Full Judgment Text
1 0304cra74.12.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Civil Revision Application No.74 of 2012.
1] Bestech Hospitality Pvt. Ltd.
a Private limited Company
having its Corporate Office at 124, Sector 44,
Urban Estate, Gurgaon.
2] Bestech India Private Ltd.
a Private limited Company
having its Corporate Office at 124, Sector 44,
Urban Estate, Gurgaon.
3] Hiteshi Leasing And Housing Pvt. Ltd.,
a Private Limited Company
having its Corporate Office at 124, Sector 44,
Urban Estate, Gurgaon.
4] Babylon Builder Private Ltd.,
a Private limited Company
having its Corporate Office at 124, Sector 44,
Urban Estate, Gurgaon.
5] Dharmendra Bhandari s/o D.P. Bhandari,
aged about 47 years, Occ.Business,
R/o.A126, Sushantlok Gurgaon,
6] Sunil Satija s/o T.I. Satija,
aged about 46 years, Occ.Business,
R/o.A125, Sushant Lok Gurgaon,
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All [1] to [6] are acting through their
authorized representative
Shri Kavindarkumar s/o Jogindarnath Talwar,
Aged about 47 years, Occ.Business,
R/o.Bairamji Town, Nagpur. …. Applicants.
Versus
1] Assistant Commissioner, Zone4,
Nagpur Municipal Corporation, Nagpur,
Ghat Road, Near Bangali High School, Nagpur,
2] The Assessor,
Nagpur Municipal Corporation, Nagpur,
Ghat Road, Near Bangali High School,
Nagpur. .... Non applicants.
Shri P.V. Vaidya, Advocate for applicants.
Shri J.B. Kasat, Advocate for respondents.
Coram : R. K. Deshpande, J.
Dated : 3
rd
April, 2013.
ORAL JUDGMENT
1. Admit. Heard the matter finally by consent of the learned
Counsels appearing for the parties.
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2. The challenge in this civil revision application is to the order
dated 14122011 passed by the learned District Judge4, Nagpur in
Misc. Civil Appeal No.269 of 2010. The Petition also challenges
the order dated 2272010 passed by the Objection Officer, Dhantoli
Zone No.4, Nagpur Municipal Corporation, Nagpur, rejecting the
objection to the notice dated 2632008 demanding the property tax
for the period from 142003 to 142007.
3. The objection raised by the applicants was that no assessment
could have been done with retrospective effect for the period from
142003 to 142007. This objection is rejected by the Objection
Officer holding that the power to make the assessment with
retrospective effect is conferred under Section 134(3) of the City of
Nagpur Corporation Act,1948 [for short, ‘the said Act’] read with
Rule 13(iii) of the Property Tax Byelaws. It is held that by an order
dated 2142003, passed under the Urban Land (Ceiling and
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Regulation) Act, 1976 [for short, ‘the U.L.C. Act’], the land in
question was exempted by permitting the land owner to use the said
land for the purposes of providing plots and construction of the
tenements and hence it was assessable to property tax with effect
from 142003. This fact according to the Corporation, was
suppressed and, hence, the assessment was reopened in terms of
Rule 13(iii) of the Property Tax Byelaws and the applicants are
called upon to make the payment.
4. The learned District Judge4, Nagpur in Misc. Civil Appeal
No.269 of 2010 preferred under Section 130 of the said Act has
recorded the finding that the appeal was barred by limitation of
30 days prescribed under Section 130(1) and (2) of the said Act.
On merits also the findings are recorded that the assessment was
legal and proper. Hence, this civil revision application is preferred
under Section 388 of the said Act by the applicant/objectors.
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5. The undisputed factual position is that prior to 142003 the
land in question was an agricultural land which was not and could
not be the subject to any assessment of property tax at the instance
of the Corporation. However, it was subject to the proceedings of
determination of surplus land under the U.L.C. Act. The applicant
purchased the said land on 3132007, from the original owner and
got it exempted under the provisions of U.L.C. Act, by an order
dated 2142003, passed by the Competent Authority. Thereafter,
the applicant applied for conversion of land into non agricultural
purpose. By an order dated 26112007 passed by the Competent
Authority under the Maharashtra Land Revenue Code, 1966
[for short, ’the M.L.R. Code’] the land in question was permitted to
be converted into non agricultural purpose. The lay out plan was
submitted for sanction to the Nagpur Municipal Corporation and on
16122008 the building permit was issued. Subsequent thereto, the
construction was carried out.
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6. I have gone through the orders passed by the Objection
Officer and the District Court which are impugned in this civil
revision application. There is no basis for holding that the land in
question becomes subject to the assessment of taxation as non
agricultural land by the Municipal Corporation, with effect from
142003. The order dated 2142003 passed by the Competent
Authority under the U.L.C. Act, merely granted exemption in
respect of the land in question, by permitting user of the land for
providing plots and construction of tenements in accordance with
the terms and conditions of the exemption. Unless permission is
granted by the Competent Authority under the M.L.R. Code, the
land cannot be put to use for non agricultural purpose. Hence, the
Authority and the Court below committed an error in assessing the
land in question to impose property tax with effect from 2142003.
The order of conversion of land, into non agricultural purpose, was
passed by the Competent Authority under the M.L.R. Code, for the
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first time on 26112007. Hence, the land in question could be
made subject to assessment of property tax only with effect from
26112007 and not before that date.
7. The appellate Court has dismissed the appeal on the ground
that it is barred by limitation. The order was passed by the
Objection Officer on 2272010, a notice of demand was issued on
2372010, which was undisputedly received by the applicant.
Relying upon the provisions of Rule 19(xiv) of the Property Tax
Byelaws, it is urged that the limitation of 30 days for filing an
appeal under Section 130(1) and (2) of the said Act, starts from the
date of service of notice of demand on 2372010. The appeal was
filed on 13122010, hence, the appellate Court has held it was
barred by limitation.
8. Undisputedly, the order containing reasons for rejection of
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the objection passed on 2272010, was not communicated to the
applicants. However, on the basis of this order, a demand notice
dated 2372010 was served upon the applicants. Rule 19(xiv) of
the Property Tax Byelaws states that after hearing the parties and
taking evidence, the investigating officer shall determine the
objection and communicate the result to the objector personally, if
present, otherwise by under a certificate of posting. It is implicit in
the said Rule to communicate the order of rejection of objection
containing the reasons. It is from the date of communication of
such order, the period of limitation would start running. The
applicant received the copy of the order containing reasons on
12112010 pursuant to their application under the Right to
Information Act submitted on 20102010. The appeal was filed on
13122010. Hence, it was within the period of limitation.
9. The contention of Shri Kasat, the learned Counsel appearing
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for the respondents that the period of limitation should start from
running the service of notice of demand on 2372010, cannot be
accepted for the reason that unless the reasons for rejection of the
objection are communicated, the opportunity of file an appeal
cannot be availed. The reasons for rejection constitute the
foundation for appeal by raising appropriate grounds and without
that no appeal can be preferred. The reasons are communicated on
12112010. In view of this, the appellate Court committed an error
of law in holding that the appeal was barred by limitation.
10. In the factual background as indicated above, there is no
occasion to deal with the question as to whether the power under
Rule 13(iii) of the Property Tax Byelaws to reopen assessment with
retrospective effect. Even assuming that it confers such a power, in
view of the findings recorded above, the question loses its
significance.
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11. For the reasons stated above, the civil revision application is
allowed. The Judgment and order dated 14122011 passed by the
learned District Judge4, Nagpur in Misc. Civil Appeal No.
269 of 2010 is hereby quashed and set aside along with the order
dated 2272010 passed by the Objection Officer, Dhantoli Zone4,
Nagpur Municipal Corporation, Nagpur. A notice of demand dated
2632008 issued to the petitioner is hereby quashed and set aside.
12. It is made clear that this Judgment shall not come in the way
of the respondents to make the assessment after 26112007 i.e
passing of the order by the Additional Collector, Nagpur granting
permission to convert the land for non agricultural purpose. In view
of the aforesaid Judgment, if the applicants are entitled to make
adjustment of the amount which is already said to have been paid,
the Authorities concerned shall act accordingly.
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13. Rule is made absolute in above terms. No order as to costs.
JUDGE
Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Civil Revision Application No.74 of 2012.
1] Bestech Hospitality Pvt. Ltd.
a Private limited Company
having its Corporate Office at 124, Sector 44,
Urban Estate, Gurgaon.
2] Bestech India Private Ltd.
a Private limited Company
having its Corporate Office at 124, Sector 44,
Urban Estate, Gurgaon.
3] Hiteshi Leasing And Housing Pvt. Ltd.,
a Private Limited Company
having its Corporate Office at 124, Sector 44,
Urban Estate, Gurgaon.
4] Babylon Builder Private Ltd.,
a Private limited Company
having its Corporate Office at 124, Sector 44,
Urban Estate, Gurgaon.
5] Dharmendra Bhandari s/o D.P. Bhandari,
aged about 47 years, Occ.Business,
R/o.A126, Sushantlok Gurgaon,
6] Sunil Satija s/o T.I. Satija,
aged about 46 years, Occ.Business,
R/o.A125, Sushant Lok Gurgaon,
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All [1] to [6] are acting through their
authorized representative
Shri Kavindarkumar s/o Jogindarnath Talwar,
Aged about 47 years, Occ.Business,
R/o.Bairamji Town, Nagpur. …. Applicants.
Versus
1] Assistant Commissioner, Zone4,
Nagpur Municipal Corporation, Nagpur,
Ghat Road, Near Bangali High School, Nagpur,
2] The Assessor,
Nagpur Municipal Corporation, Nagpur,
Ghat Road, Near Bangali High School,
Nagpur. .... Non applicants.
Shri P.V. Vaidya, Advocate for applicants.
Shri J.B. Kasat, Advocate for respondents.
Coram : R. K. Deshpande, J.
Dated : 3
rd
April, 2013.
ORAL JUDGMENT
1. Admit. Heard the matter finally by consent of the learned
Counsels appearing for the parties.
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2. The challenge in this civil revision application is to the order
dated 14122011 passed by the learned District Judge4, Nagpur in
Misc. Civil Appeal No.269 of 2010. The Petition also challenges
the order dated 2272010 passed by the Objection Officer, Dhantoli
Zone No.4, Nagpur Municipal Corporation, Nagpur, rejecting the
objection to the notice dated 2632008 demanding the property tax
for the period from 142003 to 142007.
3. The objection raised by the applicants was that no assessment
could have been done with retrospective effect for the period from
142003 to 142007. This objection is rejected by the Objection
Officer holding that the power to make the assessment with
retrospective effect is conferred under Section 134(3) of the City of
Nagpur Corporation Act,1948 [for short, ‘the said Act’] read with
Rule 13(iii) of the Property Tax Byelaws. It is held that by an order
dated 2142003, passed under the Urban Land (Ceiling and
::: Downloaded on - 02/06/2024 03:03:12 :::
4 0304cra74.12.odt
Regulation) Act, 1976 [for short, ‘the U.L.C. Act’], the land in
question was exempted by permitting the land owner to use the said
land for the purposes of providing plots and construction of the
tenements and hence it was assessable to property tax with effect
from 142003. This fact according to the Corporation, was
suppressed and, hence, the assessment was reopened in terms of
Rule 13(iii) of the Property Tax Byelaws and the applicants are
called upon to make the payment.
4. The learned District Judge4, Nagpur in Misc. Civil Appeal
No.269 of 2010 preferred under Section 130 of the said Act has
recorded the finding that the appeal was barred by limitation of
30 days prescribed under Section 130(1) and (2) of the said Act.
On merits also the findings are recorded that the assessment was
legal and proper. Hence, this civil revision application is preferred
under Section 388 of the said Act by the applicant/objectors.
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5 0304cra74.12.odt
5. The undisputed factual position is that prior to 142003 the
land in question was an agricultural land which was not and could
not be the subject to any assessment of property tax at the instance
of the Corporation. However, it was subject to the proceedings of
determination of surplus land under the U.L.C. Act. The applicant
purchased the said land on 3132007, from the original owner and
got it exempted under the provisions of U.L.C. Act, by an order
dated 2142003, passed by the Competent Authority. Thereafter,
the applicant applied for conversion of land into non agricultural
purpose. By an order dated 26112007 passed by the Competent
Authority under the Maharashtra Land Revenue Code, 1966
[for short, ’the M.L.R. Code’] the land in question was permitted to
be converted into non agricultural purpose. The lay out plan was
submitted for sanction to the Nagpur Municipal Corporation and on
16122008 the building permit was issued. Subsequent thereto, the
construction was carried out.
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6. I have gone through the orders passed by the Objection
Officer and the District Court which are impugned in this civil
revision application. There is no basis for holding that the land in
question becomes subject to the assessment of taxation as non
agricultural land by the Municipal Corporation, with effect from
142003. The order dated 2142003 passed by the Competent
Authority under the U.L.C. Act, merely granted exemption in
respect of the land in question, by permitting user of the land for
providing plots and construction of tenements in accordance with
the terms and conditions of the exemption. Unless permission is
granted by the Competent Authority under the M.L.R. Code, the
land cannot be put to use for non agricultural purpose. Hence, the
Authority and the Court below committed an error in assessing the
land in question to impose property tax with effect from 2142003.
The order of conversion of land, into non agricultural purpose, was
passed by the Competent Authority under the M.L.R. Code, for the
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first time on 26112007. Hence, the land in question could be
made subject to assessment of property tax only with effect from
26112007 and not before that date.
7. The appellate Court has dismissed the appeal on the ground
that it is barred by limitation. The order was passed by the
Objection Officer on 2272010, a notice of demand was issued on
2372010, which was undisputedly received by the applicant.
Relying upon the provisions of Rule 19(xiv) of the Property Tax
Byelaws, it is urged that the limitation of 30 days for filing an
appeal under Section 130(1) and (2) of the said Act, starts from the
date of service of notice of demand on 2372010. The appeal was
filed on 13122010, hence, the appellate Court has held it was
barred by limitation.
8. Undisputedly, the order containing reasons for rejection of
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the objection passed on 2272010, was not communicated to the
applicants. However, on the basis of this order, a demand notice
dated 2372010 was served upon the applicants. Rule 19(xiv) of
the Property Tax Byelaws states that after hearing the parties and
taking evidence, the investigating officer shall determine the
objection and communicate the result to the objector personally, if
present, otherwise by under a certificate of posting. It is implicit in
the said Rule to communicate the order of rejection of objection
containing the reasons. It is from the date of communication of
such order, the period of limitation would start running. The
applicant received the copy of the order containing reasons on
12112010 pursuant to their application under the Right to
Information Act submitted on 20102010. The appeal was filed on
13122010. Hence, it was within the period of limitation.
9. The contention of Shri Kasat, the learned Counsel appearing
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for the respondents that the period of limitation should start from
running the service of notice of demand on 2372010, cannot be
accepted for the reason that unless the reasons for rejection of the
objection are communicated, the opportunity of file an appeal
cannot be availed. The reasons for rejection constitute the
foundation for appeal by raising appropriate grounds and without
that no appeal can be preferred. The reasons are communicated on
12112010. In view of this, the appellate Court committed an error
of law in holding that the appeal was barred by limitation.
10. In the factual background as indicated above, there is no
occasion to deal with the question as to whether the power under
Rule 13(iii) of the Property Tax Byelaws to reopen assessment with
retrospective effect. Even assuming that it confers such a power, in
view of the findings recorded above, the question loses its
significance.
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11. For the reasons stated above, the civil revision application is
allowed. The Judgment and order dated 14122011 passed by the
learned District Judge4, Nagpur in Misc. Civil Appeal No.
269 of 2010 is hereby quashed and set aside along with the order
dated 2272010 passed by the Objection Officer, Dhantoli Zone4,
Nagpur Municipal Corporation, Nagpur. A notice of demand dated
2632008 issued to the petitioner is hereby quashed and set aside.
12. It is made clear that this Judgment shall not come in the way
of the respondents to make the assessment after 26112007 i.e
passing of the order by the Additional Collector, Nagpur granting
permission to convert the land for non agricultural purpose. In view
of the aforesaid Judgment, if the applicants are entitled to make
adjustment of the amount which is already said to have been paid,
the Authorities concerned shall act accordingly.
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13. Rule is made absolute in above terms. No order as to costs.
JUDGE
Deshmukh
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