Gujarat High Court
Bharat Petroleum Corporation Ltd vs Vadodara Municipal Corporation on 18 October, 2022
C/SCA/2043/2022 ORDER DATED: 18/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2043 of 2022
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BHARAT PETROLEUM CORPORATION LTD. & 1 other(s)
Versus
VADODARA MUNICIPAL CORPORATION
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Appearance:
MR AJAY R MEHTA(453) for the Petitioner(s) No. 1,2
MR NILESH A PANDYA(549) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 18/10/2022
ORAL ORDER
1. The present petition is filed by the petitioners for seeking following reliefs:
(A) The Hon'ble Court may be pleased to issue a writ of mandamus Or any other appropriate writ, order or direction quashing and setting aside demand for property tax as contained in bill no.233844 (Annexure- A) and be further pleased to declare that no such retrospective claim for property tax is tenable under the provisions of the Gujarat Provincial Municipal Corporations Act, 1949;
(B) Pending hearing and final disposal of the present petition Hon'ble Court may be pleased to restrain the respondent from taking any coercive steps including Page 1 of 13 Downloaded on : Thu Oct 20 20:22:21 IST 2022 C/SCA/2043/2022 ORDER DATED: 18/10/2022 sealing of the retail outlet based on the demand for property tax under invoice No.2338844 dated 24.12.2019;
(C) The Hon'ble Court may be pleased to grant such other and further reliefs as may be deemed just and proper.
(D) Cost of the petition be directed against the respondent."
2. Heard learned advocate Mr. Ajay R. Mehta for the petitioners and learned advocate Mr. Nilesh A. Pandya for the respondent.
3. Rule. Learned advocates appearing for the respective parties waive service of notice of Rule of behalf of respective parties.
4.1 Learned advocate Mr. Ajay Mehta for the petitioners has submitted that the property tax bill, issued on 10.06.2019 for the year 2019-20 by the respondent - Corporation, where the name of the person, who is liable to pay tax is shown as Mrudulaben Nandkumar Gandhi for the premises in question being Ward No.10 situated Page 2 of 13 Downloaded on : Thu Oct 20 20:22:21 IST 2022 C/SCA/2043/2022 ORDER DATED: 18/10/2022 at Race Course Circle, Opposite Natubhai Centre, Vadadara. In that bill, the name of the occupant is shown as BPCL - Dealer Chetak Nandkumar Gandhi. He has pointed out from the said bill that bill amount of Rs.2,08,574/- is raised for the year 2019-20 and in column "B", where the details of outstanding amount is required to be mentioned but nothing is mentioned there. Further, he has drawn the attention of this Court towards bill of the year 2018-19 where also, the bill amount of Rs.2,08,574/- is raised but nothing is shown towards the previous outstanding amount. 4.2 Thereafter, on 24.12.2019, six months after issuance of last bill, new bill dated 24.12.2019 is issued for the period from 13.01.2005 to 31.03.2020 by claiming the amount of Rs.22,61,468/-. He has submitted that respondent - Corporation has no reason to ask for the said amount more particularly when such demand is against the provisions of law.
4.3 He has further submitted that such tax bill, claiming arrears for 15 years, has been raised by the Authority without any justification. He has submitted that when the petitioner had asked for the copy of Page 3 of 13 Downloaded on : Thu Oct 20 20:22:21 IST 2022 C/SCA/2043/2022 ORDER DATED: 18/10/2022 notice that may have been issued under Clause 15(2) & 20(2) of Chapter VIII of Schedule A of the Gujarat Provincial Municipal Corporations Act, 1949 along with Annual Letting Value calculation sheet under Section 2 of the Act, however, no such details/documents were furnished. He has further submitted that the action of the respondent in revising Annual Letting Value retrospectively, that too from the year 2005 is totally illegal and contrary to the statutory rules. 4.4 He has relied upon the judgment of Division Bench of this Court in the case of Sushilaben Veljibhai Shah versus Jamnagar Municipal Corporation rendered in the Special Civil Application No.8323 of 2019 dated 05.03.2020, more particular para 6.3 and has submitted that the demand which is raised by the respondent - Corporation by way impugned bill is bad in law and is required to be quashed and set aside.
5.1 Per contra, learned advocate Mr. Pandya appearing for the respondent No.1 has drawn the attention to this Court towards various Rules framed which is known as taxation Rules under the Act. He has also drawn the Page 4 of 13 Downloaded on : Thu Oct 20 20:22:21 IST 2022 C/SCA/2043/2022 ORDER DATED: 18/10/2022 attention of this Court towards Rules 5 & 21 of the Act, which read as under:
"Rule 5: Constitution of Corporation:-
(1) Every Corporation shall, by the name of "The Municipal Corporation of the City of .................", be a body corporate and have perpetual succession and a common seal and by such name may sue and be sued.
[(2) Each Corporation shall consist of councillors chosen by direct election.
(3) Where general election is to be held immediately after,--
(i) "a larger urban area''as specified under clause (2) of article 243Q of the Constitution of India, is made, or
(ii) the census is taken under the Census Act, 1948 and the relevant figures of which have been published, or
(iii) the limits of a City are altered,--
(a) the State Government shall, by notification in the Official gazette, determine the number of Page 5 of 13 Downloaded on : Thu Oct 20 20:22:21 IST 2022 C/SCA/2043/2022 ORDER DATED: 18/10/2022 wards into which the City shall be divided, the number of councillors to be elected to the Corporation and the number of seats to be reserved in favour of the Scheduled Castes, the Scheduled Tribes, the Backward Classes and Women as provided in this section, and
(b) the State Election Commission thereafter shall carry out the determination of the boundaries of the wards and the allocation of seats reserved in favour of the Scheduled Castes, Scheduled Tribes, the Backward Classes and Women among the wards in the prescribed manner.
(4) Seats shall be reserved by the State Government for the Scheduled Castes and the Scheduled Tribes in every Corporation and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in the Corporation as the population of the Scheduled Castes and Schedulded Tribes in City bears to the total population of the City and such seats may be allotted by rotation to different wards in the City in the prescribed manner.
(5) 1 [As nearly as may be one-half] of the total number of seats reserved under sub-section (4) shall be Page 6 of 13 Downloaded on : Thu Oct 20 20:22:21 IST 2022 C/SCA/2043/2022 ORDER DATED: 18/10/2022 reserved by the State Government for Women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(6) One-tenth of the total number of seats to be filled by direct election in every Corporation shall be reserved for persons belonging to Backward Classes and 2 [as nearly as may be one-half] of the seats so reserved for Backward Classes shall be reserved for Women belonging to the Backward Classes. (7) 3 [As nearly as may be one-half] (including the number of seats reserved for Women belonging to the Scheduled Castes, the Scheduled Tribes and the Backward Classes) of the total number of seats to be filled by direct election in the Corporation shall be reserved for women and such seats may be allotted by rotation to different wards in the City in the prescribed manner.
(8) The reservation of seats under sub-sections (4), (5) and (6) the reservation of office of Mayor under section 19 (other than the reservation for women under sub- section (7) shall cease to have effect on the expiration of the period specified in article 334 of the Constitution of India:
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C/SCA/2043/2022 ORDER DATED: 18/10/2022 Provided that any person elected to any of such reserved seats shall continue as a councilor during the term of the office for which he was validly elected, notwithstanding that the reservation of seats has so ceased to have effect.
EXPLANATION : For the purposes of this section,--
(1) "Scheduled Castes" means such castes, races or tribes or parts of, or groups within such castes, races or tribes as are deemed to be Scheduled Castes in relation to the State of Gujarat under article 341 of the Constitution of India;
(2) "Scheduled Tribes" means such tribes or tribal communities or parts of, or groups within such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Gujarat under article 342 of the Constitution of India; and (3) "Backward Classes" means classes declared as Socially and Educationally Backward Classes by the State Government from time to time.] 5A. Constitution of Corporation Pursuant to general election held fisrt after inclusion of an area in city.] Deleted by Guj. 16 of 1993, s.3.
Page 8 of 13 Downloaded on : Thu Oct 20 20:22:21 IST 2022
C/SCA/2043/2022 ORDER DATED: 18/10/2022 Rule 21: Constitution of Standing Committee:-
(1) The members of the Standing Committee shall appoint on of its members to be the Chairman on the same day on which they are appointed under sub-
section (2) of section 20. The term of the Chairman shall be two and a half years.
(2) The Chairman shall be eligible for re- appointment.
(3) Notwithstanding the provisions of sub-sections (1) and (2) the Chairman shall vacate office as soon as he ceases to be a member of the Committee. (4) If any casual vacancy occures in the office of the Chairman, the Standing Committee shall, as soon as conveniently may be after the occurrence of the vacancy, appoint one of its members to fill such vacancy and every Chairman so appointed shall continue in office so long only as the person in whose place he is appointed would have held it if such vacancy had not occurred."
5.2 He has submitted that when the petitioner has applied for the assessment and has not disclosed that he Page 9 of 13 Downloaded on : Thu Oct 20 20:22:21 IST 2022 C/SCA/2043/2022 ORDER DATED: 18/10/2022 is not the owner of the property and BPCL is tenant of the property, and when it came to knowledge of the respondent - Corporation, the assessment is made, and accordingly, the bill is issued from the years 2005 to 2020, by exercising the powers available under the statute. He has also submitted that special notice is issued to the petitioner in the year 2019. 5.3 He has also submitted that there is alternative remedy available to the petitioner by filing appeal under the provisions of Section 406 of the Act and therefore, he prays to dismiss the present petition. 6.1 On perusal of the bill, prima facie, I found that the bills for the years 2017-18, 2018-19, 2019-2020 show that the occupier is BPCL Dealer Chetak N. Gandhi and the bill in dispute issued by the respondent - Corporation for the period from 13.01.2005 to 13.01.2020, and bill dated 24.12.2019 also indicate that the BPCL Dealer Chetak N. Gandhi is a tenant and there is no change. Moreover, on perusal of the bill issued for the current year, it is relevant to note that the demand for the current year is mentioned as Rs.2,08,574/- and therefore, it transpires from the record that no proper notice which is required Page 10 of 13 Downloaded on : Thu Oct 20 20:22:21 IST 2022 C/SCA/2043/2022 ORDER DATED: 18/10/2022 to be issued for changing in Annual Letting Value, is issued at no point of time to the present petitioner, owner of the premises or first floor assessee person and therefore, I found that the contention raised by the respondent - Corporation is ill-founded. 6.2 It can be presumed from the records available with this Court that earlier, the officers of the respondent - Corporation has even not visited the disputed premises for verification or necessary assessment of the premises in question.
6.3 Considering the totality of the circumstances, it is fruitful to refer to the observations made by the Division Bench of this Court in the case of Sushilaben Veljibhai Shah (supra) dated 05.03.2020, more particularly para 6.3 thereof, which is reproduced as under, "6.3 Therefore, it is not open for the respondent Corporation to raise any bill retrospectively at any time without any basis for providing any calculation for raising such demand. In the facts of the case, as the petitioners have paid all the taxes with respect to the property in question, and there was nothing outstanding. The demand of property tax of Page 11 of 13 Downloaded on : Thu Oct 20 20:22:21 IST 2022 C/SCA/2043/2022 ORDER DATED: 18/10/2022 Rs.4,21,167/- raised by impugned order is contrary to the provisions of the Act, 1949 and the Rules framed thereunder."
6.4 In view of the above and considering the facts of this case, I am of the considered opinion that the respondent - Corporation has raised demand which is not in accordance with law and by not following the due procedure of law and the action of the respondent - Corporation is found arbitrary and improper, there it warrants interference by this Court by exercising the extraordinary powers under Article 226 of the Constitution of India by granting prayers made in the present petition and by quashing and setting aside the impugned bill dated 24.12.2019 and this petition deserves to be allowed.
7 For the reasons recorded above, the following order is passed:
7.1 The present petition is allowed. Rule is made absolute.
7.2 The impugned order for property tax as contained Page 12 of 13 Downloaded on : Thu Oct 20 20:22:21 IST 2022 C/SCA/2043/2022 ORDER DATED: 18/10/2022 in bill No.233844 issueed by the Vadodara Municipal Corporation, Vadodara is hereby quashed and set aside. 8.1 After completion of dictation, learned advocate Mr. Pandya has requested this Court to suspend this order, which is opposed by learned advocate Mr. Mehta by contending that interim relief is operating though out the pendency of this petition.
8.2 Considering the overall facts and circumstances of the present case, I am of the opinion that apparently the respondent - Corporation has acted in highhandedness manner without following due procedure of law and therefore, the request made by learned advocate Mr. Pandya is rejected.
Direct service is permitted.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA/18 Page 13 of 13 Downloaded on : Thu Oct 20 20:22:21 IST 2022