- (1.) AS common question of law and facts arise in this group of petitions, all these petitions are disposed of by this common judgment and order.
(2.) IN all these petitions under Article 226 of the Constitution of India, respective petitioners have prayed for an appropriate writ, direction or order quashing and setting aside the impugned order dated 31.03.1997 issued by respondent No.3 herein Commissioner, Bhavnagar Municipal Corporation [annexure A to the main Special Civil Application No.16864/2011] and all purported assessment notices / demand / bills in respect of the properties of the members of petitioner of Special Civil Application No.16864/2011 Bhavnagar District Chamber of Industries issued in pursuance to the aforesaid order dated 31.03.1997.
(3.) THAT at the relevant time property tax / general tax, water tax, conservancy tax were leviable as per the provisions of the Bombay Provincial Municipal Corporations Act [hereinafter referred to as "BPMC Act"]. As per the provisions which were applicable at the relevant time, the Corporation was authorized to impose the property tax under section 129 and other taxes as mentioned in section 127 of the BPMC Act. As per subsection (3) of section 127, the municipal taxes were required to be assessed and levied in accordance with the provisions of the BPMC Act and the Rules. Section 129 of the BPMC Act provided for the property taxes of what to consist and at what rate leviable. Section 99 of the BPMC Act provided for fixing of the rates of taxes. It is required to be noted that at the relevant time when the impugned order dated 31.03.1997 was issued by the Commissioner, Bhavnagar Municipal Corporation [impugned in the present petition], the tax was leviable on rateable value / annual letting value of the property in question. Annual letting value is defined under section 2(1)(a) of the BPMC Act. That by impugned order issued by the Commissioner, Bhavnagar Municipal Corporation dated 31.03.1997 for the purpose of determination of the letting value for the purpose of property tax on building and open land, firstly the properties are bifurcated in four parts with respect to their uses i.e. (1) Residential, (2) Commercial, (3) Industrial and (4) Special Class. Thereafter, with respect to the open lands for which the assessment was not made earlier and upon which there is no construction, it came to be bifurcated in four different classes subject to their uses i.e. (1)NonAgriculture open land for residential use; (2) nonagriculture open land for commercial use; (3) nonagriculture open land for industrial purpose and (4) open agricultural land. That for annual letting value the area of Bhavnagar Municipality has been divided into two zones to be determined as per Schedule A [for residential properties] and as per Schedule B [for commercial building]. It further provides how to determine the annual letting value. It further provides the rates for annual letting value for all the properties i.e. residential, commercial, industrial etc. It further provides the methodology for deciding the annual letting value on the basis of the different uses more particularly on carpet area basis. It also further provides the said formula and the rate on carpet area basis shall be applicable with respect to all the pending cases in the concerned courts and the pending appeals shall be disposed of as per the formula mentioned in the said order dated 31.03.1997. Feeling aggrieved and dissatisfied with the impugned order dated 31.03.1997 issued by the respondent No.3 Commissioner, Bhavnagar Municipal Corporation, the petitioners have preferred the present Special Civil Applications. Shri Tolia, learned advocate and Shri Manav Mehta, learned advocate have appeared on behalf of the respective petitioners. It is submitted by the learned advocates appearing on behalf of the respective petitioners that the impugned order dated 31.03.1997 passed by the Commissioner, Bhavnagar Municipal Corporation is absolutely illegal and without jurisdiction and without authority under the law and as such without following the procedure for assessment of the properties as required to be followed under the provisions of the BPMC Act. 4.1 It is submitted that as such the order dated 31.03.1997 of the Commissioner, Municipal Corporation is in the nature of Executive Fiat laying down standard formula based on sq. meter floor area for computing / assessing annual letting value for the purpose of levy of property tax in the Bhavnagar City, which is contrary to and not substantive of the provisions of the BPMC Act and the Taxation Rules in Chapter VIII thereof which under section 455(3) are part of the Act. 4.2 It is submitted that while issuing the order dated 31.03.1997, rates for assessing the tax on the basis of sq. meter floor area is fixed without there being adopted/approved/based in accordance with law, more particularly, section 99 of the BPMC Act. 4.3 It is further submitted by learned advocates appearing on behalf of the petitioners that as such and as per the law prevailing at the relevant time the property tax was required to be levied on the basis of the annual letting value and that too approved by the Corporation / Standing Committee. It is submitted that as per subsection (3) of section 27, the municipal taxes shall be assessed and levied in accordance with the provisions of the BPMC Act and the Rules only. It is submitted that the manner and method provided in the impugned order dated 31.03.1997 issued by the Commissioner, Municipal Corporation is concerned, to assess / levy the municipal tax on carpet area basis, the same was placed before the Standing Committee and/or General Board of the Corporation and the Commissioner on its own by way of administrative instruction has virtually amended the provisions of the BPMC Act, which is not permissible. It is submitted that as such considering the provision of law prevailing at the relevant time the municipal tax was required to be levied on the basis of the annual letting value and that too subject to the rates approved by the standing committee and approved by the State Government. It is, therefore, submitted that impugned order dated 31.03.1997 is absolutely illegal, without jurisdiction and authority under the law. 4.4 It is further submitted by the learned advocates appearing for the respective petitioners that as such assessment/levy of a municipal tax on the basis of the carpet area came to be introduced for the first time in the BPMC Act in the year 2007 and so far as the Bhavnagar Municipal Corporation is concerned, they have adopted the same only recently i.e. in the month of April 2013. It is, therefore, submitted that even the impugned order dated 31.03.1997 proposing to assess and levy the municipal tax on the basis of the carpet area and that too at the rates mentioned in the said order is without jurisdiction and even contrary to the provisions of the BPMC Act. It is submitted by the learned advocates appearing on behalf of the respective petitioners that as such what was required to be done by the standing committee/general board and that too subject to the approval of the State Government, by impugned order dated 31.03.1997 it is done by the Commissioner, which is without authority under the law. 4.5 It is further submitted that by impugned order the Commissioner has passed an order to dispose of all the pending appeals before the District Court on the basis of the rights / procedures/assessment as per the said order dated 31.03.1997, which is not permissible. It is submitted that as such the Commissioner has communicated to the learned District Judge, Bhavnagar to dispose of the pending appeals against the assessment/municipal property bills as per the formula/rates mentioned in the said order dated 31.03.1997, which is arbitrary, illegal and without jurisdiction and authority under the law. It is submitted that the Commissioner could not have and ought not to have communicated to the learned District Judge, Bhavnagar to dispose of the appeals as per the formula/rights mentioned in the order dated 31.03.1997. 4.6 It is further submitted that admittedly by the impugned order dated 31.03.1997, it was proposed to assess and levy the municipal tax on the land. It is submitted that before making the assessment and levying the municipal tax, the Corporation was required to prepare and maintain the assessment book for which prior notice was required to be given to the property holder as required in the Rules. It is submitted that in the present case neither any assessment book is prepared and/or maintained as required under the provisions of the taxation rules nor any notice was given to the property holder before such assessment and the property bills have been issued without following any procedure as required under the provisions of the BPMC Act and the Taxation Rules, which deserves to be quashed and set aside. 4.7 Learned advocates appearing on behalf of the respective petitioners have heavily relied upon the following decisions of the Hon'ble Supreme Court as well as this Court. 1. Municipal Corporation of the City of Ahmedabad vs. Jhaveri Keshavlal Lallubhai, 1965 GLR 228 2. Harivansh Lal Mehra vs. State of Maharashtra, 1971 2 SCC 54 3. Municipal Corporation of City of Hubli vs. Subha Rao Hanumanthrao Prayag and Ors, 1976 4 SCC 830. 4. Shah Ranmal Somchand vs. State of Gujarat and Ors, 1980 2 GLR 224. 5. Kalyan Municipal Council and Ors. vs. Usha Paper Products (P) Ltd. and Anr., 1988 3 SCC 306 6. Anant Mills Co. Ltd. (under liquidation) vs. Municipal Corporation for the City of Ahmedabad and Ors., 1993 2 GLH 897 7. L.M. Patel and Ors. vs. Baroda Municipal Corporation, 1995 1 GLH 1198 Making above submissions and relying upon above decisions, it is requested to allow the present Special Civil Applications.;