SCA/4677/2002 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.4677 of 2002 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 =================================================== RAJENDRABHAI THAKORBHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) =================================================== Appearance : MR HR LATHIGARA for Petitioner(s) : 1,MR DEVANG LATHIGARA for Petitioner(s) : 1, MR KETAN DWIVEDI, AGP for Respondent(s) : 1, NANAVATI ASSOCIATES for Respondent(s) : 2 - 3, 5, MR HARIN P RAVAL for Respondent(s) : 4, =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 21/11/2008 ORAL JUDGMENT (1) This petition has been preferred by administrator of the Gavier Group Gram Panchayat challenging the order dated SCA/4677/2002 2/5 JUDGMENT 19.12.2001 whereby earlier resolution / order dated 20.07.2000 issued by the respondent State Government under Section 201 of the Gujarat Panchayats Act, 1993 (the Act) has been amended to the prejudice of the petitioner-Panchayat. (2) Respondent Nos.2, 3, 4 and 5 are functioning within the territorial limits of the petitioner-Panchayat and are liable to pay octroi. For 1998-1999, 1999-2000 and 2000-2001 the State Government, in exercise of powers under Section 201 of the Act, passed an order on 20.07.2000 fixing lump-sum octroi. However, while passing the said order, vide condition No.3 it was specifically provided that if there is any surcharge of Taluka Panchayat or District Panchayat then all the four industries have to pay the same separately and independent of the lump-sum amount fixed. Thereafter it appears that respondent No.2 made a representation vide communication dated 16.01.2001 and on considering the same the SCA/4677/2002 3/5 JUDGMENT earlier order dated 20.07.2000 has been modified by re-drafting condition No.3 to read that the lump-sum amount shall include the surcharge levied by either Taluka Panchayat or District Panchayat. (3) The principal grievance ventilated on behalf of the petitioner is to the effect that the said modification has been carried out without granting an opportunity and hearing the petitioner-Panchayat, who is directly the affected party. (4) On behalf of the State Government the learned Assistant Government Pleader submitted that the decision of rectification has been taken at the highest level on the basis of the representation made by the industrial concerns. However, even after seeking specific instructions, the learned Assistant Government Pleader was not in a position to point out from record that any opportunity of hearing was granted to the petitioner-Gram Panchayat. SCA/4677/2002 4/5 JUDGMENT (5) In the aforesaid set of facts and circumstances of the case it is apparent that the earlier order dated 20.07.2000, which had been made as per proposal made by the Gram Panchayat, could not have been modified/rectified so as to result in any prejudice to the petitioner-Gram Panchayat without hearing the said Gram Panchayat. The respondent authority ought to have appreciated that the financial affairs of the Gram Panchayat have been planned on the basis of order dated 20.07.2000, to which the Gram Panchayat was a party, having accepted the proposal for lump-sum payment, subject to the condition that the surcharge levied by either Taluka Panchayat or District Panchayat shall be borne by the industry over and above the lump-sum. The said figure of lump-sum payment could not have been modified so as to operate adversely to the Gram Panchayat. (6) In the circumstances, the impugned order dated 19.10.2001 is quashed and set aside. As a SCA/4677/2002 5/5 JUDGMENT consequence respondent Nos.2, 3, 4 and 5 are directed to discharge their respective liabilities for three years in question in terms of the first order dated 20.07.2000, if not already discharged considering the fact that there was no stay operating during pendency of the petition. If the amount is paid as per subsequent order dated 19.10.2001 respondent Nos.2, 3, 4 and 5 shall pay the difference within a period of eight weeks from today or the time as may be extended by the petitioner-Gram Panchayat. (7) Accordingly, the petition is allowed. Rule made absolute to the aforesaid extent. There shall be no order as to costs. Sd/- [D. A. MEHTA, J] *** B h a v e s h *