Bombay High Court
Hindustan Aeronautics Ltd. vs State Of Maharashtra And Ors. on 4 October, 2002
Equivalent citations: 2003(2)BOMCR652
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This writ petition takes exception to the order passed by the Principal Secretary (Revenue), which decides the question regarding the liability of the petitioner company to pay the non-agricultural tax in respect of the subject land in its possession at Ojhar, Taluka Niphad, District Nasik. It is not necessary to burden this judgment with all the dates and events that precede, the decision under challenge. Suffice it to mention that the revenue authorities issued demand notice to the petitioner company demanding amount towards non-agricultural assessment in respect of the subject land, being sum of Rs. 10,98,11,575/-. That demand was disputed by the petitioner on the premise that the title of the land vested with the Union of India and that the petitioner company was Government controlled company. In the circumstances, it was contended that the subject land could not be subjected to non-agricultural assessment, in view of the mandate of Article 285(1) of Constitution of India. To vindicate its stand the petitioner had challenged the demand notice before this Court by way of Writ Petition No. 6209 of 2001 which was disposed of on 16-1-2002 by directing the respondent No. 1 who is the Principal Secretary (Revenue) to decide the question about the liability of the petitioner company to pay non-agricultural assessment in respect of the suit land, if any. Pursuant to the said order, the Principal Secretary (Revenue) has examined the matter and has answered the issue against the petitioner company by the impugned order. The main premise on which the impugned order proceeds is that the petitioner was using the subject land and, therefore, liable to pay the non-agricultural assessment. The order proceeds to record that it has been observed that the land in question was acquired by the State Government for Central Government for the M.I.G. project and after acquisition it was handed over to the Central Government who in turn handed over the same to the petitioner for establishing M.I.G. Aircraft factory and as such the petitioner company is using the land in question. The Secretary in his order has further opined that it is not correct to say that the land is owned or used by the Central Government. Accordingly, the Secretary has held that non-agricultural assessment was applicable to the said land and the petitioner being a separate juristic person was not entitled to claim exemption under Article 285 of the Constitution of India. The Secretary while returning finding that the land does not belong to the Central Government has adverted to the entries in the record of rights which would indicate that the names of private land owners were deleted by entering the name of the Central Government and the Central Government having acquired the land for H.A.L., the name of Central Government is deleted and M.I.G. defence project is entered in 7 x 12 extract. This is the principal premise on which the Secretary proceeded to decide the issue.
2. The present writ petition takes exception to the above order of the Secretary. It is mainly argued that the Secretary has not properly examined the core issue, namely, as to whether the subject land was the property of the Union? According to the petitioner if that issue was to be answered in the affirmative then as a necessary corollary the suit land cannot be subjected to non-agricultural assessment, being exempted by virtue of Article 285(1) of Constitution of India. It is contended that if the subject property is of the Union then mere possession of the petitioner would be of no avail cannot be the basis for levy of non-agricultural assessment. The petitioner has also taken exception to some of the observations made in the impugned order being unwarranted.
3. On the other hand, the learned Counsel for the contesting respondents contends that no fault can be found with the view taken by the Secretary that the land could be subjected to non-agricultural assessment as record would indicate that the Central Government was not the owner of the suit land. The learned Counsel has also placed reliance on the decision reported in A.I.R. 1999 S.C. 173 M/s. Electronics Corporation of India Ltd. v. Secretary, Revenue Deptt., Government of Andhra Pradesh and others, as well as Board of Trustees for the Visakhapatnam Port Trust v. State of Andhra Pradesh and others.
4. Having considered the rival submissions, to my mind, the principal question as to whether the subject land was the property of the petitioner company or still vested in the Union of India, will have to be considered afresh in the light of all the materials relied by the parties before this Court. No doubt the Secretary (Revenue) is not the authority to pronounce on the issue of title in respect of any property, nevertheless he will be required to examine that aspect incidentally to decide the question of liability of the petitioner to pay non-agricultural assessment regarding the subject land. It cannot be disputed that the entries in the 7 x 12 extract is not decisive regarding the question of title of the land. Similarly, the factum of possession of the suit land by the petitioner cannot be the basis to hold that the petitioner is the owner of that property. Though the petitioner is in possession of the suit land but if the same is still the property of the Union then the question of applicability of non-agricultural land would not arise in view of Article 285(1) of the Constitution of India. It is in this context the petitioner relies inter alia on the indenture dated 19-11-1971, deed dated 8-1-1975 as well as letter issued by the Government of India, Ministry of Defence dated 9-11-2001. According to the petitioner these documents would clinchingly establish that the land still vested in the Union of India and was the property of the Union. The petitioner has clearly averred this fact in para 17 of the writ petition, which reads thus:-
Para 17 "There is no valid conveyance of title of the subject land by respondent No. 5, Union of India to the petitioner and the Union of India continues to be the absolute owner of the property in question in spite of a deed dated 24-6-1978 signed between the respondent No. 5 and the petitioner. The said deed was not registered and hence that title did not pass to the petitioner for want of registration. It is further submitted that the respondent No. 2 has committed an error in stating that the petitioner is in possession of 1818-H whereas in fact the petitioner is in exclusive possession of only 1076.06-H, the land admeasuring about 670-21-H being in joint possession of petitioner and Indian Air Force (11 B.R.D.), an area 131.791-H having being handed over to Indian Air Force (11 B.R.D.) as per the directions of the Ministry of Defence. The petitioner states that as late as November 2001, the Ministry of Defence, Government of India by its letter dated 9-11-2001 have reiterated that the subject have vests with the Ministry of Defence, Government of India as per the deed dated 19-1-1971 (at Exhibit A) and that Indian Air Force and the petitioner are under the Ministry of Defence in the Government of India. That there has never been any doubt that the Government of India is owner of the subject land and that the petitioner company is a part of the Ministry of Defence like Indian Air Force. The copy of the said letter dated 9-11-2001 from the Ministry of Defence is hereto annexed and marked as Exhibit L."
5. What is relevant to note is that neither the Secretary in his order has adverted to the above said aspects nor any reply has been filed controverting the factual assertion made in para 17 of the writ petition. Indeed, in that case the conclusion recorded by the Secretary in the impugned order cannot stand the test of judicially scrutiny. The learned Counsel for the respondents contends that the Secretary has placed reliance on the entry in the record of rights to record its opinion that the Union is not the owner of the property, but that view can be justified also on the basis of document being deed of indenture executed between the President of India and the petitioner company on 27th June, 1978 which would clearly establish that the subject land stood transferred in favour of the petitioner company. According to him, since the value of the land in the said deed has been specified only as Re. 1/-, registration of this document under section 17 of the Registration Act was not necessary and, it has come into effect immediately upon its execution and the title of the land stood transferred in favour of the petitioner company. However, that is not the basis on which the Secretary has decided the matter nor that position has been taken in affidavit filed before this Court on behalf of State Government. On the other hand the petitioner contends that document has not been acted upon. In this peculiar situation the appropriate course would be to remand the matter to the Secretary to re-examine the main question as to whether the subject land is still the property of the Union of India and has not vested in the petitioner company. If that question was to be answered in the affirmative then there would be no question of levy of non-agricultural assessment in respect of the subject land as the land would be exempted from such levy by virtue of Article 285 of the Constitution of India. But if that issue was to be answered against the petitioner company then it would necessarily follow that the petitioner company would be liable to pay the non-agricultural assessment as computed by the Secretary in the impugned order by giving benefit in respect of the land which is utilized by the petitioner company for public purpose. The question as to whether the subject land is the property of the Union or not is purely a question of fact and, therefore, the appropriate course is to remand the case to the Secretary to answer this issue after taking into account all the relevant documents which the petitioner company may reply in support of its plea.
6. In the circumstances, the impugned order is set aside and the matter is remitted to the Principal Secretary of Revenue Department for consideration afresh in accordance with law without being influenced by any of the observations made in the impugned order or for that matter in this order relating to the merits of the case. All questions are left open. The Secretary shall give fair opportunity to the petitioner before taking a final decision in the matter. That be done as expeditiously as possible and within three months from the receipt of writ of this Court.
7. Needless to mention that till the Secretary finally decides the matter the interim arrangement as ordered by this Court in the previous Writ Petition No. 6209 of 2001 will continue to operate and that shall ensure for a period of two weeks from the date on which the final order passed by the Secretary is served upon the petitioner.
Rule made absolute in the above terms. No order as to costs.
Parties to act on the copy of this order duly authenticated by Sheristedar of the Court.