Gujarat High Court Case Information System
Print
SCA/11125/2006 3/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11125 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
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 ?
=========================================================
SURAT
MUNICIPAL CORPN. THR' ITS COMMISSIONER & 1 - Petitioner(s)
Versus
RAMESHCHANDRA
ISHWARLAL GHEEWALA & 1 - Respondent(s)
=========================================================
Appearance
:
MR
AS ASTHAWADI FOR MR PRASHANT G DESAI for
Petitioner(s) : 1 - 2.
NOTICE SERVED BY DS for Respondent(s) : 1 -
2.
RULE SERVED BY DS for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 06/08/2008
ORAL
JUDGMENT
By
way of this petition under Article 227 of the Constitution of India,
the petitioner – Surat Municipal Corporation has prayed for
appropriate writ, order and/or directions, for quashing and setting
aside the judgement and order dtd.10/1/2006 passed by the learned
Presiding Officer, FTC No.4, Surat in Regular Civil Appeal No.49 of
2003 in dismissing the same and confirming the judgement and order
dtd. 5/5/2001 passed by the learned Civil Judge (S.D.), Surat in
Municipal Tax Appeal No.25 of 1999.
The
respondents are owners of property situated in Chauta Bazar, Surat.
The petitioner ? Surat Municipal Corporation assessed ratable
value of the property of the respondent and issued notice to the
respondent dtd.10/8/1999, the respondent raised objection and
thereafter the petitioner – Surat Municipal Corporation assessed
rent of the property in question at the rate of Rs.1200 per month
and the annual assessment was fixed at Rs.14,400. Being aggrieved
by and dissatisfied with the said assessment, the respondent
preferred Original Tax Appeal under secs.406 and 407 of the Bombay
Provincial and Municipal Corporation Act. It was the contention on
behalf of the respondent that standard rent of the premises in
question was fixed at the rate of Rs.201 per month and therefore,
the Surat Municipal Corporation cannot go beyond the standard rent
and arbitrarily fixed the annual assessment at Rs.14,400. It was
also contention on behalf of the respondent that the Surat Municipal
Corporation had not given them opportunity and arbitrarily fixed
the rent and therefore, it was prayed to quash and set aside the
notice dtd.10/8/1995 and consequently to quash and set aside the
assessment order dtd.10/9/1999. That the learned Civil Judge (S.D.),
allowed the said appeal and directed the Surat Municipal
Corporation to fix the assessment / tax considering the rent at the
rate of Rs.201 per month of the property in question. Being
aggrieved by and dissatisfied with the order passed by the learned
Civil Judge (S.D.), Surat in directing the Surat Municipal
Corporation to fix the tax at the rate of Rs.201 per month
considering the standard rent, the petitioner preferred Regular
Civil Appeal No.49 of 2003 before the appellate court, which came to
be heard by the learned Presiding Officer, FTC No.4, Surat. It was
the contention on behalf of the Surat Municipal Corporation that
reliance placed upon the order passed by the learned Civil Judge
fixing the standard rent at the rate of Rs.201, was consent decree
and it was not fair standard rent and the same was not fixed by the
Civil Court after adjudication on merits and therefore, the same
cannot be relied upon.
The
petitioner also relied upon the decision of the learned Single Judge
of this Court in the case of P.M. Parmar Vs. Ambaben
Hargovandas, reported in 1995 (1) G.L.H. 950.
However, the learned appellate court dismissed the said application
confirming the order passed by the learned Civil Judge (S.D.), Surat
by observing that the decision of this Court in the case of P.M.
Parmar Vs. Ambaben Hargovandas (supra) would
not be applicable as it is applicable to Small Cause Judge who has
fixed the standard rent. Being aggrieved by the order passed by both
the courts below in directing the petitioner ? Surat Municipal
Corporation to fix the assessment / tax considering the rent at
the rate of Rs.201 per month, as determined by the Court while
deciding the standard rent, the petitioner ? Surat Municipal
Corporation has preferred present Special Civil Application under
Article 227 of the Constitution of India.
Heard
Mr.Asthawadi, learned advocate appearing on behalf of Mr.Prashant
G.Desai, learned advocate for the petitioners. Though served no body
appears on behalf of the respondents.
Considering
the impugned order passed by both the courts below, it appears that
both the courts below have heavily relied upon the decision of the
rent court determining the standard rent at the rate of Rs.201 per
month and thereby quashed the impugned assessment/tax bill issued by
the petitioner ? Corporation. However, it is to be noted that so
far as the decision of the rent court fixing the standard at the
rate of Rs.201 per month is concerned, the same is a consent decree
and the said rent is not decided after adjudication on merits. Under
the circumstances, both the courts below have materially erred in
assessing and/or considering the fair rent at the rate of Rs.201 per
month. Identical question came to be considered by the learned
Single Judge of this Court in the case of P.M. Parmar (supra). In
the said case consent terms were relied upon while deciding the
dispute with respect to the standard rent and the standard rent was
accordingly fixed without recording any evidence and without
assigning any reason whatsoever and in the said case it is observed
by the learned Single Judge of this Court that ?SIt is undoubtedly
true that the consent decree is nothing but contract between the
parties to which is superseded the seal of the Court, but the Court
which is called upon to perform its statutory duty of fixing the
standard rent shall have to be more vigilant, judicious and
conscious when it is without any support, documentary or otherwise,
raising standard rent.?? It is also to be noted that even the said
consent decree on the basis of the consent terms and/or agreement
was by and between the landlord and the tenant ? respondents
herein, in which the petitioner Corporation was not a party and
therefore, even otherwise the said consent decree cannot bind the
petitioner Corporation. The said consent decree fixing the standard
rent at the rate of Rs.201 per month cannot be the base to consider
the assessment / tax. Under the circumstances, it appears that both
the courts have materially erred in relying upon the decision of the
Civil Court / Rent Court determining the standard rent at the rate
of Rs.201 per month, which was on the basis of consent terms between
the landlord and the tenant and the said rent was not adjudicated on
merits. Under the circumstances, both the impugned orders passed
by the courts below require to be quashed and set aside and the
matter is required to be remanded to the learned trial court for
deciding the Municipal Tax Appeal No.25 of 1999 afresh in accordance
with law and on merits and ignoring the decision of the rent court
determining the rent of Rs.201 per month fixed by consent terms.
For
the reasons stated above, the petition succeeds. The order
dtd.5/5/2001 passed by the learned Civil Judge (S.D.), Surat in
Municipal Tax Appeal No.25 of 1999 as well as the judgement and
order dtd.10/1/2006 passed by the learned Presiding Officer, FTC
No.4, Surat in Regular Civil Appeal No.49 of 2003, are hereby
quashed and set aside and the matter is remanded back to the learned
Civil Judge (S.D.), Surat to decide and dispose of Municipal Tax
Appeal No.25 of 1999 afresh, in accordance with law and on merits,
in light of the observations made hereinabove. The said exercise to
be completed within a period of six months from the date of receipt
of this order. Registry to send the writ of this order to the trial
court immediately. Rule is made absolute accordingly. In the facts
and circumstances of the case, there shall be no order as to costs.
[M.R.
SHAH, J.]
rafik
Top