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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J.KATHAWALLA, RIYAZ I. CHAGLA, JJ.
Supriya Rajesh Nair – Appellant
Versus
Municipal Corporation of Greater Mumbai – Respondent
Writ Petition No. 2 of 2021
Decided on : 30-07-2021
Constitution of India, 1950 - Article 226 and 246(3) - Maharashtra (Urban Area) Preservation of Trees Act, 1975 - Mumbai Municipal Corporation Act, 1882 - Section 139 - Maharashtra Municipal Corporation Act, 194 - Section 127 - Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Section 105 - Urban Development Department - Government of Maharashtra (Urban Development Department) Resolution - Levying property tax – Seeking quash and setting aside of bills - Whether Petitioner, being a widow of an ex-serviceman or war widow, is entitled to exemption from payment of all forms of property taxes under, inter alia, MMC Act pursuant to State Government Resolution read with the Corrigendum - Whether letter addressed by Deputy Secretary, UDD, Government of Maharashtra to Additional Government Pleader can have any bearing on interpretation and application of GR and if so, to what effect - Whether State Government / MCGM has power to exempt levy of property tax under MMC Act - Whether Standing Committee Resolution can have the effect of restricting exemption under the GR only to ‘General Taxes’ as one component of property taxes.
Finding of the Court:
plain language and import of the GR is to exempt widows of ex service men from payment of property tax under, inter alia, MMC Act. Clearly, exemption provided for by GR is in no way restricted to any particular component of property tax which are identified in Section 139A of MMC Act. GR must therefore be understood as exempting property tax as a whole under Sections 139 and 139A of MMC Act - By a letter addressed by Deputy Secretary, Government of Maharashtra (UDD) to Additional Government Pleader, instructions are given on behalf of UDD to the Office of Additional Government Pleader that whilst the GR exempts payment of property tax only general tax is exempted under GR. It is pertinent to once again reproduce this letter in its entirety- Respondent No. 1 contends that exemption itself from levy of property tax under MMC Act is without authority of law. If Respondent No. 1 is now questioning authority as submitted in Paragraph 5 of its Written Submissions, it would certainly have to explain how GR and Standing Committee Resolution came to be issued or passed in first place - Authority of law to exempt payment of property taxes under GR is traceable to Sections 144A of MMC Act read with Section 520C of MMC Act - Section 144A and Section 520C of MMC Act, all of which are relevant to this issue as well. Court held that Respondent No. 1 is bound to give effect to instructions and directions of State Government and that GR is in nature of an instruction and direction as also an expression of a socially beneficial scheme or policy to grant concession from payment of property taxes on humanitarian grounds - Petitioner would, however, be liable to pay property tax in respect of those components which are charged under statutory provisions other than MMC Act. Such components or parts of the overall levy of property tax as set out in the Impugned Bills (i.e. Tree Cess) are not exempted by GR and are therefore not quashed and set aside.
Result: Writ Petition disposed of.
JUDGMENT :
S.J. KATHAWALLA, J.
INDEX
I. OVERVIEW OF CHALLENGE……………………….…….03
II. FACTS……………………………………………….06
III. ISSUE WHICH ARISE FOR CONSIDERATION…………….…13
IV. PROPERTY TAX LEVIED BY MCGM……………………….14
V. LEGISLATIVE PROVISIONS GOVERNING THE LEVY AND COLLECTION OF THE PROPERTY TAX……………………………15
A. CONSTITUTION OF INDIA…………………………………..15
B. MUMBAI MUNICIPAL CORPORATION ACT, 1888 ……………17
C. MAHARASHTRA (URBAN AREA) PRESERVATION OF TREES ACT, 1975……………………………...18
D. MAHARASHTRA EDUCATION & EMPLOYMENT GUARANTEE CESS ACT, 1962 …………………………………………..19
E. MAHARASHTRA HOUSING & AREA DEVELOPMENT ACT, 1976…...20
F. EXEMPTION FROM LEVY & COLLECTION OF PROPERTY TAX…….22
VI. ORDER DATED 8TH JANUARY, 2021……………………………..22
VII. PETITIONER’S SUBMISSIONS…………………23
VIII. RESPONDENTS’ SUBMISSIONS………………….24
IX. ANALYSIS OF THE ISSUES THAT ARISE FOR CONSIDERATION IN THIS PETITION AND THE COURT’S FINDINGS ……………………..26
ISSUE NO. (I) : WHETHER THE PETITIONER, BEING A WIDOW OF AN EXSERVICEMAN OR WAR WIDOW, IS ENTITLED TO EXEMPTION FROM PAYMENT OF ALL FORMS OF PROPERTY TAXES UNDER, INTERALIA, THE MMC ACT PURSUANT TO THE STATE GOVERNMENT RESOLUTION DATED 5TH APRIL, 2016 READ WITH THE CORRIGENDUM DATED 7TH APRIL, 2016…………………………………………………………………26
ISSUE NO. (II) : WHETHER THE LETTER DATED 7TH JANUARY, 2021 ADDRESSED BY THE DEPUTY SECRETARY, UDD, GOVERNMENT OF MAHARASHTRA TO THE ADDITIONAL GOVERNMENT PLEADER CAN HAVE ANY BEARING ON THE INTERPRETATION AND APPLICATION OF THE GR AND IF SO, TO WHAT EFFECT………………………………….29
ISSUE NO. (III) : WHETHER THE STATE GOVERNMENT/MCGM HAS THE POWER TO EXEMPT THE LEVY OF PROPERTY TAX UNDER THE MMC ACT…………………………………………………….. 31
ISSUE NO. (IV) : IF ISSUE NO. (I) IS ANSWERED IN THE AFFIRMATIVE, WHETHER THE STANDING COMMITTEE RESOLUTION DATED 29TH JUNE, 2017 CAN HAVE THE EFFECT OF RESTRICTING THE EXEMPTION UNDER THE GR ONLY TO ‘GENERAL TAXES’ AS ONE COMPONENT OF PROPERTY TAXES……………………………………………………….…...35
X. ORDER………………………………………………………...37
I. CHALLENGE IN BRIEF :
1. The present Petition has been filed seeking, inter alia, quashing and setting aside of bills dated 4th June, 2016 and 11th September, 2019 issued by the Municipal Corporation of Greater Mumbai (“MCGM”) levying property tax of Rs. 80,241/-for the period 1st April, 2016 to 31st March, 2020 (“Impugned Property Tax Bills”). The property tax is levied in respect of a residential flat at Versova, Andheri (W), Mumbai – 400053 (“the said Flat”).
2. The reliefs sought in the Petition are reproduced below:
i. thereby directing Respondent No. 1 and 2 to extend the benefit of Government Decision dated 5th April 2016 read with Corrigendum dated 7th April, 2016 to the Petitioner in its entirety
ii. thereby quashing and setting aside the bills for property taxes dated 4th June, 2016 and 11th September, 2019 raised upon Petitioner by Respondent No. 2 in respect of the aforesaid property of the Petitioner
iii. quashing and setting aside Circular dated 29th September 2017 issued by Respondent No. 2 regarding grant of exemption from payment of general tax out of the property tax as well as order/decision dated 29th June 2017 issued/taken by Standing Committee of Respondent No. 1 corporation thereby granting conditional approval for exemption from payment of general tax from out of the property tax as well as subsequent order dated 6th June 2019 bearing No. SKVS/3535/2016/2017 issued by Respondent No. 2 in pursuance of Order dated 29th June, 2017 for exemption from payment of general tax out of the property tax […]”
3. Briefly stated, the Petitioner submits that she is the widow of a martyred officer of the Indian Army, and as such, is exempt from payment of
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