SCA/2782/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2782 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- HONOURABLE MS.JUSTICE H.N.DEVANI 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 ========================================================= PRIYA TALKIES - SHIRIN ESTATES PVT. LTD. - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR MB GANDHI for Petitioner(s) : 1,MR CHINMAY M GANDHI for Petitioner(s) : 1, MR AMIT P.PATEL, AGP. for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 31/07/2008 ORAL JUDGMENT (Per : HONOURABLE MS.JUSTICE H.N.DEVANI) 1. Rule. The learned Assistant Government Pleader SCA/2782/2008 2/6 JUDGMENT is directed to waive service of Rule on behalf of the respondents. By consent of the learned Advocates appearing on behalf of the respective parties the matter is taken up for hearing and disposal. 2. This petition challenges order dated 29.12.2007 passed by the Prescribed Officer and Mamlatdar, Vadodara (Rural) under the Gujarat Entertainments Tax Act,1977 (the Act) whereby the petitioner's application under section 6(3) of the Act praying for consolidated payment of tax has been rejected. 3. Though various contentions have been raised on the merits of the case by the learned Advocates for the respective parties, considering the view that the Court is inclined to take in the matter, it is not necessary to set out the facts and contentions in detail. 4. The petitioner, a cinema situated in the suburbs of Vadodara, had on 11.10.2005, made an application under section 6(3) of the Act, to be permitted to pay tax at the rates specified in sub-section (5) of SCA/2782/2008 3/6 JUDGMENT section 6 of the Act. It is the case of the petitioner that it is situated in a specified area as envisaged under clause (i) of sub-section (5) of section 6 of the Act. The said application has been rejected by the Prescribed Authority on the ground that the petitioner is situated at a distance of only 150 metres from the limits of Vadodara Municipal Corporation and as such is not situated in a specified area as defined under clause (i) of sub- section (5) of section 6 of the Act, and for this purpose the Prescribed Authority has placed reliance upon a Report dated 28.12.2007 submitted by the District Inspector of Land Records (DILR) certifying that the distance between Block No. 240 of Sevasi village is at a distance of approximately 150 metres from the limits of Vadodara Municipal Corporation. 5. The main contention raised by the learned Advocate for the petitioner is that the Prescribed Authority while passing the impugned order has disregarded the principles of natural justice, inas much as the authority has relied upon various documents while passing the impugned order which have SCA/2782/2008 4/6 JUDGMENT not been supplied to the petitioner nor have been brought to his notice. 6. It is an admitted position that prior to passing the impugned order, a copy of the report of the DILR which forms the basis of the impugned order was not supplied to the petitioner nor was the petitioner informed that the Prescribed Authority intends to rely on such a report. In the circumstances, the impugned order suffers from the infirmity of being in breach of the principles of natural justice and as such cannot be sustained. Accordingly, the matter is required to be remanded to the Prescribed Authority to decide the same afresh after giving the petitioner an opportunity of hearing and after supplying copies of all documents on which the said Authority seeks to place reliance. 7. Another contention raised which requires consideration is that the petitioner has specifically averred in the petition that when the hearing of the application had taken place, the Mamlatdar had agreed that they are prepared to SCA/2782/2008 5/6 JUDGMENT accept the application subject to the condition that from 1.1.2008, the benefit of consolidated tax would be given to the petitioner but not from the date of the application. In this connection an undertaking was also obtained from the petitioner. However, despite the undertaking having been obtained the petitioner's application had been rejected. In this regard, it is noticed that though the respondents have filed an affidavit-in-reply in response to the petition, the same is absolutely silent insofar as the aforesaid averments are concerned. In absence of any denial, the said averments therefore, have to be taken to be true. In the circumstances, while deciding the matter afresh, the petitioner shall not be bound by any such undertaking obtained by the authority. 8. For the foregoing reasons the petition succeeds and is accordingly allowed. The impugned order dated 29.12.2007 passed by the Prescribed Authority and Mamlatdar, Vadodara (Rural) is hereby quashed and set aside. The matter is remanded to the Prescribed Authority to decide the same afresh after affording SCA/2782/2008 6/6 JUDGMENT an opportunity of hearing to the petitioner and supplying copies of all documents on which the Prescribed Authority intends to place reliance. Rule made absolute accordingly with no order as to costs. Sd/- Sd/- (D.A. Mehta, J.) (H.N. Devani, J.) M.M.BHATT