SCA/9585/2000 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.9585 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- =================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO =================================================== NISAR AHMAD GULAM KADAR SHAIKH - Petitioner(s) Versus DIVISIONAL CONTROLLER-CUM-COMPETENT OFFICER & 1 - Respondent(s) =================================================== Appearance : MR RS SANJANWALA for Petitioner(s) : 1, MR MURALI N. DEVNANI for MR YOGESH S LAKHANI for Respondent(s) : 1 - 2. =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 07/07/2008 ORAL JUDGMENT (1) On 06.10.2000 when the petition came to be admitted the following order was made: SCA/9585/2000 2/6 JUDGMENT “Rule. On the question of interim relief heard Mr RS Sanjanwala for Nisar Ahmad Gulam Kadar Shaikh (petitioner in Special Civil Application No. 9585/2000, Ms Rupal Patel for the S.T. Corporation in Special Civil Application No. 2100/2000, Mr Lakhani for the respondent Corporation in Special Civil Application No. 9585/2000 and Mr NA Pandya for Punjabi Bishan Dipchand (petitioner in Special Civil Application No. 2100/2000). 2. Nisar Ahmad Gulam Kadar Shaikh was granted license for running a dry fruits stall at the Central Bus Station, Surat in the year 1989. The license fee was fixed at Rs.7001/-. The license was initially issued for 11 months subject to renewal every year for 11 years. The license was renewed from time to time. However, in the year 1999, the Corporation served notice dated 19.1.1999 calling upon Nisar Ahmad Gulam Kadar Shaikh to pay municipal taxes for the years 1995-95 to 1998-99 aggregating to Rs.2,70,257/- and interest thereon at Rs.87,296/-. Accordingly an amount of Rs.3,57,533/- was demanded. Nisar Ahmad Gulam Kadar Shaikh challenged the said notice by filing Special Civil Suit No. 110/99 in the Civil Court at Surat. The plaintiff's prayer for interim injunction was rejected. On 7.6.1999, the Corporation called upon Nisar Ahmad to vacate the premises on the ground that the petitioner had committed a breach of the agreement by not paying arrears of municipal tax. Against the said decision, Nisar Ahmad preferred appeal No. 69/99 under the provisions of the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act for challenging the notice dated 19.1.1999. The appeal came to be dismissed by the District Court, Surat on 18.7.2000 holding that the appellant is liable to pay the municipal taxes as per the license agreement and since the appellant had committed default by not paying the municipal taxes and interest thereon, the appellant is liable to be evicted from the premises in question. Hence, Nisar Ahmad Gulam Kadar Shaikh has filed Special Civil Application No. 9585/2000. 3. It appears that in the meantime, the Corporation had dispossessed Nisar Ahmad during pendency of the appeal before the District Court at Surat. Nisar Ahmad had accordingly prayed for interim relief claiming restoration of possession of the stall. The District Court, however, only restrained the Corporation from inducting any other person into the premises, but did not grant the interim relief of restoring possession to Nisar Ahmad. Thereafter when the Corporation issued a public advertisement for inviting tenders for the dry fruit stall, Nisar Ahmad approached the District Court, by an interim order the District Court permitted the tenders to be processed but final allotment of stall was stayed during pendency of the appeal. SCA/9585/2000 3/6 JUDGMENT 4. Pursuant to the exercise of inviting fresh tenders, Punjabi Bishan Dipchand (petitioner of Special Civil Application No. 2100/2000) was found to be the highest bidder as he had offered a sum of 5,011/- per month as license fees. Punjabi Bishan Dipchand is, therefore, staking his claim for the occupation of the premises pursuant to the aforesaid tender exercise and filed the petition seeking directions against the Corporation on the basis of the aforesaid tender exercise which could not be finalized on account of the stay earlier granted by the District Court during pendency of the appeal and thereafter by this Court in Special Civil Application No. 9585/2000. The position, therefore, is that as on today the premises are lying with the Corporation and the Corporation is not earning any license fee. 5. Mr RS Sanjanwala, learned counsel for the petitioner has submitted that the respondent Corporation as well as the District Court have erred in holding that the petitioner has committed any breach of the license agreement by not paying the municipal taxes or the interest thereon. The attention of the Court is invited to clause (k) of the license agreement at Annexure "A" to the petition which reads as under :- "(k) To bear and pay forthwith on demand lighting and electrical and water charges and proper proportion of any additional Municipal or other rates, taxes, assessments and charges whether by way of increase in assessment or by way of new or additional charges payable in respect of the premises or any part thereof beyond in respect of the premises or any part thereof beyond the existing rates, taxes, assessment and charges, such amount shall be ascertained by the Licensor or its authorized representative in that behalf whose decision shall be final and binding on the licensee." It is submitted that the liability of Nisar Ahmad is only to pay additional municipal taxes beyond the existing taxes and not the full amount of taxes. It is further submitted that since the Corporation has not given any particulars about the amount of municipal taxes which were payable by the respondent-Corporation nor any particulars about the amount of taxes actually paid by the Corporation in the preceding years or even after 1989, the Corporation has no right to demand any municipal taxes or interest thereon. Mr Sanjanwala has further stated that his client is ready and willing to deposit, without prejudice to his rights and contentions, Rs.3,37,533/- as demanded in the impugned notice dated 19.1.1999 (Annexure "C" to the petition) within a reasonable time if his client is permitted to run the dry fruit stall for a period of atleast one year from today provided he is granted some reasonable instalments to pay the said amount. SCA/9585/2000 4/6 JUDGMENT 6. The learned counsel for the respondent Corporation have submitted that since Nisar Ahmad had already lost before the District Court, Surat and he has not paid the municipal taxes, the Corporation is opposing the petition of Nisar Ahmad and that his license has not been renewed on account of the default committed by him in not paying the municipal taxes. It is further the case of the Corporation that they want to put Punjabi Bishan Dipchand into possession of the canteen premises pursuant to the tender exercise. 7. In fact, Mr Pandya for Punjabi Bishar Dipchand states that his client is prepared to pay the license fees at the rate of Rs.12,500/- per month. Although this figure may look marginally higher than the license fees (Rs.11,833) being paid by Nisar Ahmad at present, the fact remains that the Corporation will be in a better position to recover the municipal taxes with interest to the tune of Rs.3,57,533/- only if the possession is restored to Nisar Ahmand. Hence, the order passed hereinafter is likely to subserve the interests of the Corporation more than the interest of any other private party, as the amount of taxes and interest demanded by the impugned notice at Annexure "C" shall be deposited within the respondent Corporation and the question whether Nisar Ahmad is liable to pay the municipal taxes under the license in question shall be decided at the time of hearing of this petition. 8. Having heard the learned counsel for the parties and considering the fact that Nisar Ahmad was paying license fees at the rate of Rs.11,833/per month and considering the statement being made by Mr RS Sanjanwala for Nisar Ahmad that Nisar Ahmad is ready and willing to deposit without prejudice to his rights and contentions Rs.3,37,533/- as demanded in the impugned notice dated 19.1.1999 (Annexure "C" to the petition) within a reasonable time and considering the fact that his security deposit of Rs.70,966/- is already lying with the respondent Corporation and he has already deposited a sum of Rs.35,500/- towards the Earned Money Deposit for the recent tender exercise, it would be just and proper to pass the following interim order :- (i) On condition that Nisar Ahmad Gulam Kadar Shaikh deposits without prejudice to his rights and contentions a sum of Rs.1,35,257/- and also files an undertaking before this Court that - (a) without prejudice to his rights and contentions he shall deposit the balance amount of municipal taxes and interest as demanded in the impugned notice dated 19.1.1999 (at Annexure "C" to the petition) in two equal instalments (the first instalment payable on 15.11.2000 and the second instalment payable on 15.12.2000) (b) For using the canteen premises in question, Nisar Ahmad shall continue to pay the SCA/9585/2000 5/6 JUDGMENT lincese fees at the rate of Rs.11,833/- per month. (c) the license fees shall be paid in advance in the first week of every month. (d) he shall carry on his business lawfully in the canteen premises. the respondent Corporation shall restore possession of the canteen premises at the Central Bus Station, Surat alongwith the articles lying therein to Nisar Ahmad Gulam Kadar Shaikh within twenty-four hours of deposit of the first instalment (in case the deposit is made by a cheque, within twenty four hours of the clearance of the cheque which may be paid by Nisar Ahmad) and filing of the undertaking before this Court. (ii) This order shall be operative for a period of one year from today.” (2) As can be seen from the order itself the order was operative for a period of one year from the date of order. Accordingly, the petition which challenges notice dated 19.01.1999 issued by respondent No.1-Corporation, order dated 07.06.1999 and judgment order and decree dated 18.07.2000 made by the District Court, Surat in Regular Civil Appeal No.69 of 1999 has been rendered infructuous considering the fact that the petitioner was already dispossessed and had been put in possession only for a limited period under directions of this Court. SCA/9585/2000 6/6 JUDGMENT (3) Accordingly, the petition is disposed of has having become infructuous. Sd/- [D.A. MEHTA, J] *** Bhavesh*