CHANDULAL GORDHANDAS Vs. AHMEDABAD MUNICIPAL CORPORATION

JUDGEMENT

(1.) The facts giving rise to this appeal briefly stated are as follows :- The appellant Chandulal Gordhandas is the owner of plot of land bearing survey number 99/1 of Rajpur-Hirpur admeasuring 1248 sq. yds. A small parcel of land admeasuring 16 sq. yds. out of this plot of land was let by the plaintiff to one Isaji alias Usmanbhai by a registered lease deed. After the death of Isaji the demised land continued to be occupied by his heirs and legal representatives namely Mubarakbibi and her daughters. According to the plaintiff except 16 sq. yds. of land the remaining land admeasuring 1232 sq. yds. was lying vacant and unoccupied. He alleged that Mubarakbibi inducted certain persons on this open land without his consent and knowledge and these persons bad built hutments on this land. Ultimately on learning about the construction of the various hutments on his land the plaintiff informed the Municipal Corporation about the same and requested the latter to take action to get the construction demolished. Pursuant to this request of the plaintiff the Corporation issued notice under sec. 260 of the Provincial Municipal Corporation Act 1949 herein after referred to as the Act and called upon the plaintiff to demolish the constructions in question. The plaintiff informed the Corporation that he had no objection if the structures were demolished by the Corporation departmentally. It seems the Corporation got a few roofs and sheets of certain structures but did not demolish them altogether for the reasons best known to the Corporation. The Corporation however gave municipal census numbers to those structures and issued special notices which were followed by bills for the payment of the property tax. The plaintiff was served with a bill to pay the property tax for the year 1966-67. The plaintiff filed an application resisting the levy but the appellate authority of the Corporation rejected his application. The plaintiff preferred an appeal in the Small Causes Court but the same came to be dismissed. Thereafter he filed the present suit sec. 1273 of 1967 challenging the said levy and the right of the Corporation to recover the property tax from him. While this suit was pending the Corporation served the plaintiff with another bill for 1967-68 and hence the plaintiff filed second suit No. 1373/68 for identical reliefs. The case of the plaintiff is that he has not raised these hutments in question and they were unauthorised. He also contended that he did not recover rent from the various hutment dwellers and therefore he was not liable to pay the property tax to the Corporation. His case is that the Corporation is empowered under law to recover the property tax of these structures from the various occupants of the structures and not from the plaintiff. He therefore prayed that the Corporation be restrained from recovering property tax for 1966-67 and 1967 from him. The defendant-Corporation by its written statements Ex. 13 and 10 respectively contended that sec. 127 of the Act empowers the Corporation to levy and impose property tax and sec. 139 of the Act provided that the owner of the land shall be primarily liable to pay the said property tax. It contended that even if the structures in question were unauthorised proviso to sub-sec. (2) of sec. 139 of the Act empowers the Corporation to recover the property tax from the owner of the land and hence the bills for 1966-67 and 1967-68 for payment of taxes were legal and valid. The Corporation also took a plea that the court had no jurisdiction to try this suit. The learned trial Judge framed several issues at ex. 35. The Corporation did not press the issue about the jurisdiction. The learned trial Judge held that the structures in question were unauthorised. However relying on the proviso to sub-sec. (2) of sec. 139 of the Act the learned Judge held that the plaintiff was primarily liable for the municipal taxes and therefore dismissed the plaintiffs suit.

(2.) Mr. J. S. Adhvaryu learned Advocate for the appellant submitted that proviso to sec. 139(2) of the Act would apply to unauthorised structures made by the owner of the land and not unauthorised structures by a trespasser. He submitted that he did not recover any rent from the hutment-dwellers and on the contrary it was he who had informed the Corporation that some persons were in unauthorised occupation of these hutments and that he had no objection if the hutments in question were demolished. Mr. Adhvaryu therefore urged that the learned Judge was clearly in error in holding the appellant liable for the taxes of the super structures.

(3.) In order to appreciate the contentions raised by the learned Advocate for the appellant it will be worthwhile to refer to sec. 139 of the Act. It states:-