Writ Petition No.2585 of 2013

12th December, 2014.

Petitioner Counsel: Mr. M.G. BHANGDE, Mr. V.V. BHANGDE
Respondent Counsel: Mrs. S.S. JACHAK, Mr. ANJAN DE

Cases Cited:
New Manek Chowk Spg. & Wvg. Mills Co., Ltd., etc. Vs. Municipal Corporation of the City of Ahmedabad & others, AIR 1967 SC 1801 [Para 5,9]
Bar Council of Delhi & ors. Vs. Surjeet Singh & ors., (1980) 4 SCC 211 [Para 5,11]
Ketan Ranjit Maaganlal & ors. Vs. Panaji Municipal Council & others, 2000(1) ALL MR 515=2000 (2) Bom.C.R. 746 [Para 8,13]
Municipal Council, Khurai & another Vs. Kamal Kumar & another, 1965 Mh.L.J. 225 [Para 10,19]

JUDGMENT

A.B. CHAUDHARI, J. :- Rule. Rule is made returnable forthwith. Learned Asstt. Govt. Pleader Mrs. S.S. Jachak waives service on behalf of respondent no.1, and learned Adv. Mr. Anjan De, for respondent no.2. By consent of rival parties, this Writ Petition is taken up for final hearing and disposed of by this Judgment and Order.

2. By the present Writ Petition, the petitioners, who are the tax payers to Municipal Council, Hinganghat, have put to challenge the implementation and methodology of assessment of Municipal Tax/Property Taxes through a private agency for the period from 2012-13 to 2015-16 being in violation of the provisions of the Maharashtra Municipal Councils, Nagar Panchayats & Industrial Townships Act, 1965 [hereinafter referred to as "the Maharashtra Municipalities Act", for short], so also the Resolution dated 1st October, 2010 passed by the respondent no.2, Municipal Council, Hinganghat.

Facts :

3. The petitioners are resident of various wards within the municipal limits of Municipal Council, Hinganghat. It is a 'B' Class Municipal Council within the meaning of Section 9 (2) of the Maharashtra Municipalities Act. The last assessment had taken place for the period from 2006-07 to 2009-10, i.e., for four years. The work for assessment for 2010-11 to 2013-14 was undertaken and Resolution No.7 was passed by the General Body of the Municipal Council on 14th July, 2009, to get the work of assessment done through a private agency. The assessment is obviously required to be done as per Sections 114 to 124 of the Municipalities Act. The work was finally given to M/s. Core Projects, Amravati, by Resolution dated 16th November, 2009. The agency, namely Core Projects, Amravati, entered into an agreement with the Municipal Council dated 6th January, 2010 [Annex.G to the petition]. The authorized Valuation Officer of the State Govt. approved the assessment and the valuations made by the Agency were sent through him to the Chief Officer, Municipal Council, Hinganghat, on one single day upon receipt thereof, i.e., on 20th October, 2010. The petition was filed in this Court on 8th May, 2013.

4. In response to the petition, the Municipal Council, Hinganghat, has filed short submissions on 23rd January, 2014 and the stand taken is that it is entitled to get the work of assessment delegated to agency and the Chief Officer of Municipal Council has power to get it done through any agency under his supervision and authority. A Preliminary Objection is raised about availability of alternate efficacious remedy under Section 169 of the Maharashtra Municipalities Act, with a further submission that the petitioners have, in fact, availed of the said remedy. It is also stated that the works of spot inspection, measurement of properties, preparation of maps, getting photographs were done through Core Projects, Amravati, the agency that was employed as per the agreement as aforesaid. Reliance is also placed on Standing Instruction No. 36 dated 29th December, 2005, issued by the Directorate of Municipal Administration, Mumbai, as to the procedure for the tender process wherein it is stated that the duties provided by Section 49 of the Maharashtra Municipalities Act can be performed through the agency. Respondent No.2 has also filed documents on 19th November, 2014 with a Pursis, in order to show that the Assessment Lists have been finalized after the objections were raised, heard and decided and, thus, everything has been completed in accordance thereof and nothing remains to be done by now. Petitioners-objectors have submitted their objections, including objections raised in the present petition and, therefore, the petitioners can very well pursue the same by taking resort to the alternate efficacious appellate remedy provided by Section 169 of the the Maharashtra Municipalities Act. All the stages have been completed and, therefore, this Court should not interfere in the matter of taxation and, thus, there is a prayer to dismiss the Writ Petition.

Arguments :

5. In support of the Writ Petition, learned Senior Adv. Mr. M.G. Bhangde with Mr. V.V. Bhangde made the following submissions:-

[a] The objection about availability of alternate remedy under Section 169, raised by the respondent no.2, is liable to be rejected, since the issues raised in the present petition are about the violation of the provisions of the the Maharashtra Municipalities Act while undertaking the assessment of taxes and the action being in violation of Article 14 of the Constitution of India, which cannot be examined within the scope and ambit of Section 169 of the Maharashtra Municipalities Act providing for the remedy of appeal. He relied on the decision of the Supreme Court in the case of New Manek Chowk Spg. & Wvg. Mills Co., Ltd., etc. Vs. Municipal Corporation of the City of Ahmedabad & others [AIR 1967 SC 1801] [Five- Judge Bench].

[b] The ground of delay and laches canvassed by the Municipal Council is also not available, because the petitioners came to know, for the first time, about the assessment, in question, when they received notices under Section 119 (1) of the Maharashtra Municipalities Act, and at a later stage came to know about appointment of a private agency for carrying out work of assessment and, thus, for lack of knowledge about internal happenings in the Municipal Council about appointment of a private agent etc., the petition was filed immediately after receipt of knowledge and this Court had issued notice on 9th May, 2013. The petition was filed after spending some time for collection of relevant documents etc. and hence it does not suffer from any delay and laches. Learned Senior Adv. for the petitioners relied on the decision in the case of Bar Council of Delhi & ors. Vs. Surjeet Singh & ors. [(1980) 4 SCC 211].

[c] Learned Senior Adv. then invited our attention to the various provisions of the Maharashtra Municipalities Act, namely Sections 2 (5) (6), 49 (2) (v), 49A, 77 (1) (a), 77 (2), 105, 114, 115 (1) (2) and Section 117.

[d] Placing reliance on the aforesaid provisions, the learned Senior Adv., for the petitioners submitted that the only provision in the the Maharashtra Municipalities Act for outsourcing of work , that is framed by the State Legislature, is Section 49A of the Act and there is no other provision to appoint any private agency for performing duties under the Act. According to learned Senior Adv., Section 49A contemplates appointment of any agency for performance of any duty or function imposed on a 'Council' entrusted with the implementation of the scheme. It does not authorize Chief Officer of the Municipal Council to get the duties of Chief Officer performed/implemented by any agency. According to Mr. Bhangde, what is spoken of under Section 49A is that an agency can be appointed for performance of any duties or functions of a 'Council' and not for performing the duties and functions of the Chief Officer.

[e] Inviting our attention to the Agreement dated 6th January, 2010, he argued that the very first paragraph of the agreement, in terms, provides for the agency to make a survey/resurvey of the properties within the municipal limits of Hinganghat, take measurements, draw maps and digital colour photographs, make valuation of the rateable value of the property, prepare lists of rateable value of the properties ward-wise, prepare notices under Section 119 of the Act and after the authorized Valuation Officer finalizes the lists, to prepare the final lists ward-wise and then put all the properties in computerized manner and having regard to provisions of Section 113 to 123, 150, 169 and 170 of the Maharashtra Municipalities Act within a period of three months.

[f] The learned Sr. Counsel then invited our attention to the communication dated 20th October, 2010 issued by the authorized Valuation Officer to the Municipal Council, Hinganghat with reference to the letter dated 20th October, 2010, i.e., of even date, in relation to the approval to assessment of taxes and the lists, and submitted that the authorized Valuation Officer received the Lists of all the properties in the area of Municipal Council, Hinganghat on 20th October, 2010 and on the same day, he approved all the proposals, which clearly shows total nonapplication of mind on the part of authorized Valuation Officer.

[g] Learned Sr. Counsel for the petitioners also invited our attention to the documents on record, by which the agency had prepared the charts for assessment of taxes showing the category of construction made and the assessed value for the purposes of taxation which is as per the agreement with the Agency.

6. Learned Sr. Counsel for the petitioners, therefore, submitted that the entire process of assessment of municipal taxation made by the respondents is contrary to law, arbitrary and in violation of Article 14 of the Constitution of India. He, therefore, submitted that the assignment of job to the agency being totally illegal, the entire action of assessment of taxation is liable to be struck down.

7. Per contra, Dr. De, learned counsel for respondent no.2, Municipal Council, and the learned AGP for the State, supported the actions challenged in the present Writ Petition.

8. Learned counsel for the respondents vehemently submitted that Section 105 of the Act provides a duty on the part of Council to impose the Property Taxes which are compulsory taxes and, therefore, according to learned counsel for the respondents, read in the light of Section 115 of the Act for carrying out the function under Section 105, the Chief Officer or the person under his authority, is entitled to make Assessment List. According to Dr. De, the lists were prepared under the strict supervision of the Chief Officer, though by the Agency that was appointed. He, therefore, submitted that the Chief Officer is bound to implement the Resolution of the Municipal Council which was passed for appointment of the Agency for assessment of taxes and, therefore, no fault can be found out in implementing the resolution of the Municipal Council. Learned counsel further argued that there is no want of authority in the Council even as per reading of Section 49A to appoint an agency for preparation of Assessment Lists for the purpose of general taxation, and the duty being of the Council as enunciated under Section 105 of the Act, there is no warrant for the proposition that no agency could be appointed to make assessment of general taxes or Property Taxes. The counsel for the respondents further submitted that it is not physically possible for the Chief Officer to undertake the survey/re-survey, measurements, maps etc., and, therefore, the job was got performed from the agency with which no fault can be found out, nor any prejudice is shown by the petitioners for carrying out the job of assessment. At any rate, according to learned counsel for the respondent no.2, petitioners have already approached the competent court by filing appeals under Section 169 of the Act and they were also heard by the Authorized Valuation Officer and thereafter the objections were considered. The petition is liable to be dismissed on the ground of delay and laches and the availability of alternate efficacious remedy. Mr. De relied on the decision of this Court in Ketan Ranjit Maaganlal & ors. Vs. Panaji Municipal Council & others [2000 (2) Bom.C.R. 746 : [2000(1) ALL MR 515] (Panaji Bench)].

CONSIDERATION :

9. We take up the first preliminary question for consideration, namely availability of alternate efficacious remedy, as contended by learned counsel for the respondent no.2. It is true that Section 169 of the Municipal Act provides for an appeal to the Magistrates or Committee. The question, however, relates to the applicability of Section 49A of the Act in the matter of engagement of an agency for carrying out the duties in the matter of assessment of taxes, and preparation and finalization of assessment list, which question cannot be gone into in the said appeal. The further question is about violation of various provisions of the Act as projected before us by the petitioners, on the ground that the action impugned in the Writ Petition violates the fundamental rights of the petitioners guaranteed under Article 14 of the Constitution of India. There is a further question also whether the Appellate Court or the Committee would be able to consider the matters raised in the instant petition. We do not wish to undertake a deeper exercise, since the said question has been decided by the Constitution Bench of the Apex Court in the case of New Manek Chowk Spinning & Weaving Mills Co., Ltd. [cited supra]. In our opinion, it would be sufficient if we quote paragraph 14 and extracted portion of para 16 from the said judgment, which read as under:-

"14. Mr. Setalvad argued that at that stage there is only a proposal and even if the municipality had acted arbitrarily it was open to the ssessees to take objection thereto and have proper valuations made and the assessment book prepared properly. We cannot accept this argument. If the municipality fails in its initial duty to act in terms of R. 9 (b) it does not lie in its mouth to say that any irregularity, however, patent on the face of it, is open to correction. Moreover, the methods of correction in this regard are really illusory. The Small Causes Court cannot decide the applicability of Art. 14 of the Constitution and according to the judgment of the Bombay High Court in Balkrishna v. Poona Municipal Corporation (1963) 65 Bom LR 119, (by which the District Judge would be bound): ".....the words used in S. 406 (1) of the Act..... do not cover the vires of the tax or the legality of the tax which is sought to be levied."

Earlier, the learned Judges had pointed out after noting Ss 406 to 413 that :

"the decision of Judge aforesaid upon any appeal against any such value or tax if no appeal is made therefrom under S.411 and if such appeal is made the decision of the District Court in such appeal shall be final."

From this it follows that it would be useless for the assessee to take objections or file appeals against the decision on rateable value to the authorities prescribed by the Act if he was challenging the determination of the rateable value as being violative of Art. 14 of the Constitution. It is no answer to such a charge to say that the rateable value could be determined properly by the municipal authorities acting under the Act and the rules thereunder when they do not resort to any of the well-known methods of valuation and cannot justify their arbitrary method."

"16. The net result of all this is that unless the assessee pays the amount of tax demanded, his appeal cannot be heard so that if he questions the rateable value or the levy of the tax, he must in any event, deposit the amount demanded. In effect, the Act and the appeal rules do not make any provision for relief to an assessee who complains that the assessment book has been prepared in violation of the law. ....."

10. Article 265 of the Constitution reads thus:-

"265. Taxes not to be imposed save by authority of law.- No tax shall be levied or collected except by authority of law."

As held in the case of Municipal Council, Khurai & another Vs. Kamal Kumar & another [1965 Mh.L.J. 225], we find that the procedure for imposing the liability to pay a tax has to be strictly complied with. Where it is not so complied with, the liability to pay the tax cannot be said to be according to law. That apart, reading of the appellate provision under Section 169 of the Act, to our mind, does not at all encompass the legal challenges raised in the instant Writ Petition, on the ground that the action impugned is contrary to the various provisions of the Act and that the same is also in violation of Article 14 of the Constitution.

11. Second preliminary objection raised by learned counsel for the respondent no.2 is about the delay and laches. This Writ Writ Petition was filed in this Court on 8th May,2013 and this Court had issued notices on the petition on 9th May, 2013. The petitioners, for the first time, came to know about the happenings in the Municipal Council, namely appointment of an agency and agreement with the agency dated 6th January, 2010 and the exercise thereafter undertaken by the agency as per the agreement, when the petitioners received the notices under Section 119 of the Act and then further procedure for hearing etc., was undertaken in October, 2012. The petitioners thereafter collected documents etc., obtained information and then filed the petition. These averments are made in amended para 13-B of the petition and we are satisfied that the petition does not suffer from delay and laches on the part of petitioners even on facts. That apart, paras 10 and 11 in the decision cited by learned counsel for the petitioners in the case of Bar Council of Delhi & others Vs. Surjeet Singh & others [cited supra] would be apt in this context, which read as follows:-

"10. The illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to Rule 3 (j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld. There is no question of the result being materially affected in such a case."

"11. The contesting respondents could not be defeated in their writ petitions on the ground of estoppel or the principle that one cannot approbate and reprobate or that they were guilty of laches. In the first instance some of the contesting respondents were merely voters. Even Shri Surjeet Singh in his writ petition claimed to be both a candidate and a voter. As a voter he could challenge the election even assuming that as a candidate after being unsuccessful he was estopped from doing so. But to be precise, we are of the opinion that merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso. There is no question of approbation and reprobation at the same time in such a case. A voter could not come to the High Court even earlier before the election was held. But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any laches and must be non-suited only on that account."

12. It is also clear from the said decision that the gravity of the infraction of law in a particular case is equally an important consideration for a constitutional Court to find out whether petition should be thrown out on the ground of laches.

13. We find in the instant case that the petition on facts as well as in law and looking to the gravity of the infraction of the provisions of the Act does not suffer from delay and laches. Thus, the decision, so also the Standing Instruction issued by Director, cited by learned Adv. Mr. De in the case of Ketan Ranjit Maaganlal & others Vs. Panaji Municipal Council & others, [2000(1) ALL MR 515] [cited supra] has no application in the instant case for the reasons given by us above that the infraction of provisions of law is required to be considered in the instant case.

14. Now we proceed to deal with the matter on merits. Section 2 (5) of the Act defines the "Chief Officer" as a person appointed under the Act. Section 2 (6) defines the "Council" as a Municipal Council constituted for a smaller urban area. Section 77 (2) of the Act provides for enabling power in the Chief Officer to delegate any of his powers, duties and functions to any Municipal Officer or servant. This provision does not provide for delegation by him of his powers, duties or functions to any agency. Section 76 of the Act provides for appointment of other Officers and servants. Chapter-IX of the Act relates to the Municipal Taxation. Section 105 of the Act reads thus:-

"105. Imposition of compulsory taxes

(1) Subject to any general or special orders which the State Government may make in this behalf, a Council shall impose, for the purposes of this Act, the taxes listed below:-

(a) to (e) ....."

Thus, Section 105 imposes an obligation, which can be said as a function to impose compulsory taxes by virtue of Section 105 of the Act.

15. At this juncture, it must be noted that in the instant case, the Municipal Council passed a resolution deciding to impose compulsory taxes as contemplated by Section 105 of the Act and, thus, completed its duty/obligation of imposition of compulsory taxes as per Section 105. Section 49A reads thus:-

"49A. Performance of functions by agencies Where any duty has been imposed on, or any function has been assigned to a Council under this Act or any other law for the time being in force, or the Council has been entrusted with the implementation of a scheme,-

(i) the Council may either discharge such duties or perform such functions or implement such scheme by itself; or

(ii) subject to such directions as may be issued and the terms and conditions as may be determined by the State Government cause them to be discharged, performed, or implemented by any agency:

Provided that the Council may also specify terms and conditions, not inconsistent with the terms and conditions determined by the State Government for such agency arrangement."

16. A careful reading of the above provision, which was inserted by Maharashtra 41 of 1994, Section 136, shows that a Council has been empowered to appoint any agency for performance of any duty or function assigned to a Council under the Act. In the instant case, we are only concerned with the duty of Council and function of Council in the matter of imposition of compulsory taxes. The submission made by Mr. De, learned counsel for the respondent no.2, that Section 105 obligates the Municipal Council to impose compulsory taxes and this duty means the duty spoken of in Section 49A of the Act which allows appointment of any agency for implementation of that duty is wrong and misplaced. In our opinion, there is a fine distinction which must be analyzed while reading these provisions for construing the provisions of Section 49A and Section 105 of the Act. It is true that a Council has to impose as a part of its duty or obligation under Section 105 of the Act, compulsory taxes. The Council decided so and passed a resolution to impose compulsory taxes. Thereafter, chief Officer comes into picture, who is required to implement the resolution of the Council for imposition of compulsory taxes. Day-today responsibility to implement the resolutions of the Council is that of Chief Officer, namely the resolution passed by the Council as a part of its duty to decide to impose compulsory taxes. That is what is contemplated by Section 77 (1) (b) of the Act. There is no power, duty or function of the Chief Officer anywhere in the Act to impose compulsory taxes contemplated by Section 105 of the Act, but that duty is imposed on the Council and not on the Chief Officer. In the instant case, we are really concerned with the power, function and duty of the Chief Officer for implementation of the resolution of the Municipal Council that was passed by virtue of Section 105 of the Act deciding to impose compulsory taxes. At any rate, it is plain that for taking a decision to impose compulsory taxes contemplated by Section 105 of the Act, no way, appointment of any agency would be required. Thus, we are not inclined to accept the submission made by Mr. De, learned counsel for respondent no.2, that Section 105 providing for a duty to impose compulsory taxes should be read with Section 49A of the Act for appointing an agency.

17. Having, thus, disposed of the contention raised by Mr. De, we proceed further to examine the other provisions of the Act. Heading of Chapter-IX is "Municipal Taxation" with two subheadings, namely [1] Imposition of compulsory and voluntary taxes, and [2] Assessment and Liability to Taxes on buildings and lands. First is the duty of a 'Council'. Under the second subheading, the further process of implementation of first by making assessment and liability to taxes on buildings and lands and the various provisions therein fall. Section 113 speaks about Authorized Valuation Officer. Sub-section (1) of Section 114 provides for fixation of rateable value of any building or land. Section 115 reads thus:-

"115. Preparation of assessment list

(1) When a tax on building or land or both is imposed, the Chief Officer shall cause an assessment list of all buildings land or lands and buildings in the Municipal area to be prepared in such form as the Chief Officer may, with the approval of the Standing Committee, determined.

(2) For the purpose of preparing such assessment list, the Chief Officer or any person acting under his authority may inspect any building or land in the municipal area and on the requisition of the Chief Officer, the owner or occupier of any such building or land shall, within such reasonable period as shall be specified including the details in respect of any or all the factors as enumerated in items (i) to (v) of clause (a) of sub-section (3) of section 114 in relation to such land or building or of any portion thereof in the requisition, be bound to furnish a true return to the best of his knowledge or belief and subscribe with his signature the name and place of abode of the owner or occupier or of both and the annual rent, if any, obtained and his estimate of the rateable value or the capital value, as the case may be of such building or land."

18. Perusal of Sub-Section (1) of Section 115 shows that even a tax on building or land, or both, is 'imposed' ['imposed' means imposed under Section 105 of the Act], the Chief Officer shall cause an assessment of list of all lands and buildings. Subsection (2) states that the Chief Officer or any other person acting under his authority may inspect buildings or lands. The assessment list, thus, can be prepared by the Chief Officer or any person acting under his authority by making inspection. The question is who are the persons acting under his authority? Reading of Section 49A permitting appointment of agency shows that the said provision does not empower, permit or allow the Chief Officer to outsource the said job by appointing any agency, because the said provision permits only a Council to do so and not the Chief Officer. To repeat, the words "Chief Officer" are not to be found in Section 49A.

19. The next question is power of the Chief Officer to delegate his authority and that has to be seen in Section 77 (2) of the Act, which reads thus:-

"77. Powers and duties of Chief Officer

(1) ....

(2) The Chief Officer may, with the sanction of the President, delegate any of the powers or duties or functions conferred or imposed upon or allotted to him by or under this Act, to any Municipal officer or servant:

Provided that, such delegation shall be subject to such limitations, if any, as may be prescribed by the Council and also to the control and revision by the Chief Officer."

Sub-section (2) also does not provide for or enable the Chief Officer to delegate the duties or functions to any other person than the Municipal officer or servant and the officers or servicemen contemplated by Section 76 of the Act. It is, thus, clear that the job of Preparation of Assessment List commences from Section 115 and the Chief Officer does not have an authority or power under the Act to appoint any agency to commence the process. Sections 118 and 119 of the Act then provide for publication of notice of assessment list and public notice of time fixed for lodging objections. Sections 120, 121 and 122 thereafter provide for a process to authenticate the list of assessment. To sum up, the provisions of the Municipal Act, thus, have been discussed above and we are of the firm view that no agency could be appointed to undertake methodology and process for implementation of the decision to impose compulsory taxes. Similar was the position obtainable in the case of Municipal Council, Khurai & another Vs. Kamal Kumar & another [cited supra]. We quote the extracted portion from para 9 of the said decision, thus:-

"9. ........................................Moreover, Mr. Setalvad was not able to point out to us any provision of the Act or of the rules, except section 78, whereunder the Council could delegate its function of hearing and deciding objections to a Sub-Committee. Section 78 reads thus:

"Any powers or duties or executive functions which may be exercised or performed by or on behalf of the Council may, in accordance with the rules made under this Act, be delegated by the Council to the President or Vice- President or to the Chairman of the Standing or other Committees, or to one or more stipendiary or honorary officers, but without prejudice to any powers that may have been conferred on the Chief Municipal Officer by or under section 92."

Even assuming that under this provision the power of the Council of hearing objections could be delegated, the delegation can presumably be only in favour of the persons mentioned in section 78 quoted above. It cannot be in favour of a Sub- Committee or a Committee. It is true that the Convenor of the Sub-Committee appointed by the Council was the Vice-President but the delegation was not to him alone but to the Sub-Committee. The two are not the same thing because while in one case the right to decide an objection would be solely exercisable by the Vice-President in the other it will be exercisable by the Sub-Committee as a whole. If there is unanimity amongst the members of the Sub-Committee no prejudice may be caused. But if the Vice-President is of one opinion and the other two members are of a different opinion the decision of the Sub-Committee cannot be said to be that of the Vice-President at all. But to the contrary."

20. We now find that the Agreement is entered by the Municipal Council with the private agency, namely M/s. Core Project, Amravati, and its relevant portion after translation reads thus:

"AGREEMENT Agreement executed : The Chief in favour of Officer, Nagar Parishad, Hinganghat. ...Party No.1. Agreement executed :Care Project,by Amravati. ...Party No.2. Agreement is executed as under:- My tender was passed as per Resolution No. 4 in the General Meeting held on 16/11/2009 in respect of resurvey of old property and complete survey of new property within the jurisdiction of Nagar Parishad, taking measurement, drawing maps of the construction and taking digital colour photos of the property, calculation of taxable value, preparation of ward wise list of taxable value, preparation of Notices under Section 119 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, preparation of ward wise final list after the decision of Authorized Value Assessment Authority and computerization of total property and preparation of map of every property on the computer etc. Subject to Sections 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 150, 169 and 170 of Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships act, 1965, I am ready to complete the work within the period of 3 months as per the following terms and conditions."

Reading of the above Agreement, to our mind, clearly shows that the entire job contemplated right from Sections 113 to 170 of the Act has been entrusted to the said agency by the Chief Officer who has entered into an Agreement as above. We find that the aforesaid Agreement and subsequent actions taken by the Municipal Council with the help of the agency are contrary to the scheme of the Act as discussed above, and Section 49A of the Act does not save any of the actions of the Chief Officer for implementing the resolution of the Municipal Council contemplated by Section 105 of the Act could be implemented by appointing an agency, since Section 49A of the Act is inapplicable.

21. Having, thus, found that the impugned action is illegal, the next question is about the grant of relief. We find from the record that the Municipal Council has served bills pursuant to the said exercise undertaken by the respondent no.2 and the property owners have also preferred appeals before competent forum. Respondent No.2, Municipal Council, must have also collected taxes from the property owners. In our opinion, whatever taxes have been collected by the Municipal Council till the date of this Judgment, the respondent no.2, Municipal Council, should be allowed to retain the entire collection of taxes with it and it should be allowed to undertake fresh process of making assessment according to the provisions of the Municipal Act and thereafter to make necessary adjustments, set off etc., in regard to the taxes collected and to be collected. In view of the above discussion, the following result is inevitable:-

ORDER

[a] Writ Petition No.2585 of 2013 is allowed.

[b] Rule is made absolute in terms of Prayer Clauses [A], [B] and [C].

[c] Respondent No.2, Municipal Council, is permitted to take up fresh process of preparation of assessment list for the purposes of recovery of compulsory property taxes and complete the same within a period of four months from today.

[d] Respondent No.2, Municipal Council, is entitled to retain the taxes collected so far under the impugned assessment with it and make adjustments/set off for recovery etc., in accordance with the fresh assessment to be undertaken.

[e] Respondent No.2, Municipal Council, shall pay cost of this petition in the sum of Rs.10,000-00 [rupees ten thousand only] to the petitioners.

Petition allowed.