HEEMANSHU HORNS PVT LTD Vs. KAPADVANJ NAGAR PALIKA

JUDGEMENT

(1.) Misc. Civil Application No. 1250 of 1998 to Misc. Civil Application No. 1257 of 1998 in Spl. Civil Applications No. 4910 to 4917 of 1997 are preferred by the applicants to review the common orders passed by the Division Bench of this Court, on 13th of January, 1998, in Special Civil Applications No. 4910 to 4917 of 1997 and since those Review Applications were time barred by 139 days, an application i.e. Misc. Civil Application No. 1233 of 1998 is also filed for condonation of delay caused in preferring above Review Applications by the group of applicants who were original petitioners in above mentioned Special Civil Applications.

(2.) The facts leading to filing this group of Applications can briefly be stated that in Special Civil Applications mentioned above, group of petitioners preferred those Special Civil Applications for challenging the action of respondent Kapadvanj Nagarpalika, opponent herein, in respect of assessments made by Kapadvanj Nagarpalika, for the levy of property tax for the premises, which were rented to the petitioners, and it was prayed that a declaration be issued that levy and to collect the house tax from the petitioners of Kapadvanj Nagarpalika was bad, illegal and ultra vires. It was also prayed that the petitioners either were exempted from the house tax or assessment made during the time when their factories were closed and that no assessment list had been prepared, and if prepared , were illegal and void. It was also prayed that issuance of bills, demand notices and attachment notices by Kapadvanj Nagarpalika, were illegal and void, and a writ of certiorari and/or any appropriate writ, direction or order for quashing of such bills, demand notices and attachment notices be granted. A writ of mandamus or any other appropriate writ was also sought for directing the respondent Kapadvanj Nagarpalika to act according to law and not to enforce coercive methods for the recovery of such house tax from the petitioners or from the owner Shri Hasmukhlal Nathalal Patel, as per demand notices and attachment notices. The petitions came to be filed on the premise that the petitioners were new industries within the meaning of the Gujarat Municipalities Act, 1963 and the Rules framed thereunder and they were not liable to pay any house tax, even then Kapadvanj Nagarpalika attempted to recover the house tax from the petitioners of the said Special Civil Applications. At admission stage, receiving notices of said Special Civil Applications, Kapadvanj Nagarpalika, filed affidavit-in-reply stating that the bills in questions were sent to the owner and the petitioners - tenants. That objections were not filed against the bills or the assessment either by the owner or the petitioners tenants. It was contended and replied that since the objections were not filed, the question of giving an opportunity to be heard to the petitioners did not arise. The petitioners were not exempted from the house tax as no such rules were framed nor such policy decision was taken. After following due procedure under the Gujarat Municipalities Act, 1963, bills were prepared, assessment notices were sent not only to the owner but to the petitioners tenants as well, and both of them kept silent and when recovery was effected as per law, the petitions came to be filed. It was highly contested that petitioners - industries, on the ground of new industries, were exempted from the property tax.

(3.) The above group of petitions came to he heard by the Division Bench of this Court on 13th of January, 1998. Learned Counsel for the petitioners in the group of that petitions Mr. R.S. Sanjanwala was not present. This Court constrained to observe that in the absence of any sick note or any leave note and also the fact that the group of petitions came to be adjourned for ten times earlier, the petitions were examined on merits and thread-bare and careful examination of record was undertaken and the group of matters were disposed of rejecting the petitions on the ground that it was a question of fact whether the petitioners had lodged objections against the assessments and issuance of bills, which categorically denied by the respondent. This Court further observed that the disputed question of fact could not be examined with the circumscribed jurisdictional scope of the petitions under Article 226 of the Constitution of India and more so when alternative remedy of filing objections and appeal under the statutory mechanism of Gujarat Municipalities Act, 1963, was available to the petitioners and petitioner did not exhaust the same, the proposition of law expounded by this Court in the matter of Gujarat Vidya Sabha v. Municipal Corporation of Ahmedabad as reported in 1995 (1) GLR 419, covered the group of petitions and, therefore, this Court rejected above group of petitions and against that order of Division Bench of this Court, these Review Petitions, as aforesaid, are preferred with an Application for condonation of delay.