Vithal Narayan Manzrekar vs Cuncolim Municipal Council

F.M. Reis, J.—Heard A.F. Diniz, learned Counsel appearing for the Appellant and Shri Padiyar, learned Counsel appearing for the Respondent. The above Appeal came to be admitted by Order dated 05.10.2011 on the following substantial questions of law:

"(i) Whether when the Order dated 03.04.2001 was not supported by any resolution of the respondent Council, could such a revocation be upheld by the Appellate Court?

(ii) Whether the Appellate Court could have addressed itself to the entitlement of the appellant for a house tax licence, when the issue was as regards the entitlement of the respondent to revoke a house tax licence?"

Shri A.F. Diniz, learned Counsel appearing for the Appellant, has pointed out that the learned Trial Judge had in fact decreed the suit filed by the Appellant, inter alia, granting a declaration to the effect that the Resolution revoking the house tax number by Order dated 03.04.2001 was not tenable and directed the Respondent to allot a fresh house number. Learned Counsel has pointed out that in the impugned Order dated 03.04.2001, there is a reference to the effect that there was a Resolution passed by the Council to revoke such house tax number. Learned Counsel further pointed out that no such Resolution was produced and, as such, the said Order stands vitiated. Learned Counsel has thereafter taken me through the judgment of the Lower Appellate Court and pointed out that the learned Judge has essentially considered a reference to a Resolution dated 17.04.2000 to come to the conclusion that the Resolution was in fact known to the Appellant. Learned Counsel has further pointed out that the show-cause notice was dated 10.05.2000 and the reply was sent on 31.05.2000 and, as such, the reference to the Resolution in the impugned Order cannot be referable to the said Resolution dated 17.04.2000. Learned Counsel further pointed out that the Lower Appellate Court has misconstrued the material on record to reject the contention of the Appellant that the Respondents have failed to establish that there was any such Resolution to the effect that the house tax number is to be revoked. Learned Counsel further pointed out that the records also reveal that though reply was filed by the Appellant on 31.05.2000, nevertheless, the allegations made in the reply have not at all been considered by the Respondent whilst passing the impugned Order dated 03-04-2000. Learned Counsel as such pointed out that there is a breach of the principles of natural justice in not considering the said reply whilst passing the impugned Order. Learned Counsel further pointed out that as the Resolution has not been produced and the defence of the Appellant was not considered whilst passing the impugned Order would by itself vitiates the said Order of revocation which requires to be quashed and set aside. Learned Counsel further submitted that he would not press for the second substantial question of law framed by this Court.

On the other hand, Shri S.D. Padiyar, learned Counsel appearing for the Respondent, has disputed the said contention. Learned Counsel further pointed out that the grievance of the Appellant that no such Resolution was passed, is totally misplaced as, according to him, there was no need for any such Resolution for revocation of the house tax. Learned Counsel further pointed out that in any event, the Appellant themselves had accepted the existence of the Resolution dated 17.04.2000 and, as such, the grievance of the Appellant, cannot be sustained. Learned Counsel further pointed out that the Lower Appellate Court has rightly appreciated the evidence on record and has come to the conclusion that the disputed structure is unauthorised and illegal. Learned Counsel further pointed out that the alleged regularisation relied upon by the Appellant is not in accordance with law and, as such, the Lower Appellate Court was justified to come to the conclusion that no house number could be allotted to such illegal structure. The learned Counsel as such pointed out that the Appeal deserves to be rejected.

I have considered the submissions of the learned Counsel. I have also gone through the record. The main contention of the Appellant is that there was no Resolution which preceded the impugned Order dated 03.04.2000. On perusal of the said Order, no doubt, there is a reference to the effect that such Resolution was passed by the Municipal Council but, however, no such Resolution was produced though there was a specific grievance raised by the Appellant to that effect. Be that as it may, Shri A.F. Diniz, learned Counsel, in any event, was unable to point out any specific provisions in law which requires that such Resolution should precede the revocation of the house tax number. In such circumstances, merely because no such Resolution was produced by itself, would not mean that the impugned order of revocation passed by the Municipal Council on 03.04.2001 stands vitiated. But, however, on perusal of the records, Shri A.F. Diniz, learned Counsel, has vehemently raised a contention that the principles of natural justice were breached by the Respondents whilst passing the impugned Order dated 03.04.2001.

Shri S.D. Padiyar, learned Counsel appearing for the Respondent, was not in a position to produce the specific reasons disclosing the application of mind of the concerned Officer whilst passing the impugned Order dated 03.04.2001. Apart from that, I find that considering that the Appellant was not given a proper hearing, it resulted in non-consideration of the objections raised by them to the show-cause notice. Hence, in the interest of justice, it would be appropriate that the impugned Order passed by the Council on 03.04.2001, be declared to be illegal. It is also to be noted that on perusal of the impugned Order dated 03.04.2001, the apparent reasons for such revocation appear to be in a Resolution which has not been produced. In such circumstances, I find that the said Order of revocation is in breach of the principles of natural justice which calls for interference of this Court. No doubt, the Respondents are always at liberty to pass a fresh Order with regard to the said show-cause notice dated 10.05.2000 after considering the reply filed by the Appellant and give him a hearing in accordance with law. The first substantial question of law stands answered accordingly.

In view of the fact that Shri A.F. Diniz, learned Counsel appearing for the Appellant, does not press for the second substantial question of law, the same has not been considered whilst disposing off the above Second Appeal. Subject to the above, I pass the following:

ORDER

"(i) The Appeal is partly allowed.

(ii) The impugned judgment passed by the Courts below are quashed and set aside.

(iii)The Order passed by the Chief Officer dated 03.04.2001, is quashed and set aside.

(iv) The Respondents are at liberty to proceed with the adjudication of the show-cause notice issued to the Appellant with regard to the house tax number in the light of the observations made hereinabove in accordance with law.

(v) Decree to be drawn accordingly.

(vi) Appeal stands disposed of."