2002 Supreme(Guj) 870

Gujarat High Court
Judgename :J.N.PATEL
P.T.DILIP - Appellant
Versus
SURAT MUNICIPAL CORPORATION - Respondent
S.C.A. 7553 of 1996
Decided On : 12/18/2002

Headnote:

Constitution of India - Article 226 - Provincial Municipal Corporations Act, 1949 - section 406, 406 (2) - Petition is preferred by the for quashing and setting aside the original and revised bills for the official year and to restrain the officers of the respondent - Petitioner who is a public trust is the owner of the land situated within the limits of Surat Municipal Corporation - It is the case of the first petitioner that it has entered into an agreement with the second petitioner to take the aforesaid open land belonging to the second petitioner on hire for setting up the fair - As per the agreement the liability to pay municipal taxes in respect of the said open land is upon the first petitioner - It is the case of the petitioner that after the NOCs were granted by the respondent-Corporation as well as by the Commissioner of Police the first petitioner had organised and set up the fair over the land in question and 310 stalls were set up over the said land and they were let to various merchants and manufacturers of Handloom and Handicraft items from various parts of the country to market their products - It is also the case of the first petitioner that at the said fair certain provisions for entertainment such as amusement park various rides were made - Petitioner prior to the aforesaid agreement - It is also the case of the petitioner that a notice dated was served upon the second petitioner calling upon the details of the rental income donation premium etc on account of the open land given to the first petitioner and it is also the case of the petitioner that a special notice dated was served upon the second petitioner wherein the rateable value of the property was assessed - It is also the case of the petitioner that thereafter on the second petitioner submitted objections against the special notice and thereafter the second petitioner has received bill dated for recovery of municipal tax amounting - It appears that thereafter the corporation insisted for recovery of amount as per the bill dated also addressed correspondence dated with the Recovery Officer of the Corporation contending that the assessment made is very harsh and they shall pay the tax on the basis of earlier assessment which is - It appears that thereafter for the purpose of enforcement of recovery of municipal tax - Held, Appeal shall not be entertained unless his complaint has been disposed of by the authority concerned - As observed earlier since no authenticated material is produced on behalf of Corporation regarding the disposal of complaint and in any case since the mandatory procedure as required of hearing is not followed - Petition cannot be thrown away on the ground that there was alternative statutory remedy available and the same is not exhausted - At the same time on account of non availability of sufficient material on record it is not possible for this court to undertake the exercise of fact-finding inquiry either confirming, or upsetting or modifying the value of the property made by the Corporation - assessment for the year aforesaid stand appears to be self-contradictory in as much as on one hand it is contended before this court that no decision for disposal of complaint is communicated and therefore appeal could not have been preferred whereas on the other hand the contention is that the appellate officer has reduced the assessment - Further had the appellate officer reduced the assessment even pending the objections the petitioner would not have deposited the amount with interest in the corporation therefore it cannot be said that the appellate officer has reduced the assessment from - As observed earlier the payment was made pending the petition to avoid further coercive action hence it would hardly be a valid defence of the Corporation that the amount is utilised and therefore the same cannot be refunded - Commissioner shall give opportunity of hearing to the petitioners on the basis of objections filed by them and the petitioners will be at liberty to produce necessary material to object the assessment made of the property in question by the Corporation for the year - Aforesaid exercise shall be completed within a period of 2 months from the date of receipt of writ of this court - Commissioner shall render the decision of finalising the complaint after taking into consideration the objections and submissions made by the petitioners within a period of one month thereafter - Commissioner shall also issue a fresh bill on the basis of such decision and if the Commissioner takes the view to reduce the amount of tax, then the refund shall be permitted by the Commissioner of balance amount from the amount which is already deposited by the petitioner pending the objections and the refund shall be disbursed to the petitioner within a period of one month thereafter - petition is allowed.