Gujarat High Court
Ahmedabad vs Government on 24 March, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/12501/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12501 of
2010
=========================================================
AHMEDABAD
AVIATION & AERONAUTICS LTD & 1 - Petitioner(s)
Versus
GOVERNMENT
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
KUNAN B NAIK for
Petitioner(s) : 1 - 2.MR ANUJ K TRIVEDI for Petitioner(s) : 1 -
2.
Mr. Anand L. Sharma, AGP for Respondent(s) : 1 - 2.
RULE
SERVED for Respondent(s) : 1 - 3.
MR MEHUL SHARAD SHAH for
Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
and
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 24/03/2011
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE H.K.RATHOD) Heard learned Senior Advocate Mr. Mihir H. Joshi with learned Advocate Mr. Kunan B. Naik for petitioners, learned Asstt. Government Pleader Mr. Anand L. Sharma for respondent No. 1 and 2 as well as Mr. Mehul Sharad Shah, learned advocate for respondent NO. 3.
Petitioners have challenged various orders passed by Mehsana Municipality demanding Property Tax under various bills dated 20th September, 2009, 8th April, 2010, 22nd July, 2010 as well as notices dated 29th March, 2010, 8th April, 2010 and 3rd September, 2010 and coercive action on the part of Respondent Municipality in sealing Mehsana Air Field under impugned notice and Panchanama dated 8th September, 2010.
Against that, petitioners have preferred three appeals before Chief Judicial Magistrate,Mehsana who has issued notice on 10th August, 2010. Along with appeals, petitioners have also filed Stay Applications but till this date, no stay has been granted by Chief Judicial Magistrate, Mehsana. Meanwhile, petitioners have approached this Court and this Court has, initially, passed orders on 24/09/2010 which is quoted as under:
" NOTICE to the respondents returnable on 6.10.2010. In the meantime, ad-interim relief in terms of para 10(D) on condition that the petitioners will deposit Rs.5,00,000/- (Rupees Five lakhs only) with the respondent, subject to the result of this petition. On depositing the amount, the respondents are directed to open the seal and release attachment in respect of Mehsana Airfield. Direct service today is permitted."
Thereafter, this Court has passed order on 15/10/2010 which is also quoted as under:
"1. This matter was earlier listed before this Court on 06.10.2010. On that day, it was adjourned to today at the request of learned counsel Mr. Sunil S. Joshi appearing on behalf of respondent no.3.
2. Today, when the matter was called out, learned counsel Mr. Joshi again requested for time. The Court informed learned counsel Mr. Joshi that it was ready to grant adjournment on condition that respondent no.3 shall have to pay costs, which may be imposed by the Court for seeking adjournment time and again. However, learned counsel Mr. Joshi was not ready to accept the said proposal.
3. In view of the above, Rule. Ad-interim relief granted earlier stands confirmed. It shall be open to the respondents to move for early hearing after the pleadings are over."
Against that, Letters Patent Appeal No. 2698 of 2010 was preferred by Mehsana Municipality wherein Division Bench of this Court passed following order on 18th February, 2011:
" This appeal under clause 15 has been preferred by the appellant-Municipality against the order dated 15.10.2010 passed by the learned Single Judge in Special Civil Application No. 1250 of 2010. Learned counsel appearing on behalf of the appellant-Municipality submits that though counsel for the Municipality has filed a leave note and adjournment was sought for, but the ad-interim relief granted earlier was confirmed without giving a specific reason. According to him, the demand was for Rs.01,06,00,000/- from the respondent-writ petitioner, and though writ petition against the same was not maintainable, but without any cogent reason, during the pendency of an appeal against such order, ad-interim order of stay has been confirmed by the impugned order. Counsel for the respondent-writ petitioner submits that the bill is not proper as majority of the amount should have been charged from the State as the respondent-writ petitioner is a non-exclusive occupier.
Having heard learned counsel for the parties, we are of the view that without giving proper opportunity of hearing to the counsel for the Municipality, learned Single Judge ought not to have confirmed the ad-interim order, that too when the appeal is stated to be pending against such demand, and the amount is more than a Crore. For the said reason, we set aside the impugned order dated 15.10.2010, and remit the matter to the learned Single Judge on the question of grant or otherwise of the interim relief.
If the matter is a Division Bench matter, then the Registrar (Judicial) is directed to examine the same and may place the matter before appropriate Division Bench."
In view of this back ground, when appeals are preferred by petitioners before Chief Judicial Magistrate, Mehsana under provisions of Gujarat Municipalities Act, we are not entertaining this petition only on the ground that alternative remedy is availed by petitioners. Learned Senior Advocate Mr.Mihir Joshi appearing for petitioners submitted that during pendency of appeals or so long appeals are decided by Chief Judicial Magistrate, Mehsana, ad-interim orders passed by this Court may remain continue. Against that, learned Advocate Mr.Mehul Sharad Shah appearing for respondent Municipality has submitted that his statement may be recorded that upto fifteen days, Mehsana Municipality will not effect any coercive measures against petitioners in respect of demand of Municipal Property Tax. In light of this back ground, it is directed to Chief Judicial Magistrate, Mehsana before whom Municipal Tax Appeals are preferred by petitioners and pending to decide question of maintainability of appeal under section 138 of Gujarat Municipalities Act and whether any protection is required to be granted to petitioners or not, within fifteen days from date of receiving copy of present order. It is made clear by this Court that this order has been passed by this Court without expressing any opinion on merits.
Accordingly, present petition is disposed of. Rule is discharged. Ad interim relief granted by this Court stands vacated. No order as to costs.
(H.K.Rathod,J.) (K.A. Puj,J.) Vyas Top