Sambhaji Nagar Co-Op.Hsg. Society Ltd. Vs B.M.C.

 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO. 2172 of 2002

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 Sambhaji Nagar Co-op Housing Soc. .. Petitioner

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 versus

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 Bombay Municipal Corporation .. Respondents

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 Mr.K.P. Pandey i/b M/s.M.P. Vashi & Associates for
 the petitioner.

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 Mrs.A.R. Joshi for the respondent.

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 CORAM : D.G. KARNIK,J.

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 DATED : 6th July 2005.

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 P.C.:

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 1. Heard learned counsel for the parties.

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 2. The petitioner is a Co-operative housing
 Society. It purchased the property bearing plot

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 no.279 (CS no.92) admeasuring 4451 sq.yards (3639.69
 sq.m), by a deed of conveyance dated 18th March 1986.
 It appears that the existing old building on the said
 property was demolished under a redevelopment scheme
 under regulation no.33(7) of the Development Control
 Regulations (D.C. Regulations). The new building
 was ready in the year 1997. Thereafter, respondent -
 Municipal Corporation levied the property tax on the
 new building in accordance with the provisions of the
 Bombay Municipal Corporation Act 1888. The
 petitioner Society and its members did not pay the
 taxes and therefore respondent no.1 attached the
 property of the petitioner by issuance of an
 attachment warrant dated 18th March 2002. That order
 of attachment is impugned in this Writ Petition.

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 3. Learned counsel for the petitioner submits
 in view section 144B of the Mumbai Municipal
 Corporation Act 1888 (for short ’the MMC Act’) the
 property tax should have been levied at the reduced
 rate. Section 144B of the MMC Act reads as follows:-

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 "144-B Notwithstanding anything contained
 in section 140 or any other provisions of
 this Act, during the period of twenty
 years from the date of commencement of the
 Bombay Municipal Corporation and the

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 Maharashtra Regional and Town Planning
 (Amendment) Act, 1995, or from the date of
 first occupation of the premises whichever
 is later, the property tax in respect of
 any building constructed, whether before
 or after such commencement, under the Low
 Cost Housing Scheme for economically
 weaker sections and Low Income Group by
 the Maharashtra Housing and Area
 Development Authority, or under the Slum
 Rehabilitation Scheme declared under the
 Maharashtra Slum Areas (Improvement,
 Clearance and Redevelopment) Act 1971 or
 under any other Housing Scheme of the
 Central Government, State Government or
 Corporation for the purpose of slum
 improvement, and used for residential
 purposes, shall be levied at such reduced
 rates as the State Government, may, be
 notification in the Official Gazette, from
 time to time, fix; and different reduced
 rates may be fixed for different period
 and for different classes of building."

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 4. In exercise of the powers conferred u/s.144B

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 of the MMC Act, the Urban Development department and
 State of Maharashtra has issued a notification no.
 BMC/1996/6183/CR-50/97/UD-21 dated 7th November 1997
 whereby the State Government has fixed reduced rate of
 property tax for a period of 30 years with effect from
 23rd November 1995. The said notification is
 reproduced below:-

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 "NOTIFICATION

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 . Urban Development Department

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 Mantralaya, Mumbai 400 032

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 Dated 7th November 1997.

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 No. BMC 1996/6183/CFR-50/97/UD-21: In
 exercise of the powers conferred by
 section 144B of the Mumbai Municipal
 Corporation Act ( BOM III of 1888), and
 of all other powers enabling it in this
 behalf, the Government of Maharashtra
 hereby fixed the following reduced
 rates of property taxes, during the
 period of twenty years with effect from
 the 23rd November 1995, or from the
 date of occupation of the premises
 whichever is later, to be levied in
 respect of any building constructed,
 whether before or after the 23rd
 November 1995, under the Low Cost
 Housing Scheme for economically weaker
 sections and Low Income Group by the
 Maharashtra Housing and Area
 Development Authority, or under the
 Slum Rehabilitation Scheme declared
 under the Maharashtra Slum Areas
 (Improvement, Clearance and
 Redevelopment) Act 1971 (Mah XXVIII of
 1971), or under any other Housing
 Scheme of the Central Government, State
 Government for the purpose of slum
 improvement, and used for residential
 purposes, namely:

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 period Reduced rate of property tax

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 1. From the 1st 20% of the rate of property
 year to the taxes levied in the
 particular year.

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 2. From the 50% of the rate of property
 11th year to taxes levied in the
 the 15th particular year.
 year.
 3. From the 80% of the rate of property
 15th year taxes levied in the
 to the 20th particular year
 year

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 By order and in the name of the Governor of
 Maharashtra.

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 (D.S. Gujare)

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 Dy.Secretary to Government.

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 5. Bare reading of section 144B of the MMC Act

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 shows that the State Government has a power to fix
 the rates levied for property tax in respect of three
 categories of building i.e. (i) Low Cost Housing
 Scheme for economically weaker sections and Low
 Income Groups by MHADA. (ii) buildings constructed
 under Slum Rehabilitation declared under the

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 Maharashtra Slum Area (Improvement, Clearance and
 Redevelopment) Act 1997 and (iii) any other house
 scheme of the Central Government, State Government or
 Corporation for the purpose of Slum Improvement and
 use for residential purposes.

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 6. In the present case, property is developed
 under regulation no.33(7) of the Development Control
 Regulations 1992. The petitioner’s building is not
 covered by the three categories envisages under
 section 144B of the Act or the notification issued
 thereunder. Therefore, it is not entitled to the
 reduced rate of property tax as provided in the
 notification. I am fortified in this view by the

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 decision of the Division Bench of this Court in
 Akruti Co-op Housing Society Ltd. & Anr. Vs. BMC &
 ors. (Writ Petition no. 1894 of 2000 decided on
 14th January 2002, Coram : A.P. Shah and
 V.K.Tahilramani, JJ).

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 7. In the circumstances, the contention of the
 petitioner that property taxes should have been
 levied on it on the reduced rates has to be rejected.

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 8. There is one more reason why the present
 petition has to be dismissed. An appeal is provided
 u/s.217 of the MMC Act against issuance of a bill.
 The petitioner never challenged the bill by filing of
 an appeal u/s.217. It was only after the attachment
 warrant was issued that the petitioner has filed his
 present Writ Petition challenging the warrant of
 attachment. Unless the original bill is challenged,
 no Writ Petition against the attachment warrant can
 be entertained. The bill could have been challenged
 by filing of an appeal u/s.217 which has not been
 done.

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 9. There is no merit in the petition which is
 hereby dismissed with costs.

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 10. Rule discharged with costs.

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 D.G. KARNIK, J

Sambhaji Nagar Co-Op.Hsg. Society Ltd. v. B.M.C.

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Sambhaji Nagar Co-Op.Hsg. Society Ltd. v. B.M.C.

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