Gujarat HC: Insurance Company can not prove breach of policy condition that private vehicle was taken on hire without examining material witnesses

Therefore, in such circumstances, it is a duty of the insurance company to prove by leading proper evidence on record that deceased and other persons those who were travelling in the jeep were travelling as a passenger on hire, but, no evidence was led by insurance company before the Tribunal. The driver was available. Notice, issued by the Claims Tribunal, was served on the driver, then, some efforts must have to be made by the insurance company to substantiate their contention before the Tribunal. Accordingly, raising the contention in written statement and to get some clue from the complaint is not enough for the insurance company to prove their contention before the Claims Tribunal. The driver and owner both are the persons who must have the knowledge as to whether jeep was hired or not, then, insurance company must have to make efforts by making an application before the Claims Tribunal to issue the summons as a witness to driver or owner for giving evidence before the Claims Tribunal in respect to the fact that whether jeep was hired or not. But, no such efforts have been made by insurance company.

 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

First Appeal No. 2030 of 2008 with Civil Application No. 5492 of 2008 in First Appeal No. 2030 of 2008

Decided On: 25.08.2008

National Insurance Company Vs. Shabbir Mohmad Kunjada and Ors.

Hon'ble Judges/Coram:

H.K. Rathod, J.

Citation:  MANU/GJ/0542/2008.

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Gujarat HC: What is duty of the court when it comes to its knowledge that future maintenance right was relinquished on payment of illusory amount of maintenance?

 The principle underlying the lump sum payment as laid down by the Supreme Court in Bai Tahira's case (supra) can be equally applied to the facts and circumstances of this case. The basic principle is that the object of the lump sum payment to be made is to obviate the destitution of the divorcee and to provide her with the wherewithal to maintain herself. As laid down by the Supreme Court, there must be a rational relation between the sum so paid and its potential as provision for maintenance. In the instant case the petitioner-wife was forced to go to Court for claiming her maintenance. Under the circumstances, then prevailing she gave up her right to claim future maintenance "voluntarily" for lump sum amount and executed the deed of divorce. Now, when she has preferred an application for maintenance, it cannot be said that the application at the instance of the petitioner-wife claiming maintenance is not maintainable because she had surrendered her future right of maintenance. Whenever in application for maintenance it is contended that because lump sum amount is paid towards the claim of future maintenance and therefore the application is not maintainable, it would be the bounden duty of the Court to examine whether the lump sum amount of maintenance mentioned in the deed of divorce or claimed to have been paid otherwise, had any rational connection with the necessities of life to be provided for in future and was it not an illusory amount or was it sufficient amount to maintain herself for the entire life?{Para 7}

8. This principle has its roots in the public policy and the provisions of law. Underlying public policy, behind the provisions of law regarding maintenance is that one who is destitute should be provided maintenance by the person whose duty it is to maintain such person. This public policy cannot be circumvented and the object of law cannot be frustrated by making a payment of illusory amount of maintenance. As far as the surrender of future right to maintenance is concerned, answer is very simple. Agreement to surrender such right of future maintenance for illusory amount of maintenance would be unfair and unconscionable. Such agreement is entered into between two unequals. One (i.e. wife, child or parents, as the case may be) is destitute and helpless and another (i.e. husband, father or son as the case may be) relatively stronger and better placed in the society. Ordinarily this will be the position, though exception cannot be ruled out completely. In this background, if the amount determined for future maintenance is illusory, the agreement to surrender the right to maintenance also would be unlawful as it would be against the public policy and also unconscionable and unfair. 

 IN THE HIGH COURT OF GUJARAT

Decided On: 06.09.1985

Bai Laxmiben Vs. Bharatbhai Vechatbhai Patel and Ors.

Hon'ble Judges/Coram:

A.P. Ravani, J.

Citation: 1986 DMC 1 129,1986 CRI LJ 1418,1986 GLR 1 272,1985 SCC ONLINE GUJ 187, MANU/GJ/0123/1985.

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Gujarat HC: Composite petition for nullity of marriage and in the alternative for dissolution of marriage by a decree of divorce is maintainable

4.5 The petition for nullity of marriage is neither contrary nor

inconsistent and the same can be entertained by the Court. The

learned Family Court has rightly rejected the application on the

ground that not permitting the petitioner husband to  file composite suit will lead to multiplicity of proceedings and hence prayer for divorce can be made alternatively. Therefore, there can not be any bar in joint petition under Sections 12 and 13 of the Hindu Marriage Act claiming relief in alternative.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CIVIL REVISION APPLICATION NO. 351 of 2024

X vs Y

CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

Date : 22/01/2025

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Gujarat HC: The civil court has jurisdiction to set aside mutation entry done in revenue record on the basis of unregistered oral sale

Section 17 of the Indian Registration Act provides that if some tangible immovable property worth less than Rs. 100.00 (Rupees One Hundred only) is sold and delivery of possession is also effected, then, such sale, on delivery of possession, would be complete. The law provides that if any tangible immovable property worth Rs. 100.00 (Rupees One Hundred only) or more is sought to be transferred or alienated, then, such transfer is required on proper stamp and is required to be registered also. Consequence of non-registration is shown under Section 49 of the Indian Registration Act. Section 49 clearly provides that in a case where document, which under the law, was required to be registered, if is not registered, then, the same would not be admitted in evidence, except for collateral purpose. If a document is not admissible in evidence and cannot be relied upon, nor does convey title in the law, then, on the basis of such document, an entry could not be made in the revenue record. In the revenue record, entry can be made only if some legal document conveys title in favour of the purchaser or, person aspiring for entry in his favour has obtained right under some revenue laws. In the present case, on the basis of an unregistered sale, which admittedly was oral one, an entry in favour of the defendant could not be made. {Para 7}

8. Civil Court ordinarily would not interfere in the matters where Courts of limited jurisdiction or exclusive jurisdiction have exercised their authority. A Civil Court would interfere in a matter, if it is held by the Court that provisions of law have been violated to their hilt, the authority/officer had no jurisdiction to do something or principles of natural justice have been violated. The moment the Court comes to the conclusion that act or action of an authority is bad and runs contrary to law, then, the Civil Court shall immediately assume the jurisdiction and correct the wrong committed by the authorities. The Courts below, in the considered opinion of this Court were unjustified in holding that the Civil Court had no jurisdiction in the matter. The concept of jurisdiction is not based upon the plain reading of provisions of law, because, it is trite to say that a Civil Court is always jealous of a provision which ousts its jurisdiction. A Civil Court has to be too cautious and careful in understanding and appreciating the provisions which say that the Civil Court has no jurisdiction. All the conditions to denude the Civil Court of its powers must be complied with. Moment a Civil Court holds that any other Court of exclusive jurisdiction has violated the provisions of law or has not observed the law or has violated the principles of natural justice, then it is bound to exercise its jurisdiction.

9. In the opinion of this Court, entry made in favour of the respondents could not be made by any person whatsoever authority he had. The entry was patently without jurisdiction, it deserves to and is accordingly set aside.

 IN THE HIGH COURT OF GUJARAT

Second Appeal No. 28 of 1990

Decided On: 16.03.2007

Radhiben and Ors. Vs. Surtan Vesta Damor and Ors.

Hon'ble Judges/Coram:

R.S. Garg, J.

Citation: 2007 AIR (Gujarat) 147, MANU/GJ/7080/2007.

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Gujarat HC: Factor to be considered by the Appellate court before suspending sentence of convict

 Before adverting to the submissions and to

ascertain, whether the applicant has made out a case

for suspension of sentence, it is necessary to see the

legal position.

(i) Section 389(1) of the Cr.P.C., enjoins upon the

Appellate Court the power to pass an order for the

suspension of sentence or order of conviction during

the pendency of an Appeal. The statutory provision

says that, pending any appeal by convicted persons,

the appellate Court may reasons to be recorded by it

in writing, order that the execution of the sentence or

order appealed against, be suspended and also if he

is in confinement, that he be released on bail or on

his own bond. The Apex Court in Rajesh Ranjan

Yadav Vs. CBI (2007 (1) SCC 70), after referring

its earlier decisions, [Kashmira Singh Vs. State of

Punjab (1977 4 SCC 291) and Bhagirathsing Vs. State

of Gujarat (1984 (1) SCC 284)] in para-10, observed

that, there is no absolute and unconditional rule

about when bail should be granted. The observations

made in para-10 reads as under:

“Para-10: “In our opinion, none of the

aforesaid decisions can be said to have been

laid down any absolute and unconditional rule

about when bail should be granted by the

court and when it should not. It all depends

upon the facts and circumstances of each

case and it cannot be said that, there is any

absolute rule that, because of long period of

imprisonment has expired, bail must

necessarily be granted.”

(ii) In the case of Ash Mohammad Vs.

Shivrajsinh @ Lalla Babu and another, (2012) 9

SCC 446, the Supreme Court in para-30, while

examining the societal interest and considering the

antecedents examined the post conviction bail and

discussed on the issue of desirability to suspend the

sentence and grant of bail. Para-30 reads as under :

“30. We may usefully state that when the

citizens are scared to lead a peaceful life and

this kind of offences usher in an impediment in

establishment orderly society, the duty of the

court becomes more pronounced and the

burden is heavy. There should have been

properly analysis is criminal antecedents.

Needless to say, imposition of condition is

subsequent to the order admitting an accused

to bail. The question should be paused whether

the accused deserves to be enlarged on bail or

nor and only thereafter, imposing conditions

would arise. We do not deny for a moment that

period of custody is relevant factor but

simultaneously the totality of circumstance and

criminal antecedents are also to be weighed.

They are to be weighed in the scale of collective

crime and desire. The societal concerned has to

be kept in view in juxtaposition of individual

liberty. Regard being head to the said

parameter, we are inclined to think that the

social concerned in the case at hand, deserves

to be given priority over-lifting the restriction on

liberty of the accused.”

[emphasis supplied]

(iii) In Sidhartha Vashisht @ Manu Sharma Vs.

State (NCT of Delhi) reported in (2008) 5 SCC 230,

referring the decision of Vijaykumar (2002) 9 SCC 364,

the Supreme Court while examining the prayer of

suspension of sentence emphasized that, in a case of

involved in a serious offence, the court should

consider all relevant factors like the nature of

accusation made against the accused, the manner in

which the crime is alleged to have committed, the

gravity of offence, the desirability of releasing the

accused on bail after he has been convicting for

committing serious offence and also bearing in mind

that, when the accused has been found guilty then,

initial presumption of innocence in his favour is no

more available to the applicant and therefore, the

appellate Court shall not suspend the sentence except

only in an exceptional case and that too, in a case of

existence of reasons to suspend the sentence.

(iv) Recently, Supreme Court while considering the

scope of Section 389(1) of the Cr.P.C. in the case of

Omprakash Sahani Vs. Jayshankar Chaudhary

(2023) 6 SCC 123, after referring the earlier all

decisions on this aspect, observed and held that, while

dealing with the case of suspension of sentence and

grant of bail, the appellate Court before allowing the

prayer, should prima-facie come to a conclusion that,

the conviction may not be sustainable. Para-33 is

relevant to refer and same is reproduced hereunder:

“Para-33: Bearing in mind the aforesaid

principles of law, the endeavour on the part of

the Court, therefore, should be to see as to

whether the case presented by the

prosecution and accepted by the Trial Court

can be said to be a case in which, ultimately

the convict stands for fair chances of

acquittal. If the answer to the above said

question is to be in the affirmative, as a

necessary corollary, we shall have to say that,

if ultimately the convict appears to be entitled

to have an acquittal at the hands of this Court,

he should not be kept behind the bars for a

pretty long time till the conclusion of the

appeal, which usually take very long for

decision and disposal. However, while

undertaking the exercise to ascertain whether

the convict has fair chances of acquittal, what

is to be looked into is something palpable. To

put it in other words, something which is very

apparent or gross on the face of the record, on

the basis of which, the Court can arrive at a

prima facie satisfaction that the conviction

may not be sustainable. The Appellate Court

should not reappreciate the evidence at the

stage of Section 389 of the CrPC and try to

pick up few lacuna or loopholes here or there

in the case of the prosecution. Such would not

be a correct approach.” {Para 16}

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 1 of 2023.

R/CR.A/607/2023 IA 

 ASHUMAL @ ASHARAM S/O THAUMAL SINDHI (HARPALANI) Vs STATE OF GUJARAT

CORAM: MR. JUSTICE ILESH J. VORA and  MR. JUSTICE VIMAL K. VYAS.

Author:  MR. JUSTICE ILESH J. VORA.

JUDGMENT DATED: 29/08/2024.

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What is the duty of motor accident claim tribunal if claimant is not coming before it for prosecuting his case?

  Taking into consideration the reasons given hereinabove, the learned Tribunal has failed to take into consideration the benevolent object of the M.V. Act, where no claim petition could be dismissed for default without any decision on merits. The learned Tribunal is always require to decide the claim petition on merits, if at all, after giving a reasonable time, the claimant himself would not be in a position to adduce evidence, then the learned Tribunal ought to have called for Form No.54 from the police for verifying the facts and should have granted the compensation amount accordingly.{Para 8}

Gujarat High Court

L H Of Sanjaybhai Ashokbhai Vaghela vs Ashokbhai Bachubhai Vaghela (Parties ... on 12 October, 2022

Bench: Gita Gopi

R/Special Civil application No.6152/2022

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Whether the court can allow parties to give their evidence on Affidavit in proceedings under Domestic violence Act?

Thus, while considering the aforesaid discussion, this court is of the view that Court can allow evidence on affidavit in its discretion and while considering the aims and objects of the D.V. Act including the scope of Section 28(2), court can deviate from procedure mentioned under Sub Section (1) of Section 28 read with Rule 6(5) and devise its own procedure which would include permitting evidence by way of an affidavit and thus, the learned trial court as well as learned first appellate court have not committed any error in passing impugned orders and therefore, both the impugned orders are ordered to be confirmed.{Para 10}

 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Special Criminal Application No. 1303 of 2023

Decided On: 26.04.2023

Samirkumar Chandubhai Joshi Vs. State of Gujarat

Hon'ble Judges/Coram:

Samir J. Dave, J.

Citation:  MANU/GJ/0669/2023.

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Whether Municipal Corporation can collect license fees for erection of the advertisement hoardings?

The petitioner has also sought declaration that after the introduction of the Goods and Service Tax (for short "the GST") with effect from 1st July 2017 in light of the 101st Amendment of the Constitution, the respondent Corporation cannot collect any tax on advertisement hoardings in the private properties and consequently cannot collect any license fees in garb of tax for the advertisement hoardings in the private properties. {Para 4}

5. The petitioner has also challenged the constitutional validity of the Section 386(2) of the Gujarat Provincial Municipal Corporation Act, 1949 (for short "the GPMC Act") and sought declaration that the said provision is ultra vires to the Article 243X of the Constitution of India.

37. In view of the above dictum of law, provisions of Sub-section-2 of Section 386 of the GPMC Act is constitutionally valid as per Etnry-5 read with Entry-66 of list-II of the VIIth Schedule and deletion of Entry-55 of list-2 cannot be said to have any effect on the power to levy fees as provided by Section 386(2) of the GPMC Act.

 Whereas in the facts of the present case, section 386(2) of the GPMC Act provides for levy of license fees for license to place advertising hoardings in private properties for license to be issued as per provisions of the GPMC Act and hence the same can never be considered as tax because the person who is granted license will have privilege to place advertising hoarding in private property and for granting such privilege fees is levied.

45. As we are of the opinion that the license fee levied for granting license for placing advertising hoardings in private property is "fee" and not "tax". 

Gujarat High Court

Selvel Media Services Private limited vs The Municipal Corporation Of The city of Ahmedabad... on 20 October, 2020

Bench: J.B.Pardiwala, Bhargav D. Karia

   C/SCA/4538/2019      

Read full Judgment here: Click here

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Can the court reject an application for the production of documents because documents are not between plaintiff and defendant?

 The trial Court has also rejected the plaintiff's application on the ground that the documents in question are not between the plaintiff and the defendant, but they are documents between the officials of the defendant. I have no doubt that this observation of the trial Court is merely an obfuscation inasmuch as the correspondence between the officers of the defendant can certainly be relied upon by the plaintiff if according to the plaintiff the same may prove or support the plaintiff's case. It is obvious that the Order 11 Rule 12 does not in any way limit the discovery of documents, in the case of letters to the letters exchanged only by the parties to the suit. The requirements of this provision are limited only to the fact that the documents should be or should have been in the possession or power of a party to the suit, and that the same should relate to any matter in question in the suit. Clearly the letters in question satisfy these requirements and, therefore, the order for discovery thereof cannot be refused on the ground that the letters are not directly between the parties to the suit. {Para 7}

 IN THE HIGH COURT OF GUJARAT

Civil Revn. Appln. No. 1254 of 1985

Decided On: 14.06.1991

 Kamalia Brothers and Co. Vs. State of Gujarat

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Can the court reject an application for the production of documents because documents are confidential?

The trial Court has upheld the contention of the defendant in respect of a simple plea that the letters are confidential letters and confidential letters cannot be produced and discovery in respect thereof cannot be granted. The trial Court has not assigned any cogent and or logical reason for upholding this bare plea. It must be borne in mind that the trial Court was conscious of the petitioner's plea that merely by labelling the letters in question as "Confidential Letters" the same cannot be excluded from the purview of Order 11, Rule 12 of Civil Procedure Code. The trial Court was also aware that the petitioner had specifically contended that no specific or particular privilege in respect of the letters in question had been claimed by the defendant, and that there was no claim and or contention on the part of the defendant that disclosure would be prejudicial to public interest and or to national security and or' opposed to public policy and or detrimental to the interest of the defendant in any other manner. In fact there is no reason (for the confidentiality) disclosed by the defendant nor any explanation and or clarification offered in respect of the nature of confidential letters. {Para 5}

6. Under the circumstances it is clear that the bare plea that the letters are It is, therefore, obvious that the letters" cannot be upheld.

 IN THE HIGH COURT OF GUJARAT

Civil Revn. Appln. No. 1254 of 1985

Decided On: 14.06.1991

 Kamalia Brothers and Co. Vs. State of Gujarat

Hon'ble Judges/Coram:

Y.B. Bhatt, J.

Citation : AIR 1992 Guj 138, MANU/GJ/0147/1992

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Whether it is illegal on the part of the court to pronounce Judgment in absence of the Accused ?

 After   laying   down   the   procedure about the pronouncement  of the judgment,  sub­section  (5) of   Section 353 states that if the accused is in the custody, he shall be brought   to the Court to hear the judgment pronounced. Under sub­section (6), if   the accused is not in custody, he shall be required by the Court to attend to   hear   the   judgment   pronounced,   except   where   his   personal   attendance   during the trial has been dispensed with and the sentence is one of fine   only or he is acquitted.

24 From the above provisions it can be safely presumed that the presence   of the accused is insisted during the trial for more than one reason though   the provisions are made for dispensing with their personal attendance for   the reasons enumerated under Section 205 or 317, Cr.P.C. The reasons for   insisting   for   their   personal   attendance   are   that   during   the   trial,   the   presiding officer is expected to record the evidence in the presence of the   accused in the language known to him and the accused has to follow the   evidence that is being let in by the prosecution against his interests and   give   suitable   instructions   to   his   counsel   to   disprove   the   case   of   the   prosecution as he will be the appropriate person who knows the truth or   otherwise of the allegations made against him. Likewise the presence of the   accused is insisted at the time of pronouncement of the judgment and in   the event of his being convicted he has to be heard on the sentence to be   imposed. Hence, there is every justification in insisting for the appearance   of the accused during the trial. 

25 However, the judgment that the learned Magistrate may pronounce in   the  absence  of the  accused   by itself  will   not   vitiate   the   judgment.  Sub­ section   (7)   of   Section   353   of   the   Cr.P.C.   clearly   lays   down   that   no   judgment delivered by any criminal court shall be deemed to be invalid by   reason only of the absence of any party. 

26 The First question is answered accordingly. 

Gujarat High Court

Ishwarbhai Hirabhai Chunara vs State Of Gujarat & on 22 February, 2017

                   R/SCR.A/9112/2016     

Read full Judgment here: Click here

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Whether the trial court can suspend sentence of convict in his absence when application to that effect is filed by his Advocate?

 It is difficult for me to concur with the view taken by the Kerala High Court that in the cases arising from the Negotiable Instruments Act, upon   conviction, the accused automatically enjoys the benefit of Section 389(3)   of the Cr.P.C. Of course, an application can be filed under Section 389(3)   of the Code and the Court may pass an appropriate order in accordance   with law. The question is about the personal presence of the accused for   the purpose of passing an appropriate order upon the application under   Section 389(3) of the Code. {Para 35}

36 I am of the view that in the absence of the convict accused, the learned   advocate  appearing  for  him  cannot  prefer  an  application  under  Section   389(3)  of the Code for suspension of the sentence  to enable  the convict   accused to prefer an appeal before the Sessions Court. When an order is   passed under Section 389(3) of the Code for suspension of the sentence by   the   trial   Court   to   enable   the   accused   to   prefer   an   appeal   before   the   Sessions   Court,   then   the   accused   has   to   furnish   bail   with   necessary   sureties. He has to execute the bail bonds. The order under Section 389(3)   of the Code will come into force only when the accused furnishes the bail   bonds. In such circumstances, in his absence, the learned advocate cannot   be   permitted   to   file   such   an   application.   There   is   one   more   reason   in   taking this view. If it is permissible for the learned advocate defending the   accused   to   file   an   application   under   Section   389(3)   of   the   Code   for   suspension of the sentence in the absence of the accused being personally   present before the learned Magistrate, then the same would render Section   418(2) of the Code otiose or redundant. If the convicted person is released   on bail under Section 389(3) of the Code and such person has to furnish   the   bail,   how   this   process   will   be   undertaken   in   the   absence   of   the   convicted  accused.  I am of the  view that the  learned  Magistrate  rightly   observed  in the  order  that  the  application  under  Section  389(3)  of the   Code was not maintainable since the convicted accused was not personally   present   before   the   Court.   Thus,   the   fourth   question   is   answered   accordingly. 

Gujarat High Court

Ishwarbhai Hirabhai Chunara vs State Of Gujarat & on 22 February, 2017

                   R/SCR.A/9112/2016     

Read full Judgment here: Click here

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Gujarat HC: Amount of PPF account shall not be liable to any attachment in respect of any debt or liability

It is not in dispute that the respondent Bank have withdrawn/debited the aforesaid amount of Rs. 85,380/- from the PPF Account of the petitioner. It is well settled proposition of law that the amount of Public Provident Fund account shall not be liable to any attachment in respect of any debt or liability incurred by the account holder. Thus, the action of the respondent Bank of withdrawing/debiting the aforesaid amount from the PPF Account of the petitioner is illegal and unjustified.

 {Para 11}

 In the High Court of Gujarat at Ahmedabad

(Before A.S. Supehia, J.)

Rajnikant Punjalal Shah Karta of Rajnikant Punjalal Shah Huf Vs  Manager, Bank of Baroda

R/Special Civil Application No. 10377 of 2020

Decided on June 23, 2022

Citation: 2022 SCC OnLine Guj 772

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Whether government is liable to pay interest if there is delay in payment of gratuity?

 The respondents are directed to pay to the petitioner

the amount of gratuity of Rs.10 lakhs within a period of

10 weeks from the date of receipt of copy of this order.

Since the petitioner superannuated on 14.06.2013 and

the amount of gratuity has been wrongfully withheld by

the respondents, the petitioner shall be entitled to

interest at the rate of 9% from the date of his

superannuation till the date of actual payment. {Para 10}

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 4452 of 2019

ASHVINKUMAR RAMNIKLAL JANI Vs STATE OF GUJARAT

CORAM: MR. JUSTICE BIREN VAISHNAV

Date : 19/04/2022

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Can the court reduce the liability of the driver of the vehicle for payment of compensation in a motor accident case considering his police statement?

After going through the judgment in detail as also the

documents produced by the learned advocate for the appellant

by a separate compilation, it emerges that the copy of chargesheet filed against the driver of the offending vehicle – Truck and the fact that he is prosecuted in the Court of law, if at all, chargesheet is filed against the driver, his own statement recorded in the said criminal case would never form a part of charge-sheet as it cannot be used against him during the course of trial. Therefore, there is no merit in the contention that statement of the driver, which is read by the learned advocate for the appellant is forming part of the charge-sheet. Over and above that, even considering the same, in absence of driver being

examined before the Tribunal, the evidence led before it with

regard to sole negligence of the driver cannot be disputed by the

Insurance Company. If at all, the alleged accident took place in

the manner in which it is argued before the Court, no one has

prevented the Insurance Company to examine the driver of the

offending vehicle before the Tribunal so that claimants could

have cross-examined him to support their assertion in the claim

petition.

After examining the evidence led before it, the Tribunal has

correctly concluded in paragraph No.11 holding the driver of

offending vehicle -Truck to be solely responsible and negligent in

driving it, which caused the death of the deceased.

Neither from the statement nor from the judgment,

Mr.Mehta, learned advocate for the appellant could make out a

case for interference on the ground of attributing any

contributory negligence to the deceased and therefore, there is

no substance in this appeal as it is the sole point raised to assail

the impugned judgment and award. Therefore, the appeal is

liable to be dismissed and it is hereby dismissed.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 57 of 2022

RELIANCE GENERAL INSURANCE COMPANY LIMITED

Vs ASHABEN VIKRAMBHAI CHAUHAN

CORAM:  MR. JUSTICE UMESH A. TRIVEDI

Date : 08/03/2022

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Whether Municipal appeal is maintainable against issuance of property tax bill?

  It is now well-settled that the right to file an appeal is a creation of the statute. Section 406(1) provides of appeals against any rateable value or tax fixed or charged under this Act. Reference to rateable value in Sub-section (1) of Section 406, necessarily, pertains to tax on property. In view of the fact that under Section 127, other taxes such as taxes on vehicles, boats, animals, octroi, etc., are also levied, Sub-section (1) of Section 406 also refers to appeals against "tax fixed or charged" under the Act. Section 406(2)(b) specifically relates to appeal against a rateable value and Sub-clause (d) relates to appeal against any amendment made in the assessment book for property tax. It is not necessary to refer to Sub-clause (d) because that pertains to deposit of tax pending the entertainment of the appeal. Sub-clause (b) and (d), as we have already observed, postulate in relation to property tax appeals being filed only against rateable value. Sub-clause (c) of Section 406(2), no doubt, contemplates filing of an appeal against any tax. But, this sub-clause contemplates an appeal against such a tax in respect of which provisions exist for filing a complaint and the complaint being disposed of. Neither the Act, nor the Rules contemplate any complaint being filed against a bill a property tax and complaints, relating to property tax can only be filed against the rateable value. The Legislative intent, therefore, clearly is that it is only at the first stage, viz., the determination of the rateable value, that the appeals will be entertained and no appeal can be preferred against a bill levying tax as a consequence of the rateable value having been determined. The reason for this is obvious. The sending of a bill levying tax would amount to a mere mathematical calculation on the basis of the rateable value which is determined. If the determination of the rateable value can only be challenged by filing an appeal under Section 406(2)(b) or (d) and the same cannot be challenged once it has become final, then providing for appeal against the tax calculated on the basis of the rateable value would be meaningless.{Para 83}

84. It may happen that the rateable Value I may have been determined in gross violation of the provisions of the Act or the Rules and without following the procedure laid down in the Rules requiring giving the opportunity of filing a complaint by giving a public notice or a special notice. Where an owner has had an occasion or opportunity to file a complaint under the Rules against the proposed rateable value, but he fails to do so, no relief can be granted to him. If, on the other hand, in a rate case, such an opportunity has not at all been afforded, then merely for equitable reasons a Court should not and cannot entertain an appeal against the bill because such a provision does not exist. The appropriate remedy in such a case will be for the owner to take recourse to the constitutional remedies provided by Article 227 or Article 226 of the Constitution of India.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Under which circumstances tenant can file a municipal appeal against fixation of rateable value?

 

The last question, which requires consideration is whether the occupiers or the tenants have a right of filing a complaint and thereafter, an appeal against the proposed assessments. Under Section 127 of the BPMC Act, various types of taxes are imposed. They are property taxes, and taxes, on vehicles, boats and animals. In addition thereto, the Corporation may also impose octroi, taxes on dogs, theatre tax, toll on animals and vehicles entering the city, etc. Section 406 is a provision, which, inter alia, provides for appeals against any rateable value or tax fixed or charged under this Act. Unlike other statutes, the Section does not specifically state as to who can file an appeal. The locus standi of the appellant will, however, have to be inferred from Sub-section (2) of Section 406. Clause (b) of Section 406(2) states that no appeal shall be entertained in respect of a rateable value unless a complaint has been previously, made to the Commissioner and such complaint has been disposed of. Clause (d) provides that an appeal against an amendment made in the assessment book shall be entertained only if a complaint has been disposed of. The implication of this, clearly, is that a right of appeal is given to such a person, who has a right to file a complaint to the Commissioner against the rateable value. This right to file a complaint is exercised only when, under Rule 16, a complaint is filed. The scheme of the Act and the Rules clearly is that the person primarily liable to pay the property tax is the owner or the lessor. Against the proposed rateable value, it is he, who is the person concerned or the person aggrieved. Rateable value once determiend can be adopted Under Rule 21 for the subsequent years. A tenant may come and go, but it is the owner, who is primarily concerned with the determination of the rateable value. As we have already observed, the Act and the Rules do not contemplate more than one complaint being filed in respect of the same property and for the same year. The Rules cannot be interpreted to lead to a result, where there will be conflicting assessment orders in respect of a single official year for the same property. It is no doubt true that it has been held in a number of cases that a person aggrieved will, certainly, have a right of appeal. But, who is the person aggrieved? In the case of rateable value, it can only be the owner and no one else. Under Section 139(1), the liability to pay the tax is fastened on the owner. The liability of the tenant of built-up premises is there only if tax remains unpaid and a notice under Section 140(1) arises'. Such a tenant, to whom a notice is issued under Section 140(1) may have a right to file an appeal under Section 406(2)(c), or under Section 406(1) itself. But, his right can only be in relation to the correctness of a notice issued under Section 140(1). He cannot challenge the fixation of the rateable value because that can only be challenged by the owner. Like other taxing statutes, direct or indirect, the right to file an appeal is only on the assessee. The fixation of rateable value cannot affect the tenant unless and until a notice under Section 140(1) is received by him. That notice is in the nature of a garnishee order and the payment made by him is not paid on his own account, but is paid on account of the landlord, or owner, and that is why Sub-section (4) of Section 140 provides that for any sum so paid by the occupier, he is entitled to the credit of the amount so paid by him. {Para 80}

81. It was vehemently contended that under Rule 15(2), notice is contemplated to be given to the occupier as well and, therefore, he can also file an appeal. As we have already noticed, the notice under Rule 15(2) to an occupier will necessarily be because of provisions of Rule 12(2). There may also be another category of tenants, who would be entitled to file complaints and receive notice under Rule 15(2). Those tenants would be the ones mentioned in Section 139(2). The said provision provides that if any land has been let for any term exceeding one year to a tenant and such tenant has built upon the land, the property taxes assessed upon the said land and upon the building erected thereon shall be primarily leviable on the said tenant or on any person deriving title through him. Therefore, when in Rule 15(2), reference is made to the owner or the occupier, it contemplates not only an occupier, who becomes liable by virtue of Rule 15(2), but it will also take in its ambit a tenant of land who becomes a person primarily liable to pay tax on the building erected on tenanted land. Because such a tenant is a person primarily liable to pay tax therefore, he will have a right to file an appeal.

82. It was also urged on behalf of the appellants, that the Small Cause Courts have, in some cases, been entertaining appeals against the bills raising the tax demand, even though no complaints had been filed and/or the rateable value had become final. Such appeals were filed by the tenants and, in some cases, by the owners themselves.

83. It is now well-settled that the right to file an appeal is a creation of the statute. Section 406(1) provides of appeals against any rateable value or tax fixed or charged under this Act. Reference to rateable value in Sub-section (1) of Section 406, necessarily, pertains to tax on property. In view of the fact that under Section 127, other taxes such as taxes on vehicles, boats, animals, octroi, etc., are also levied, Sub-section (1) of Section 406 also refers to appeals against "tax fixed or charged" under the Act. Section 406(2)(b) specifically relates to appeal against a rateable value and Sub-clause (d) relates to appeal against any amendment made in the assessment book for property tax. It is not necessary to refer to Sub-clause (d) because that pertains to deposit of tax pending the entertainment of the appeal. Sub-clause (b) and (d), as we have already observed, postulate in relation to property tax appeals being filed only against rateable value. Sub-clause (c) of Section 406(2), no doubt, contemplates filing of an appeal against any tax. But, this sub-clause contemplates an appeal against such a tax in respect of which provisions exist for filing a complaint and the complaint being disposed of. Neither the Act, nor the Rules contemplate any complaint being filed against a bill a property tax and complaints, relating to property tax can only be filed against the rateable value. The Legislative intent, therefore, clearly is that it is only at the first stage, viz., the determination of the rateable value, that the appeals will be entertained and no appeal can be preferred against a bill levying tax as a consequence of the rateable value having been determined. The reason for this is obvious. The sending of a bill levying tax would amount to a mere mathematical calculation on the basis of the rateable value which is determined. If the determination of the rateable value can only be challenged by filing an appeal under Section 406(2)(b) or (d) and the same cannot be challenged once it has become final, then providing for appeal against the tax calculated on the basis of the rateable value would be meaningless.

84. It may happen that the rateable Value I may have been determined in gross violation of the provisions of the Act or the Rules and without following the procedure laid down in the Rules requiring giving the opportunity of filing a complaint by giving a public notice or a special notice. Where an owner has had an occasion or opportunity to file a complaint under the Rules against the proposed rateable value, but he fails to do so, no relief can be granted to him. If, on the other hand, in a rate case, such an opportunity has not at all been afforded, then merely for equitable reasons a Court should not and cannot entertain an appeal against the bill because such a provision does not exist. The appropriate remedy in such a case will be for the owner to take recourse to the constitutional remedies provided by Article 227 or Article 226 of the Constitution of India.

85. In the case of a tenant to whom provisions of Section 139(2) are applicable, an opportunity is required to be given for filing a complaint and in such a case, the question of his filing an appeal only against the bill would not arise. Where, in respect of premises a tenant is required to make payment pursuant to a bill issue under Sub-section (1) of Section 140, the tenant may be a person aggrieved. His grievance, however, cannot be with respect to the rateable value, which is determined after notice is issued to the owner and the tenants grievance can only be limited to the validity of such a bill being issued to him under said Section 140(1). In such a case, as liability is fastened on him, but he had opportunity to challenge the rateable value, an appeal would be maintainable under Sub-section (1) of Section 406 itself. The scope of the appellate jurisdiction in such a case will, however, be very limited. As already observed, there can be no challenge to the fixation of the rateable value and the limited challenge which can be there is with regard to the calculation of the tax on the basis of the rateable value already finalised or when the necessary ingredients of Sub-section (1) of Section 140 exist which could justify the issuance of a bill under that provision.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Will the reduction of property tax by the Appellate court affect property tax of subsequent year if the commissioner has adopted property tax of that year?

  It was further submitted that any judgment delivered by the Judge in respect of a particular official year, even though such judgment may be delivered after two years, becomes effective and operative retrospectively and would relate back to the commencement of the official years, for which the appeal is decided by the Judge. An example which was given was that if the appeal for 1981-82 was decided on 31st October, 1984, and the rateable value fixed by the Commissioner at Rs.5,000/- was reduced to Rs. 1,500/- then the judgment would have to be given effect to for the year commencing from 1-4-1981 and for all subsequent years notwithstanding that entries are made by the Commissioner, in the meantime, for the assessment years 1982-83, and 1983-84. It was contended that, by virtue of Section 413(2), the original entry of Rs. 5,000/- shall be deemed to have been made at Rs. 1,500/- on account of the effect of the judgment delivered by the Judge for the year 1981-82 and operation of law for the assessment years 1982-83 and 1983-84 the assessment must be regarded as having been reduced to Rs. 1,500/- and then, in respect of those years or future years if the rateable value is to be increased to the figure of Rs. 5,000/- a special written notice, as contemplated by R. 15(2), has to be given. {Para 76}

77. There can be no doubt that according to Rule 21, the entries of the earlier year can be adopted for the subsequent years. Furthermore every rateable value which is fixed, against which appeal is not filed or every appellate order, which becomes final, has to be given effect to. We, are however, unable to agree with the contention of the learned counsel that, in the example given above, by him, for the assessment years 1982-83 and 1983-'84 and onwards, a notice under Rule 15(2) has to be issued, because for the year 1981-'82, the appellate court had reduced the rateable value to Rs. 1,500/- after entries for 1982-'83 and 1983-'84 have been adopted. In the very example, which is given, it is contemplated that the entry for 1981-'82 was finalised after the issuance of a valid notice under Rule 15(2). As long as that entry of Rs. 5,000/- for the year 1981-'82 remains, the same could be adopted by the Commissioner in the subsequent years 1982-'83 and 1983-'84. If after such adoption for the years 1982-'83 and 1983-'84, the appellate court in respect of the assessment year 1981-'82 allows the appeal and reduces the rateable value, the decision in the said appeal can only be regarded as being given for the assessment year 1981-'82. In taxation, each year is to be regarded as distinct and separate. The Act does not postulate that the appellate decision for one year will, ipso facto, be regarded as a decision for the other years as well. As long as appeals have been filed before the Small Cause Court, or to the High Court, the assessment cannot be regarded as having become final.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Should Municipal Corporation give general particulars like the assessment method in the special notice issued for assessing property tax?

 It was vehemently contended that the special notice, which is issued must mention material particulars, like method of assessment, carpet area, letting rate, as also the reasons for fixing the gross rateable value at a particular figure so that the concerned asses-see can effectively and specifically file his objections and meet with the case of the Tax Department and produce relevant and matching evidence in support of his contentions. {Para 74}

 What are the requirements of a notice which are stipulated in Rule 15(2)? Notice under Section 15(2) is issued after entry in the assesment book has been made. Sub-rule (2) of Rule 15 requires that the special written notice to the owner or the occupier shall specify the nature of such entry. In other words, the special notice must inform the owner about the entries mentioned in Rule 9, Clauses (a), (b), (c) and (d), because the said Rule 15 has to be read with Rules 9 and 13. When a statute specifies as to what should be the contents of a notice, and that is so specified in Rule 15(2), the general principles enunciated by the aforesaid decisions and of other High Courts would not be applicable.

For the purposes of giving an opportunity to an owner or an occupier to file a complaint, all that he has to be informed is what the Commissioner has entered in the assessment book. One of the items, which is entered, is the ratable value. The Commissioner is under no obligation to inform as to how the rateable value, which is entered in the assessment book, has been arrived at. It is for the owner to complain if he finds the rateable value to be high. The principles for fixation of rateable value are well-known. Ordinarily, a rateable value will be arrived at after particulars had been given by the owners or occupiers under Rule 8 of the Rules. On the receipt of the notice, it will be for the complainant to lead evidence and prove as to what should be the correct rateable value. A hearing is contemplated by Rule 18 and if the assessee requires any clarification with regard to the entry made in the assesssment book, we see no reason as to why this clarification would not, ordinarily, be given. Be that as it may, Rule 15(2) docs not require the giving of any particulars in addition to what is stated therein. The aforesaid decisions of various Courts, therefore, can be of no assistance to the respondents. {Para 75}

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Under which circumstances can the court determine the correct rateable value of the property for assessing property tax?

  But, where the principle of waiver does not apply and a notice under Rule 15(2) is not issued and an assessment is made, then after coming to the conclusion that the assessment is a nullity, can the Small Cause Court quash the assessment simpliciter or does it have a duty or jurisdiction to take further action in the matter. {Para 68}

69. The provisions of Rule 20 clearly show that the power of the Commissioner to make changes in the entry can be exercised only during the official year itself. Once this official year is over, the Commissioner will have no jurisdiction to make any alteration. In Anant Mills Co. Ltd. v. Municipal Corporation, Ahmedabad, 1993(2) G. L. H. 897, it was held by a Division Bench of this Court, after examining the scheme of the Act, that the assessment must be completed before the close of the relevant official year and once the official year has expired, the Commissioner cannot assess and levy property tax and, therefore, the Court also cannot issue direction to the Commissioner to do something which was not permissible under the Act. The quashing of the assessment would mean that the Commissioner would not be in a position to reassess and levy property taxes and the taxes for those official years would be totally lost to the Corporation. This being the position, the appellate court cannot and should not set aside the assessment and remand the case for de novo assessment by the Commissioner. Any remand would, obviously, serve no useful purpose.

70. In view of the aforesaid position in law, it was submitted by the learned counsel for the Corporation that in such cases, the Chief Judge or the Judges of the Small Cause Court themselves should determine the rateable value in accordance with law. The counsel for the respondents, however, contended that if the assessment is a nullity, because of non-compliance with the provisions of Rule 15(2), or otherwise, then the Small Cause Court has no option but to quash the assessment, in toto.

71. The principle underlying the judgment in Anant Mill's case clearly answers the aforesaid question in favour of the Corporation. In that case, it had been contended that the Chief Judge has no jurisdiction to entertain the grounds affecting legality of the assessment. It was also submitted in that case, on behalf of the assessee, that if the Chief Judge came to the conclusion that the method of assessment was illogical or irrelevant and the assessment, therefore, invalid, then it would not be competent for the Chief Judge to determine the rateable value afresh by applying the appropriate method in a correct manner. Elaborating further, it was submitted that all that the Chief Judge would be able to do would be to declare the assessment invalid and leave it to the Commissioner to make a fresh assessment according to the correct method and this would, again, result in the Corporation losing the tax altogether. Similar is the contention raised before us, namely, that the assessment is bad as proper procedure is not followed. Rejecting the submission, the Division Bench, in Anant Mills' case, at page 922, observed as follows :--

".....This contention is also, in our opinion, without substance. It ignores the scheme of the provisions in regard to appeals contained in the Act. We have already pointed out that an appeal may be preferred against the rateable value and in this appeal the assessee would challenge the determination of the rateable value made by the Commissioner. He may challenge it on any ground available to him and such ground may well relate to the method of valuation adopted for the purpose of determining the rateable value. It is apparent from the provision in Section 409 Sub-section (1) and particularly the words "before evidence as to value has been adduced" that the appeal against rateable value is in the nature of an original proceeding where evidence as to value may be led by both parties. The Chief Judge may on the application of a party to the appeal appoint a competent person to make the valuation and such person may be called as a witness and if he is so-called, he may be cross-examined by the other side. The evidence as to value which may be adduced before the Chief Judge in the appeal may be based on any method which is regarded by the party or his witness as appropriate. It cannot be restricted to the method of valuation adopted by the Commissioner. So also when a competent person is directed to make a valuation, he may value it according to the method which he regards as proper there is no requirement in the statute that his, valuation must be based on the method adopted by the Commissioner. The entire question as to retable value would be open before the Chief Judge and as contemplated under Section 411 Clause (a), it would be for the Chief Judge to fix the ratable value and the decision of the Chief Judge fixing the ratable value would be final, subject to appeal to the High Court and the Commissioner would be bound to give effect to such decision as provided in Section 413. The whole scheme of the provisions clearly contemplates that in the appeal against the ratable value, the Chief Judge would have to fix the ratable value after considering the evidence as to value which may be adduced before him and it is implicit in this process that he would also have to decide which method of valuation should be adopted. If, therefore, the Chief Judge takes the view that the contractor's test method is inappropriate or inapplicable, he can decide which other method should be adopted and fix the rateable value by applying such method on the basis of the evidence before him."

It was contended by Shri Modi that such a course would be clearly contrary to the judgment of the Supreme Court in the case of Martin Burn Limited v. Calcutta Municipal Corproation, AIR 1966 SC 529 and that if the order of assessment is not valid, because of non-compliance with Rule 15(2), or any other Rule, then the Court would have no jurisdiction to undertake the exercise of fixing the ratable value itself. Similar contention was also raised in Anant Mills case. The Court examined the relevant provisions of the Calcutta Municipal Act, 1928, and compared the same with the provisions of the Bombay Provisional Municipal Corporation Act, and then observed as follows:--

".... This decision given on the basis of a scheme of taxation contained in the Calcutta Act can hardly be of any relevance when we are considering a question arising under a totally different scheme of taxation contained in the Corporation Act. The power of the Court of Small Cause under the Calcutta Act was to cancel the assessment or to revise or alter the valuation and the Supreme Court held that since the method on the basis of which the valuation was made by the Corporation was illegal, the Court of Small Cause could not do anything except cancel the assessment; it would not make an independent valuation itself by adopting the correct method, for that would not be revision or alteration of the valuation. But here under the Corporations Act the power of the Chief Judge in appeal against rateable value is not restricted merely to revision or alteration of the valuation. On the contrary it is a wide power conferred in general terms without any words of limitation. It says that an appeal against the rateable value shall be heard and determined by the Chief Judge. The Chief Judge is empowered to fix the rateable value after considering the evidence a to value adduced before him and the Commissioner is enjoined to give effect to the decision of the Chief Judge. The principles of the decision in Martin Burn's case can, therefore, have no application under the Corporation Act.

30. The result of this discussion is that if we quash and set aside the assessment made by the Deputy Municipal Commissioner on any of these grounds urged on behalf of the petitioners, the tax for the official years 1967-68 and 1968-69 would be lost to the Corporation whereas no such drastic consequence would ensue if these grounds are left to be decided by the Chief Judge in the appeals preferred by the petitioners. The Chief Judge can entertain these grounds and if he is of the view that the contractors method adopted by the Deputy Municipal Commissioner is not proper or relevant to the determination of the annual rental value, he can determine the annual rental value of the premises by applying the appropriate method and the tax can be levied on the petitioners on the basis of such ratable value. The latter alternative would do full justice to the peitioners without causing grave and undue hardship which would inevitably result to the Corporation if the former alternative were adopted. We, therefore, refuse to entertain these grounds in the exercise of our jurisdiction under Article 226 of the Constitution. They can be decided by the Chief Judge in the appeals preferred by the petitiones...."

We are in respectful agreement with the aforesaid observations in Anant Mill's case. Following the said ratio, it would mean that even if the assessment is held to be not in accordance with law, whether because of the wrong method followed with regard to determining the rateable value or because of any irregularity or illegality in procedure or because of violaton of the principles of natural justice or because notice under Rule 15(2) had not been issued, then the Small Cause Court would itself have the jurisdiction to examine evidence and determine the correct rateable value. It would be wholly inappropriate for the Small Cause Court to merely quash the assessment, which would have the effect that for the official years in question, the entire tax would be lost to the Corporation. In effect, the ratio decidendi of the decision in Anant Mills' case is that the Small Cause Court exercises the same power and will have the same jurisdiction, which is exercised by the Commissioner for the purposes of determining what should be the correct rateable value.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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