Writ Petition No. 133 of 1996

23rd November, 2012

Petitioner Counsel: Mr. N.V. Khaladkar
Respondent Counsel: Mr. R.S. Khadapkar

JUDGMENT

-Heard Mr.Khaladkar for the Petitioner and Mr.Khadapkar for the Respondent-Corporation.

2. The matter was heard for sometime yesterday and came to be adjourned to today for delivery of Judgment.

3. The Petitioner-landlady has questioned the revised assessment of her property under section 406 of the Bombay Provincial Municipal Corporation Act. That Appeal was allowed by the Small causes court Pune on 30.6.1989. Aggrieved thereby the Respondent-Municipal Corporation filed further Appeal before the Additional Sessions Judge Pune. That Civil Appeal No.882 of 1989 has been allowed on 22.9.1995. The landowner thereafter has filed the present Petition.

4. On 23.1.1996 this Court has issued Rule in the matter and refused to grant any interim relief. Apart from other contentions, learned counsel for the Appellant has urged that the Appeal filed was statutory and the Small Causes Court ought to have called for the records of assessment from the Municipal Commissioner. The assessment order dated 20.6.1986 was passed by the Municipal Corporation and without perusing the relevant records the Appeals could not have been decided. In the alternative and without prejudice it is submitted that the said Court on the strength of the material produced before it has rightly found that there was no material change warranting hike in assessment. The landlady occupying five rooms on the first floor for her residence shifted to the ground floor as the tenant occupying the ground floor had vacated. Instead the first floor rooms were put to use as lodge. Submissions is thus there is only inter-change of user and floors. It is further pointed out that the second floor was newly constructed and in the light of the assessment of ground and the first floor, the learned Small Causes Court has correctly determined its annual letting value.

5. Learned counsel submits that in this situation, the Judgment dated 30.6.1989 called for no interference.

6. Mr.Khadapkar submitted that as Appeal against the order of assessment dated 29.6.1986 was filed by the Petitioner, burden was upon the Petitioner to demonstrate that the assessment was arbitrary and exhorbitant and that the Appellant could have summoned the record of the Municipal Corporation He pointed out that assessment or its Revision till 1985 is not in dispute. In the light of the undisputed position his submissions is that the 7th Additional District Judge,has correctly appreciated the controversy. The vacation by the tenant occupying on the ground floor for residential purposes and its consequential occupation by the landlady needed a Revision of assessment of that portion. Five rooms on the first floor till then occupied by the landlady for her residence have been put to use for business of the landlady and that change also necessitated the Revision. The second floor has been newly constructed and therefore that floor also needed assessment and hence the entire building has been rightly reassessed in 1985. The Court of Small causes has erroneously ignored these three important events and in any case has confused event 1 and 2 as only inter-change or exchange. He relies upon the Extract of the Book maintained by the Municipal Corporation and annexed with the Petition both the Annexures A-1 to urge that perusal of the rate or mechanism employed therein is sufficient to negate the challenge raised in the Petition. In the alternative and without prejudice to that those submissions he sought an adjournment to produce the relevant assessment records of Municipal Corporation.

7. I find that a perusal of Assessment records of the Municipal Corporation for the first time by this Court in this jurisdiction will not be proper and of no assistance. Appeal under section 406 of the BPMC Act being a statutory Appeal, without calling for the Records of assessment from the Municipal Corporation neither the Small Causes Court nor the Court of 7th Additional District Judge could have decided the same. Provisions of the Rules particularly Rule 7 of Property Rules framed under the BPMC Act show that the Annual letting value is to be determined after ascertaining the reasonable rent on which the premises are expected to be let out. How the reasonable rent is to be determined is not very clear and none of the Courts have looked into it .Whether any such reasonable rent has been worked out and thereafter Annual letting value was reached is also not clear.

8. The document at Annexure-I shows that it is an Extract of the Register in which objections received against Annual letting value are registered. That document is therefore, not the record of assessment at all. The said document shows that the landlady was given 40% rebate because she used five rooms on the first floor for her own residence. It is to be noted that this exercise is not in dispute in Appeal. The reassessment or Revision in 1985 and particularly the order dated 20.6.1986 is in dispute. This document is, therefore of no assistance for resolving that dispute.

9. I find substance in the contention of the learned Counsel for Municipal Corporation that the Small Causes Court has treated the act of shifting of the landlady from first to ground floor as inter-change. However, at this stage and in this jurisdiction, as the relevant records are not available no final Verdict in this respect can be recorded. The Small Causes Court ought to have called for Assessment Records from the Municipal Corporation. Perusing the same in the light of Relevant Rules dealing with determination of reasonable rent and Annual letting value and then determined whether the assessment order dated 20.6.1986 was in accordance in law or not ? The statutory Appeal could not have been determined without such application of mind and without going through the basic record.

10. Hence, without recording any findings on the rival contentions raised before this Court and only to facilitate a proper consideration of the Appeal as filed, the Judgment dated 22.9.1995 delivered by the 7th Additional Sessions Judge in Civil Appeal No. 882/1989 as also judgment dated 30.6.1989 delivered by the Small Causes Court,Pune in Municipal Appeal No.75/1986 are hereby quashed and set aside. The proceedings in Municipal Appeal No.75/1986 are restored back to the file of the Small Causes Court Judge for its disposal in accordance with law after calling for the relevant Records from the Municipal Corporation. The parties shall be given necessary opportunity of going through those records.

11. Needless to mention that this Court has not granted any interim order. The Petitioner is duty bound to continue to pay the taxes as per demand. However same shall be without prejudice to his rights in Municipal Appeal No.75/86. It is further clarified that the order of assessment questioned in that Appeal is passed on 20.6.1986. Thus, this Court is sending back the matter almost 26 years later. If any subsequent reassessment or Revision are already acquieced to by the present Petitioner, the Respondent-Municipal Corporation can point out the same to the Small Causes Court and request it to dispose of the challenge as infructuous. The Small Causes Court,Pune shall hear the Appellant and decide whether due to passage of time and such acceptance the challenge as raised before it is infructuous or not ?

12. The parties are directed to appear before the learned Small Cause Judge,Pune in Municipal Appeal No.75/1986 on 21.1.2013 and to abide by its further proceedings. An attempt shall be made to decide the Appeal in any event before the expiry of period of six months thereafter.

With these directions Writ Petition is disposed of.

Ordered accordingly.