Birla Vxl Ltd vs Porbandar Chhaya Municipality
2022 Latest Caselaw 9205 Guj

      C/FA/1637/2002                                      ORDER DATED: 18/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 1637 of 2002
==========================================================
                          BIRLA VXL LTD.
                              Versus
              PORBANDAR CHHAYA MUNICIPALITY & 2 other(s)
==========================================================
Appearance:
MR NISARG DESAI, ADVOCATE with
MR DIVYESH BAIS, ADVOCATE for
GANDHI LAW ASSOCIATES(12275) for the Appellant(s) No. 1
MR H.S. MUNSHAW, ADVOCATE for the Defendant(s) No. 2
MR MANRAJ BAROT, AGP for the Defendant(s) No. 3
MR MURALI N DEVNANI, ADVOCATE for
NANAVATY ADVOCATES(1373) for the Defendant(s) No. 1
==========================================================
  CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                Date : 18/10/2022

                                 ORAL ORDER

1. Learned advocate Mr.Devnani, appearing on behalf of the respondent No.1 - Nagarpalika. Learned AGP Mr.Barot, appears on behalf of the respondent No.3. Learned advocate Mr.Munshaw, appears on behalf of respondent No.2 - Taluka Development Officer. Registry shall accept the same and place it on the file the Vakalatnama of learned advocate Mr.Devnani and learned advocate Mr.Munshaw, as and when it is filed.

2. A short issue is involved in the present first appeal as to whether the Court below was justified in rejecting the suit only on the ground of jurisdiction.

3. The present appeal is directed against the judgment and decree dated 31.07.2002 passed by the learned Civil Judge (S.D.), Porbandar in Special Civil Suit No.25 of 1996, whereby

C/FA/1637/2002 ORDER DATED: 18/10/2022

the Court below has dismissed the suit for want of jurisdiction, despite the fact that the appellant has preferred the said suit for declaration and permanent injunction, restraining the respondent No.1 from further proceeding with the recovery of the property tax as demanded vide notice dated 07.03.1996.

4. Learned advocate Mr.Desai, appearing for the appellant has submitted that the impugned judgment and decree is required to be quashed and set aside since there is no dispute with regard to the assessment, hence the appellant - original plaintiff could not have been relegated for availing alternative remedy under the provisions of Section 138 of the Gujarat Municipality Act, 1963 (for short, "the Act"). In support of his submissions, he has placed reliance on the order passed by this Court dated 11.01.2011 in Special Civil Application No.6551 of 2010. Learned advocate for the appellant has also invited the attention to the prayers made in the plaint and has submitted that in fact, the relief sought in the plaint was not pertaining to any assessment and the direction was sought against the respondent - Nagarpalika to pay the amount of taxes as per the settlement arrived at between the plaintiff and the respondent No.1. It is submitted that further declaration was sought that the plaintiff is not liable to pay any tax from 31.03.1994 and the impugned notice dated 07.03.1996 calling upon the plaintiff to deposit the concerned amount of Rs.11,59,913/- may be stayed and permanent injunction may be granted in this regard. Thus, it is submitted that the matter requires remand, as the dispute would not fall under the provisions of Section 138 of the Act.

C/FA/1637/2002 ORDER DATED: 18/10/2022

5. Per contra learned advocate Mr.Devanani, appearing for the respondent No.1 has submitted that the impugned judgment and decree does not require any interference and in fact, the same is appropriately passed as the Municipality has issued impugned notice asking the plaintiff to pay the aforesaid amount of Rs.11,59,913/- and since, the plaintiff has raised the dispute with regard to assessment of the tax, he would have an alternative remedy of filing an appeal under Section 138 of the Act, as the same pertains to the assessment / property tax. It is submitted that thus the suit is appropriately rejected for want of jurisdiction by the Court below.

6. I have heard the learned advocates for respective parties. I have also perused the relevant documents as well as the impugned judgment and decree dated 31.07.2002 passed in Special Civil Suit No.25 of 1996.

7. The plaintiff had filed the aforesaid suit before the Court below seeking declaration to the effect that he is not required to pay further amount of property tax, in view of the settlement arrived at between the plaintiff and the respondent No.1 and the notice dated 07.03.1996 issued calling upon the plaintiff to deposit an amount of Rs.11,59,913/- may be set aside and the permanent injunction may be granted. Further prayer is sought by praying declaration that he is not required to pay any further property tax after 31.03.1994.

8. The entire suit is premised on the settlement arrived at between the plaintiff and the defendant No.1 below Exh.45

C/FA/1637/2002 ORDER DATED: 18/10/2022

dated 05.01.1994. It is the case of the plaintiff that he cannot be made to pay the property tax over and above, which has been determined and paid pursuant to the agreement below Exh.45. It appears that thereafter there were some proceedings before this Court, by filing a writ petition being Special Civil Application No.8592 of 1990 before this Court and this Court, after hearing the respective parties, observed by issuing the following directions :-

"7. In view of the aforesaid discussion, I am of the view that the following directions shall meet with the ends of justice:

(i) That the order dated 12.7.90 passed by the Development Commissioner at annexure "A" is quashed and set aside on the ground of breach of principles of natural justice.

(ii) It is further directed that the Development Commissioner shall give opportunity of hearing to the petitioners to submit their reply or comments to the report of the DDO, Junagadh dated 26.6.90.

(iii) The Development Commissioner shall also hear the parties for the period from 1.4.87 to 31.3.90 and for the subsequent period of 1.4.90 to 31.3.91 and shall decide afresh in accordance with law.

(iv) The Development Commissioner shall complete the hearing and render the decision as early as possible preferably within a period of four months from the date of receipt of writ of this court.

(v) Till the Development Commissioner finally decides the matter, further recovery of tax for the period from 1.4.87 to 31.3.91 shall remain stayed.

(vi) The rights of the parties shall be governed according to the order which may be finally passed by the Development Commissioner in accordance with law."

9. Thereafter, the Corporation issued a notice dated 07.03.1996 calling upon the plaintiff to deposit an amount of Rs.11,59,913/- below Exh.17 along with the aforesaid notice, the details of the property tax was also supplied to the plaintiff.

C/FA/1637/2002 ORDER DATED: 18/10/2022

10. The plaintiff thereafter filed the aforesaid suit with the aforementioned declaration that the Court below had rejected the suit on the ground that the plaintiff is having an alternative remedy by filing an appeal under Section 138 of the Act. The said Section 138 of the Act, reads as under : -

"Section 138 : Appeals to Magistrate :-

1)Appeals against any claim included in a bill presented under sub section (1) of Section 132 may be made to any judicial Magistrate or Bench of such Magistrates by whom under the direction of the Sessions Judge such class of cases is to be tried.

(2) No such appeal shall be entertained unless-

(a) the appeal is brought within fifteen days next after the presentation of the bill complained of, and

(b) in the case of a tax on building or land or both an application in writing stating the grounds on which the claim of the municipality is disputed, has been made to the executive Committee within the time fixed in the Notice given under section 108 or 109 of the assessment or alteration thereof, according to which the bill is prepared, and

(c) the amount claimed from the applicant has been deposited by him in the Municipal office. (3) The decision of the Magistrate or Bench of Magistrate in any appeal made under Sub-section (1) shall, at the instance of either party, be subject to revision by the Court to which appeals against the decision of such Magistrate or Bench ordinarily lie."

11. A plain and simple reading of the provisions of Section 138 of the Act reveals that if any dispute with regard to the assessment / property tax arises, the remedy is under Section 138 is provided filing of an appeal.

12. In the present case, it is the specific case of the plaintiff that he is not liable to pay any amount, in view of the settlement arrived at between the parties below Exh.45 i.e. on 05.01.1994. Thus, it is the case that the notice, which is issued after the settlement was uncalled for and the plaintiff has

C/FA/1637/2002 ORDER DATED: 18/10/2022

sought declaration for permanent injunction on the notice dated 07.03.1996. Thus, the dispute does not in any manner relates to the assessment but the dispute is with regard to the action of the respondent is calling upon to pay the aforesaid amount after the settlement, which has been arrived at between the plaintiff and the respondent No.1.

13. Under these circumstances, the Trial Court has fallen in error in dismissing the suit for want of jurisdiction. Hence, the impugned judgment and decree dated 31.07.2002 passed by the learned Civil Judge (S.D.), Porbandar in Special Civil Suit No.25 of 1996is hereby quashed and set aside.

14. The matter is remanded to the Court of learned Civil Judge, Senior Division, Porbandar. The Special Civil Suit No.25 of 1996 is ordered to be restored in its original file. After the suit is restored, the same shall be decided after giving an opportunity of hearing to the respective parties within a period of six months, as the suit is of the year 1996. It is noticed that by the interim order dated 21.03.2006 passed in Civil Application No.5885 of 2002, this Court had confirmed ad- interim relief granted vide order dated 13.09.2002 in terms of paragraph No.26(D) on the condition that the appellant continues to pay Rs.1,55,000/- towards tax amount every year.

15. It is clarified that the interim order and the deposit of the amount pursuant to the order is made subject to final outcome of the Special Civil Suit No.25 of 1996.

C/FA/1637/2002 ORDER DATED: 18/10/2022

16. First appeal is allowed. The matter is remanded to the concerned Court. No order as to costs. Record and proceedings be sent back to the concerned Court.

(A. S. SUPEHIA, J) MB/01