Writ Petition No.2981 of 2005

19th July, 2017.

Petitioner Counsel: Shri AMOL P. MHATRE
Respondent Counsel: Shri VIJAY D. PATIL, Shri MANISH M. PABALE

Cases Cited:
Netaji Pratishthan Vs. Government of Maharashtra and Others, 2004(4) ALL MR 567 [Para 5]
Anil Moreshwar Ravetkar Vs. State of Maharashtra and others, 2006(6) ALL MR 818=2007(1) Mh.L.J. 701 [Para 5]
Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and Others, (1999) 8 SCC 16 [Para 10]

JUDGMENT

A. S. OKA, J. :- Submissions of the learned counsel appearing for the parties were heard on the earlier date.

2. On 7th July 2003, the Commissioner of the first Respondent Municipal Corporation for the City of Ulhasnagar passed an order in relation to computation of rateable value in respect of new buildings constructed within the limits of the first Respondent Municipal Corporation. A chart was appended to the said order. The order records that the hypothetical rent as mentioned in the chart appended to the order shall be taken into consideration for fixing hypothetical rent of the property under assessment. The order further records that while assessing the rateable value, if actual rent received is more than the standard rent, the rateable value shall be fixed not on the basis of the standard rent, but on the basis of the actual rent. The order directed that the assessment of the rateable value from the year 2003-2004 shall be made as per the said order.

3. The General Body of the first Respondent Municipal Corporation passed a Resolution No.4 in the meeting held on 19th May 2004 by which it was resolved that the rates mentioned in the Annexure to the order dated 7th July 2003 have been cancelled and in fact, all the properties should be assessed on the basis of the rates fixed in the year 1996-97 for the purposes of the assessment of the rateable value. The Resolution provided that on the basis of the representation made by the concerned person, necessary refund orders should be issued by the municipal administration.

4. By a letter dated 7th December 2004, the Municipal Commissioner applied to the State Government for rescinding the said Resolution No.4 by exercising the power under Section 451 of the Maharashtra Municipal Corporations Act, 1949 (for short "the said Act"). By the impugned order, in exercise of powers under Section 451 of the said Act, the said order dated 7th July 2003 stands rescinded.

5. The challenge to the impugned decision taken under Section 451 of the said Act is mainly on two grounds. The first ground is that the opinion or subjective satisfaction which is required to be recorded by the State Government as a condition precedent for the exercise of the powers under Section 451 of the said Act has not been recorded. The second ground is that a cryptic order without recording reasons cannot be passed for rescinding the resolution passed by majority. Reliance is placed on the decisions of this Court in the case of Netaji Pratishthan v. Government of Maharashtra and Others, 2004(4) ALL MR 567 and Anil Moreshwar Ravetkar v. State of Maharashtra and others, 2007(1) Mh.L.J. 701 : [2006(6) ALL MR 818].

6. The learned AGP appearing for the State Government supported the impugned order. However, he states that the concerned file is not available. The learned counsel appearing for the Municipal Corporation while submitting to the orders of the Court contended that at this stage, no interference is called for.

7. We have given careful consideration to the submissions. Section 451 of the said Act reads thus:

"451. Power of [State] Government to suspend or rescind any resolution or order, etc. of Corporation or other authority in certain cases.

(1) If the State Government is of opinion that the execution of any resolution or order of the Corporation or any other authority or that the doing of any act which is about to be done or is being done by or on behalf of the Corporation of such authority is in contravention of or in excess of the powers conferred by or under this Act or any other law for the time being force, or is likely to lead to a breach of the peace or to cause injury or annoyance to the public or any class or body of persons, or is likely to lead to abuse or misuse of or to cause waste of municipal funds against the interest of the public [or is likely to be against the financial interest of the Corporation or against larger public interest] the State Government may, by order in writing, suspend the execution of such resolution or order or prohibit the doing of any such act, for such period or periods as it may specify therein. A copy of such order shall be sent forthwith by the State Government to the Corporation and to the Commissioner or the Transport Manager.

(2) On receipt of a copy of the order as aforesaid, the Corporation or Commissioner or Transport Manager may, if it or he thinks fit, make a representation to the State Government against the said order.

(3) The State Government may, after considering any representation received from the Corporation or Commissioner or Transport Manager and where no such representation is received within a period of thirty days, either cancel, modify or confirm the order made by it under sub-section(1) or take such other action in respect of the matter as may in its opinion be just or expedient, having regard to all the circumstance of the case. Where any order made under sub-section (1) is confirmed the State Government may direct that the resolution or order of the Corporation or its authority in respect of which suspension order was made under sub-section(1) shall be deemed to be rescinded.

(4) Where any order is made by the State Government under sub-section(3), it shall be the duty of every Councillor and the Corporation and any other authority or officer concerned to comply with such order. "

8. In what contingencies a Resolution passed by the General Body of the first Respondent Municipal Corporation can be rescinded or suspended is precisely laid down under Sub-section(1) of Section 451 of the said Act. The impugned order does not record that the ingredients of Sub-section(1) of Section 451 of the said Act which are condition precedent for exercising the power have been satisfied. The drastic power under Sub-section(1) of Section 451 of the said Act can be exercised when the order of the Municipal Corporation is likely to lead to breach of the peace or to cause injury or annoyance to the public or any class or body of persons, or is likely to lead to abuse or misuse of or to cause waste of municipal funds against the interests of the public. Thus, the power in a sense is an extra-ordinary power.

9. On a plain reading of the impugned order, it becomes crystal clear that the satisfaction in terms of Sub-section(1) of Section 451 of the said Act has not been recorded. Therefore, the impugned order of the State Government is unsustainable.

10. In normal course, we would have set aside the impugned order. However, the question whether writ jurisdiction should be exercised will have to be examined in the light of the decision of the Apex Court in the case of Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Others, (1999)8 SCC 16. The Apex Court held that the order lacking jurisdiction need not be set aside if the result of setting aside such order was a revival of an illegal order. In such a case, the Court will be justified in refusing to interfere in writ jurisdiction.

11. It will be necessary to look at the nature of the Resolution which is impugned in this Petition. The English translation of the Resolution No.4 dated 19th May 2014 reads thus;

"This General Body Meeting after considering the above proposal hereby approves the schedule of rates of the rateable value for the official year 1996-97 and cancels the schedule of rates of rateable value made by the administration for the official year 2003-2004 and as a result, if a person makes a representation as regards entries in the assessment book for the year 2003-2004 within six months from date of payment of house tax, necessary refund be issued by the Administration."

12. The effect of the said Resolution is that the assessment of the rateable value from the year 2003-2004 will have to be made on the basis of the rates fixed by the Government in the year 1996-97. The Government Resolution provides that the excess amount collected shall be refunded. The effect of the impugned Resolution is that while making the assessment of the rateable value for the year 2003-2004, the rates of rent determined in the year 1996-97 will have to be applied and in fact, the excess amount collected will have to be refunded on an Application being made by the concerned person. The General Body had no legal authority to direct that the rateable value from the year 2003-2004 shall be determined on the basis of the rates of 1996-1997. As far as the fixation of rateable value is concerned, there are elaborate provisions in Chapter VIII of the Taxation Rules forming part of the schedule to the said Act. The rateable value has to be determined in terms of the Taxation Rules in case of each property on merits. The Taxation Rules also lay down the procedure for amending assessment/revising assessment of the rateable value. Therefore, in our view, Resolution No.4 is per se illegal being completely contrary to the said Act and the Taxation Rules. If the impugned order is set aside, the said Resolution will be revived.

13. In the facts of the case in the case of Anil Moreshwar Ravetkar, a finding was recorded on the facts that the Resolution which was sought to be revived was not illegal. Though the impugned order passed by the State Government is badinlaw, in the light of the law laid down by the Apex Court in the case of Maharaja Chintamani Saran Nath Shahdeo, we decline to exercise writ jurisdiction under Article 226 of the Constitution of India. The result of exercising writ jurisdiction will be the restoration of Resolution No.4 passed on 19th May 2004 which is completely illegal.

14. Accordingly, the Writ Petition is rejected. Rule is discharged with no order as to costs. However, no adjudication is made on legality of the order dated 7th July 2003 passed by the Municipal Commissioner.

Petition dismissed.