1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4116 of 1996 Maharashtra State Electricity Board, through the Executive Engineer M.S.E.B. Beed. Petitioner versus 1. The State of Maharashtra, 2. The Collector, Beed. 3. The Tahsildar, Beed. Respondents ­­­­­­­­ Shri H.T.Joshi, Advocate, for petitioner. Shri D.V.Tele, AGP, for the Respondents. Coram: P.R. Borkar J. Date : Aug. 13, 2009. ORAL JUDGMENT 01. This writ petition is filed by the Maharashtra State Electricity Board challenging the assessment levied by the Collector, Beed, on the pole factory run by the petitioner at survey No.95 of Beed as per the notice dated 7.7.1996. 02. It is the case of the Petitioner that it runs a pole factory in survey No.95 having area 2 of 18,000 square meter situated at Beed and it is outside the municipal limits. Non Agricultural Permission was granted and according to the petitioner, exemption from payment of N.A. assessment to the Industries is also applicable to the factory of the petitioner. 03. On 14.11.1995, Respondent No.3­Tahsildar issued notice to the petitioner stating that the assessment for non agricultural use is assessed as mentioned in the said notice. However, it is the grievance of the petitioner that before issuing the said notice, there was no notice calling upon the petitioner for enquiry. Revised rate of N.A. assessment is Rs.1.60 ps. square meter. Thus, as per the revised rate, tax payable is Rs. 1,69,920/=. The amount of N.A. assessment for 1995­96 and difference in the tax for the years 1991­92 to 1994­95 is also claimed. Thus, the total demand was for Rs.2,27,520/=. 04. The Petitioner replied the notice and drew attention of the Respondents to the fact that one of its pole factory situated at Shirur­Tajband has been levied tax at Rs.0.02 ps. per square meter and the amount of Rs.57,600/= was deposited by cheque. It is the case of the petitioner that pole factory run by it is of industrial nature and not commercial. In spite of that, Tahsildar insisted that the factory is of commercial nature 3 and, therefore, commercial rates were charged. It is the say of the petitioner that pole factory manufactures poles not for business purposes, but for use of petitioner. 05. Respondent Nos. 2 and 3 have filed their reply affidavit and stated that the nature of the activity carried out by the petitioner is commercial in nature. Poles manufactured by the petitioner are used for commercial activities undertaken by the petitioner, namely, supply and distribution of electricity. Petitioner is not entitled to concession. It is also stated that the Respondents had issued public notice regarding N.A. use of land and the Collector had correctly applied assessment with effect from 1.8.1991 as per the directions given by the Government. The Collector has powers to levy the tax as per the local market value of the land. The factory at Shirur­Tajband although charged at the rate of 0.02. ps. per square meter, it was a small village in those days whereas, the pole factory of the Petitioner at Beed is situated in a land adjacent to the highway and, therefore, the market value of the property located at Beed cannot be compared with the one located at Shirur Tajband. It is stated that the petitioner has deposited amounts of assessment time and again. It is stated by the Respondents that a public notice was issued in newspaper calling upon the objections, 4 if any, from all interested parties. However, no objections were raised by the petitioners. 06. In paragraph 20, it is further stated that for the purpose of challenging N.A. charges, the Collector, Beed, divided the Beed city into three parts out of which two were in Division No.1 and 2 falling on eastern side of the Bindusara river and division No.3 on western side of the river. A list was prepared by Collector of 1138 lands which are surrounding Beed City. The property of the petitioner comes under Division No.3 and assessment for the same was levied at Rs. 1.60 ps per square meter. Those rates were published in the Maharashtra Government Gazette dated 28.9.1995. 07. Heard Shri H.T.Joshi,Advocate for the petitioner and Shri D.V.Tele, A.G.P.for the Respondents. 08. A reference to Section 67 of the Maharashtra Land Revenue Code, 1966 would be useful here itself. It lays down the manner of assessment and alteration of assessment. Section 67 reads: "67. Manner of assessment and alteration of assessment:­ (1) The land revenue leviable on any land under the provisions 5 of this Code shall be assessed, or shall be deemed to have been assessed, as the case may be, with reference to the use of the land,­ (a) for the purpose of agriculture, (b) for the purpose of residence, (c) for the purpose of industry, (d) for the purpose of industry, (e) for the purpose of commerce, (f) for any other purpose. (2). Where land assessed to agriculture is used for non agricultural purposes or vice versa or being assessed to one non­agricultural use is used for another non­agricultural purpose, then the assessment fixed under the provisions of this Code upon such land shall, notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and assessed at a rate provided for under this Code in accordance with the purpose for which it is used or is permitted to be used. Section 68 lays down that the Collector is empowered to fix assessment. Power is also given for revision of assessment from time to time, but 6 nowhere power is given to revise the rates with retrospective effect. As paragraph 5 of the petition discloses that the amount of Rs. 1,69,920/= was claimed as assessment for the period 1995­96 by the notice dated 14.11.1995 and by the said notice, difference in the tax for the previous period 1991­92 to 1994­95 was also added and demand was raised. 09. I am not satisfied that the Respondents were justified in or were entitled to revise the assessment rates from back date. It is worth noting that in the affidavit­in­reply, no date of public notice calling upon objections was given. No date of notice on which public notice was published in the newspaper is given. So, the reply filed on behalf of Respondent Nos. 2 and 3 does not justify revision of assessment with retrospective effect from 1991­92. In this view of the matter this writ petition will have to be allowed to the extent it challenges retrospective assessment. 10. So far as contention of the petitioner that it was using the poles manufactured in its factory for domestic use and not for business and that those were not sold outside is concerned, the activity of pole manufacturing is of commercial nature. It is another thing that having sufficient domestic or internal demand of poles, 7 the petitioner may not be in a position to sell the poles outside its own establishment. Moreover, nothing is on record to show that while making assessment any discrimination was made against the petitioner. 11. Considering the totality of the circumstances, I am of the opinion that this writ petition needs to be allowed partly. Hence, notices dated 7.7.1996 and 14.11.1995 are quashed and set aside to the extent of demand of difference in taxes for the period 1991­92 to 1994­95. However, notices are confirmed for assessment year 1995­96. 12. Petition allowed partly. Rule made absolute accordingly. pnd/ wp4116.96 (P.R.BORKAR, J.)