Dismissed

Orchid Hotels Pune Private Limited v. State of Maharashtra, through Director Sports and Youth Services and Ors.

Bombay HC15 Feb 2013WP/508/2013

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging an assessment and penalty imposed by Pune Municipal Corporation for unauthorized construction and occupation without an occupancy certificate. It held that alternative statutory remedies were available and no procedural violation occurred.

What did the court decide?

The writ petition was dismissed. The petitioner was directed to pursue other statutory remedies regarding the quantum of the assessment.

Orchid Hotels Pune Private Limited Vs State… — Pension and Retirement Benefits | Bombay HC (2013)

508.13.doc

SQP

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.508 OF 2013

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Orchid Hotels Pune Pvt.Ltd. ...Petitioner Versus State of Maharashtra, through Director Sports and Youth Services & Anr. ...Respondents

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WITH CIVIL APPLICATION NO.468 OF 2013 IN

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WRIT PETITION NO.508 OF 2013

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Orchid Hotels Pune Pvt.Ltd. ...Applicants/Ori.Petitioner

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In the matter between :

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Orchid Hotels Pune Pvt.Ltd. ...Petitioner Versus State of Maharashtra, through Director Sports and Youth Services & Anr. ...Respondents

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Ms.Mamta Saad i/b Mr.A.M.Rajabally for Petitioner/Applicants

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Mr.C.R.Sonawane, A.G.P. for Respondent No.1

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Mr.Abhijit P.Kulkarni for Respondent No.2

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CORAM:- A.M.KHANWILKAR AND K.K.TATED, JJ. DATED:- FEBRUARY 15, 2013

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508.13.doc

P.C.

Heard Counsel for the parties.

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The challenge in this petition is to the rateable value of property bearing Survey No.26/1B and 26/1C of Village Balewadi, primarily used as hotel and exhibition hall. We are in agreement with the submission of the learned Counsel for the Corporation that keeping in mind the decision of Division Bench of this Court in Mahratta Chamber of Commerce Industries and Agriculture & Ors. v. State of Maharashtra & Ors.¹ , which has been followed by another Division Bench in the case of Small

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Scale Entrepreneurs Association & Ors. Vs. State of Maharashtra &

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Ors.² , this Court should be loath in entertaining challenge to such assessment and demand directly under Article 226 of the Constitution of India as alternative efficacious remedy is available to the assessee. Counsel for the petitioner, however, submits that the grievance of the petitioner is not regarding the quantum but the non-compliance of principles of natural justice. In that, no hearing was given to the petitioner. No doubt, this is the assertion made in the writ petition as well. However, in response, the

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1 2004 (1) BCR 137

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2 2007 (3) BCR 496

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SQ Pathan

508.13.doc

Assessor and Collector of Tax, Pune Municipal Corporation, Pune, who has passed the impugned order, has stated on affidavit about the procedure as was followed, in which, the representative of the petitioner appeared on different dates before him and the order was finally passed after giving full opportunity to the representative of the petitioner. The copy of the order is also appended to the said affidavit which reinforces this position. The order proceeds on the basis that the petitioner has unauthorisedly constructed portion of building which is now being used as exhibition hall without prior permission nor intimated to the Corporation about the completion of such construction, so much so, that the petitioner started using the said premises from year 2008, without even issuance of Occupation Certificate in that behalf. Further, inspite of giving sufficient opportunity, the petitioner had failed to produce any documentary evidence to substantiate its claim to avoid liability of penalty.

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In this view of the matter, there is no substance in the grievance of

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the petitioner that the Authority proceeded to pass the order without giving opportunity of hearing to the petitioner, as is alleged.

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SQ Pathan

508.13.doc

To get over this position, Counsel for the petitioner is relying on the rejoinder affidavit which has been filed to counter the assertion made by the Assessing Officer. It is not possible for this Court to enter into disputed question of fact as to whether in fact, the representative of the petitioner was prevented from presenting his case before the Assessing Officer. More so, when there is no circumstance, much less, strong circumstance, to doubt the correctness of the factual position stated on affidavit by the said Officer and which is supported by the contemporaneous record and the noting made in the order dated 3^rd May, 2012.

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Counsel for the petitioner would then rely on the written communication submitted before the Assessor and Collector on 3^rd May, 2012 Exhibit `H’ at page 128 to contend that the petitioner’s representative wanted further time for producing certain documents and that was obviously denied by the Assessor and Collector. On perusal of the said communication, it appears that the documents on which the petitioner intended to rely would, at best, indicate the special facilities including construction and provisions for other amenities befitting the purpose for which the project was undertaken as per the request of State of

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508.13.doc

Maharashtra. That, in no way, would answer the issue raised by the Corporation that the said portion of the structure in respect of which penalty has been imposed by the Assessor, was constructed without taking prior permission of the Corporation and in any case, without giving intimation to the Corporation about the completion of the said construction and more so, occupying the said structure in absence of Occupancy Certificate given by the Corporation in that behalf. The communication which has been now placed on record along with the petition is a ruse and background created for pursuing the argument of violation of principles of natural justice. The petitioner having indulged in unauthorized construction and more so of occupation of such structure admeasuring about 54480 sq.ft. and when the total liability as per the figures given in the affidavit is to the extent of around 7.5 crores, cannot be allowed to question the process adopted by the Assessor which is otherwise fair and after giving sufficient opportunity to the petitioner to produce all the records which would be useful to answer the issue regarding assessment and levy of penalty. The documents which the petitioner wanted to rely to be obtained from the Department of State

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Government would be of no avail in that behalf.

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SQ Pathan

508.13.doc

In our opinion, no indulgence need to be shown to the petitioner who has committed breach of the mandate of provisions of Corporation Act in constructing the structure without prior permission and has also started using the same since year 2008 without obtaining Occupancy Certificate in that behalf and without intimating the Corporation about the said user.

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In our opinion, therefore, no interference in exercise of writ jurisdiction is required. The Petition is dismissed.

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The petitioner may pursue other statutory remedy as may be permissible, with regard to the question of quantum, which can be decided on its own merits in accordance with law.

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(K.K.TATED, J.)

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(A.M.KHANWILKAR, J.)

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SQ Pathan

Orchid Hotels Pune Private Limited v. State of Maharashtra, through Director Sports and Youth Services and Ors.

Case brief

What is this about?

What did the court decide?

Orchid Hotels Pune Private Limited v. State of Maharashtra, through Director Sports and Youth Services and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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