SHAH KANTILAL SUKHLAL Vs. KALOL NAGAR PANCHAYAT

JUDGEMENT

(1.) In this second appeal filed at the instance of to original plaintiffs of regular civil suit No. 16 of 1977 on the file of the Learned Civil Judge (Junior Division) Kalol (Panchmahals district) this court (N. H. Bhatt J.) at the stage of admission framed the following substantial questions of law for decision:

(2.) In order to appreciate the background of the factual events which led to the filing of the second appeal before this court it is necessary to glance through a few relevant facts. I will refer to the appellants as plaintiffs and the respondent Kalol Nagar Panchayat as the defendant for the sake of convenience in the later part of this judgment. DefendantKalol Nagar Panchayat which functions under the provisions of the Gujarat Panchayat Act 1961 is a duly constituted Nagar Panchayat under sec. 13 of the Panchayat Act. It functions in Kalol town in the Panchayat district. It had decided to levy octroi taxes in a meeting dated 7-11-1974 and had finally decided to levy taxes on 18-12-1974. Certain citizens of Kalol town feeling aggrieved by the aforesaid decision of the defendant Nagar Palika filed two appeals to the District Development officer Godhra being appeals nos. 16 and 17 of 1975. The District Development Officer heard the parties and came to the conclusion that the people of Kalol were not given adequate opportunity by the Nagar Palika for submitting their oral submissions before taking a decision to impose the proposed octroi tax on various items. Accordingly the District Development Officer Godhra set aside resolution No. 25 dated 18-12-1974 passed by the defendant Nagar Palika and he also set aside notification issued by the defendant Panchayat of 20-12-1974 which was issued by the defendant Panchayat under Rule 4 of the Taxes and Fees Rules. the defendant Panchayat thereafter preferred Special Civil Application No. 1678 of 1975 before this court but after sometime they withdrew the said petition. It appears that after passage of sometime the defendantPanchayat passed a fresh resolution No. 42 dated 25-8-1976 and selected octroi taxes and its rates and issued notices to general public to submit their objections on or before 28-9-1976 and to submit their oral submissions in the meeting which was to be held on 29-9-1976 for that purpose. On that day the defendant Panchayat passed resolution No. 5C by majority of votes and decided to recover octroi tax from 1-12-1976. It appears that thereafter some aggrieved citizens of Kalol again carried the matter to the District Panchayat in appeal. The said appeal was preferred under sec. 178(6) of the Panchayat Act. The said appeal was numbered appeal No. 14 of 1976-77. Many contentions were raised in the said appeal but the appeal committee decided one point and held in favour of the appellants and by its order dated 26-11-1976 the appeal committee of the District Panchayat took the view that earlier resolution dated 7 which was passed by the defendant Panchayat was not set aside by any subsequent orders of the District Panchayat at any time and the said resolution was holding field. Consequently the subsequent resolution passed by the defendant Panchayat being resolution No. 42 dated 25-8-1976 inviting objections and resolution No. 50 dated 29-9-1976 whereby it decided to recover octroi taxes from 1-12-1976 were inoperative in law. The defendant Panchayat thereafter carried the matter in revision under sec. 305 of the Panchayat Act before the Development Commissioner. The Additional Development Commissioner who heard the revision allowed the same by his order dated 31-1-1977. The revisional authority took the view that the appellate order passed by the district Panchayat was not correct and was liable to be set aside and instead resolution passed by the defendant Panchayat dated 29-9-1976 was required to be held as valid one.

(3.) Under the aforesaid circumstances the present plaintiffs who are aggrieved citizens of Kalol town gave a statutory notice under sec. 320 of the Panchayat Act to the defendant Panchayat and thereafter filed regular civil suit No. 16 of 1977 in the court of the learned Civil Judge (Junior Division) Kalol for a declaration that the impugned resolutions No. 42 dated 25-8-1976 and No. 50 dated 29-9-1976 as passed by the defendant Panchayat were unauthorized inoperative illegal and were null and void and that pursuant to the said resolutions the defendantPanchayat was not entitled to recover octroi taxes. The plaintiff also prayed for consequential injunction permanently restraining the defendantPanchayat from recovering octroi taxes to the basis of these resolutions. The plaintiffs contended that the earlier resolution dated 7-11-1874 was not set aside at any time by the appellate authority and hence it was holding the field. In that view of the matter subsequent resolution No. 42 dated 25-8-1976 was null and void and inoperative at law. The Nagar Panchayat could not have ignored the earlier resolution dated 7-11-1974. The plaintiffs contended that the said resolution was in breach of rules 3 and 3(b) of the Taxes and Fees Rules. It was further contended that the opportunity for oral submissions given to the plaintiffs was unreal and imposition of octroi taxes by the defendant Panchayat was contrary to the rules of natural justice and was unauthorized.