Partly allowed

The Municipal Corporation of Greater Bombay and Ors. v. Shri Jagatbhai Kantilal Shah and Others

Bombay HC28 Jun 2005FA/1496/1988

Case brief

AI extract

What is this about?

This bench partly allowed appeals filed by the BMC against a lower court order fixing rateable value. The court struck out the lower court's observation excluding farmhouses from definitions due to an admitted concession of tax liability and kept the classification issue open.

What did the court decide?

Counsel for respondents' earlier observation that the farmhouse was not included in the definition of building or temporary building was struck out. The issue was kept open. No change in the operative

The Municipal Corporation of Greater Bombay and Ors… — Service and Employment | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION.

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 FIRST APPEAL NO.1496 OF 1988.

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 WITH

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FIRST APPEAL NO.1499 OF 1988

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 The Municipal Corporation of

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 Greater Bombay & ors. : Appellants.

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 versus

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 Jagatbhai Kantilal Shah & ors. : Respondents.

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 Mr.A.Y.Sakhare with Mr.J.J.Xavier for the

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 appellants.

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 Mr.A.D.Kango for Respondent Nos. 1 and 2.

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CORAM : D.G.DESHPANDE,J.

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 DATED : 28th June 2005.

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ORAL ORDER

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 1. These appeals arise out of an order about

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 fixation of rateable value. Both the appeals
 have been filed by the BMC. Counsel for the
 respondents raised preliminary objection under
 Section 218D of the Bombay Municipal Corporation
 Act which reads as under :-

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"218D. Appeals.-- (1) An appeal shall

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 lie to the High Court -

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 (a) from any decision of the Chief
 Judge of the Small Cause Court in
 an appeal under Section 217 by
 which a rateable value in excess
 of two thousand rupees is fixed,
 and .......

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 Counsel for the respondents pointed out that the
 rateable value in this case is less than
 Rs.2,000/- i.e. actually it is Rs.685/-, that is
 the value fixed by the Investigating Officer and,
 therefore, the appeals do not lie.

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 2. However, counsel for the BMC contended,
 relying upon Section 218D (1)(b) that in view of
 this provision in particular the appeals become
 maintainable. Apart from this, according to him,
 the Court may not entertain the appeals so far as
 fixing the rateable value is concerned, but
 certain observations of the lower Court were
 uncalled for and are required to be struck down.
 He also pointed out that when the respondents,

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 through his advocate before the lower Court, have
 admitted and conceded that the structure is
 liable for tax, then, whether it is a farmhouse
 or not becomes irrelevant. He drew my attention
 to para 9 wherein the lower court has observed
 as:-

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 "However, Mr.Chiniwalla has submitted
 that as stated in appeal memo his client
 has no objection for rating the temporary
 structure taking the monthly rent......"

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 3. Counsel for the BMC also drew my
 attention to the earlier part of this para 9
 wherein the lower court has stated as :-

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 "After careful reading of this definition
 nowhere the farmhouse is included either
 in the definition of building or
 temporary building. The definition are
 inclusive of shed and kachha
 construction, i.e. temporary structure.
 In view of this the farm house now in
 appeal appears not included in any of the
 definitions referred to above under the
 Bombay Municipal Corporation Act

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 specifically showing farmhouse either
 under the definition of "building" or
 "temporary building".

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 4. Counsel for the appellants contended that

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 when in fact the respondents’ advocate has
 admitted that his structure was liable to be
 taxed then either lower Court should not have
 made the aforesaid observations or should have
 kept that issue open, to be decided in
 appropriate proceedings.

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 . I find considerable force in this

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 submission. Therefore, in view of the concession

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 made by the counsel for the respondents before
 the lower Court which is reiterated here also,
 the aforesaid conclusion of the lower Court are
 required to be quashed and set aside, and issue
 is required to be kept open. Hence the order :-

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 :ORDER:

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 Both these appeals are partly allowed.

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 There will be no change in the operative
 part of the orders. However, the

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 observations of the lower Court as :-

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 "After careful reading of this definition
 nowhere the farmhouse is included either
 in the definition of building or
 temporary building. The definition are
 inclusive of shed and kachha
 construction, i.e. temporary structure.
 In view of this the farm house now in
 appeal appears not included in any of the
 definitions referred to above under the
 Bombay Municipal Corporation Act
 specifically showing farmhouse either
 under the definition of "building" or
 "temporary building".

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 are struck out. The issue, whether the farmhouse

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 is a building or temporary building is kept open
 for all the time to come i.e. it is decided in
 appropriate case. The appeals are disposed of.

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 [D.G.DESHPANDE]

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 28/06/2005 JUDGE.

The Municipal Corporation of Greater Bombay and Ors. v. Shri Jagatbhai Kantilal Shah and Others

Case brief

What is this about?

What did the court decide?

The Municipal Corporation of Greater Bombay and Ors. v. Shri Jagatbhai Kantilal Shah and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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