2004 Supreme(Bom) 1408

IN THE HIGH COURT OF BOMBAY
Khandeparkar R.M.S., J.
Dalamal Tower Premises
Co-operative Society Ltd. another .... Petitioners.
Versus
Municipal Corporation of Brihan Mumbai others.... Respondents.
Writ Petition No. 2120 of 2004, decided on 14-10-2004.
Advocates appeared :
Aspi Chinoy with M.S. Doctor i/b. Junnarkar Associates, for petitioners.
Vinod Mahadik, for respondent-BMC.
Amjad Sayed, A.G.P., for respondent-State.

Headnote:Bombay Municipal Corporation Act, 1888 - Section 167 - Fixation of rateable value - Crietria - Adopted in distinguishing self occupied premises from those which are in occupation of different commercial undertakings allowed to be occupied on leave and licence basis - Contrary to law laid down by High Court.

       Bombay Municipal Corporation Act, 1888 - Section 167 - Rateable value - Reassessment of - No notice for - Impugned order not disclosed basis on which reassessment made except certain figures - A non-speaking order - No ground or basis disclosed for arriving at those figures - Authorities acted illegally - Impugned order revising assessment cannot be sustained - Liable to be quashed and set aside. - In the case in hand, neither notice nor the impugned order discloses the basis on which the reassessment has been made except that it discloses certain figures having been arrived at by the authorities for the purpose of reassessment. The same do not disclose the ground and the basis for arriving at those figures and therefore the learned advocate is justified in contending that the order is a non-speaking order. Undoubtedly, such an order carries civil consequences and therefore the authorities are required to pass a reasoned order justifying reassessment when the parties file their objections for such reassessment. The authorities are required to deal with the objections and to arrive at the appropriate findings in relation to such objections. It is to be noted that the order passed by the authorities is subject to an appeal and the appellate authority is entitled to know the reasons and the basis on which the findings are arrived at. The party aggrieved by the order of the authorities is also entitled to know the same so that it can effectively put forth its case in the appeal. The authorities having totally failed to comply with the same have clearly acted illegally.

       For the reasons stated above, the impugned order revising the assessment cannot be sustained and is, therefore, liable to be quashed and set aside.

       Bombay Municipal Corporation Act, 1888 - Section 167 - Assessment of ratable value - Criteria adopted by the Corporation in distinguishing the self-occupied premises from those which are in occupation of different commercial undertakings on account of having been allowed to be occupied on leave and licence basis is not proper. 1991 (4) Bom CR 56; 1981 Bom CR 106 - Relied on; 2002 (2) Mh LJ 619 : 2002 (104) 2 BCR 25; (1976) 4 SCC 830 : AIR 1976 SC 1398; (1988) 3 SCC 306; 1973 Mh LJ 128; 1972 Vol. IXXIV Bom. CR 469; 1970 (2) SCC 44; (2003) 6 SCC 315; AIR 1974 SC 1779; 1981 Bom CR 1006; (2001) 1 SCC 2911; (2000) 4 SCC 577; 1991 (4) Bom CR 56 - Referred. - Undisputedly, in the case in hand, the rateable has been assessed for the basement of the building at Rs. 125/- per 10 sq. mtr., and in relation to the ground and upper floors at the rate of Rs. 250/- per 10 sq. mtr. However, only in case of those units which are stated to be occupation of licensees or leased in favour of banks or financial institutions, different rates have been applied. While in the case of Oriental Bank of Commerce and the Canara Bank on the ground floor, it has been calculated at Rs. 3,250/- per 10 sq. mtr., in the case of the Corporation Bank on the fourth floor, it has been calculated at the rate of Rs. 1,950/- per 10 sq. mtr., so also is the case in respect of FICOM on the fifth floor and the like. In other words, though in case of self-occupied premises a flat rate of per Rs. 250/- per 10 sq. mtr. is followed except for the ground floor as well as the upper floors of the building, in case of the premises which have been given by members on leave and licence basis to third parties, the Corporation has adopted a totally different criteria and the letting rate of Rs. 3,250/- or Rs. 1,950/- has been adopted for per 10 sq. mtr. for the purpose of fixation of the rateable value. Obviously, the criteria adopted in distinguishing the self-occupied premises from those which are in occupation of different commercial undertaking on account of having been allowed to be occupied on leave and licence basis is contrary to the law laid down by this Court in Jeevan Jyot ’s case and followed in Biswa Bandhu Sen as well as in Maker Bhavan ’s case.

       Bombay Municipal Corporation Act, 1888 - Section 167 - Reassessment order - Neither notice nor impugned order discloses the basis on which reassessment was made except certain figures - The same did not disclose the ground and the basis for arriving at those figures - Impugned order revising assessment cannot be sustained. AIR 1962 SC 1893; 2002 (6) BCR 561; 1998 (1) BCR 397; (2001) 1 SCC 291 - Relied on. - Petitioners have also raised the point regarding violation of the basic principles of natural justice as well as the order passed being anon-speaking order. Indeed, the impugned order apart from saying that the authorities are empowered to reassess by virtue of the order passed in the writ petition No. 1721 of 2002, the assessment nowhere discloses the basis, the reasons and the circumstances in which reassessment has been made. As rightly submitted by the learned Advocate for the petitioners, the Apex Court in Food Corporation of India v. State of Punjab and others, reported in (2001) 1 SCC 291, it was clearly held that the authority amending the assessment list has to observe certain criteria and in that regard it was ruled that : -

       "Care has also to be taken to comply with the principles of natural justice by making the provision for giving notice to the person who is likely to be affected by the proposed amendment giving him not less than a month’s time to tender objection, if any, to the committee and allowing him an opportunity of being heard in support of the objections raised. Notice to the affected person mandated in the section is not an empty formality; it is meant for a purpose. A vague and unspecified notice will not provide reasonable opportunity to the notice to file objection meeting the reasons/ grounds on which the amendment of the assessment list is proposed to be made."

       In the case in hand, neither notice nor the impugned order discloses the basis on which the reassessment has been made except that it discloses certain figures having been arrived at by the authorities for the purpose of reassessment. The same do not disclose the ground and the basis for arriving at those figures and therefore the learned Advocate is justified in contending that the order is a non-speaking order. Undoubtedly, such an order carries civil consequences and therefore the authorities are required to pass a reasoned order justifying reassessment when the parties file their objections for such reassessment. The authorities are required to deal with the objections and to arrive at the appropriate findings in relation to such objections. It is to be noted that the order passed by the authorities is subject to an appeal and the appellate authority is entitled to know the reasons and the basis on which the findings are arrived at. The party aggrieved by the order of the authorities is also entitled to know the same so that it can effectively put forth its case in the appeal. The authorities having totally failed to comply with the same have clearly acted illegally.

       For the reasons stated above, the impugned order revising the assessment cannot be sustained and is, therefore, liable to be quashed and set aside. Needless to say that such setting aside of the revision of assessment would entitle the Corporation to claim the arrears at the rate of unrevised assessment and in case of reassessment to initiate fresh proceedings in that regard bearing in mind the observations hereinabove, including in relation to prohibition for reassessment retrospectively.