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2005 DIGILAW 199 (GUJ)

AHMEDABAD MUNICIPAL CORPORATION v. GAURANG AND COMPNAY

2005-03-17

B.J.SHETHNA, M.C.PATEL

body2005
B. J. SHETHNA, J. ( 1 ) HEARD Shri Jhaveri for the appellant and Mr. Viren G. Dave for Shri Chudasama for the respondent in all these matters as he appeared in the applications for condonation of delay filed in the present appeals also. Mr. Dave supported the orders passed by the learned Judge of Small Cause Court No. 9, Ahmedabad and submitted that all these matters are squarely covered against the appellant - Corporation by a judgment of this very Division Bench, delivered on 4th March, 2005 in First Appeal No. 239 of 2005. Therefore, all the appeals be dismissed in terms of the said judgment. ( 2 ) ALL these appeals are arising out of separate impugned orders passed by the learned Judge, Small Cause Court No. 9, Ahmedabad in different M. V. Appeals filed by the respective respondents. As they are squarely covered against the appellant - Corporation by the recent judgment of this very court delivered on in First Appeal No. 239 of 2005 and that the premises of the respondents are situated in only one building i. e. madhusudan House, therefore, they are disposed of by this common order. The learned Judge, Small Cause Court No. 9, Ahmedabad, by his even order dated 27th July, 2001, partly allowed M. V. Appeals No. 123 of 2000 to 131 of 2000. ( 3 ) FROM the separate judgments and orders of even date 27th July, 2001, it clearly appears that, relying on the previous judgment of the Small Cause Court delivered for the previous assessment year of 1998-99 and the report of the Valuer, the G. R. V. was reduced by the learned Judge, as stated above. Though there was gross delay of more than 700 days on the part of the appellant - Corporation in filing these appeals before this court, this court had condoned the same on 4th March, 2005 in view of the fact that delay caused in other appeals filed for the assessment year 1997-98 against those respondents was condoned. However, main First Appeal No. 239 of 2005 was dismissed by this very court on 4th March, 2005 by a brief judgment which is as under:-"heard Ms. Jhavari, learned Counsel for the Appellant - Corporation at length. However, main First Appeal No. 239 of 2005 was dismissed by this very court on 4th March, 2005 by a brief judgment which is as under:-"heard Ms. Jhavari, learned Counsel for the Appellant - Corporation at length. This Appeal is filed u/s. 406 of the Bombay Provincial Municipal Corporation Act, 1949 (for short "bpmc Act"), whereas such an Appeal could only be filed u/s. 411 of the BPMC Act. Thus, on this short ground alone the Appeal was required to be dismissed. However, Ms. Javeri, who is now appearing for the Appellant Corporation, submitted that due to typographical mistake Section 406, instead of Section 411 was typed. Be that as it may. Instead of dismissing the Appeal, on technical ground, we are of the considered opinion that the matter can be decided on merits also and on merits also we do not find any substance in it. It is clear from the Judgment of the learned Judge that before him in the Appeal filed by the respondent the present Appellant Corporation failed to produce any documentary evidence for fixation of GRV of Rs. 28,500/- for the year 1997-98. In absence of any evidence being led by the Appellant Corporation for fixing GRV the learned Judge has relied on the Report of the Valuer regarding the value of the property which was Rs. 1,02,000/- as it was hardly of 88 sq. mtrs. Considering this valuers Report and the Judgment of the Honble Supreme Court and of this Court, the learned Judge was of the opinion that the GRV of Appeal was required to be fixed at 8% of the cost of the land and construction of the premises and accordingly he fixed it at the rate of Rs. 8160/- for the year 1997-98 and partly allowed the Appeal by reducing the GRV from Rs. 28,500/-, fixed by the Corporation, to Rs. 8160/- for the year 1997-98. Thus, no fault can be found with such order passed by the learned Judge of Small Causes Court in partly allowing the Appeal of the respondent. Before parting, we must state that Appeal u/s. 411 (b) of the Act would lie from any other decision upon a question of law or usage having force of law or the construction of document, which is none in this case. Hence, on all counts the Appeal is required to be dismissed and accordingly it is dismissed. Before parting, we must state that Appeal u/s. 411 (b) of the Act would lie from any other decision upon a question of law or usage having force of law or the construction of document, which is none in this case. Hence, on all counts the Appeal is required to be dismissed and accordingly it is dismissed. Civil Application No. 1197 of 2003 is dismissed as the main Appeal is dismissed. No order as to costs. "3. 1 other allied appeals were dismissed in view of the aforesaid judgment and order dated 4th March, 2005 passed by this court in First Appeal No. 239 of 2005. ( 4 ) THE only difference in these appeals is regarding the assessment year. All these appeals are arising out of the judgment and order passed by the learned Judge, Small Cause Court No. 9, Ahmedabad fixing the G. R. V. of the premises of the respondents for the assessment year 1999-2000. Except that, there is no difference. 4. 1 it is to be noted that all these appeals were filed by Shri Kalpesh S. Jhaveri, advocate for the appellant, who is now elevated as a Judge of this court. Thereafter, in delay applications, his niece Ms. Jirga D. Jhaveri, who is a raw junior advocate, appeared and we condoned the delay on 4th March, 2005. However, no appearance note was filed in these appeals and today, Senior advocate Shri S. K. Jhaveri, father of Shri K. S. Jhaveri appeared as counsel for his granddaughter Ms. Jirga D. Jhaveri for the appellant - Corporation in all these matters. Ms. Jhaveri, however, stated at the bar that she will file her appearance in all these appeals. ( 5 ) AT the outset, it may be stated that all these appeals are filed under Section 406 of Bombay Provincial Municipal Corporation Act and not under Section 411 of the Act. However, learned counsel Shri Jhaveri for the appellant Corporation submitted that there was typing mistake in mentioning the appeal filed under Section 406 of the Bombay Provincial Municipal Corporation Act, 1949 instead of Section 411 of the Act. There cannot be such a typing mistake in all the matters. On this ground alone, all these appeals were required to be dismissed. There cannot be such a typing mistake in all the matters. On this ground alone, all these appeals were required to be dismissed. We are also of the considered opinion that all these appeals are squarely covered against the appellant Corporation by our recent judgment and order dated 4th March, 2005 in First Appeal No. 239 of 2005, therefore, they are required to be dismissed in terms of the same judgment. 5. 1 however, Mr. Jhaveri submitted that Record and Proceedings of all these matters be called for from the Court of learned Judge, Small Cause Court No. 9, Ahmedabad, before deciding these appeals. These are not the regular First Appeals where R and P must be called for. Hence, prayer to call for R and P is rejected. 5. 2 it may be stated that learned counsel Shri Jhaveri tried to rely on two judgments of this court, (1) of the Division Bench in the case of MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD vs. ORIENTAL FIRE and GENERAL INSURANCE CO. LTD. reported in 1994 (2) G. L. R. Page 1498 and (2) a judgment of the learned Single Judge of this court in the case of RAJNIKANT JESHINGBHAI SHETH and ORS. vs. RAMESHCHANDRA KANTILAL BHATT AND ORS. reported in 1982 (1) G. L. R. Page 71. He submitted that without considering those judgments, this court, on earlier occasion i. e. on 4th March, 2005, dismissed First Appeal No. 239 of 2005 where his granddaughter Ms. Jirga D. Jhaveri appeared. If those judgments had been brought to the notice of the learned Judges of this court, then this court would not have taken the view and dismissed the appeal. This is nothing but an attempt on the part of Mr. Jhaveri to seek review of our judgment and order dated 4th March, 2005 delivered in First Appeal No. 239 of 2005, which is not permissible, in these appeals. We are bound by our own judgment. Accordingly, all these appeals are dismissed in terms of our judgment and order dated 4th March, 2005 delivered in First Appeal No. 239 of 2005. ( 6 ) ONCE appeals are dismissed, then Civil Applications filed in it are also dismissed and accordingly they are dismissed. .