by the demand made by the Respondent-
Corporation, the Petitioner has filed this petition challenging the said
demand. Learned counsel appearing on behalf of the Petitioner
submitted that the building was demolished in the year 1996 and the
new building was constructed in 2000, and therefore the question of
payment of repair cess does not arise and the Petitioner-Society is
clearly entitled to get exemption under Section 83(1)(m) of the
MHADA Act. It is further submitted that the Respondents have erred
in imposing the repair cess by relying upon Section 83(1)(g) and not
on Section 83(1) (m). Secondly, it is submitted that it is a settled
position in law that if the building is not in existence the Corporation
cannot even impose the assessment tax during this period much less
wp 386.12
repair cess.
6. Reliance has been placed on judgments of this Court and the
Apex Court by the learned counsel appearing on behalf of the
Petitioner. Our attention is invited to judgment of the Apex Court in
The Municipal Corporation of Greater Bombay vs. M/s. Polychem
Ltd1, the judgment of learned Single Judge of this Court in Rialto
Cooperative Housing Society Ltd. vs. Municipal Corporation of
Greater Bombay and others2, Division Bench judgment of this Court
in Mangesh Janardhan Mohie (President) & ors. vs. State of
Maharashtra and ors.3. Reliance has also been placed on the judgment
of the learned Single Judge of this Court in Pragji Vrindavan
Premises Cooperative Society Ltd., & ors. vs. State of Maharashtra &
ors.4
7. Learned counsel appearing on behalf of the Corporation has
invited our attention to the affidavit filed by the Superintendent
working in D-Ward Municipal Office. He has submitted that the
Corporation has no power to interfere in the case of payment of repair
cess. It is further submitted in the affidavit that the provisions of
Section 83(1) (m) of the MHADA Act 1976 is inapplicable. In the
affidavit in reply, it is admitted that the Petitioner had demolished the
1 (1974) 2 SCC 198
2 1998(1) Bom.C.R. 397
3 2002(5) Bom.C.R. 653
4 2001(4)Bom.C.R. 748 = 2002(1) MhLj 298
wp 386.12
original building for the purpose of redevelopment and during this
period the Corporation has assessed the said plot of land, i.e., land
under construction. He also pointed out that in view of Section 82(2)
of the MHADA Act, the repair cess has to be collected by the
Municipal Corporation in the same manner in which the property taxes
are collected under the BMC Act. However, it is submitted that the
Government alone has the authority to collect the repair cess. It is
submitted that in view of the order passed by the Government, the
Corporation has addressed the impugned letter dated 9th January 2010.
8.
Despite several opportunities being given, no reply has been
filed by the State. The matter was adjourned on several occasions, in
order to enable the Government Pleader to address this Court. Though
the matter was fully heard yesterday, i.e., on 25th November 2013 and
kept for orders at 3.00 p.m. in order to enable the Government pleader
to address us on this issue, however, at 3.00 p.m., it was submitted that
the matter may be adjourned to 26th November, 2013 at 11.00 a.m. We,
therefore, adjourned the matter for orders on 26 th November, 2013 at
11.00 a.m., in order to enable the Government pleader to make
submissions before the order was passed by us.
9. Today, the learned Government Pleader appearing on behalf of
the State submits that no instructions have been received by him
despite several letters have been written to the concerned Officer. He,
wp 386.12
however, submits that the judgment of the Apex Court in Municipal
Corporation of Greater Bombay vs. M/s. Polychem Ltd (supra) is
quite clear and squarely covers the point which is raised in this
petition.
10. A short point which falls for consideration in this case is
whether the Respondent-Government or the Corporation has an
authority or power to impose repair cess when the building has
already been demolished and the process of reconstruction has
commenced. It is an admitted fact that the repair cess has to be
calculated in the same manner as per the provisions of Section 82(2)
of the BMC. It is also a settled position in law that the Corporation
cannot impose the property tax in respect of building, which is under
construction. The Apex Court and this Court on several occasions
have reiterated this fact. The ratio of these judgments, on which
reliance has been placed by the learned counsel appearing on behalf of
the Petitioner, squarely applies to the facts of the present case.
11. It is not in dispute that the said old building is demolished in
the year 1996 and the new building was reconstructed in the year
2000. The provisions of Section 83(1)(m) which clearly attracted in
this case, as under:
"83. (1) - The following lands and buildings shall be
exempt from payment of the cess, that is to say, -
(m) - all open lands which are not built upon"
wp 386.12
12. In our view, therefore, the impugned order will have to be
quashed and set aside, in view of the settled position in law. The
petition is, therefore, allowed in terms of prayer clause (a) and (b).
The circular is set aside to the extent that it grants exemption not from
the year 1996, but from the year 2000.
[M. S. SONAK, J.] [V. M. KANADE, J.]
Dinesh
