The main legal point established in the judgment is that the exemption from repair cess for lands and buildings leased to a cooperative housing society under Sec. 83(1)(g) of the Maharashtra Housing and Area Development Act, 1976 is not conditional on an administrative order.

Headnote:
repair cess - Cooperative Housing Society - Maharashtra Housing and Area Development Act, 1976, Sec. 83(1)(g) - Sec. 82 - The court discussed the exemption from repair cess for lands and buildings leased to a cooperative housing society under Sec. 83(1)(g) of the Maharashtra Housing and Area Development Act, 1976. It emphasized that once an assessee falls in a category legislatively enacted in subsection (1) of Section 83, the provision for exemption is attracted. The court held that the exemption is not conditional on an administrative order and set aside all consequential actions for recovery of repair cess.
Fact of the Case:

The dispute arose from the levy of repair cess on a Cooperative Housing Society under the Maharashtra Housing and Area Development Act, 1976.
Finding of the Court:

The court found that the Cooperative Housing Society was entitled to an exemption from the levy of cess under Sec. 83(1)(g) of the Maharashtra Housing and Area Development Act, 1976.
Issues: The main issue was the applicability of the exemption from repair cess for lands and buildings leased to a cooperative housing society under Sec. 83(1)(g) of the Maharashtra Housing and Area Development Act, 1976.
Ratio Decidendi: The court held that once an assessee falls in a category legislatively enacted in subsection (1) of Section 83, the provision for exemption is attracted and is not conditional on an administrative order.
Final Decision: The petition was allowed, and all consequential actions for recovery of repair cess were set aside. The rule was made absolute in terms of prayer clause (a), and there was no order as to costs.

JUDGMENT:- By an Agreement to Assign dated 1-7-1970entered into between (1) Shri.

Kantilal Dullabhdas Modi, (2) Bai Anand Laxmi J. Modi, and (3) Chandrakant Chhabildas Mehta, as assignors and one Tarachand Govindram Manwani as Assignee, the assignors agreed to assign leasehold land being Plot No.206 in Scheme No.52 of Worli (Estate) with the building standing thereon. In July, 1970 there were 5 tenants in shops on the ground floor and four tenants in flats on the first floor. It has been averred in the petition that Tarachand Govindram Manwani became the Chief Promoter of a proposed Co-operative Housing Society. After the agreement dated 1-7-1970, the Chief Promoter entered into possession and constructed the second and third floors of the building on the plot and the construction was approved by the Corporation. Agreements to sell were entered into in respect of 12 flats that were constructed on the first and second floors of the building, with individual flat purchasers. Thereafter an application signed by 12 members of the Co-operative Society was submitted to the Assistant Registrar of Co-operative Societies, for the registration of the Society. Accordingly, the Co-operative Housing Society by the name of Manwani Co-operative Housing Society Ltd. (Petitioner No.3) was registered under the Maharashtra Co-operative Societies Act, 1960 and a Certificate of Registration was issued on 7th March, 1972. By an Indenture of Assignment dated 29th June, 1972 an assignment was made of the said land together with the structures standing thereon to the 3rd Petitioner. The indenture of assignment was duly registered with the Sub-Registrar of Assurances on 29-6-1972. The lands and building covered by the Deed of Assignment dated 29-6-1972 vest absolutely in the 3rd petitioner - the Co-operative Housing Society.

2. The dispute in the present case relates to the levy of repair cess on the Cooperative Housing Society. By a letter dated 17-7-1972, the Petitioners informed the 2nd respondent that under the provisions of Sec.83(1)(g) of the Maharashtra Housing and Area Development Act, 1976 no repair cess was liable to be paid since the property, being of a Co-operative Society was exempted from repair cess. According to the Petitioners, at various stages the authorities had called upon them to produce documents relating to the registration of the Society and the list of members which were accordingly furnished. In the meantime, it appears that the Assessor and the Collector of the Corporation had made a reference to the Maharashtra Housing and Area Development Authority seeking advice on the applicability of the exemption. In response to a letter dated 26th December, 1985 of respondent No.3, the petitioners submitted an affidavit in the format prescribed. There was considerable correspondence between the petitioners and the authorities copies of which have been annexed to the petition. This may not be material for the purposes of the present controversy.

3. The cause of action for this proceeding was a letter dated 15th July, 2003 addressed by the Under Secretary to the State Government in the Housing Department. The letter records that the 3rd petitioner is entitled to an exemption from the levy of cess under Sec.83(1)(g) of the Maharashtra Housing & Area Development Act, 1976 (the MHADA Act, 1976). However, it has been stated therein that though the Society was registered on 7th March, 1972, the Government had not been informed until 22-6-1999. Government agreed to the· exemption of the Society from the payment of cess with effect from 15-5-1998 subject to the condition that the entire arrears prior to that date are liable to be paid. That decision of the Government has been challenged in this proceeding under Art.226 of the Constitution.

4. Sec.82 of the MHADA Act, 1976 provides that, for the purposes of the Chapter but subject to the provisions of Sec.83, there shall be levied and paid to the State Government from such date as may be appointed

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