Pinak Bharat And Co vs Anil Ramrao Naik
2023 Latest Caselaw 2810 Bom

                                                                  11-IAL-436-23.doc

Sharayu Khot.
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION

                       INTERIM APPLICATION (L) NO.436 OF 2023
                                          IN
             COMMERCIAL EXECUTION APPLICATION NO. 22 OF 2016


      Pinak Bharat & Co. and Anr.                    ...Applicants/Orig.
                                                     Judgment Creditors

                Versus

      Anil Ramrao Naik & Ors.                        ...Respondents/Orig.
                                                     Judgment Debtors
                                       ----------
      Mr. Prerak Sharma, Mr. Nihir Dedhia, Mr. Vaibhav Kulkarni and Mr.
      Farhan Shaikh i/b. Prerak A. Sharma for the Applicants.
      Mrs. Jyoti Chavan, AGP for Respondent - State.
      Mr. Manish Upadhye, AGP and Mr. Himanshu B. Takke, AGP for the
      Respondent No. 2-State of Maharashtra.
      Ms. Dhruti Kapadia, with Ms. Sheetal Metkari i/b. Sunil Sonawane
      for the Respondent Nos. 3 and 4-BMC.
      Mr. Archit Jayakar a/w Mr. Jasmeet Kaur i/by Jayakar & Partners for
      the Applicants in IAL/7335/23.
      Mr. D.S. Choudhary, Deputy Sheriff is present.
      Ms. Bina Advani, Partner of Applicant present.
      Mr. Chandrakant Namdeo Vaykole, Ward Inspector, G/North Ward
      present.
                                ----------

                                      CORAM : R.I. CHAGLA J
                                       DATE : 23 March 2023
      ORDER :

1. By the order dated 8th March 2023, this Court had

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considered the statement of Ms. Dhruti Kapadia, the learned Counsel

for the Respondent Nos. 3 and 4-Municipal Corporation of Greater

Mumbai ("MCGM") that there are outstanding payments to be made

in respect of the property taxes and repair cess which are due and

payable prior to the order dated 30th October 2018 as well as for the

period subsequent thereto. She had relied upon the bill outstanding

of the MCGM which shows the outstanding amounts payable in

respect of the subject property. This Court had accordingly, held that

prior to considering whether the Applicants and M/s. Win Win

Associates names are to be mutated in the property cards and in the

property registers, it would be necessary to issue directions with

regard to the outstanding property taxes. Respondent No.3-MCGM

was directed to file an additional Affidavit to bring on record the

outstanding amounts as and by way of property taxes which are due

in respect of the subject property both prior to the order dated 30th

October 2018 and thereafter.

2. This Court also recorded the submission of Mr. Prerak

Sharma, the learned Counsel for the Applicants that the statement of

outstanding bills have included payments for land under construction

(Inadvertently typed as 'consideration' which stands corrected.)

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which is contrary to the order of the Supreme Court in the Appeal

filed by the Property Owners Association. Ms. Dhruti Kapadia was

accordingly, to take instructions in this context.

3. This Court had also directed the Deputy Sheriff to take

forcible possession of the subject property within a period of one

week from the date of the said order with the help of police

protection, if necessary.

4. The Deputy Sheriff present in Court, informs this Court

that pursuant to the directions of this Court, possession of the subject

property has been taken on 14th March 2023.

5. Respondent Nos. 3 and 4-MCGM has filed their Affidavit

dated 15th March 2023. However, it is noted that in paragraph 2 of

the said Affidavit, it is stated that the Respondent-MCGM had

continued to levy taxes as per the old policy in all matters. Further, it

is stated that in the event, the Respondent-MCGM does not succeed

in the Review Petition pending in the Supreme Court being Diary No.

414 of 2023, the Respondent-MCGM as a public body will either

refund or adjust the amount of the property tax paid. It is further

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stated that as per Section 115(3) of the MCGM Act, 1888, unless the

outstanding amounts are cleared and online assessment shows that

no outstanding is pending in the online system, the transfer in favour

of the Applicants is not possible.

6. Thus, from the statements made in paragraph 2 of the

said Affidavit, it appears that the MCGM is still insisting on the

Applicants paying the property taxes for the land under construction

which is impermissible as held by not only this Court, but also upheld

by the Supreme Court and orders have not been stayed till date.

Merely placing reliance upon the Review Petition in the present case,

cannot justify the MCGM from collecting property taxes on the land

under construction.

7. Accordingly, the matter had been kept at 2.30 p.m. for

Ms. Dhruti Kapadia to show bifurcation of the property tax which has

been charged for the land under construction as well as remaining

property tax payable by the Applicants pursuant to the order dated

30th October 2018.

8. Ms. Dhruti Kapadia upon the matter being taken up

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again has explained that Exh.A to the Affidavit though mentioning

outstanding amount of Rs. 62,95,842/-, as and by way of outstanding

property taxes for the subject land, the amount of Rs. 35,61,570/- is

property tax payable for land under construction. Thus, an amount of

Rs. 27,34,272/- is the amount which is recoverable. This is apart

from the amounts mentioned in the statement at Exh.B and C with

respect to Building No. 2 and Exh.D and E with respect to Building

No. 1 respectively. It is noted that the Applicants have been directed

by the order dated 8th March 2023 to pay the outstanding amounts

as and by way of the property taxes to the MCGM for the period after

the order dated 30th October 2018 was passed.

9. Mr. Prerak Sharma undertakes to pay the amount of Rs.

27,34,272/- as and by way of property taxes payable in respect of the

subject land together with property taxes payable in respect of the

building Nos. 1 and 2, as set out in Exh.B, C, D and E for the period

after order dated 30th October 2018 was passed, on or before 31st

March 2023. The statement is accepted as an undertaking to this

Court.

10. Accordingly, upon the statement on behalf of the

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Applicants being complied with, the MCGM shall mutate the property

tax records in the name of M/s. Win Win Associates.

11. With regard to the Revenue records, the learned

AGP has sought leave to file Affidavit in Reply to the Interim

Application. Leave is granted. Affidavit in Reply shall be filed by 28th

March 2023.

12. Mr. Prerak Sharma on instructions states that in

the event, the MCGM succeeds in their Review Petition before the

Supreme Court being Diary No. 414 of 2023 in Municipal

Corporation of Greater Mumbai Vs. Property Owners Association, the

Applicants will make payment of the balance sum of Rs. 35,61,570/-

within two weeks from being issued the notice by the MCGM. The

statement is accepted as an undertaking to this Court.

13. In prayer clause (d) of the Interim Application, the

Applicants have sought direction against Respondent No. 4 to

transfer no objection certificate as well as development permission

issued in respect of the subject immovable property. By an order

dated 3rd April 2019, this Court had given both the Respondent No.

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4 as well as Collector of Mumbai one final opportunity, in view of

their being no response from them, as noted by this Court. It was

further mentioned in the said order that if the MCGM and Collector

of Mumbai have any claim or there is any outstanding unpaid

amount due to their offices in respect of the subject property, they

will communicate the amount and the head of claim to the office of

the Deputy Sheriff on or before 26th April 2019. If they do not, this

Court will proceed on the footing that nothing is due or payable to

either. Thereafter, no claim will be entertained under any

circumstances.

14. In view of the learned AGP having made request

for filing Affidavit and which request has been accepted, the said

order dated 3rd April 2019 is relaxed to this extent in the case of

the Respondent-State. However, there has been no similar request

made by Respondent No. 4. Thus, no further time can be granted to

Respondent No. 4 for raising any claims/outstanding unpaid amounts

in respect of the subject property. Accordingly, Respondent No. 4 is

directed to transfer no objection certificate as well as development

permission issued in respect of the subject property to the Applicants.

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15. Needless to state that the amount lying with the

Prothonotary & Senior Master of this Court shall be utilised for

making payments of outstanding amounts of property taxes and

repair cess due to the MCGM prior to order dated 30th October 2018

and for which a claim will be raised by the MCGM directly on the

Prothonotary & Senior Master of this Court. This claim of MCGM will

be confined to the unpaid property taxes mentioned in the

statements annexed to the said Affidavit filed by the MCGM and for

the period prior to 30th October 2018.

16. It is clarified that observations made in this order

with regard to non acceptance of the statement made by MCGM with

regard to their continuing to levy taxes as per old policy which would

include property taxes on the land under construction is confined to

this matter and shall not be used as a precedent.

17. The present Interim Application shall be placed on

29th March 2023, first on board together with Interim Application

(L) No. 25802 of 2022 and Interim Application (L) No. 7335 of 2023.

[R.I. CHAGLA J.]