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FA/1903/1983 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1903 of 1983
With
CROSS
OBJECTION No. 46 of 2010
In
FIRST APPEAL No. 1903 of 1983
With
FIRST
APPEAL No. 1904 of 1983
With
CROSS
OBJECTION No. 47 of 2010
In
FIRST APPEAL No. 1904 of 1983
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MS.JUSTICE B.M.TRIVEDI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
A'BAD
MUNI. CORPORATION - Appellant(s)
Versus
A'BAD
DIST. CO OP. BANK LTD - Defendant(s)
=========================================================
Appearance :
MR
JR NANAVATI for
Appellant(s) : 1,
MR YATIN SONI for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MS.JUSTICE B.M.TRIVEDI
Date
: 24/02/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MS.JUSTICE B.M.TRIVEDI)
1. Both
these appeals arise out of the common judgment and order dated
03.03.1983 passed by the learned Chief Judge, Small Causes Court,
Ahmedabad in M.V. Appeal No. 783 of 1981. When these appeals were
listed on the Board for final hearing on 17.02.2011, Shri
J.R.Nanavati for the appellant – Corporation was not present
and after hearing the learned Advocate Shri Gaurav Chudasama for the
respondent – Bank, the matters were kept on 22.02.2011 for
examining the same on merits. On 22.02.2011, the learned Advocate
Shri J.R.Nanavati for the appellant appeared and stated that the
matter be examined on merit. Under the circumstances, the appeals are
hereby finally disposed of.
2. The
First Appeal No. 1903 of 1983 has been preferred by the Appellant –
Corporation being aggrieved by the impugned order passed by the
learned Chief Judge, Small Causes Courts, Ahmedabad, in M.V. Appeal
No. 783 of 1981, which had arisen from the order dated 05.12.1980
passed by the Appellate Officer, whereas the First Appeal No. 1904 of
1983 has been filed by the Appellant – Corporation being
aggrieved by the impugned order passed in M.V. Appeal No. 2526 of
1981, which had arisen from the order dated 05.08.1981 passed by the
Appellate Officer. In both the M.V. Appeals, the learned Chief Judge,
Small Causes Court (hereinafter referred to as ‘the Lower Court’) had
fixed the Gross Rateable Value (G.R.V.) AT RS. 1,68,636/- in respect
of the cellar, ground floor, mezzanine floor and first floor and at
Rs. 11,988/- in respect of the second floor of the premises belonging
to the Respondent – Bank, situated near the Income Tax Office,
Ashram Road, Ahmedabad, on the Final Plot No.102-B and 103-B, for the
years 1980-1981 and 1981-1982. The Respondent – Bank has also
filed the Cross Objections in the said Appeals being aggrieved by the
impugned order passed by the Lower Court
3. Before
dealing with the merits of the appeals filed by the appellant –
Corporation and the cross objections filed by the respondent –
Bank, it is required to be stated that at the time of admission,
these appeals were directed to be heard along with First Appeal No.
1833 of 1983 and other companion matters, as per the order dated
18.01.1984. However, it appears that the said First Appeal No. 1833
of 1983 was disposed of by the Division Bench (Coram: B.N.Kirpal,
C.J. & A.N.Divecha, J.), vide oral judgment dated 14th
December, 1994 after observing as under:
“2. This Court in the case of
Municipal Corporation of the City of Ahmedabad v. Oriental Fire &
General Insurance Co. Ltd., A.I.R. 1994 Gujarat 167, held that a
tenant cannot challenge the rateable value which is fixed. In view of
the said judgment, this Appeal is allowed. The order of the Small
Cause Court is set aside. The rateable value determined by the
Appellant – Corporation is restored. No order as to cost.”
4. So
far as the facts of the present appeals are concerned, it transpires
that the respondent – Bank was the owner of the premises in
question for which the Gross Rateable Value was fixed by the
Appellate Officer of the Corporation and had challenged the
assessment before the Small Causes Court by way of presenting the
M.V. Appeals. The Lower Court, considering the evidence on record and
the contentions raised by the learned Advocates for the parties,
partly allowed the said M.V. Appeals by fixing the Gross Rateable
Value for the premises as stated hereinabove. Being aggrieved by the
said judgment and order, the appellant – Municipal Corporation
preferred the above mentioned First Appeals and the respondent –
Bank filed the cross objections as stated hereinabove. Though, these
appeals were ordered to be heard along with the First Appeal No. 1833
of 1983, as stated hereinabove, the said appeal has been disposed of
by this Court vide order dated 14.12.1994 only on the ground of
non-maintainability, as in the said case the tenant of the premises
had challenged the Gross Rateable Value fixed by the Corporation
before the Small Cause Court, whereas in the instant case, the
respondent – Bank who was the owner had challenged the Rateable
Value fixed by the Corporation. Hence, these appeals stand on
different footing and could not be disposed of on the lines on which
the said First Appeal was disposed of.
5. It
cannot be gainsaid that as per the provisions contained in the
B.P.M.C. Act, the Municipal Corporation can impose property taxes,
and that the general tax at a prescribed rate is leviable on the
rateable value of the property. The said expression ‘rateable value’
was interpreted by various judicial pronouncements, and the law in
this regard was settled by the Division Bench of this Court in the
judgment reported in A.I.R. 1994 Gujarat 167 in the
case of Municipal Corporation of the City of
Ahmedabad v. Oriental Fire & General Insurance Co. Ltd.
The relevant portion of the said judgment is reproduced as under:
“The burden must always rest on
the assessee to establish, when he files an appeal before the Small
Causes Court, that the rateable value has not been properly fixed by
the Commissioner. When the gross rateable value has been determined
by the Assessing Authority and an appeal is filed contending that the
constructual rent should not be regarded as a standard rent, as it is
excessive, then it is for the person, who makes this allegation to
prove his case. Onus of proof is on the person, who would fail, if a
particular fact is not proved. The averment that the contractual rent
charged by the owner is excessive is made by the appellant before the
Small Causes Court. It would, therefore, be for the appellant to
prove as to what should be the standard rent, which must be at a
figure less than the contractual rent. In this connection, evidence
will have to be led by way of cost of land and cost of construction
of the premises in question or the actual rent, which is being
received in the neighbourhood with regard to identical or similar
premises. If no evidence in this connection is led, the gross
rateable value, determined by the Municipal Authorities on the basis
of first letting, must be regarded as the annual letting value under
the B.P.M.C. Act. Evidence with regard to cost of construction and
cost of land can best, if not only, be available with the owner of
the property. Therefore, whether it be the stage of assessment or at
the stage of appeal before the Small Causes Court, evidence in this
regard should always be led or produced by the owner. If, on the
other hand, the Corporation chooses to disregard this and purports to
fix the rateable value on the basis of rents in the neighbourhood, or
by applying any other method then it is only, in such cases, that the
Corporation has to justify its action. When an appeal is filed,
challenging the gross rateable value, it will be for the appellant to
show that the rateable value fixed by the Corporation is not in
accordance with law.”
6. Now,
if the ratio laid down in the above mentioned judgment is applied to
the facts of the case, it appears that the Lower Court, while fixing
the G.R.V. of the premises in question, had taken into consideration
the comparable instances of Esic Bhavan, situated on the same plot on
which the building of the respondent – Bank was situated i.e.
Final Plot No. 102-B and 103-B. The Lower Court had also considered
the reasonable and expected rent of the building constructed by the
B.M. Institute situated in the neighbourhood of the premises of the
respondent – Bank on the Ashram Road. Thus, the Lower Court
having fixed the G.R.V. Of the premises in question on the basis of
the reasonable and expected rent of the premises belonging to the
Corporation itself and of the premises in the neighbourhood situated
on the Ashram Road, it could not be said that the Lower Court had
committed any error while fixing the G.R.V. Of the suit premises.
7. The
learned Advocate Shri J.R.Nanavati for the appellant and Gaurav
Chudasama for the respondent have also failed to point out any error
committed by the Lower Court and to substantiate the submissions made
by them in the appeals and the cross objections respectively. Under
the circumstance, we do not find any merits in the present appeals
filed by the Appellant – Corporation and the cross objections filed
by the respondent Bank.
8. In
that view of the matter, the First Appeal No. 1903 of 1983 and Cross
Objections No. 46 of 2010 filed in the said appeal and First Appeal
No. 1904 of 1983 and Cross Objections No. 47 of 2010 filed in the
said appeal being dehors the merits, deserve to be dismissed
and are accordingly dismissed with no order as to costs.
(JAYANT
PATEL, J.)
(MS.
B.M. TRIVEDI, J.)
jani
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