Chattisgarh High Court
Balco Captive Power Plant vs State Of Chhattisgarh on 12 September, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPT No. 52 of 2016
• Bharat Aluminium Company Ltd. Aged About 18 Years P.O. Balco
Nagar, Korba, District Korba, Chhattisgarh, Chhattisgarh
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary, Department Of Urban
Administration And Development, New Mantralaya, Mahanadi
Bhawan, New Raipur, P.S. Rakhi, Districty Raipur, Chhattisgarh,
Chhattisgarh
2. The Driector, Department Of Urban Administration And Development,
New Mantralaya, Mahanadi Bhawan, New Raipur, P.S. Rakhi, District
Raipur, Chhattisgarh, District : Raipur, Chhattisgarh
3. Municipal Corporation, Korba, Through Commissioner, Municipal
Corporation, Korba, District Korba, Chhattisgarh, District : Korba,
Chhattisgarh
---- Respondents
WPT No. 59 of 2016
• Balco Captive Power Plant Aged About 18 Years P.O- Balco Nagar,
Korba, District Korba Chhattisgarh, Through Its Authorized Signatory,
Mr. Ajay Yadav, S/o Sh. R.P. Yadav Aged About 35 Years, Presently
Working As Assistant Manager Estate, Bharat Aluminum Company
Limited, Balco Nagar, Korba, District Korba Chhattisgarh, Chhattisgarh
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary, Department Of Urban
Administration And Development, New Mantralaya, Mahanadi
Bhawan, New Raipur, P.S. Rakhi, District Raipur Chhattisgarh,
Chhattisgarh
2. The Director, Department Of Urban Administration And Development,
New Mantralaya, Indrawati Bhawan, New Raipur, P.S. Rakhi, District
Raipur Chhattisgarh, District : Raipur, Chhattisgarh
3. Municipal Corporation, Korba Through Commissioner, Municipal
Corporation, Korba, District Korba Chhattisgarh, District : Korba,
Chhattisgarh
---- Respondents
WPT No. 76 of 2016
• Bharat Aluminium Company Ltd. Aged About 18 Years P.O. Balco
Nagar, Korba, District Korba, Chhattisgarh, Through Authorized
Signatory, Mr. Ajay Yadav, S/o Shri R.P. Yadav, Presently Working As
Assistant Manager Estate, Bharat Aluminium Company Limited, Balco
Nagar, Korba, District Korba, Chhattisgarh, Chhattisgarh
---- Petitioner
Versus
2
1. State of Chhattisgarh Through Secretary, Department Of Urban
Administration And Development, New Mantralaya, Mahanadi
Bhawan, New Raipur, P.S. Rakhi, District Raipur, Chhattisgarh,
Chhattisgarh
2. The Director, Department Of Urban Administration And
Development, New Mantralaya, Indrawati Bhawan, New Raipur,
P.S. Rakhi, District Raipur, Chhattisgarh, District : Raipur,
Chhattisgarh
3. Municipal Corporation, Korba, Through Commissioner, Municipal
Corporation, Korba, District Korba, Chhattisgarh, District : Korba,
Chhattisgarh
---- Respondents
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For petitioners : Mr. Brian Dasilva, Sr. Advocate with Mr. Raja Sharma and Mr. Sarbur Singh Oberoi, Advocates.
For Respondent /State : Mr. Sandeep Dubey, Dy. Adv.General.
For respondent No.3 : Mr. B.D. Guru, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas.
Order on Board (12-09--2022)
1. Since an identical issue is involved in the aforesaid bunch of three writ petitions, they are heard analogously and are being disposed of by this common order.
2. The petitioner is a company incorporated under the provisions of the Companies Act, 1956 (for short, "the Act, 1956"). It is situated within the territorial jurisdiction of Municipal Corporation, Korba, Chhattisgarh. The petitioner has fled the instant writ petitions challenging legality, validity and propriety of the resolutions passed by the respondent No.3 (Annexure P/1 collectively) to the extent treating the buildings, the height of which is more than the 3 normal buildings as a special category for charging property tax by presuming that such buildings have multiple foors at a height of every sixteen feet, for the fnancial years 2010- 2011 to 2014-2015. The writ petition has also been fled against the impugned order dated 3-3-2016 (Annexure P/2) passed by the respondent No.3, in pursuance of the order dated 22-4-2015 passed by this Court in WPT No. 61 of 2015 (BALCO vs. State of Chhattisgarh and another), in gross violation of principles of natural justice and ignoring the mandatory provisions of the Act, 1956.
3. Learned Sr. Advocate would submit that the resolution passed by the Municipal Corporation is against the Chhattisgarh Municipal Corporation Act and Rules made therein and the Corporation has exceeded its jurisdiction towards levy of property tax, but it has to be subject to provisions of Sections 135, 136 and 138 of the Act, 1956. It has been further contended that the Municipal Corporation has committed a manifest error in charging the property tax by presuming that such buildings have multiple foors at a height of every sixteen feet. Even such building actually has single ground foor only and roof of the height of the building of every sixteen feet is against Section 135 of the Act, 1956 as the rate of property tax prescribed under the aforesaid Act, should not be less than six percent and not more than twenty percent of annual letting value, whereas the petitioner company is being directed to pay property tax more than the maximum prescribed rate and the property tax levied is more than hundred percent by invoking illegal presumption of 16 feet which really does not exist. He would further submit that the resolution passed by the Municipal Corporation is against the provisions of the Chhattisgarh Municipal Corporation Act as the Municipal 4 Corporation Bhilai which is also an industrial township for fnancial year 2012-2013 as well as for the fnancial year 2015-2016, no provision in the resolution for division of buidling having single foor or roof into 16 feet has been incorporation for imposition of tax. Thus, the imposition of tax on the petitioner's company is against the provisions of the Act, 1956. He would further submit that levy of 100% property tax on the residential township for the petitioner company by the respondent Corporation is against the provisions of Section 136 of the Act, 1956 and they are unable to provide any reason as to why the petitioner is not entitled to 50% rebate for its residential properties. He would further submit that the impugned order has been passed ignoring the order passed by the Division Bench of this Court in Writ Appeal No 438 of 2014 dated 14-8-2015 whereby the Division Bench has directed the respondent No.2 to re-assess demand raised by the Municipal Corporation and without application of mind, the impugned order has been passed.
4. Per contra, learned counsel for Municipal Corporation would submit that the resolution passed by the Municipal Corporation is in accordance with the provisions of the Chhattisgarh Municipal Corporation. He would further submit that the order passed under Section 148 by the Commissioner is an appealable order under Section 149 which lies to the District Court, the petitioner without exhausting the remedy of fling an appeal, has fled the writ petitions which are not maintainable. It has also been stated that the writ petitions have not been signed by the Secretary or Director of the Company or other Principal Ofcer of the Company, therefore, the writ petitions are not maintainable.
55. This court after considering the submissions of the parties has passed the interim order on 11-4-2016 which reads as under;
"Considering the pleadings and after going through the case law and the provisions of Sections 135, 136 and 138 of the Municipal Corporation Act reading it with the resolution which is under challenge, it appears that the issue raised by the petitioner cannot be rejected at the threshold. It appears that the Municipal Corporation has evolved a formula to fx annual letting value of property, of course, the same is to be tested as per the provisions of the Municipal Corporation Act, 1956.
Heard application for grant of stay. On due consideration, it is directed that on petitioner's depositing 40% of the demand so made within a further period of one month from today, recovery of remaining amount shall remain stayed till the next date of hearing".
6. Learned Sr. Advocate for the petitioner would submit that the issue raised in the bung of these writ petitions has already been examined in detail by the Hon'ble Division Bench of this court in Writ Appeal No. 481 of 2018 (Bharat Aluminium Company Ltd. PO Balco Nagar, Korba vs. State of Chhattisgarh and others) wherein the Hon'ble Division Bench of this court after considering the entire provisions of the Municipal Corporation Act has quashed the resolution passed by the Municipal Corporation meaning thereby that the division of height of a building into foors on presumption at every 16 feet is erroneous one and deserves to be quashed. Hon'ble the Division Bench of this Court while considering the provisions of the Act, 1956 in paragraph 16 to 26 has allowed 6 the writ appeal in part, the relevant portion thereof is reproduced as under.
"16. In the case in hand, the subject in question is a property tax and Section 138 of the Act of 1956 specifcally provides the factors of consideration for ascertaining the annual letting value of a building. True it is that the legislation has granted some powers to the Tax Assessing Authority to consider any other factor for calculating the property tax. Any other factor would not mean that the factor to be considered which, in fact, is not available but it has to be presumed. Relevant portion of Section 138 of Act of 1956 is reproduced here-in-below :-
"138. Annual letting value of land or building-(1) Notwithstanding anything contained in this Act or any other law for the time being in force, the annual letting value of any building or land, whether revenue paying or not, shall be determined as per the resolution of the Corporation adopted in this behalf, [on the basis of per square meter of the [built up area] of a building or land, as the case may be] taking into consideration the area in which the building or land is situated, its location, situation, purpose for which it is used, its capacity for proftable user, quality of construction of the building and other relevant factors and subject to such rules, as may be made by the State Government in this behalf."
17. Any other factor may include certain factual status available for consideration, such as height of a building, as considered by the respondent-Municipal Corporation. But the liberty granted by the legislature could not be given so wide a meaning as also to take into consideration by presuming and assuming a fact such as a foor at a particular height. Under the taxing statute, as held in the matter of Mohammad Ali Khan (supra), attention should be paid to what has been said, as also to what has not been said.
718. The provisions of Section 138 of the Act of 1956 have been amended in the year 2012 itself and instead of "carpet area" the words "built up area" has been inserted, but even at that particular time, the legislature has not deemed it ft and proper to use specifc words with respect to the consideration of the height of the building and presuming separate foor after each specifc height to be the factor for assessing the annual letting value of any building. The height of the building can be taken into consideration as it exists for assessing tax in a particular rate or manner.
19. The statute has specifcally provided the factors which are to be taken into consideration for assessment of annual letting value of a building and from perusal of the same it is clear that those factors are of the nature which are existing on the spot and can be visible with open eyes. For imposing tax on the basis of the statute, the same must be read according to the natural construction of its words. It cannot be presumed something which is not available directly from its consideration, particularly, in the subject matter of dispute of this petition. The property tax on the building and land imposed by the Municipal Corporation by its resolution (Annexure P-1) is questioned wherein the Municipal Corporation has resolved to impose property tax on the commercial and industrial high rise buildings treating the height of one foor as 16 feet and height of the building at every 16 feet to be one separate foor. Undisputedly, height of the building exists with the property in question to be taxed, but if it is not partitioned into separate foors, it cannot be presumed. In a taxing act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.
820. Taxing statute are to be read as it is. It cannot be stretched and it is also not proper to probe into provision to get the intention of the legislature but only it is to be seen that what words the legislature has used in a plain and simple language.
21. The word "any other factor" as used in the provisions of Section 138 of the Act of 1956 is to be understood in the light of the factors which are already specifcally worded and provided under the said provision. From perusal of the factor which already provided under the provision of Section 138 of the Act of 1956 for consideration in assessing the annual letting value of the building are the actual status of the building.
22. In view of the above, the height of the building, which is its status and existence can be considered as one of the other factors for assessing the annual letting value of the building, but the height of the building cannot be divided into foors on presumption after a particular height and further foors thereafter.
23. In view of the above discussions and in the light of above judgments passed by the Hon'ble Supreme Court, we are of the view that the impugned order dated 28.03.2018 (Annxure A-1 to the writ appeal) as also the note of resolution dated 01.04.2017 (Annexure P-1 to the writ petition) are set aside meaning thereby that the division of height of a building into foors on presumption at every 16 feet is also set aside.
24. In view of the above, the demand dated 05.08.2017 of Rs.24,79,91,502/- and demand dated 05.08.2017 of Rs.2,50,68,491/- are set aside.
25. Respondents however are given liberty to raise fresh demands in conformity with this judgment.
926. The writ appeal is allowed in part".
7. Since the issue raised by the petitioner in the bunch of these writ petitions is one and the same which has been decided by Hon'ble Division Bench, the resolution passed by the Municipal Corporation treating the building structure with single roof, the height of which roof is more than that of normal building as a special category for charging property by presuming that such buildings have multiple foor at height at every 16 feet as per resolution passed by the Municipal Corporation is set aside and also the consequential impugned order dated 3-3-2016 and 14-3-2016 (Annexure P/
2) by which the petitioner was directed to deposit Rs.62,94,85,651 in Writ Petition (T) No. 52 of 2016 and Rs.7,95,74,521/- in Writ Petition (T) No. 59 of 2016 towards property and education cess along with surcharge , are set aside.
8. So far as Writ Petition (T) No. 76 of 2016 is concerned, in this case only intimation with regard to enhance the rate of calculation for annual letting value of the building is under challenge. The said intimation so far as it relates to petitioner is set aside and the Municipal Corporation shall examine the matter afresh in the light of observation made by the Division Bench of this Court in Writ Appeal No. 481 of 2018 and Single Bench of this court in WP(T) No. 52 of 2016 before fnalising the property tax with regard to the property of the petitioner company.
9. With the aforesaid observations, Writ Petitions (T) Nos. 52 of 2016 and 59 of 2016 are allowed and Writ Petition (T) No. 76 of 2016 is disposed of.
1010. Pending interlocutory applications, if any, stand disposed of.
Sd/-
(Narendra Kumar Vyas) JUDGE Raju