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SCA/11941/2009 2/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11941 of 2009
=========================================
SMRUTI
VIKAS TRUST (THROUGH ITS TRUSTEE) - Petitioner(s)
Versus
SURAT
MUNICIPAL CORPORATION, THRO' MUNICIPAL COMMISSIONER & 7 -
Respondent(s)
=========================================
Appearance :
MR
UTPAL M PANCHAL for Petitioner(s) : 1,
None for Respondent(s) : 1
- 8.
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CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 20/01/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The
Petitioner has filed this petition under Article 226 of the
Constitution of India challenging the order dated 21.07.2009 passed
by the Principal Senior Civil Judge, Surat below application
(Exh.11) in Municipal Tax Appeal No. 1 of 2009 whereby the Applicant
was directed to deposit the amount of Rs.23,60,606.65 ps along with
interest at the rate of 18% per annum from 1.12.2008 till depositing
the amount as per para 4(1) of the application within 15 days from
the date of the said order.
Heard
Mr. Utpal M. Panchal, the learned advocate appearing for the
petitioner and perused the order passed by the learned Senior
Principal Civil Judge.
The
case of the petitioner is that the Petitioner Trust had organized a
Handloom and Handicraft Fair-cum-Amusement Park at Surat and the
Respondent Nos. 4 to 7 had given their services for the same and and
the Respondent no.8 is a representative of the stall and pavilion
holders who had come to Surat from different part of the country to
take part in the said fair. It is also the say of the petitioner
that it had received all the necessary permission / NOCs and
licenses from the concerned authorities for organisation of the said
fair. The Respondent no.1 – Corporation and their officers
cancelled the permissions granted to the petitioner on 21.8.1997.
The fair could not be started as per schedule due to cancellation of
the permissions / NOCs. This action was challenged before this
Court in Special Civil Application No. 6453 of 1997 and Special
Civil Application No. 6481 of 1997, whereby the concerned
authorities were directed to grant permissions to the petitioner
Trust to hold the fair on certain conditions. Letters Patent Appeal
filed by the Corporation against the said order was also dismissed
and thereafter the petitioner Trust deposited an amount of Rs.3 lacs
with the Corporation on 18.9.1997 and then the fair came to be
started on 18.9.1997.
The
Corporation thereafter issued special notice to the Respondent no.3
on 18.9.1997. The petitioner gave reply to the special notice.
There are other litigations also in this regard by the stall and
pavilion holders. In the meantime the Corporation raised the tax
bill to the tune of Rs.19,46,435.17 which was challenged before this
Court in Special Civil Application No. 7578 of 1997. The petition
was admitted and interim relief was granted. The said petition was
finally came to be disposed of on 12.11.2008, wherein, this Court
has observed that;
“…..this
court while exercising powers under Article 226 of the Constitution
of India, cannot examine the correctness of a bill issued by the tax
authority. If the petitioners have got any remedy against the order
of rejection on the objection filed, they should have approached the
appropriate forum. We see no reason to exercise our discretion.
The petition therefore lacks merit and is dismissed.”
After
dismissal of the aforesaid petition by this Court, the petitioner
approached the learned Principal Senior Civil Judge by way of
Municipal Tax Appeal No.1 of 2009 wherein the application was moved
by the Respondent Corporation raising an issue against the
maintainability of th said tax appeal as the amount was not paid by
the petitioner. The learned Principal Senior Civil Judge, at
length, discussed this issue and has taken note of the fact that the
petitioner has given an undertaking before the High Court by
furnishing a bond to the Municipal Corporation, Surat that he would
pay the rest of the amount if it would not succeed in the petition.
Once the petition is dismissed, even with a liberty to file
Municipal Tax Appeal, the petitioner could not be absolved from its
undertaking and bond. The learned Judge has therefore, observed
that the object and the purpose of the assessment and recovery of
tax will not be frustrated and to take care of such a situation, the
undertaking furnished by the Secretary of the Appellant Trust
requires to be carried out and this application requires to be
allowed. Accordingly, the learned Judge has observed that if the
appellant will deposit the amount and if he succeeds in the
proceedings, the amount will be refunded back with 18% interest as
per the order of the High Court and that will maintain the balance
of justice between the parties. Ultimately, he took the view that
the application moved by the Respondent Corporation deserves to be
allowed.
Having
considered the submissions made by Mr. Panchal, who urged before
this Court that the petition filed before this Court was not
dismissed on merits, since there was an alternative remedy, the
Court has directed the petitioner to avail that remedy. He has
therefore submitted that if the petitioner is allowed to pay
requisite amount of the tax bill without interest part, the same
would serve the ends of justice.
The
submission of Mr. Panchal is not weighed with this Court as the
demand was raised way back in 1997 and the petitioner has shown its
willingness to pay the requisite amount of tax so as to proceed with
the appeal which it has filed in 2010. The interest on the tax
outstanding, however, cannot be ignored and hence if the petitioner
pays the amount of tax alongwith the interest, which accrues
thereon, the petitioner’s appeal can certainly be considered on
merits by the appellate authority.
Subject
to the aforesaid observations, we do not see any justification in
this petition and hence the petition is accordingly dismissed.
(K.A.Puj,J)
(Rajesh
H. Shukla,J)
Jayanti*
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