Bhikhabhai Dahyabhai Jajadiya vs Bhavnagar Municipal Corporation
2022 Latest Caselaw 4354 Guj

     C/SCA/1544/2021                                     JUDGMENT DATED: 25/04/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1544 of 2021


FOR APPROVAL AND SIGNATURE:                       Sd/­


HONOURABLE MR. JUSTICE A.Y. KOGJE
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1     Whether Reporters of Local Papers may be allowed to see                 NO
      the judgment ?

2     To be referred to the Reporter or not ?                                 NO

3     Whether their Lordships wish to see the fair copy of the                NO
      judgment ?

4     Whether this case involves a substantial question of law as             NO
      to the interpretation of the Constitution of India or any
      order made thereunder ?

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                         BHIKHABHAI DAHYABHAI JAJADIYA
                                     Versus
                       BHAVNAGAR MUNICIPAL CORPORATION
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Appearance:
MR SANDIP H MUNJYASARA(10781) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 25/04/2022

                               ORAL JUDGMENT

1. RULE. Learned Advocate Mr. H. S. Munshaw waives service of rule on behalf of the respondent.

2. This petition is part of group of petitions is with regard to the property tax bill issued by the respondent­ Corporation to the respective petitioners. As the issue raised by the parties is identical, though in

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different facts, at request of the parties concerned, these petitions are taken up for joint hearing and disposal.

3. This petition under Article­226 of the Constitution of India is filed for following prayers:

"A) This Hon'ble Court may be pleased to allow this petition and may be pleased to issue a Writ in the nature of a Writ of Mandamus and/or any other appropriate Writ, Order/s or Directions to quash and set aside the impugned special notices dated 4.2.2020 and 31.1.2020 as well as property tax bills dated NIL and 4.2.2020 at Annexure­A and consequently be pleased to direct the respondent to issue fresh property tax bills to the petitioner for his properties listed in para 2.1 for only period of 2019­20 considering Tokle Timber (Supra) and Narendra Jayantilal (Supra).

B) This Hon'ble Court may be pleased to declare that Usage Factor "NU3" i.e. multiplier of "1" is applicable instead of Usage Factor "NU2" i.e. multiplier of "3" in case of the petitioner's properties listed at Sr. No.1 and 2 of para 2.1. Further, be pleased to declare that property tax in the form of "SWM User Charge" is not applicable in case of the petitioner's properties as per resolution dated 18.2.2017."

4. The petitioner is the owner and/or in possession of some properties situated within the limits of the Respondent ­ Bhavnagar Municipal Corporation. By way of the present petition, the petitioner herein prays before this Court to quash and set aside the Notices and Bills Dated 4.2.2020 and 31.1.2020 (which were handed over to the petitioner during March­2020) qua the Notices and Bills which were generated using wrong "Usage Factor" as well as generated with retrospective effect for the period prior to 1.4.2019 in the form of municipal taxes by the Respondent. It is pertinent to note that aforesaid properties are situated in sidasar village, which was within the limits of the Sidasar Gram Panchayat prior to 3.1.2015, is now within the limits of the respondent. Vide resolution dated 18.2.2017, had resolved property tax scheme as per below mentioned chart for five villages including Sidasar which were included in the limits of the respondent from 3.1.2015. It is

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the case that the respondent­ Corporation has issued the bill by levying the property tax with retrospective effect. It is the case that such retrospective effect is applied on the ground that subsequently from the year 2013, new policy for assessment on the basis of carpet area was introduced. It is the case of the petitioners that the petitioners have been paying tax as per the bills raised and were never defaulters in the payment of taxes.

5. Learned Advocate for the petitioners has referred to and relied upon the decision of this Court passed in Special Civil Application No.10272 of 2021 dated 20­01­2022, wherein in the identical facts, the Court had quashed and set aside the bill and had directed the respondent­ Corporation to issue fresh bill in accordance with the law, giving an opportunity as provided.

6. As against this, learned Advocate for the respondent­ Corporation has opposed the petition by referring to the Affidavit in reply on behalf of the respondent­ Corporation and submitted that it was responsibility of the assessee to disclose to the Corporation with true and correct facts, as in the instant case, open plot which was also part of the Agreement with the G.S.T. Department, was excluded from tax for the period between 2009 to 2013, for which the petitioner was liable to make payment for the tax.

7. Learned Advocate for the respondent­ Corporation also submitted that the assessment was required to be made when the new method of assessment was introduced by adopting method based on the carpet area assessment. Effect was given from 01­04­2013 and hence, bill at Annexure­A has been issued. It is also submitted that the petitioner has an alternative statutory remedy by way of an Appeal and therefore, grievance of the petitioner in the writ petition, may not be entertained.

8. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the in the matters of Tokle Timber (Supra) and Narendra Jayantilal (Supra) has held that the

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respondent has no authority at all to collect taxes for the periods long prior to the issuance of special notices under Rule 15(2) and/or 20(2). The period of tax would be confined to a year prior to the date of issuance of notice. In present case, notices were issued on 4.2.2020 and 31.1.2020, consequently, property tax cannot be collected by the respondent prior to year 2019­20.

9. This Court has already taken a view based on the view of the decision of Division Bench this Court passed in Special Civil Application No.10272 of 2021 dated 20­01­2022, wherein this Court in Para­14 and Para­15, has held as under:

"14. The Court is not inclined to examine the issue any further, as short point is raised with regards to non­compliance with the requirements of law before issuing of bill at enhaced rate. The taxation rules provided for under Chapter­8 of the Gujarat Municipal Corporation Act more particularly, Rule 15(2) & 20(2) of the Act provides that wherever there is amendment which has effect of imposing on any person, any liability for the payment of property tax, which has the effect of increasing retable value of the premises, a special written notice, as provided under Rule 15(2) is to be issued by the Commissioner and procedure laid down as per the Rules 16, 17 & 18 are required to be followed. Rule 15(2) provides for in case of any premises in which the ratable value of any premises has been increased, the Commissioner, after issuing a publ notice under Rule15(1) give a special notice to the owner or occupier of the said premises specifying the nature of such entry and informing, but any complaint against such increase will be received at the office within a period of 15 days from the service of such special notice. The statute therefore provide categoric procedure laid down, which is required to be strictly followed considering the fact that the statute relates to taxation. The submission of learned advocate for the corporation of issuance of notice at Annexure­G, in the opinion of the Court, is not sufficient to substitute the requirement of Rule 20(2) and 15(2) of the Gujarat Municipal Corporation Act.

15. In view of aforesaid, the Court is inclined to adopt the methodology, as laid down by the of Division Bench of this Court in Special Civil Application No.5650 of 2018 by passing order dated 29.06.2018 and quashed and aside the impugned tax bill. The relevant paragraph of the said order reads as under:­

"3.0. Having heard the learned advocates for the respective parties and

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without further entering into the larger question on merits whether there was any intimation by the petitioner with 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."

10. Petitioner's properties having assessee key no.17/0065/0574/0001 & 17/0065/0575/0001 are used as Go­down for pipe/plastic factory which falls under Rule 8(b)(4)(c) of Annexure­A of Government Resolution dated 2.4.2013. However, the respondent, while calculating the property tax, has applied usage factor "NU2" i.e. multiplier of "3" instead of "NU3" i.e. multiplier of "1". As per the law laid down by the Hon'ble Court in case of Tokle Timber (supra) and Narendra Jayatilal (supra), the respondent, vide impugned notices and bills, ought to have calculated property tax for the petitioner's properties for the maximum period of 2019­20 or a year prior to the date of issuance of special notices dated 4.2.2020 and 31.1.2020 under Rule 15(2) and 20(2) of the Taxation Rules contained in Chapter­VIII of Schedule A of the GPMC Act.

11. Considering the facts of this cases, the Court deems it fit to adopt the same methodology, wherein on the ground as mentioned herein above that is to say lack of special notice preceding the bill, impugned notice and demand notice are hereby quashed and set aside. The Corporation is at liberty to issue fresh bill / demand notice in accordance with law after following the provisions of law and affording an opportunity of hearing to the petitioners. All the contentions available for the both the

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parties are kept open. The respondent­ Corporation would consider the representation made in response to such fresh bill / demand notice in accordance with the law and on merits. At request of learned Advocate for the petitioner, it is recorded that the Corporation may issue separate bill for the current year so as to enable the petitioner, if they desire to avail the benefit of rebate, as may be available under the Scheme, which is reportedly operating at this stage. Wherever the properties are sealed on account of the non­payment of tax, it will be open for the petitioners to separately make representation before the respondent­ Corporation, who will take a decision, subject to making the payment with regard to demand. The Commissioner may issue fresh notice in each of these matters on or before 15­05­2022. The proceedings in this connection may be concluded as expeditiously as possible preferable before 30­06­2022. At this stage, learned Advocate for the petitioner has submitted that the petitioner has made part payment of the Property tax bill. Such amount that has already been paid, may be appropriated in accordance with the law.

12. In view of the aforesaid, the petition stands allowed to the aforesaid extent. Rule is made absolute with no order as to costs. Direct service is permitted.

Sd/­ (A.Y. KOGJE, J) PARESH SOMPURA