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SCA/8820/1989 1/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8820 of 1989
WITH
SPECIAL
CIVIL APPLICATION No. 2735 of 1990
With
CIVIL
APPLICATION No. 12320 of 2005
In
SPECIAL
CIVIL APPLICATION No. 2735 of 1990
With
CIVIL
APPLICATION No. 10364 of 2007
In
SPECIAL
CIVIL APPLICATION No. 2735 of 1990
With
CIVIL
APPLICATION No. 1727 of 2008
In
CIVIL
APPLICATION No. 10364 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
======================================
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 ?
======================================
DWARKA
NAGAR PANCHAYAT - Petitioner
Versus
DWARKA
CEMENT WORKS LIMITED & 5 - Respondents
======================================
Appearance
:
MR
DILIP B RANA for Petitioner.
MR BHASKAR P TANNA, Senior Advocate
with Mr. Nandish Chudgar for NANAVATI ASSOCIATES for Respondent No.
1.
MR PS GOGIA for Respondent No. 3.
MR PRANAV DAVE, AGP for
Respondent No. 4.
None for Respondent No. 5.
MS KHYATI P HATHI
for Respondent No. 6.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 08/02/2010
COMMON ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
Special
Civil Application No.8820 of 1989 is filed by Dwarka Nagar Panchayat
challenging the interim order dated 15.12.1989 passed by the
Development Commissioner calling upon the petitioner to return goods
and articles. This Court has passed an order on 6.2.1990 staying the
order dated 15.12.1989 and directing the Development Commissioner to
decide the matter pending before him within four weeks of the
receipt of writ of the order dated 6.2.1990. The Court further
clarified that the attached property would remain attached but would
not be auctioned till further order.
Pursuant
to the order of this Court dated 6.2.1990 passed in Special Civil
Application No.8820 of 1989 the Development Commissioner has passed
an order on 12.3.1990 determining the amount of tax payable by the
respondent No.1 Company on account of octroi as well as house tax at
Rs.3,74,888/- and deducting therefrom an amount of Rs.3,28,659/-
being the amount spent by the Company, net lumpsum amount of
Rs.46,229/- was determined to be payable by the respondent No.1.
Company.
Instead
of making an amendment in the pending petition i.e. Special Civil
Application No.8820 of 1989, the petitioner filed separate petition
being Special Civil Application No.2735 of 1990 challenging the
order dated 12.3.1990 passed by the Development Commissioner.
This
Court has passed a detailed order on 11.04.1990. Certain directions
were issued by this Court in the said order. The Court has observed
that the total claim of the Panchayat, so far as house tax and
octroi are concerned, was Rs.27,85,339.87 which covered an amount of
Rs.2,30,000/- by way of maintenance charges. The Court has initially
directed the petitioner to furnish a bank guarantee of a
Nationalized Bank to the tune of Rs.26 Lacs. Subsequently, by an
order dated 20.10.1992 passed in Civil Application No.1955 of 1992,
this Court has permitted the petitioner to replace the Bank
Guarantee with an undertaking and on the basis of the purshish the
amount of Rs.26 Lacs was deposited in a Fixed Deposit Receipt in
favour of Registrar of this Court. Thereafter, vide order dated
23.09.2008 passed in Civil Application No.10912 of 2008, Fixed
Deposit Receipts were transferred in the name of M/s. Chandra
Trading Company. However, the Court has directed the Registrar to
keep the said fixed deposit receipts with him till the petition was
finally heard and disposed of.
Civil
Application No.12320 of 2005 is filed by the Dwarka Cement Works
Limited, the respondent No.1 Company in the main petition seeking
direction to State Bank of India, Dhangadhra Branch to transfer the
present Fixed Deposit Receipts in the name of the said applicant in
place of Chandra Trading Company.
Civil
Application No.10364 of 2007 is filed by Suku Premises Development
Private Limited seeking clarification from this Court that the
dispute with regard to lumpsum contribution fixed by the learned
Development Commissioner vide his order dated 12.03.1990 which is
the subject matter of Special Civil Application No.2735 of 1990 does
not pertain to the land admeasuring Acres 06.27 Gunthas situated at
Survey No.3843 of village Dwarka, Tal. Okha, Kalyanpur, Dist.
Jamnagar, but it pertains to the land and building situated at
Survey Numbers which are the subject property of the Deed of Lease
between Associated Cement Company and Dwarka Cement Company.
Civil
Application No.1727 of 2008 is filed by Suku Premises Development
Private Limited seeking permission of this Court to delete the
respondent No.3 Associated Cement Company Limited as a party
respondent in Civil Application No.10364 of 2007.
At
the outset, Mr. Nandish Chudgar, learned advocate appearing for
Nanavati Associates for the applicant in Civil Application No.10364
of 2007 states that this application has become infructuous and he
does not press this application. Hence, the said Civil Application
stands disposed of as having become infructuous.
In
view of the order passed in Civil Application No.10364 of 2007,
disposing off the same, Civil Application No.1727 of 2008 does not
survive and it is accordingly disposed of.
So
far as main petitions i.e. Special Civil Application Nos.8820 of
1989 and 2735 of 1990 are concerned, learned Counsels appearing for
the parties were heard and their submissions are considered.
Mr.
Rana, learned Counsel appearing for the petitioner Dwarka
Nagarpalika which is successor of Dwarka Nagar Panchayat contended
that the order of the Development Commissioner impugned in this
petition is liable to be quashed and set aside. Mr.Tanna, the
learned Senior Counsel appearing for the respondent No.1 Company and
other private respondents, on the other hand, submitted that in view
of the provisions of Section 179 of Gujarat Panchayats Act, 1961,
the order of the Development Commissioner becomes final and it is
not open for the Nagar Panchayat to challenge the order of the
Development Commissioner. Even on merits, he submitted that the
order of the Development Commissioner does not call for any
interference by this Court as while determining the amount of tax
payable by the respondent No.1 Company, the Development Commissioner
had taken into consideration all details and all relevant facts of
the case.
Mr.Rana
further submitted that there were later bills for subsequent years
which are to be paid by the respondent Company. Against this,
Mr.Tanna raised an objection that the same is not the subject matter
of these petitions. He has further submitted that the demands and
calculations were based on the same error which Nagar Panchayat had
committed in demanding the amount and hence such demands should also
consequently fail. He has further submitted that for several years
bills were not sent and in 2001 and 2008 respectively consolidated
bills were sent. He has submitted that it is settled principle of
law that demand should have been made in every financial year and
such demand cannot be made at the fag end of the decade.
In
view of above rival submissions and looking to nature and complexity
of the issues, we suggested the learned counsels appearing for the
parties to sit across and put an end to all disputes in an amicable
manner. While resolving the disputes, the relevant considerations
and fact situations which are to be kept in mind are that the
Development Commissioner had determined the amount of tax to be
payable for the relevant period is Rs.46,229/-. This court, in its
interim order dated 11.4.1990, made detailed discussion and found
sufficient merits in the petition. Accordingly, respondent No.1
Company or intending purchasers of its assets were asked to deposit
an amount of Rs.26 lacs so as to safeguard the interest of the Nagar
Panchayat. This amount was, in fact, deposited and invested in the
fixed deposit receipts which had gone upto about Rs.1 crore at
present. It is true that the petitioner Nagar Panchayat had raised
composite bills for number of years, which may not be enforceable,
if challenged before the competent forum. However, parties are
desirous of putting an end to this litigation once and for all. The
Court shows some indulgence to resolve these disputes only because
Dwarka as a holy city requires fast development and for betterment
of this city, some formulas are required to be worked out which will
ultimately prove to be beneficial to all.
A
broad consensus was prevailed amongst the parties and hence, it is
not necessary for the Court to minutely go into all these
submissions and to pass a detailed order on merits on the issues
involved in these two petitions.
Considering
the broad consensus arrived at between the parties, following order
is passed by the Court.
(i)
Technically, order passed by the Development Commissioner on
12.3.1990 is confirmed. However, the respondent No.1 Company shall
not claim back the amount of Rs.26 lacs alongwith interest earned
thereon during all these years.
(ii)
The amount lying in fixed deposits with State Bank of India,
Dhangadhra Branch, Dhangadhra be transferred with interest to State
Bank of India, Dwarka Branch, Dwarka and be kept in a newly opened
joint account to be jointly operated by the Chief Officer of Dwarka
Nagar Palika as well as either by Mr.Jiten P. Mody or Mr.Ashok P.
Mody, Directors of the respondent No.1 Company i.e. Dwarka Cement
Works Limited.
(iii)
After the amount being transferred to the newly opened joint
account, the entire amount except Rs.10 lacs which are to be
retained in the said account to meet with the initial expenditure
that may be incurred for development work, be invested in the fixed
deposits of Rs.10 lacs each in the joint-names as indicated above
initially for the period of one year and thereafter, to be renewed
for the further period of one year, from time to time, till the
entire amount is spent for the development work.
(iv)
The amount so retained in the joint account or so invested in the
fixed deposits are required to be utilised for the development of
the area at which the property in question is situated and the
developmental purpose for which such amount will be utilised are
water, electricity, sewage, road and other such basic and primary
requirements. As and when such development work is undertaken, it is
with joint consent of the parties and in case of any dispute or
difficulty, appropriate direction from this Court be sought for.
(v)
Considering the above arrangement, there will not be any
outstanding tax liability of the respondent No.1 Company on account
of house rent or octroi qua the property in question for the period
upto March, 2010.
(vi)
Registrar to see that this order be carried out in its true letter
and spirit.
With
these directions and observations, all these petitions and
applications are accordingly disposed off without any order as to
costs.
(K.
A. PUJ, J.) (RAJESH H. SHUKLA, J.)
savariya
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