Gujarat High Court
Ahmedabad vs Government on 9 June, 2011
Author: B.M.Trivedi
Bench: B.M.Trivedi
Gujarat High Court Case Information System
Print
C/SCA/6956/2011
ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No 6956 of 2011
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AHMEDABAD
AVIATION & AERONAUTICS LIMITED & 1....Petitioner(s)
Versus
GOVERNMENT
OF GUJARAT THROUGH SECRETARY & 2....Respondent(s)
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Appearance:
MR
MIHIR JOSHI, SR.ADVOCATE FOR MR ANUJ K TRIVEDI as ADVOCATE for the
Petitioner(s) No. 1-2
MR
MEHUL SHARAD SHAH as ADVOCATE for the Respondent(s) No. 3
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CORAM:
HONOURABLE
MS.JUSTICE B.M.TRIVEDI
Date
: 09/06/2011
ORAL
ORDER
Leave to amend as per the draft amendment submitted today. Necessary amendment be carried out during the course of the day.
Notice, returnable on 28.06.2011. Mr.Mehul Sharad Shah, ld.advocate, appearing on caveat for respondent No.3, waives service of notice for respondent No.3. Mr.Janak Raval, ld.AGP waives service of notice for respondent No.1.
The petitioners in the present petition have challenged the impugned order dated 10.5.2011 passed below Exh.24 in Municipal Tax Appeal No.3 of 2011 by the Court of learned Chief Judicial Magistrate, Mehsana, and have prayed by way of interim relief, for restraining the respondent Municipality from taking any coercive measures for the recovery of dues of municipal taxes from the petitioners. It appears that as per the request form for urgent circulation, the petitioner on 1.6.2011 had sought permission to circulate the petition on 13.6.2011, which permission was granted by the vacation Court (Coram: J.B.Pardiwala, J.). However, then yesterday, a request was made before this Court to hear the matter urgently, which was granted by this Court, but since the name of the learned advocate Mr.Mehul Sharad Shah, appearing on caveat was not mentioned, the matter was kept for hearing today. Today, the petitioners have sought to amend the petition on the ground that, yesterday i.e. on 08.06.2011, the respondent Municipality had sealed the premises in question. The petitioners have sought to amend the petition by incorporating the paragraphs and the prayer clause as mentioned in the draft amendment, which amendment has been granted by the Court today.
It has been submitted by the learned sr.advocate Mr.Joshi for the petitioners that though the MOU was entered into between the petitioners and the respondent Municipality, with regard to use of Mehsana Airstrip and connected facilities for flight training and other flying operations, the area of which was approximately 25000 sq.mtrs., the respondent Municipality has issued the tax bills for the last three years for the entire area of airfield, which approximately is 315000 sq.mtrs., which ex-facie is arbitrary. Mr.Joshi, also further submitted that as per the earlier order passed by the Division Bench, the petitioners were relegated to the Forum of Appellate Court i.e. the Chief Judicial Magistrate, Mehsana and, accordingly, the said Appellate Forum has passed the order, which is under challenge. According to Mr.Joshi, since the appeal was held not maintainable by the said Court in the impugned order, the petitioners have preferred the present petition, however, before the petition could be heard, the respondent Municipality yesterday took coercive measure of sealing the premises of the petitioners. Mr.Joshi, taking the Court to the documents on record as well as the provisions of Gujarat Municipalities Act, 1963 ('Municipalities Act', for short), submitted that the petitioners are not liable to pay any tax amount as demanded by the respondent Municipality, however, the petitioners have earlier deposited Rs.5 Lacs pursuant to the order passed by the learned single Judge of this Court and other amount of Rs.8 Lacs periodically, under protest, and in all Rs.13 Lacs have been paid towards the demand of outstanding tax bills. Mr.Joshi, under the instructions of his clients, submitted that the petitioners are ready to deposit further amount as may be thought fit and reasonable by the Court for removing of the seal that has been affixed on the premises in question of the petitioners, as otherwise great hardship would be caused to the petitioners in running the training course.
However, learned advocate Mr.Mehul Sharad Shah for the respondent Municipality has pressed into service the provisions contained in the Municipalities Act, more particularly, Section 138, and submitted that the appeal filed by the petitioners was held not maintainable by the learned Chief Judicial Magistrate, as the petitioners had not complied with the mandatory condition of depositing the entire amount of tax dues, as per Section 138(2)(c) of the Municipalities Act. Mr.Shah has also relied upon the provisions contained in Section 138(3) of the Municipalities Act to submit that the impugned order passed by the learned Chief Judicial Magistrate, Mehsana is challengeable before the appropriate Court, by way of revision, and in view of the alternative remedy being available, the present petition also is not maintainable. Mr.Shah, further submitted that the petitioners had themselves submitted an application, seeking assessment of the premises in question, and the report made by the Chief Officer, Mehsana Nagarpalika, showing the petitioners as tenants in respect of the entire premises, consisting of constructed area as well as open land, has not been challenged by the petitioners. Mr.Shah also submitted that the petitioners have not paid the dues for the years 2008-09, 2009-10 and 2010-11, which totally comes to about Rs.1,12,80,970/- as per the latest bill issued to the petitioners (Annexure 'Q'). Mr.Shah further submitted that the petitioners are charging heavy fees from the students for giving training and are not paying the tax dues of the respondent Municipality, though liable under the Municipalities Act. According to Mr.Shah, sufficient time was granted to the petitioners to pay up the dues of the Municipality, but since they did not pay the same, the property was sealed. Mr.Shah also submitted that the respondent Municipality would like to file affidavit-in-reply with regard to the allegations made in the petition and, therefore, time be granted.
Having regard to the submissions made by the learned advocates for the parties and documents on record, as also the provisions contained in the Municipalities Act, it appears that by way of impugned order, the learned Chief Judicial Magistrate, Mehsana has held that the appeal of the petitioners was not maintainable, as the prayers sought in the appeal, could not have been granted by the said Court, and as the petitioners had not deposited the amount of disputed bill for preferring the appeal, as required under the provisions contained in Section 138(3) of the Municipalities Act. It also appears that the impugned order is challengeable by way of revision before appropriate Court u/s.138(3) of the Municipalities Act. There are also rival contentions raised by both the parties, however, keeping the said contentions open, since the premises in question of the petitioners has been sealed by the respondent Municipality, which would cause great hardship to the petitioners in running the training course for the students of Commercial Pilot Course, the interest of justice would be made, if the petitioners are directed to make part payment out of the said disputed bill (Annexure 'Q') as a condition, for removing the said seal. Since the outstanding amount shown in the said bill is about Rs.1,12,80,970/- for the three years, and since the petitioners have earlier deposited about Rs.13 Lacs, interest of justice would be met if the petitioners are directed to deposit further amount of Rs.25 Lacs at this juncture, keeping all the contentions raised by the parties open, till further orders of the Court.
In that view of the matter, the respondent Municipality is directed to remove the seal on the premises in question immediately on the petitioners depositing Rs.25 Lacs towards the outstanding amount of dues. S.O to 28.06.2011. Direct service permitted.
(BELA TRIVEDI, J.) (binoy) Page 7 of 7 Top