Jamnagar Municipal Corporation vs Shri 5 Navtanpuri Dham Khijada ...
2021 Latest Caselaw 7700 Guj

     C/LPA/1211/2011                                                             ORDER DATED: 05/07/2021
     JAMNAGAR MUNICIPAL CORPORATION & 1 other(s) Versus SHRI 5 NAVTANPURI DHAM KHIJADA MANDIR TRUST & 1 other(s)



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 1211 of 2011
              In R/SPECIAL CIVIL APPLICATION NO. 1305 of 2011

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         JAMNAGAR MUNICIPAL CORPORATION & 1 other(s)
                           Versus
   SHRI 5 NAVTANPURI DHAM KHIJADA MANDIR TRUST & 1 other(s)
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1,2
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 2
MR DG CHAUHAN for the Respondent(s) No. 1
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 CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
       and
       HONOURABLE MR. JUSTICE B.N. KARIA
                  Date : 05/07/2021

                           ORAL ORDER

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

This Letters Patent Appeal is directed against the order dated

29.03.2011 of the learned Single Judge allowing the Special Civil

Application No. 1305 of 2011-Shri 5 Navtanpuri Dham Khijada

Mandir Trust v. State of Gujarat and Others, the relevant

observations of the learned Single Judge allowing the Writ Petition

are quoted below for ready reference:

"7. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted and it is not in dispute that exemption granted in favour of the petitioner-public charitable trust vide order dated 22/04/2002 exempting the petitioner from payment of general municipal tax is granted under Section 132 of the Bombay Provincial Municipal Corporations Act is not withdrawn/cancelled and is continued till date and the aforesaid is not disputed by Shri Premal Joshi, learned advocate appearing on behalf of respondents nos. 2 and 3.

C/LPA/1211/2011 ORDER DATED: 05/07/2021 JAMNAGAR MUNICIPAL CORPORATION & 1 other(s) Versus SHRI 5 NAVTANPURI DHAM KHIJADA MANDIR TRUST & 1 other(s)

8. Under the circumstances, so long as the exemption granted in favour of the petitioner-public charitable trust exempting the petitioner from payment of general municipal tax is not withdrawn and/or cancelled and is continued, respondents nos. 2 and 3 cannot issue Municipal Tax Bill and recover general municipal tax from the petitioner. It is the case on behalf of respondents nos. 2 and 3 that in view of amendment in the Rules, more particularly, in Chapter VIII of the Taxation Rules, now the property tax is to be recovered on the basis of the carpet area, and, therefore, the petitioner public charitable trust is liable to pay general tax, cannot be accepted. The petitioner-public charitable trust has been exempted from payment of general tax. By amendment the procedure for determining the property tax has been changed i.e. now it has been decided to determine the property tax on the basis of carpet area. It has nothing to do with exemption under Section 132 of the Bombay Provincial Municipal Corporations Act. So long as exemption in favour of the petitioner is continued, the respondent-Corporation cannot recover general municipal tax from the petitioner.

9. Under the circumstances, the impugned action of respondents nos. 2 and 3 in issuing municipal tax to the petitioner for general municipal tax etc. cannot be sustained and consequently the impugned bill also deserves to be quashed and set aside and the impugned communication of respondent no. 2 dated 18/09/2010 as well as the impugned municipal tax bill no. 1130427 dated 31/12/2010 are hereby quashed and set aside and it is held that so long as the exemption in favour of the petitioner is granted vide order dated 22/04/2002 is continued, respondents nos. 2 and 3 cannot recover general municipal tax from the petitioner.

10. With this, the present petition is allowed. Rule is made absolute to the aforesaid extent. No cost."

The Jamnagar Municipal Corporation aggrieved by the said

C/LPA/1211/2011 ORDER DATED: 05/07/2021 JAMNAGAR MUNICIPAL CORPORATION & 1 other(s) Versus SHRI 5 NAVTANPURI DHAM KHIJADA MANDIR TRUST & 1 other(s)

Judgment and Order of learned Single Judge has approached this

Court by way of present Letters Patent Appeal. The matter pertains

to imposition of Property Tax by the Appellant - Jamnagar

Municipal Corporation on the Respondent, which was earlier

exempted from payment of such Tax on the ground of being

Charitable Trust entitled to exempt under Section 132(1) (b) of the

Gujarat Provincial Municipal Corporation Act 1949, under which,

the buildings and lands or portions thereof solely occupied and used

for public worship or for a Public Charitable purposes.

The Exemption Certificate in the present case was granted to

the Respondent on 22.04.2002 by the Assistant Commissioner of the

Jamnagar Municipal Corporation. Suddenly it appears that the

Appellant - Jamnagar Municipal Corporation issued demand Notices

for demanding the Property Tax against the Respondent-Trust and

such demand Notices were issued on 22.04.2006 and the objections

against such demand of Property Tax were filed by the Respondent-

Trust, which were however never decided by the Competent

Authority of the Appellant- Jamnagar Municipal Corporation. In

these circumstances, the Respondent-Trust had to approach this

Court by way of aforesaid Special Civil Application No. 1305 of 2011

which came to be allowed by the learned Single Judge and against

which the Jamnagar Municipal Corporation has filed present Letters

C/LPA/1211/2011 ORDER DATED: 05/07/2021 JAMNAGAR MUNICIPAL CORPORATION & 1 other(s) Versus SHRI 5 NAVTANPURI DHAM KHIJADA MANDIR TRUST & 1 other(s)

Patent Appeal.

After hearing the learned Counsels for the respective parties, we

found that the objections or representations of the Respondent-Trust

that, that activities viz. running a school or medical help unit etc.

carried out it were not of Commercial nature, and therefore, it was

still covered by the ambit of the exemption provisions, were never

decided by the Competent Authority of the Appellant - Jamnagar

Municipal Corporation. The least which was expected of the

Competent Authority of the Appellant - Jamnagar Municipal

Corporation namely the Commissioner, who under Section 68 of the

aforesaid Act is vested to the powers to decide various issues arising

against the Corporation was expected to decide the said questions in

the case of the present Respondent- Shri 5 Navtanpuri Dham

Khijada Mandir Trust. In the absence of any reasoned and Speaking

Order on the part of the Competent Authority of the Appellant -

Jamnagar Municipal Corporation, we are of the opinion that

expressing any opinion by this Court under Article 226 of the

Constitution of India on the merits of the case would be premature

and without factual foundations. Such mixed question of facts and

law should always be first adjudicated by the Competent Authority in

the first instance and then by the Higher Appellate Authority as

provided in the Act itself and it is only against the final Order, that

C/LPA/1211/2011 ORDER DATED: 05/07/2021 JAMNAGAR MUNICIPAL CORPORATION & 1 other(s) Versus SHRI 5 NAVTANPURI DHAM KHIJADA MANDIR TRUST & 1 other(s)

the party aggrieved by the same can invoke the Writ jurisdiction of

this Court under Article 226 or 227 of the Constitution of India.

In the present case, admittedly the said question as to whether

the respondent is still exempt or not and whether its Exemption

Certificate of 22.04.2002 has been revoked or not is still at large and

the representations and objections of the Respondent-Trust have

admittedly not been decided by the Competent Authority of the

Jamnagar Municipal Corporation so far.

In these circumstances, we dispose of the present Letters Patent

Appeal filed by the Appellant - Jamnagar Municipal Corporation

with a direction to the Commissioner of the Appellant - Jamnagar

Municipal Corporation to first decide the representations or

objections of the respondent-Trust by Speaking Order after giving

the reasonable opportunity of hearing to the Respondent-Trust. The

Respondent-Trust shall be at liberty to lead appropriate evidence and

make submissions in facts and in law before the said Authority and

the said Authority will thereafter pass appropriate Speaking Order in

the matter. If an adverse Order is passed against the Respondent-

Trust, it should first avail the alternative remedy provided under the

Act itself against such orders and still if the Respondent-Trust is

aggrieved, it will be open for the Respondent-Trust to invoke the

Writ jurisdiction of this Court.

C/LPA/1211/2011 ORDER DATED: 05/07/2021 JAMNAGAR MUNICIPAL CORPORATION & 1 other(s) Versus SHRI 5 NAVTANPURI DHAM KHIJADA MANDIR TRUST & 1 other(s)

Till the Commissioner of the Appellant- Jamnagar Municipal

Corporation decides the said issue by the Speaking Order as

aforesaid, no Coercive action for the recovery of the Property Tax

from the Respondent-Trust shall be undertaken by the Authority of

the Appellant - Jamnagar Municipal Corporation. Once the

Commissioner passes the appropriate Orders in accordance with law,

if it is against the Respondent-Trust in this regard subject to further

orders to be passed by the Higher Authorities or the State

Government by way of Appeal or Revision against the said order of

Commissioner. The recovery process shall abide by such orders of the

Higher Authorities.

With these observations and directions, the Respondent-Trust

through its authorized Representative may appear before the learned

Commissioner of the Appellant - Jamnagar Municipal Corporation

without any further notice at the first instance on 2nd August 20021

Monday at 11.00 a.m. and a period of 3(Three) months is allowed

to the learned Commissioner to complete the adjudication process as

directed above and pass appropriate Speaking Order in this regard.

With these observations, present Letters Patent Appeal is

disposed of. No costs.

(DR. VINEET KOTHARI,J)

(B.N. KARIA, J) K. S. DARJI