C/SCA/12519/2017 ORDER DATED: 20/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12519 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 12520 of 2017
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VIMALBHAI NAVINCHANDRA SHAH
Versus
MUNICIPAL COMMISSIONER & 1 other(s)
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Appearance:
CHINTAN K GANDHI(8600) for the Petitioner(s) No. 1
RAVAL& TRIVEDI ASSOCIATES(9262) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 20/02/2023
COMMON ORAL ORDER
1. Heard learned advocate Mr. Chintan K. Gandhi appearing for the petitioner and learned advocate Mr. H. S. Munshaw for the respondent no. 1 - Bhavnagar Municipal Corporation.
2. As the subject matter of both these petitions is same barring the plot number for which the notices are issued, a prayer made in Special Civil Application No. 12519 of 2017 is reproduced as under:-
(a) This Hon'ble Court may be pleased to admit and allow this petition;Page 1 of 9 Downloaded on : Tue Feb 21 20:55:35 IST 2023
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(b) This Hon'ble Court may be pleased to issue appropriate writ of mandamus and/or any other writ, order or direction to quash and set aside the impugned bill annexed at Annexure-G and the order dated 29.05.2017 annexed at Annexure-I.
(c) Pending hearing, admission and final disposal of the present petition Your Lordship may please to restrain the respondent authority or their agents from recovering the property tax amount qua Bill No.0046737. And be please to stay on the recovery of the property tax qua Bill No.0046737 and order dated 29.05.2017.
(d) Grant such other and further relif as though fit in the interest of justice.
3. A look at the aforesaid prayer would indicate that the petitioner is aggrieved by issuance of bill dated 21.04.2017 towards property tax and order dated 29.05.2017 whereby in respect of property in question, the objections raised by the petitioner was rejected and he was asked to pay the amount of property tax as per the bill.
4. Learned advocate Mr. Chintan Gandhi for the petitioners states that the amount of property tax by way impugned bill was exorbitantly increased as compared to previous bills for which no special notice has been given to the petitioner and without putting the petitioner to the notice about the exorbitant increase in the bill of the property tax, the Corporation has Page 2 of 9 Downloaded on : Tue Feb 21 20:55:35 IST 2023 C/SCA/12519/2017 ORDER DATED: 20/02/2023 issued the bill and when the petitioner objected to the aforesaid bill, their objections were not considered in its true perspective and ultimately, impugned order dated 29.05.2017 rejecting their objections is passed. He relies upon the judgment dated 29.06.2018 of Division Bench of this Court in case of Govindbhai Bhikhabhai Vegad V/s. Bhavnagar Municipal Corporation passed in Special Civil Application No. 5650 of 2018 and states that probably though nothing comes out by way of bill, probably the reason behind issuance of exorbitant bill was that the Corporation has considered that use of the property of change for residential to commercial purpose as resulted into exorbitant increase in the bill for which the Corporation was required to issue a special notice giving a clear 15 days time to the petitioner. The petitioner was never put to notice before issuance of such bill and it is only at the stage, when the petition was filed and a decision was taken, the justification has come forward for the Corporation that category of uses of the premises has been changed from residential to commercial change which is not permissible Page 3 of 9 Downloaded on : Tue Feb 21 20:55:35 IST 2023 C/SCA/12519/2017 ORDER DATED: 20/02/2023 under the law.
5. He states that the Division Bench of this Court has in similar set of facts quashed and set aside the impugned demand notices and was pleased to grant liberty to the Corporation to issue fresh bills in accordance with law after giving opportunity to petitioner and after following due procedure as required to be followed as per the Taxation Rules.
6. By making the aforesaid submissions, he said that the impugned bill as well as decision dated 29.05.2017 is required to be quashed and set aside and the matter may be remanded back to the Bhavnagar Municipal Corporation for fresh consideration after giving the petitioner a special notice in respect of change of category as well as other relevant aspects and by giving the petitioner atleast 15 days time to put forward his case and raise objections and thereafter, if required after giving personal hearing to the petitioner, the Corporation may be directed to pass fresh order in respect of fresh bills/notices that the Corporation may issue.
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7. Learned advocate Mr. Munshaw appearing for the Bhavnagar Municipal Corporation vehemently opposed these petitions and submitted that increase in amount of bill is nothing but a result of the petitioner's own act of changing the category of uses of the property in question and even the area of uses has also been changed and therefore, fresh bills were issued in accordance with law and after considering the objections of the petitioner in respect of the aforesaid bill, a decision dated 29.05.2017 was taken which was duly communicated to the petitioner and the same is subject matter of these petitions.
8. Learned advocate Mr. Munshaw submitted that the bill is not exorbitant but the same is the result of change of category of uses as well as change of area by the petitioner in respect of the property in question in both the petitions.
9. Though learned advocate Mr. Munshaw defended the aforesaid action of the Bhavnagar Municipal Corporation, learned advocate Mr. Munshaw could not point out the fact that due procedure has been followed as prescribed under the Page 5 of 9 Downloaded on : Tue Feb 21 20:55:35 IST 2023 C/SCA/12519/2017 ORDER DATED: 20/02/2023 Taxation Rules and that the judgment in case of Govindbhai Bhikhabhai Vegad V/s. Bhavnagar Municipal Corporation passed in Special Civil Application No. 5650 of 2018 is not applicable in the facts of the case.
10. In view of above, as there is nothing on record to indicate that any specific notice giving minimum 15 days clear time to the petitioner is given before issuance of fresh bill for alleged change of category area and other relevant aspects. The observation made by the Division Bench in paragraph nos. 2, 3 and 4 in judgment dated 29.06.2018 in case of Govindbhai (supra) are relevant for adjudicating the disputing on hand. Paragraph nos. 2, 3 and 4 are reproduced as under:-
"2.0. It is the case on behalf of the petitioner that the demand is raised retrospectively and that too without any notice under Section 15(2) of the Taxation Rules. On the other hand, it is the case on behalf of the respondent Corporation that special notice was issued but it is also candidly admitted that 15 days time which was required to be given, was not given. It is the case on behalf of the respondent Corporation that as the petitioner did not inform the Corporation / authority with respect to the commercial use and therefore, there was no question of retrospective levy.
3.0. Having heard the learned advocates for the respective parties and without further entering into the larger question on merits whether there was any intimation by the petitioner with Page 6 of 9 Downloaded on : Tue Feb 21 20:55:35 IST 2023 C/SCA/12519/2017 ORDER DATED: 20/02/2023 respect to the commercial use or not on the ground that the time which was required to be given while issuing special notice i.e. 15 days time was not given on the aforesaid ground alone and with a liberty in favour of the respondent Corporation to pass appropriate order afresh after following due procedure as required under the provision of the Taxation Rules, the impugned bill as well as demand deserves to be quashed and set aside. This Court is conscious of the fact the against the bill as such normally remedy would to prefer appeal. However, the aforesaid are undisputed facts in the peculiar facts and circumstances of the case and considering the decision of the Hon'ble Supreme Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Ors reported in (1998) 8 SCC 1, present petition is entertained.
4.0. In view of the above and for the reasons stated above, on the aforesaid ground alone, impugned notice and the demand are hereby quashed and set aside, however with a liberty in favour of the respondent Corporation to issue fresh bill in accordance with law and after giving opportunity to the petitioner and after following due procedure as required under the provision of Taxation Rules. All the contentions / defences which may be available to the respective parties are kept open, to be considered in accordance with law and on merits. Rule is made absolute to the aforesaid extent. No costs. The amount which is deposited, be continued to be retained by the Corporation and if ultimately further demand is not raised then same shall be adjusted against the future bill."
11. In view of above observations by the Division Bench of this Court, interest of justice would be served, if the impugned bill as well as order dated 29.05.2017 is quashed and set aside as there is no material to indicate that any special notice is issued to the petitioner before increasing the amount of bill on the ground of change of category or area or any other relevant factor.
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12. Hence, the impugned bills and order dated 29.05.2017 are hereby quashed and set aside and the matter is remanded back to the Bhavnagar Municipal Corporation for considering it afresh.
13. The Corporation is directed to issue a fresh bill to the petitioner with a clear time of 15 days and once the fresh bill/demand notice is issued to the petitioner, if any objections are raised, the Corporation may consider the same while deciding the demand notice/bill that the Corporation may issue. The Corporation may consider to give personal hearing to the petitioner, if required.
14. In view of the aforesaid observations, keeping in mind the principles laid down in the aforesaid decision of the Division Bench, the Corporation is directed to act in compliance with the aforesaid ratio of the judgment in case of Govindbhai (supra) and issue fresh bill.
15. With the aforesaid directions, the petition is disposed of. Page 8 of 9 Downloaded on : Tue Feb 21 20:55:35 IST 2023
C/SCA/12519/2017 ORDER DATED: 20/02/2023 Notice is discharged. No order as to costs.
16. It is clarified that this Court has not gone into the merits of the matter and the Corporation is directed to take an independent decision and pass a reasoned order after issuing fresh notice about the property tax to the petitioner.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 9 of 9 Downloaded on : Tue Feb 21 20:55:35 IST 2023