PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) By this complaint the Complainant has prayed that the Opposite Party be directed to cancel the revised retable value w.e.f.01/04/2008 and charge the regular ratable value in respect of the Complainant’s flat w.e.f.01/04/2008 and thereafter. The Complainant has also prayed that the Opposite Party be directed to pay damages of Rs.1,00,000/- for mental agony and harassment caused to the Complainant and cost of Rs.10,000/- towards this complaint.
2) According to the Complainant, he has filed this complaint against the Opposite Party for deficiency in service under Section 2(1)(g) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) as the Complainant is the consumer of said services as contemplated under Section 2(1)(d) of the Act. It is submitted that the Opposite Party is providing basic infrastructure facilities or amenities to the general public in the society. It is alleged that the Opposite Party has charged various taxes like water tax, sewage tax, property tax, etc. from the general public in the society against the services provided by it. According to the Complainant, he is the owner of house situated at Flat No.14, 4th floor, Ajoomal Mansion, Peddar Road, Mumbai – 26. The Complainant had submitted that he used to pay all charges levied by the society towards monthly maintenance. The copy of the society maintenance charges paid by the Complainant is at Exh.‘A’. It is submitted that the Complainant had given the said flat on leave and license basis from last four years. The copy of leave and license agreement is at Exh.‘B’. It is the case of the Complainant that in the year 2009 he came to know from the society that that the ratable value of the property tax has been increased by the Opposite Party w.e.f.01/04/2008. The copy of Tabulated Ward Report No.170 is marked at Exh.‘C’.
3) It is the case of the Complainant that, the Opposite Party has charged more property tax in respect of the Complainant’s above referred flat and the reason behind increasing the property tax by the Opposite Party is that the Complainant had given the said flat on leave and license and he is earning money from the same. It is submitted that there is no provision in MMC Act that to charge extra property tax for a premises which is given on rent and the same is not mandatory on the Opposite Party to charge extra property tax on the basis of rent amount received by the property owner from rent out of the property.
4) According to the Complainant, against the said action the Complainant issued letter dtd.27/10/2009 the copy of which is marked as Exh.‘D’. He also lodged complaint against the officers of the Opposite Party bearing Complaint No.310 of 2008-09. It is submitted that the society in which the Complainant’s said flat is situated as requested the Opposite Party give breakup of the property tax which was extra claimed by the Opposite Party towards the Complainant’s flat. It is alleged that till filing of the complaint the Opposite Party has not provided the breakup of the property tax. The copies of the letters dtd.10/09/2009, 03/09/2009 & 09/09/2010 are marked as Exh.‘E’. According to the Complainant, the Complainant had filed his written argument before the Investigation Officer of the Opposite Party. The copy of written argument is marked as Exh.‘F’. It is alleged that the action of the Opposite Party after knowing the facts very well amounts to malafied intention and unfair trade practice. The Complainant has alleged that the Opposite Party is guilty of unfair trade practice hence, it is thus, prayed that the reliefs as claimed in para 1 of this order may be granted against the Opposite Party.
5) The Opposite Party contested the complaint. It is contended that the Complainant is not a consumer as provided under the Consumer Act. It is alleged that there is no deficiency in service under Section 2(1)(g) of the Act. There is no negligence on the part of Opposite Party. According to the Opposite Party, this Forum is no jurisdiction to try and entertain this complaint. It is contended that under Section 167 (1) of Mumbai Municipal Corporation Act, (MMC Act), the Municipal Commissioner has given power to modify the ratable value or tax fixed or charged under the Act. It is submitted that the Complaint No.310/2008-09 filed by the Complainant was disposed by the Investigation Officer on 30/08/2010 and ratable value was modify at Rs.4,75,340/- NPA (RRV Rs.4,04,395 NPA & NRRV 70945/- w.e.f.15/08/2008 including ratable value of Rs.3,44,730/- NPA (R) of Flat No.14 on 4th floor. It is contended that the said complaint was heard by the officer of the Corporation and he had passed the order dtd.30/08/2010. The copy of the said order is marked as Exh.‘C’.
6) According to the Opposite Party, if there was any grievance regarding assessment in ratable value for tax fixed or changed under the MMC Act, the Complainant ought to have filed an appeal under Section 217 of MMC Act within 15 days before the Chief Small Causes Court after accrual of the cause of action to the Complainant. It is contended that the Asst. Assessor and Collector of ‘D’ Ward had already sent letter bearing No.AA & C/D/6847, 2009-10, dtd.11/12/2009 to the Society which was not complied by the Society. The copy of the said letter is marked as Exh.‘E’. It is thus, contended that the complaint is not maintainable and this Forum has no jurisdiction to try and entertain the present complaint. It is thus, submitted that the Complainant is not entitled for the reliefs as prayed and the complaint is liable to be dismissed with compensatory cost.
7) The Complainant has filed affidavit of evidence. The Opposite Party has filed affidavit of evidence of Santosh J. Narvekar, Asst. Assessor and collector of ‘D’ Ward. The Complainant has filed written argument. The Opposite Party has also filed written argument. We heard the oral argument of Complainant’s advocate Smt. Tejal Chavan, the advocate of Opposite Party Shri. Suryakant Botlawar remained absent the time of oral argument. We have perused the documents filed on record by both sides.
8) By considering the claim made in this complaint it is necessary to be considered that the Complainant after the decision given by the Investigating Officer in Complaint No.DCR/310/2008-2009 has acknowledged that he received the order passed by the Investigating Officer dtd.30/08/2010 and he is aware the period of limitation of 15 days is provided for filing and appeal under Section 217 of the Mumbai Municipal Act, 1888, before the Chief Judge, Small Causes Court. The said acknowledgment document is placed on record by the Opposite Party alongwith the written argument at Exh.‘C’. The Opposite Party has strongly raised the objection as regards maintainability of the present complaint. In view of the provision of 217 of the MMC Act and as the Complainant had availed the opportunity of filing the complaint No.DCR310 2008-09 which was provided under the Act and the said complaint was disposed of by the Investigating Office vide order dtd.30/08/2010 the Complainant was therefore, required to file the appeal to the Chief Judge of the Small Cause Court under Sec.217 of MMC Act has been rightly contended by the Opposite Party. As the Complainant had adequate and efficient statutory remedy to challenge the fixation of ratable value of his flat under Section 217 of MMC Act but he failed to do so and therefore, the objection raised by the Opposite Party regarding maintainability of the complaint is legal and proper. We hold that as the Complainant was aware that after the decision of the Investigation Officer he was required to file the appeal under Section 217 of MMC Act before the Chief Judge of Small Cause Court and as the Complainant without availing the statutory remedy provided under the said Act has filed this complaint on the ground of deficiency in service on the part of the Opposite Party, we are of the view that this complaint cannot be entertained as alleged by the Complainant. In our view charging of property tax at particular rate by the Opposite Party to a particular property or extra rate cannot be considered as deficiency in service or unfair trade practice. The submissions therefore, made by the advocate for the Complainant in our view cannot be accepted as legal and proper. In the result the following order is passed –
O R D E R
i. Complaint No.72/2011 is dismissed with no order as to cost.
ii. Certified copies of this order be furnished to the parties.
