1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2243 OF 2002 M/s. Spicer India Ltd., .... Petitioner. vs. State of Maharashtra & Anr. .... Respondents. Mr. S.B. Deshmukh for the petitioner. Mr. C.R. Sonawane, AGP., for Respondent No. 1. CORAM : J.N. PATEL, & S.J. KATHAWALLA, JJ. DATE : 21st NOVEMBER, 2008. P.C. . Heard the learned counsel for the parties. 2 2. The petitioner has filed this petition for issuance of a writ in the nature of an order to quash and set aside the Government Resolution dated 9th February 2001 to the extent to which it provides to impose/collect the property tax in excess of the statutory rules as amended by the Maharashtra Village Panchayat (Tax and Fee) Amendment Rules, 1999 and prays for other ancillary reliefs relating to levy and collection of tax to be strictly done in accordance with the provisions of the Rules of 1999 as amended by the Maharashtra Village Panchayat (Tax and Fee) Amendment Rules, 1999. 3. It is the case of the petitioner that it is a public limited company and is having its corporate office and factory at Kuruli, Tal. Khed, Dist. Pune. It is not disputed by the petitioner that they are amenable to be taxed and pay property tax to the Gram Panchayat. But according to them, the respondent Gram Panchayat can only levy tax and collect property tax as per the provisions of the Bombay Village Panchayat Act, 1958 and Maharashtra Village Panchayat (Tax and Fee) Rules, 1960. 3 4. It is the case of the petitioner that the Maharashtra Village Panchayat (Tax and Fee) Rules, 1960 provides that the property tax should be imposed on the basis of the rateable value or the capital value of the property. But these rules subsequently came to be changed and in accordance with the amended rules the property tax is to be imposed on the basis of the rateable value or capital value i.e., on the basis of the per sq. ft. for which rate is fixed as Rs. 3 per sq. ft. 5. It is submitted by the learned counsel appearing for the petitioner that the respondent Gram Panchayat is charging tax at the rate of Rs. 9.56 per sq. ft. on the basis of the Government Resolution dated 9th February 2001. Therefore, it is contended that the Government by a resolution cannot contradict the rules which provide for tax to be levied at the rate of Rs. 3 per sq. ft., and therefore , the said Government Resolution dated 9th February 2001 deserves to be quashed and set aside. 6. It is submitted that once the assessment and levy 4 of tax is fixed by the rules, as in the present case, the same cannot be superseded by a subordinate legislation by the State by issuing a government resolution and, therefore, the said Government Resolution deserves to be quashed and set aside and the bills of demand raised by respondent no. 2 Gram Panchayat having levied tax contrary to the rules deserves to be quashed and set aside. 7. In response to the petition, the State has filed an affidavit in reply of the Officer on Special Duty to Government, Rural Development and Water Conservation Department, Manatralaya, Mumbai. It is their case that the said G.R., has been issued in consonance with the Maharashtra Village Panchayat Taxes and Fees Rules, 1961 which has been notified on 3rd December, 1999 and, therefore, there is no change in the levy of tax formula and the tax assessed by the impugned G.R., dated 9th February, 2001 is consistent with the amendment made in the said Rules, 1960. It is submitted that the matter was under consideration of the State and the Second State Finance commission has also in the meantime recommended to the 5 State Government that there is no need to extend exemption in levy of tax further which was earlier granted by the Government Resolution dated 9th February, 2001 and therefore, it is their contention that the Government has never given any direction by way of circular or letter or any other means of communication to the village panchayat contrary to the Maharashtra Village Panchayat Taxes & Fees Rules, 1960 as amended from time to time. It is submitted that the G.R., has been issued for a different purpose i.e., for granting exemption in the levy of tax for the initial period of four years to industries set up in village and not in respect of any changes in the assessment and levy of tax. 8. It is also submitted that the petitioners have directly invoked the extraordinary jurisdiction of this Court inspite of having an alternative remedy under Section 124 (5) of the Bombay Village Panchayat Act, 1958 and ought to have preferred an appeal if they were aggrieved by the assessment of tax by the Gram Panchayat. But, what we find from the affidavit is that they are vested with the right to issue notifications in the official gazette and can make rules for 6 carrying into effect the purpose of the Act as provided under Section 14 of the Bombay Village Panchayat Act, 1958. There is no merit in the challenge made by the petitioner. 9. The learned AGP., appearing for the Respondent State submits that as per the notification dated 3rd December, 1999 which has been issued in exercise of power conferred on the State under Section 126 of the Bombay Village Panchayat Act, 1958 the Government has carried out amendment to the rules of 1999 and these rules are now notified as Maharashtra Village Panchayat (Tax and Fees) (Amendment) Rules, 1999 which has already given a table fixing the rates of tax of the buildings and accordingly the petitioners are liable to pay taxes and, therefore, the petitioners' challenge to the Government Resolution dated 9th February, 2001 does not survive. It is further pointed out that it is the petitioners case that they are prepared to pay property tax in accordance with the amended rules, 1999 and, therefore, the petition deserves to be dismissed. 10. We find that the challenge to the G.R., has 7 nothing to do with the powers of Respondent No. 2 Gram Panchayat to levy taxes on property of the company in accordance with the Maharashtra Village Panchayat (Tax and Fees) (Amendment) Rules, 1999 and, therefore, we direct the Respondent No. 2 to assess and levy tax on the petitioner in accordance with the Amended Rules and the assessment and tax which is in contravention of the said rules is quashed and set aside for the period covered by the Bills of demand.. 11. Rule is made absolute in the aforesaid terms. No order as to costs. (J.N. PATEL, J.) (S.J. KATHAWALLA, J.) 8