Bombay High Court
Prabhat Oil Mill Satana Through ... vs State Of Maharashtra & Others on 26 September, 2017
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3056 OF 1997
M/s. Laxminarayan Ginning
& Oil Mills Satana through
Proprietor Shri. Champalala S. Bhangadia
(since deceased through his Heirs
and LRs.) .. Petitioners
vs.
The State of Maharashtra and ors. .. Respondents
WITH
WRIT PETITION NO. 3484 OF 1997
Shri. Jayant D. Khare .. Petitioner
vs.
The State of Maharashtra and ors. .. Respondents
WITH
WRIT PETITION NO. 3533 OF 1997
Shri. Narayan M. Bhangadia (since
deceased) by His Heirs and Lrs. and ors. .. Petitioners
vs.
The State of Maharashtra and ors. .. Respondents
WITH
WRIT PETITION NO. 3485 OF 1997
M/s.Prabhat Oil Mills Satana
through R.R. Agarwal .. Petitioner
vs.
The State of Maharashtra and ors. .. Respondents
Mr. C.G. Gavnekar and Mr.H.S. Hiranandani for the
Petitioners.
None for the Respondents.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 22nd September 2017.
Date of Pronouncing the Judgment: 26th September 2017.
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COMMON JUDGEMENT:-
1] Heard Mr. Gavnekar, learned counsel for the Petitioners
in all the petitions. He submits that substantially common
issues of law and facts arise in all these petitions and
therefore, all these petitions may be disposed of by common
judgment and order, by treating Writ Petition No. 3056 of
1997 as the lead petition.
2] Writ Petition No. 3485 of 1997 was not on board.
However, at the request of Mr. Gavnekar, learned counsel for
the petitioners, the same was taken on board, since,
substantially common issues of law and facts arise in this
petition and the remaining three petitions.
3] In Writ Petition No. 3056 of 1997, the challenge is to
the determination of non-agricultural assessment rate in
respect of the petitioners' properties as determined by the
District Collector by order dated 27th June 1983.
4] The petitioners aggrieved by such determination had
instituted an appeal before the Revenue Commissioner,
Nashik. This appeal was dismissed. As against such dismissal,
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the petitioners instituted Writ Petition No. 3843 of 1987
before this Court. By judgment and order dated 17 th February
1995, this petition was disposed of. The order made in the
appeal was set aside and the appeal was remanded to the
appellate authority for reconsideration. In pursuance of such
reconsideration, the appellate authority once again, by order
dated 10th December 1996 has dismissed the petitioners'
appeal. The petitioners, thereafter, took out a review petition,
which has since been dismissed by the order dated 18 th
February 1997. In this petition, the challenge is to the orders
dated 10th December 1997 made by the appellate authority,
confirming the rate of non-agricultural assessment
determined by the District Collector, Nashik, in his order
dated 27th June 1983.
5] Mr. Gavnekar, learned counsel for the petitioners,
submits that the impugned appeal orders are in violation of
principle of natural justice, inasmuch as the advocate for the
petitioners was not afforded opportunity to make his
submissions in the appeals. Without prejudice, Mr. Gavnekar
submits that in this case, the Collector, failed to divide the
urban areas into blocks on the basis of market value of lands,
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failed to have due regard to the situation of the lands, the
non-agricultural purposes for which they were used and the
advantages and disadvantages attaching thereto before
determining the rates of assessment. Mr. Gavnekar submits
that any assessment, without taking into consideration these
factors, is in breach of Section 111 of the Maharashtra Land
Revenue Code, 1966 (MLRC). Mr. Gavnekar submits that
there is also a breach of Rule 16 of the Maharashtra Land
Revenue (Conversion of Use of Land and Non-Agricultural
Assessment), Rules 1969 (Rules).
6] Mr. Gavnekar submits that the District Collector, has
failed to take cognizance of the provisions in Section 112 of
the MLRC, which imposes a ceiling in the matter of such
determination of rates. He points out that in terms of Section
112 of the MLRC, non-agricultural assessment of lands in
each block in an urban area shall not exceed three per cent of
the full market value thereof, when used as a building site.
7] Mr. Gavnekar finally points out that despite the remand
of the matters by this Court to the appellate authority, the
appellate authority has, in fact, declined to exercise appellate
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jurisdiction by observing that no appeal or application was
maintainable before it. Mr. Gavnekar submits that this is
clearly a case of failure to exercise of jurisdiction and
therefore, the impugned orders made by the appellate
authorities are required to be set aside.
8] The respondents, though served, neither filed any
affidavit nor appeared through the AGP in these matters.
Since, these petitions relate to the year 1997, it was not
possible to adjourn the same. The matters were duly notified
on the cause-list and the record indicates that on some earlier
occasions, the AGP had appeared in the matters.
9] Chapter VII of the MLRC deals with assessment and
settlement of land revenue of lands used for non-agricultural
purposes. This chapter comprises Sections 108 to 120.
Besides, the State, in exercise of powers conferred upon it by
several sections of the MLRC has made the said Rules of
1969, in relation to the assessment of the land revenue of
lands used for non-agricultural purposes.
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10] Section 108 of the MLRC provides that for purposes of
Chapter VII, unless the context requires otherwise, "full
market value" in relation to any land means an amount of
equal to the market value of that land plus the amount
representing the capitalised assessment for the time being in
force. The capitalised assessment shall be determined in such
manner as may be prescribed.
11] In this case, we are concerned with lands which are
situated in urban areas. Section 111 of the MLRC provides
that for the procedure for determining non-agricultural
assessment in urban areas. This provision states that the
Collector shall divide urban areas into blocks on the basis of
the market value of lands, due regard being had to the
situation of the lands, the non-agricultural purposes for which
they are used, and the advantage and disadvantages attaching
thereto. Section 112 of the MLRC provides that non-
agricultural assessment on lands in each block in an urban
area shall not exceed three per cent of the full market value
thereof, when used as a building site. Section 113 of the
MLRC provides inter alia, that subject to the provisions of
Section 112, the State Government shall, or if so authorised
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by the State Government by Notification in the Official
Gazette, the Collector shall fix the rate of non-agricultural
assessment per square metre of land in each block in an urban
area to be called "the standard rate of non-agricultural
assessment" at such percentage of the full market value of
such land as may be prescribed. The explanation to Section
113 of the MLRC provides that for the purposes of sub-
section (1) of Section 113 of the MLRC, the full market value
shall be estimated in the prescribed manner on the basis of
the land rates as determined and issued in the form of Annual
Statement of rates, by the Chief Controlling Revenue
Authority under the Bombay Stamp (Determination of True
Market Value of Property) Rules, 1995 framed under the
Bombay Stamp Act, 1958, during the period of five years
immediately preceding the year in which the standard rate of
nonagricultural assessment is to be fixed. This explanation
was substituted for the existing explanation by Maharashtra
Act 23 of 1999. Sub-section (2) of Section 113 of the MLRC
provides that the standard rate of non-agricultural assessment
shall remain in force for a period of five years ("the
guaranteed period") and shall then be liable to be revised in
accordance with the provisions of Chapter VII. Again, this
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provision was introduced in the year 1999 and therefore, may
not be very relevant for the purposes of determining the
validity of the orders impugned in this petition.
12] Section 114 of the MLRC inter alia provides that subject
to the provisions of this section, the rate of assessment in
respect of lands in urban areas, used for the purposes of
residential building, shall be the standard rate of non-
agricultural assessment; used for the purposes of industry
shall be one and one-half times the standard rate of non-
agricultural assessment, used for purposes of commerce, shall
be thrice the standard rate of non-agricultural assessment in
the areas within the limits of all the other Municipal
Corporations excluding the area of the Mumbai City District
in the Mumbai Municipal Corporation area, and twice the
standard rate of non-agricultural assessment in the remaining
urban areas of the State. The rate in respect of lands in urban
areas used for any other non-agricultural purpose shall be
fixed by the Collector, at a rate not less than the standard rate
of non-agricultural assessment, and not exceeding one and
one-half times that standard rate, regard being had to the
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situation and special advantages or disadvantages attaching
to such lands.
13] Rule 16 of the said Rules provides that for the purpose
of determining the standard rate of non-agricultural
assessment, the Collector shall, on the basis of full market
values of plots ascertained in accordance with the principles
enunciated in the preceding Rule 15, first estimate the full
market value of non-agricultural land in each block separately
for each of the five years immediately preceding the year in
which the standard rate of non-agricultural assessment is to
be fixed. On the basis of full market value determined for the
preceding five years under sub-rule (1), the Collector shall
estimate the full market value of land per square meter in
each block. The standard rate of non-agricultural assessment
per square meter of land in each block shall be equal to three
per cent of the full market value estimated under sub-rule (2)
of Rule 16. The Collector shall submit to the State
Government for approval the standard rate determined under
sub-rule (3) through the Commissioner of the Division. The
State Government may modify the Collector's proposal in
respect of standard rate to such extent as it may deem fit. The
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standard rate approved by the State government shall be
published in the Official Gazette and such standard rate shall
come into force with effect from the commencement of the
relevant guaranteed period as provided Section 113. The
standard rate shall also be put up on the notice board in the
office of the Tahsildar. The standard rate fixed under sub-rule
(13) shall remain in force for the relevant guaranteed period
and thereafter shall be liable to be revised under Section 113
of the Code.
14] In the present case, the District Collector of Nashik, by
his order dated 27th June 1983 has determined the rates of
assessment. In tis order, there is reference to the standard
rates published as required by Rule 16(5) of the said Rules.
The District Collector has, accordingly, made the assessment
as per the standard rates of assessment. As per these rates, for
residence, the assessment is 0.43 paise per square meter, for
commercial 0.65 paise per square meter, for industries 0.86
paise per square meter. Mr. Gavanekar is right in his
submission that this assessment is about six times the earlier
assessment of 0.15 paise per square meter. The contention
that the District Collector had failed to observe the mandate
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of Section 111 of the MLRC , by failing to divide the urban
area into block, does not appear to have been raised before
the District Collector or for that matter in the appeal before
the appellate authority. No doubt, there is a ground to the
said effect found in the appeal memo. However, there is
nothing in the order of the appellate authority to indicate that
such a ground was raised or pressed in the course of appeal.
Rather, the contention raised was that the market value of the
land was Rs.1,00,000/- per hectare and therefore, the
assessment, which can never exceed three per cent of the
market value, could in this case have never exceeded 0.30
paise per square meter.
15] In this case, the determination has been made by the
District Collector on the basis of standard assessment
undertaken in terms of Section 113 of the MLRC read with
Rule 16 of the said Rules. The standard assessment, in the
present case, had been duly notified by publication in the
Official Gazette as required under Rule 16(5) of the said
Rules. The District Collector, in such circumstances, was
entirely justified in determining the rates of assessment by
reference to the standard rate as determined and published in
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the Official Gazette. There is no material on record to hold
that there was any breach in the determination of such
standard rate. In the determination of standard rate, there is
no reason to proceed on the basis that the procedures
prescribed have not been adhered to. Since, the petitioners
had alleged breach of compliances with legal procedure, it
was for the petitioners, to make good their contentions
otherwise, the presumption under Section 114 of the
Evidence Act would apply in favour of the authorities.
16] It is not possible to evaluate the issues of full market
value in the exercise of jurisdiction under Article 227 of the
Constitution of India. The petitioners have not placed any
material on record before the appellate authority or before
this court to establish that the market value of the lands in
question was Rs.1,00,000/- per hectare and therefore, the
assessment, in terms of Section 112 of MLRC could not have
exceeded 0.30 paise per square meter. In such circumstances,
it cannot be said that there is breach of provisions of Section
111, Section 112 or Section 113 of the MLRC.
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17] Mr. Gavanekar is not right in his submission that the
appellate authority has declined to exercise appellate
jurisdiction. If the impugned order is perused, it is clear that
the appellate authority has exercised appellate jurisdiction,
but merely observed that the appellate authority cannot sit in
appeal over standard rate of non-agricultural assessment
determined in terms of Section 113 of the MLRC and
published in the Official Gazette in terms of Rule 16 of the
said Rules. The contentions of the petitioners as regards the
full market value of the land and the consequent ceiling
imposed by Section 112 of the MLRC have been duly
considered and rejected by the appellate authority.
Accordingly, this cannot be said to be a case of failure to
exercise jurisdiction by the appellate authority.
18] Mr. Gavanekar, had placed reliance upon the decision of
the Division Bench of this Court in State of Maharashtra vs.
Nirlon Syntehtic Fibres and Chemicals Ltd. and anr. - 1992
(2) Mh.L.J. 1327. The said decision is basically an authority
for the propositions that the principles of natural justice are
not required to be observed and no notice is required to be
issued to each of the residents before undertaking any
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legislative functions as prescribed under the MLRC. Such an
issue does not arise in the present petition. Accordingly, the
said decision, does not assist the case of the petitioners.
19] This is also not a case of a violation of principle of
natural justice by the appellate authority. The appellate
authority, in its order dated 10th February 1996, records the
following :
"The Appellant's advocate was given opportunity from
time to time to argue his case, however, the Appellant's
advocate did not submit any argument".
20] The statement recorded in the order of a quasi judicial
authority is required to be accepted and cannot be simply
ignored. If the statement does not reflect the correct position,
then the petitioners were required to apply to the very same
authority for clarification.
21] In this case, the petitioners, did institute a review
petition. In the review petition, the appellate authority, once
again, granted full opportunity to the petitioners. The
contentions on behalf of the petitioners were considered,
however, not found favour with. In such circumstances, it
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cannot be said that the impugned orders violated the
principles of natural justice.
22] Upon cumulative consideration of the facts and
circumstances, as well as legal provisions under the MLRC
and the said Rules, it cannot be said that there is any
jurisdictional error or perversity in the making of the
impugned orders. Accordingly, there is no case made out to
interfere with the impugned orders under Article 227 of the
Constitution of India.
23] Writ Petition No.3056 of 1997 is liable to be dismissed
and is hereby dismissed.
24] Since the issues involved in the remaining writ petitions
are substantially the same, for the reasons recorded aforesaid,
even the said three writ petitions are liable to be dismissed
and are hereby dismissed.
25] The interim orders, if any, are hereby vacated.
26] In the facts and circumstances of the present case, there
shall be no order as to costs.
(M. S. SONAK, J.)
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