PREM CHAND JAIN Vs. STATE

JUDGEMENT

(1.) Learned counsels for the petitioners at the outset cited the judgement passed by this Court at Principal Seat, Jodhpur in M/s. Golcha Minerals Pvt. Ltd. vs. State & Ors., S.B. Civil Writ Petition No.10921/2009 and other identical matters wherein vide judgement dated 28.1.2010, the similar demand notices for levy of land tax have been quashed. It is therefore prayed that the writ petitions be allowed in view of the aforesaid judgement.

(2.) Learned counsels for the petitioners have argued that in all these cases, assessment orders have been framed mechanically and without application of mind to the facts of given case. In certain cases, the mining area leased out was larger, but substantial part of that was still being retained by the khatedars and used for agriculture purposes and accordingly mining operations were being carried out in very smaller part of the land. It is argued that Section 38(c) of the Rajasthan Finance Act, 2006 (for short-'the Act')has defined the land and as per that definition, the land which is being cultivated for agriculture purposes is liable to be excluded for the purpose of land tax. Section 38(c), which defines 'land' specifically excludes the land held or used exclusively for agricultural or residential purposes. There could be therefore no question of levying land tax on such land. In spite of the fact that petitioners submitted objections against the provisional assessment list, the assessing authority without considering such objections and without affording any opportunity of hearing to the petitioners as required by section 42(2) of the Act, unilaterally finalised the assessment order and issued attachment warrants. Learned counsels further argued that Section 42(2) categorically provides that where objection in respect of land mentioned in the provisional assessment list is filed in accordance with the provisions of Section 41, the Assessing Authority shall, after affording an opportunity of hearing and producing evidence to the objector, decide the objections and then confirm, revise or modify the entries in the provisional assessment list. It is further argued that the government issued notification dated 9.3.2006 by exercising its powers under section 39 of the Finance Act, 2006 notifying the class of lands and rate of tax whereas Chapter VII of the Finance Act, which contains Sections 37 to 63, was itself brought in force vide Government notification issued by virtue of Section 37(2) with effect from 25th of September, 2006. There was thus no legal competence for issuing notification dated 31st of March, 2006 before that date.

(3.) Learned counsels further argued that Rule 5 of the Rajasthan Land Tax Rules has also not been complied with in its latter and spirit. The said rule provides that upon preparation of provisional assessment list, the assessing authority shall give public notice in form no.2 in one daily newspaper circulated in the locality in which the land is situated. Moreover, the State Government in exercise of the powers conferred upon it under Section 42(4) of the Act has issued notification dated 23.2.2007, which was published in the Government Gazette on 28.2.2007 whereby it has appointed 25.9.2006 as the date from which finalised assessment list has by a deeming fiction been given effect to. Retrospective effect cannot be given to the assessment order, which is required to be prepared after notice and upon providing opportunity to the affected parties. No such opportunity was provided to any of the petitioners.