Abdeali Shaikh Tayebali Zaidy & another vs Bombay Housing and Area Development Board & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1988 Supreme(Bom) 123

IN THE HIGH COURT OF BOMBAY
Mrs. Sujata Manohar, J.
Abdeali Shaikh Tayebali Zaidy another..... Petitioners.
Versus
Bombay Housing and Area Development Board others..... Respondents.
Writ Petition No. 214 of 1984, decided on 7-4-1988.
Advocates appeared :
A.V. Bookwala with S.K. Srivastav i/b. Z.H. Zaidy, for petitioners.
V.N. Lokur With R.V. Desai, for respondents 1 3.
S.N. Tidke, for respondents 2, 4 5.

Headnote:Sections 82, 84 (1)-Bombay Municipal Corporation Act, Sections 167, 168-Levy of repair cess-Not be enhanced retrospectively-Amendment of an entry made in assessment book operate only from earliest day in current official year when justified.
       For the purpose of assessing the amount of repair cess additional entries have to be made in the assessment books maintained under the provisions of the Bombay Municipal Corporation Act. Where additional entries are made or any amendments are carried out in the Ward assessment book, the relevant provisions of the Bombay Municipal Corporation Act are to be complied with. It is therefore, necessary to see the relevant provisions of the Bombay Municipal Corporation Act, 1888.
       Under Section 156 of the Bombay Municipal Corporation Act the Commissioner shall keep a book to be called "the assessment Book" is which shall be entered every official year various particulars as set out in that section. Those include the reteable value of each building and land. Under Section 160 when these entries have been made in any Ward Assessment Book, the Commissioner shall give public notice of it and of the place where the Ward Assessment Book, or a copy of it, may be inspected.
       Sections 162 to 165 deal with lodging and hearing of complaints regarding entries. Under Section 166 when all complaints have been disposed of an entries have been completed in the Ward Assessment Book, the Book shall be authenticated by the Commissioner. Under Section 166 (2), "thereupon the said ward Assessment Book, subject to such alterations as may thereafter be made therein under the provisions of the next following sections, shall be accepted as conclusive evidence of the amount of each property tax leviable On each building and land in the Ward in the official year to which the book relates." Though entries are made for each official year, under Section 168 a new assessment book need not be prepared every year, but it shall be prepared at least once in every four years.
       Under Section 167 (2) of the Bombay Municipal Corporation Act also it is expressly provided that every amendment, altering the cess or tax shall be deemed to have been made from the earlier day in the current official year. Since the levy of tax is for every official year and the amendment is also in respect of current official year, it cannot operate retrospectively to cover past official years. The respondents therefore, are clearly not entitled to increase the repair cess retrospectively to cover the period from 1-10-1972 to 31-3-1983.

JUDGMENT - Mrs. SUJATA MANOHAR, J.:---The petitioners own a building known as Aamer House at 4 Henry Road, Bombay 400 009. This is an old building consisting of ground, three upper storeys, plus a half floor and a terrace on the 4th floor. The rear portion consists of five storeys.

2. In the year 1972-73 the petitioners obtained a “no objection” certificate from the Bombay Building Repairs and Reconstruction Board to carry out extensive repairs to the building including its near portion. By its letter of 30th October, 1973 the Bombay Building Repairs and Reconstruction Board gave to the petitioners an extension of time upto 31st March, 1974 for completion of the repair work. The repair work was accordingly completed by the petitioners. There is some dispute about the date of completion of the repair work which is not material. I will assume for the sake of this petition that the repair work was completed by 31st March, 1973. In respect of the repair work the petitioners have been reimbursed to the extent of 75% of the cost of repairs by the Building Repairs and Reconstruction Board.

3. In or about February 1983 the petitioners received a copy of a statement dated 7th February, 1933 prepared by the Maharashtra Housing and Area Development Board (which had replaced the earlier Bombay Building Repairs and Reconstruction Board) relating to completion of repairs and sent to the Municipal Corporation of Greater Bombay for the purpose of enhancement of repair cess as per section 82 of the Maharashtra Housing and Area Development Act, 1976. In column 60 of this statement it was stated “work completed before 1-10-80. Cess should be increased at the calling limit of Rs. 120/- sq. meter'. Column 8 which relates the date of enhancement is kept blank. Thereafter the petitioner received 21 bills all dated 8th November, 1983 covering the period from 1-10-72 to 31-3-1983 for payment of enhanced repair cess in respect of this building. The particulars of these bills are set out at Exhibit `K' to the petition. Before issuing these Bills enhancing the Repair cess even requisite provisions of notice and hearing before enhancement of repair cess under the Bombay Municipal Corporation Act were not adhered to. The petitioners have challenged this imposition of enhanced repair cess with retrospective effect from 1-10-72. They are challenging 21 bills which cover the previous financial years. They do not challenge the 22nd bill in Exhibit 'K' which is for the period 1-4-83 to 30-3-83.

4. Under the Maharashtra Housing and Area Development Act, 1978 section 82 deals with levy and collection of Bombay Building Repairs and Reconstruction cess. Under section 82 sub-section (2) the repair cess shall be collected by the Bombay Municipal Corporation in the same manner in which the property tax is collected under the Bombay Municipal Corporation Act. Section 84(1) provides as follows :

“84(1) For the purpose of assessing the amount if cess leviable under this Chapter, the Municipal Commissioner shall, in a Schedule appended to the assessment book maintained by him under section 156 of the Corporation Act (which shall be deemed to be a part of such assessment book) cause additional entries to be made showing the category to which every property on which the cess is leviable belongs and such other particulars as he deems necessary . …. …..

(2) Where additional entries regarding any land or building in existence in any area on the date of which this Chapter comes into force are made for the first time, the Municipal Commissioner shall give individual notice thereof to the person primarily liable for the payment of the property taxes in the manner laid down in sections 483 to 486-A (both inclusive) of the Corporation Act and also public notice thereof in the manner laid down in section 160 of that Act and on the place where the ward assessment book so amended, or a copy of it, may be inspected. When the first public notice is give

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