1 W.P. 1240/1995 ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1240 OF 1995 1. Gopaldas S/o Kisandas Asar Age : 44 Yrs., Occ. Business, R/o : Vaijapur. 2. Namdeo S/o Yadavrao Dane (Patil) Age : 30 Yrs., Occ. Legal practitioner, R/o : Vaijapur. 3. Hansraj S/o Prayagji Rammayya Age : 40 Yrs., Occ. Business, R/o : Vaijapur. 4. Balmukund S/o Maniklal Ved Age : 43 Yrs., Occ. Agril., R/o : Vaijapur. 5. Sou. Meenabai W/o Vijayse Asar Age : 40 Yrs., Occ. Household, R/o : Vaijapur. 6. Shivaji S/o Rambhau Ladwani Age : 45 Yrs., Occ. Business, R/o : Vaijapur. .... PETITIONER V E R S U S 1. The State of Maharashtra Through Govt. Pleader, High Court, Aurangabad. 2. Dy. Director Town Planning & Valuation Department, Aurangabad Division, Aurangabad. 3. Municipal Council Vaijapur, through its 2 W.P. 1240/1995 ( J ) Chief Officer, Vaijapur, Tq. Vaijapur, Dist. Aurangabad. .... RESPONDENTS Mr. P. F. Patni , Advocate for petitioner. Mr. K.B.Choudhari, Additional Govt. Pleader for State. CORAM : B.R.GAVAI AND S.V.GANGAPURWALA, JJ. JUDGMENT RESERVED ON : 15/06/2010 JUDGMENT PRONOUNCED ON : 05/08/2010 JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. By way of present Writ Petition, the petitioners seek directions for quashing and setting aside imposition of property tax at new rate in the year 1994-95 in respect of the properties situated at Zone No. 2 in Vaijapur city. Further claim that the Govt. Ordinance No. 17 of 1994 published in the Gazette on 2/11/1994 is unconstitutional 2. The facts as are necessary to decide the list can be culled out as under : The petitioners have come with the case that they are the residents of Vaijapur and having properties in Zone no. 2. They pay the property tax to the Municipal Council i.e. respondent no. 3. According to them, the imposition of the tax is without following due procedure of law and the mandatory provisions of the Maharashtra Municipalities Act, 1965 ( For short, ‘ said Act of 1965 ’ ) and the Rules framed thereunder. According to the petitioners, the assessment list is not properly prepared nor the same is 3 W.P. 1240/1995 ( J ) published as is required under the statute. According to the petitioners, no hearing is given to their objections raised by the petitioners. 3. Mr. Patni, the learned counsel for the petitioners with all his persuasive skill has canvassed before us following propositions. (i) The said Act of 1965 is a complete Code in itself. It lays down the procedure for computing the rateable value, the rate of tax and the manner of imposition of tax. Violation of any of the provisions would dis- entitle the respondent Municipal Council to recover the tax quantified by them on the basis of such erroneous procedure. He contends that Section 105 to 121 of the said Act lays down the detailed procedure. Each and every provision has to be scrupulously followed. (ii) The taxing statute has to be strictly construed. If the procedure as laid down under the statute is not followed, then the petitioners would not be liable to pay the tax imposed on the basis of such erroneous and incorrect procedure. For the said purpose, relied on the Judgment of the Apex Court in case of Municipal Council, Khurai and another V/s Kamal Kumar and another reported in AIR 1965 – SUPREME COURT – 1321. (iii) As per Section 113 of the said Act of 1965, the authorized Valuation Officer has to be appointed for the purpose of the provisions of the Act and in the absence of the Valuation Officer, the powers are to be exercised by the Standing Committee. The Resolution dated 19/9/1992 filed by the respondent shows that the Municipal Council had not appointed the Valuation 4 W.P. 1240/1995 ( J ) Officer and as such in absence of the Valuation Officer, it is only the Standing Committee, who has to exercise the powers of the Valuation Officer and no one else. (iv) The rate of tax has been increased but while increasing the same, Sections 111 and 112 of the said Act of 1965 are ignored and not followed. (v) The preparation of the assessment list, publication and the authentication of the list of assessment has not been done according to Sections 115 to 121 of the said Act of 1965 i.e. as per Section 118 the assessment list is not published, the objections are not dealt as required U/s 119, the hearing as is required U/s 120 has not been given and the authentication of the list as required U/s 121 is not done. According to him, the said provisions are followed more in breach. For the said purpose, relied on the Judgment of the Apex Court in case of Municipal Corporation of City of Hubali V/s Subha Rao Hanumantharao Prayag and others reported in AIR 1976 SUPREME COURT - 1398 and the Judgment of this Court in case of Municipal Council, Aurangabad V/s Shivaji Sindhi Co-op. Hsg. Society Ltd. reported in 1980 Bom. C.R. 579. (vi) The rateable value has not been properly fixed. It has been exorbitantly increased. The rateable value has to be fixed on the basis of fair rent/standard rent and not in hypothetical manner. For the said purpose, relied on the Judgment of the Apex Court in case of New Manek Chowk Spg. And Wvg. Mills Co. Ltd. etc. V/s Municipal Corporation of the City of 5 W.P. 1240/1995 ( J ) Ahmedabad and others reported in AIR 1967 Supreme Court – 1801. 4. It is undisputed that levy of property tax is a part of taxing statute. There can not be any debate on the proposition that the taxing statute has to be strictly construed and the procedure as is laid down under the statute has to be scrupulously followed. In absence of the non observance of the provisions and the procedure for levying the property tax, the liability to pay the tax would not arise. 5. Sections 105 to 121 of the said Act of 1965 lay down the complete procedure to be followed while imposing the property tax. Non adherence to the said provisions while quantifying and imposing the property tax would dis-entitle the authority from recovering the property tax. 6. Coming to the contention of Mr. Patni that the procedure as contemplated U/s 111 and 112 of the said Act of 1965 is not followed while enhancing the rate of tax, does not stand to reason. It has nowhere been brought on record that the rate of tax has been increased for the year 1994-95. Mr. Patni contends that taking into account the disparity in the tax imposed for the year 1994-95 and the previous years, it will have to be presumed that the rate of tax has also been increased. We are afraid such an argument would not be sustainable. Unless the petitioner comes with a specific case that the rate of tax in the preceding year was at a particular rate and subsequently has been changed and charged at a higher rate, it would not be possible to come to a definite conclusion. The petitioners in the petition has nowhere specified the rate of tax of the present year and the previous 6 W.P. 1240/1995 ( J ) years. In absence of the same, the arguments of Mr. Patni can not be entertained. The matter involving levy of tax can not be decided on such hypothetical consideration. 7. The next contention of Mr. Patni about the assessment list that the procedure has to be followed and the Judgments relied by him in that regard can not be subject matter of debate. But the question is whether the respondent – Municipal Council has failed to follow the said procedure. It is case of the petitioners that the objections were called but no hearing was given pursuant to the said objections and as such there is a clear violation of Section 120 of the said Act of 1965. The Municipal Council has filed affidavit in reply and has categorically contended that the authorized Valuation Officer has given proper hearing and considered the objections of the individuals and finalized the taxes. No counter is filed by the petitioner to the said averments of the respondent in the affidavit in reply. As such the stand of the Municipal Council that hearing was given, will have to be accepted. 8. The affidavit in reply filed by the Municipal Council clearly states that the assessment list was forwarded to the authorized Valuation Officer on 13/7/1993 and after verifying the list and making changes, the authorized Valuation Officer returned the same on 17/7/1993 as is required U/s 117 of the said Act of 1965. The authenticated list was kept for information and explanation as per Section 121 of the said Act of 1965 and the publication of the said list as per Section 121 (2) of the said Act of 1965 was made on 25/12/1993 as the Govt. had extended the date of publication up to 31/1/1993. It is evident from the letter of the Collector filed on record 7 W.P. 1240/1995 ( J ) that the date of publication was extended up to 31/1/1993. According to Mr. Patni, nothing is on record to substantiate the contention of the Municipal Council made in their affidavit in reply. When specific averments are made by public authority in the affidavit in reply and the same are not controverted by the petitioners by filing any rejoinder affidavit though ample opportunity was available to them, the statements made in the affidavit in reply will have to be accepted. The affidavit in reply and the documents produced on record would show that the procedure as laid down by the Statute has been adhered by the respondent – Municipal Council in imposing and quantifying the property tax for the year 1994-95. 9. The last contention of Mr. Patni that the rateable value has not been fixed on the basis of the standard rent/fair rent and as such the petitioners would not be liable to pay the tax on the basis of such erroneous rateable value is without any substance. We had asked Mr. Patni as to whether the petitioners have stated either in objection before the authorities or in the present petition the quantum of the fair rent/standard rent prevalent in the said area. Mr. Patni fairly conceded that they have not stated the quantum of fair rent/standard rent. The petitioners have not come forward with a specific case that the fair rent/standard rent in the particular zone was at a particular rate, in such circumstances, there is no material to come to the conclusion that the rateable value has not been fixed in accordance with the procedure prescribed by law. We can not simply presume that as the quantum of tax has been increased, the rateable value is not fixed as per the fair rent/standard rent. The matter can not be decided on mere hypothesis. 8 W.P. 1240/1995 ( J ) 10. This Court in its extra ordinary jurisdiction under Article 226 of the Constitution of India would be expected to decide the matter on the basis of the averments and would not be in a position to embark upon an investigation involving the disputed questions of fact. This Court would refrain itself from deciding the matter on the basis of presumptions. As such, we are unable to accede to the arguments of Mr. Patni that the rate of tax has been increased or the rateable value is not fixed as per the fair rent/standard rent. 11. In light of the above, we do not find any merit in the petition. The petition being sans merit, is dismissed. Rule is discharged. However, there shall be no order as to costs. [ S.V.GANGAPURWALA ] [ B.R.GAVAI ] JUDGE JUDGE knp/WP 1240.95 9 W.P. 1240/1995 ( J ) WITH WRIT PETITION NO. 2539 OF 1994 1. Bapurao S/o Rangnath Adhav Age : Major, Occ. Agriculture, R/o : Partur, Tq. Partur, Dist. Jalna. 2. Dr. Gopikishan Mangilal Bangad Age : Major, Occ. Medical Practioner. R/o : Partur, Tq. Partur, Dist. Jalna. .... PETITIONERS V E R S U S 1. The State of Maharashtra Through Govt. Pleader, High Court, Aurangabad. 2. Dy. Director Town Planning & Valuation Department, Aurangabad 10 W.P. 1240/1995 ( J ) Division, Aurangabad. 3. The Municipal Council Partur, Tq. Partur, Dist. Jalna through its Chief Officer, Partur, Tq. Partur, Dist. Jalna. .... RESPONDENTS Mr. V.D.Salunke , Advocate for petitioner. Mr. K.B.Choudhari, Additional Govt. Pleader for State. Mr. S.S. Choudhari, Advocate for respondent no. 3. WITH WRIT PETITION NO. 382 OF 1997 Handloom Weavers Co-operative Society Ltd., Degloor Through its Director Narayanrao Piraji Jiddiwar, Age : 67 Yrs., Occ. Nil,, R/o : Degloor, Tq. Degloor, Dist. Nanded. .... PETITIONER V E R S U S 1. The State of Maharashtra Through Govt. Pleader, High Court, Aurangabad. 2. Dy. Director Town Planning & Valuation Department, Aurangabad Division, Aurangabad. 3. The Municipal Council 11 W.P. 1240/1995 ( J ) Degloor, through its Chief Officer, Degloor, Dist. Jalna. .... RESPONDENTS Mr. S.V. Chandole, Advocate for petitioner. Mr. K.B.Choudhari, Additional Govt. Pleader for State.