Research › Browse › Judgment

Gujarat High Court · body

1995 DIGILAW 419 (GUJ)

Broda Municipal Corporation v. STATE

1995-09-20

J.N.BHATT, R.M.DOSHIT

body1995
( 1 ) BARODA Municipal Corporation (`corporation for short) which is the original unsuccessful plaintiff has questioned the legality and validity of the judgment and decree recorded by the learned Second Joint Civil Judge (S. D.), Vadodara on 26-7-1983 in Special Civil Suit No. 444 of 1976, by invoking aids of provisions of Section 96 of the Code of Civil Procedure, 1908. A few material facts giving rise to this appeal may shortly be narrated so as to appreciate the merits of the appeal and challenge against it. ( 2 ) THE Corporation initiated a legal battle by filing the aforesaid suit against the respondent-original defendant-State of Gujarat challenging the order of respondent No. 2-Collector of Baroda passed against the Corporation on 16-9-1963, directing the Corporation to pay an amount of Rupees 2,37,778. 02 within 15 days towards nonagricultural assessment, education cess and local cess. The Corporation inter alia contended that the said order of respondent No. 2-original defendant No. 2-Collector is ultra vires, illegal, without jurisdiction and void and, therefore, the Corporation is not liable to make any payment. In short, the legality and validity of the order was questioned by filing the suit which was not upheld by the trial Court. ( 3 ) THE defendants appared and resisted the suit by filing written statement inter alia contending that the impugned order is legal and valid and the plaintiff-Corporation is legally bound to pay the amount of Rupees 2,37,778. 02 as the Corporation had not paid the non-agricultural assessment since long from the years 1951-52 to 1962-63 and a large amount had remained in arrears. The defendants also contended that the Corporation evaded payment by raising different kinds of objections at different times. ( 4 ) IN light of the facts and circumstances and pleadings of parties, issues came to be raised at Exh. 22. Upon assessment and appraisal of the evidence, the trial Court dismissed the suit holding that in view of the relevant provisions of law, the impugned order is legal, valid and justified. The trial Court also considerd the provisions of Section 48 of the Bombay Land Revenue Code, 1879 (`blrc for short) and found that the plaintiff-Corporation is liable for payment as demanded in the impugned order. ( 5 ) IT may be mentioned that the order demanding the amount of Rs. 2,37,778. The trial Court also considerd the provisions of Section 48 of the Bombay Land Revenue Code, 1879 (`blrc for short) and found that the plaintiff-Corporation is liable for payment as demanded in the impugned order. ( 5 ) IT may be mentioned that the order demanding the amount of Rs. 2,37,778. 02 recorded by the Collector on 16-9-1963 was carried further in appeal before the Commissioner at Baroda. The appellate authority partly allowed the appeal. The plaintiff-Corporation was directed to pay an amount of Rs. 2,37,778. 02 by the Collector by virtue of the impugned order modified in the appeal. The appellate authority also found that the local cess is leviable over and above N. A. assessment. However, the appellate authority reduced the amount of Rs. 40,762. 34. Therefore, by virtue of the order recorded by the appellate authority, the plaintiff-Corporation was obliged to pay an amount of Rupees 1,97,015. 68 instead of Rs. 2,37,778. 02 as per the impugned order of the Collector recorded on 16-9-1963. Being dissatisfied with the order recorded by the appellate authority, the original plaintiff-Corporation has now come up before this Court challenging its legality and validity. ( 6 ) AFTER having examined the facts and circumstances and the rival submissions, we have no hesitation in finding that this appeal is meritless. The authorities below have rightly found that the plaintiff-Corporation is bound to pay N. A. assessment as per the provisions of Section 48 of the BRLC. It would be expedient to refer to the provisions of Section 48. They read as follows :" (1) The land revenue leviable on any land under the provisions of this Act shall be assessed or shall be deemed to have been assessed, as the case may be, with reference to the use of land- (a) for the purpose of agriculture; (b) for the purpose of residence; (c) for the purpose of industry; (d) for the purpose of commerce, or (e) for any other purpose. (2) Where land assessed for use for any purpose is permitted or deemed to have been permitted under Section 65, or, as the case may be, under Section 65a, to be used for any other purpose, or is used for any other purpose without the permission of the Collector being first obtained or before the expiry of the period prescribed by Section 65, or, as the case may be, by Section 65a. The assessment fixed under the provisions of this Act upon such land shall, notwithstanding that the term of which such assessment may have been fixed has not expired be liable to be altered and fixed at a different rate, with effect from the commencement of the revenue year in which the land is so permitted or deemed to have been permitted to be used, or, as the case may be, is used without the permission of the Collector by such authority and subject to such rules as the State Government may prescribe in this behalf. (3) Where land held free of assessment on condition of being used for any purpose is used at any time for any other purpose, it shall be liable to assessment. (4) The Collector or a survey officer may, subject to any rules made in this behalf under Section 214, prohibit the use for certain purposes of any unalienated land liable to the payment of land revenue, and may summarily evict any holder who uses or attempts to use the same for any such prohibited purpose. " ( 7 ) IT could be very well seen from the provisions of sub-section (2) of Section 48 that where land assessed for use for any purpose is permitted or deemed to have been permitted under Section 65 or, as the case may be, under Section 65a, to be used for any other purpose, or is used for any other purpose without the permission of the concerned authority, assessment in respect of such land is leviable. The provisions providing the manner of assessment when alterations are made. Section 48 clearly empowers the Government through the Collector concerned to levy assessment of land with reference to its use. In case of any change or alteration in the user, assessment on land is leviable. The views and the ultimate conclusion recorded by the trial Court upon examination and appreciation of the provisions of Section 48 read with Section 65, are not shown to be unreasonable, unjustified or illegal. On the contrary, we are satisfied that appraisal and assessment of all the aforesaid provisions in the factual scienario are quite justified and require no interference. ( 8 ) THE impugned order is based on reasons and on appreciation of the relevant provisions of law. Two contentions were advanced before the competent authority viz. respondent No. 2 Collector, viz. On the contrary, we are satisfied that appraisal and assessment of all the aforesaid provisions in the factual scienario are quite justified and require no interference. ( 8 ) THE impugned order is based on reasons and on appreciation of the relevant provisions of law. Two contentions were advanced before the competent authority viz. respondent No. 2 Collector, viz. (i) that the assessment of land cannot be made retrospectively on account of encroachment, This contention was upheld by the Collector in favour of the original plaintiff-Corporation. The second contention which was advanced was that the order of such assessment of land against the Corporation is unauthorised, illegal and void. This contention was decided by the Collector against the plaintiff with reasons. The only modification made by the appellate authority in the impugned order of the Collector is about amount of Rupees 40,762. 34 as the amount of N. A. Assessment on reconciliation was required to be deducted from the amount demanded by the Collector in the impugned order dated 16-9-1963. Other contentions which were reiterated before the appellate authority were rightly rejected. Same contentions were repeated before the trial Court and in our opinion, the trial Court has rightly rejected the said contentions. Again, we may mention that the contentions which were advanced before the authority below and the trial Court are reiterated and repeated and in our opinion, such contentions are without any substance and require no interference. ( 9 ) IN view of the settled proposition of law, the appellate Court need not divulge on all factual aspects and the grounds forming the basis for dismissing the suit when the appellate Court broadly agrees with the ultimate conclusion recorded by the authorities below. Therefore, in our opinion, it would not be necessary to repeat and discuss in greater details the same grounds raised before us. This proposition of law cannot be questioned. However, we have referred the relevant provisions of Sections 48 and 65 and the material discussion in the judgment of the trial Court. ( 10 ) HAVING regard to the facts and circumstances and the evidence on record in the background of the aforesaid legal set up, we have no hesitation in holding that there is no merit in the present appeal in view of our finding that the impugned judgment and decree dismissing the suit of the plaintiff-Corporation are quite reasonable, legal and justified. ( 11 ) OUR attention was also drawn by the learned Assistant Government Pleader Miss Devani while appearing for the respondents, to a Division Bench decision of this Court recorded in Appeal No. 1489 of 1960, on 28-10-1968 to substantiate the version that the plaintiff-Corporation is liable for N. A. Assessment irrespective of user by the occupant. This Court in the aforesaid decision rendered in the case of State of Gujarat v. Mehsana Municipality, held that Section 136 of the BLRC cannot be restricted to the term occupant as excluding the municipality merely because there is no express provision authorising the municipality to recover assessment from the persons who have encroached upon a public street land. It was held in the said case by this Court that the language of Section 136 is very clear, unambiguous and precise and there was no reason to restrict the meaning of the words used therein by importing circumstances extraneous to the matter contained in the provisions of law. In terms, it was held by this Court that Section 136 imposes a liability on the Municipality to pay the land revenue to the Government. This is no defence for the Municipality to contend that the land assessed was used by encroachers. Municipality has been given powers to evict summarily the persons who encroach upon the public street land. It has also power to file a criminal complaint and to get encroachers fined. Therefore, our view is reinforced by the above Division Bench decision of this Court while interpreting provisions of Ss. 48, 65 and 136 of the BLRC. ( 12 ) IN the result, the appeal is dismissed with no order as to costs in the circumstances of the case. Appeal dismissed. .