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2005 DIGILAW 832 (JHR)

Etwari Devi v. Lakhan Lal

2005-11-30

SUDHANSU JYOTI MUKHOPADHAYA

body2005
ORDER S.J. Mukhopadhaya, A.C.J. 1. This application under Article 227 of the Constitution of India has been preferred by the petitioners, the judgment debtor/defendants against order dated 4th October, 2005 (Annexure-7) passed by the Addl. Munsif, Ranchi, in Execution Case No. 17 of 2002 whereby and whereunder the objection filed by him under Order XXVI, Rule 10(2) of the Code of Civil Procedure seeking leave to examine the Pleader Commissioner has been rejected. 2. From the enclosures attached to this writ petition and having heard the submissions made by the counsel for the parties, it appears that the respondents/ plaintiffs preferred a Title Eviction Suit No. 44 of 1987, which was decreed in their favour on 18th April, 2002. This resulted in the filing of the Title Appeal No. 06/48 of 2002 by the defendant petitioners. Thereafter, the appeal preferred by the judgment debtor petitioners having been dismissed, the petitioners preferred a Second Appeal No. 467 of 2004 before this Court. A Bench of this Court by order dated 10th February, 2005 observed that there was no case made out to interfere with the judgment and the decree in question and made certain observations and issued directions, as follows, to serve the interest of justice. (i)The plaintiff will deposit cost for appointment of the Pleader Commissioner who will go on the sport and will measure and ascertain the area and extent of Holding No. 1676, Ward No. II-B of Ranchi Municipal Corporation at Hindpirhi in presence of parties by giving them prior notice in writing. The Court below will ensure that the notice has been positively served on the parties for that purpose; (ii) After taking measurement of the said holding the report will be submitted in the Court below and after satisfying itself, the Court below will issue a writ of the delivery of possession on the said ascertained area of Holding No. 1676 in favour of the plaintiffs; (iii) If the defendants are found within the area of Holding No. 1676 they will be evicted in accordance with the terms of the decree. (iv) the execution process shall not be delayed on any other new ground. 3. In the meantime, the Execution case No. 17 of 2002 could not proceed because of pendency of the second appeal. (iv) the execution process shall not be delayed on any other new ground. 3. In the meantime, the Execution case No. 17 of 2002 could not proceed because of pendency of the second appeal. After the aforesaid order was passed by this Court, a Pleader Commissioner was appointed who took measurement to ascertain the area and the extent of holding No. 1676 of ward No. II-B of the Ranchi Municipal Corporation at Hindpiri. The measurement was made in presence of both the parties given them prior notice. 4. The main plea taken by the judgment debtor/petitioners is that they should be allowed to examine the Pleader Commissioner and the prayer should not have been refused by the Court below. 5. Learned Counsel for the petitioners stated that the area actually measured consists of holding Nos. 1675 and 1676 of M.S. plot No. 2126. According to him, the Pleader Commissioner should have also measured holding No. 1675 and should have given the details thereof in his report, which he submitted without looking into the relevant records. 6. I have perused the report (Annexure-5) submitted by the Pleader Commissioner and the order passed by the Court below as contained in Annexure-7. 7. Having heard the counsel for the parties, I find no ground made out to interfere with the order impugned in this application. There being no merit in this application, it is dismissed. Main Search Forums Advanced Search Disclaimer Jai Narayan Singh, Proprietor Of ... vs State Of Bihar Through Deputy ... on 30 November, 2005 Jharkhand High Court Jai Narayan Singh, Proprietor Of Awadh Cinema vs State Of Bihar Through Deputy Commissioner And Ors. on 30/11/2005 ORDER R.K. Merathia, J. 1. Heard the parties. Main Search Forums Advanced Search Disclaimer Jai Narayan Singh, Proprietor Of ... vs State Of Bihar Through Deputy ... on 30 November, 2005 Jharkhand High Court Jai Narayan Singh, Proprietor Of Awadh Cinema vs State Of Bihar Through Deputy Commissioner And Ors. on 30/11/2005 ORDER R.K. Merathia, J. 1. Heard the parties. Petitioner filed this writ petition for a direction upon the Deputy Commissioner of Commercial Taxes (respondent No. 3) to issue No Objection Certificate to the Licensing Authority (respondent No. 2) for renewal of the Cinema Licence; and for quashing the letter dated 18.1.1996 (An-annexure 5), whereby the respondent No communicated his objection to the renewal of Cinema Licence due to non-payment of Entertainment Tax; and for a direction to respondent No. 2 to renew the licence of the petitioner for running "Awadh Cinema" at Phusro and for quashing Annexure-7 issued by respondent No. 2 refusing renewal of the Cinema Licence on the basis of the said objection of respondent No. 3; and for declaration that petitioner is liable to pay only at the rate of 12% of the compounding tax payable by the Cinema Licence Holder under category K; and for other reliefs. 2. Sri Devi Prasad, learned senior counsel appearing for the petitioner, submitted that the only question involved in this case, is as to whether the petitioner is liable to pay tax under category "I" or under category "K", as per the notification No. SO. 92, dated 23.3.1993 (Annexure-2). 3. Petitioners contention is that Phusro is a rural area and the population according to 1991 census was 5284 and therefore the rate of tax applicable to the gram panchayat having population less than 25000 i.e. category "K" will apply as per Annexure-2 notification. It is further submitted that prior to the said Annexure-2 notification there was another notification No. S.O. 138, dated 7.3.1990 (Annexure-3), according to which category "K" was applicable for "Phusro Notified Area Committee." Mr. Devi Prasad further submitted that a separate notification similar to the Annexure-3 notification for "Phusro Notified Area Committee" was required to be issued after the issue of the aforesaid notification (Annexure-2), for applying category "I. 4. Mr. H.K. Mehta, appearing for the State, submitted that Phusro was ordered to be notified as Notified Areas Committee by notification dated 28th August, 1984 (Annexure-A) to the counter affidavit filed on 3.10.2005). Mr. H.K. Mehta, appearing for the State, submitted that Phusro was ordered to be notified as Notified Areas Committee by notification dated 28th August, 1984 (Annexure-A) to the counter affidavit filed on 3.10.2005). It may be recorded here that on enquiry it was found that such notification was notified in the Bihar Gazette (Extraordinary) dated 30th August, 1984 being S.O. No. 1058, a photocopy of which is kept on the record. Mr. Mehta further submitted that petitioner is wrongly basing his claim on the population of Phusro Gram Panchayat i.e. 5284 whereas as per the notification dated 23.3.1993 (Annexure-2), the population of Notified Area Committee is to be taken into account for the purpose of categorization. He further submitted that the population of Phusro Notified Area Committee was 70,494 as per the census of 1991 which will appear from Annexure-A annexed with the counter affidavit dated 21.5.1996 and therefore petitioner is liable to pay Entertainment Tax under category "I" which is applicable for the population of a Notified Area Committee having population of more than fifty thousand and up to seventy five thousand. He also submitted that it is nowhere contemplated that a separate notification for each area were required to be issued after issuance of the composite notification dated 23.3.1993. He further submitted that this notification dated 23.3.1993 was issued by amending the previous notification issued on the subject. Mr. Mehta also submitted that during the pendency of this writ petition, there was census in the year 2001, as per which the population of Phusro Notified Area Committee was 83463 and as such the petitioner is liable to pay tax under category "H" after 2001 census. 5. By the impugned letter (Annexure-5), the respondent No. 3 demanded payment of the difference of entertainment tax from the period 1.4.1993 onwards i.e. after 1991 census, (it may be noted here that it has been stated in paragraph 14 of the counter affidavit dated 21.5.1996 that due to typographical mistakes, category "J" was mentioned in this letter in place of category of "I"). 6. From the facts and circumstances noted above, it is clear that Phusro was declared as Notified Area Committee vide S.O. No. 1958, published in the Bihar Gazette (Extra-ordinary), dated 30th August, 1984. 6. From the facts and circumstances noted above, it is clear that Phusro was declared as Notified Area Committee vide S.O. No. 1958, published in the Bihar Gazette (Extra-ordinary), dated 30th August, 1984. Notification No. 92, dated 23.3.1993 (An-nexure-2) is a composite notification under Sections 3-A and 3 B of the Bihar Entertainment Tax Act, 1948 (the Act for short); which was issued by amending previous notifications issued on the subject classifying the places with their population under different categories, according to 1991 census. There is nothing to show that separate notifications were required to be issued for each Municipal Corporation. Municipality, Notified Areas Committee, Cantonment Board, Urban Area or gram panchayat after issue of the composite notification dated 23.3.1993. Only because a notification was previously issued on 7th March, 1990, (Annexure-3), for Phusro Notified area Committee, separately under Section 3-A of the Act, it cannot be accepted that after issuance of the said composite notification dated 23.3.1993 (an-nexure 2), unless a separate notification was issued for Phusro Notified Area Committee; the categories and the rates of tax mentioned in the notification dated 23.3.1993 (Annexure-2) cannot be applied. Phusro being a Notified Area Committee, the population of Notified Area Committee is to be taken into account and not the population of Phusro Gram Panchayat, for fixation of the category for payment of tax, as per the notification dated 23.3.1993 (Annexure-2). 7. In the circumstances, I do not find any merit in this writ application. 8. On 1.5.1996, this Court, ordered as follows :-- In the meantime, the petitioner will be permitted to exhibit films in the Cinema Hall on the payment of tax at the rate at which he has last paid but subject to the result of the writ petition. In case, the writ petition is dismissed, he will be liable to make payments according to rates demanded. 9. Accordingly, the respondent No. 3 the concerned Commercial Taxes Authority is directed to calculate the amount of entertainment tax payable by the petitioner treating the Phusro Notified Area Committee under category T, for the relevant period, after deducting the tax already paid. He will also calculate the up to date liability of tax, as per 2001 census, as per the law. Such demands alongwith the details of calculation will be served on the petitioner, within two months from the date of receipt/ production of a copy of this order. He will also calculate the up to date liability of tax, as per 2001 census, as per the law. Such demands alongwith the details of calculation will be served on the petitioner, within two months from the date of receipt/ production of a copy of this order. Needless to say that the petitioner will co -operate in such proceedings. 10. With these findings and directions this writ petition is dismissed. However, no costs.