Dismissed

Parvati Co-Operative Industrial Estate Ltd, Yadrav, through Chief Executive Officer v. the State of Maharashtra, through Secretary, Rural Development Dept and Ors.

Bombay HC24 Feb 2014WP/6477/2013

Case brief

AI extract

What is this about?

The High Court rejected a writ petition filed by a Cooperative Industrial Estate Society challenging an order disallowing an agreement for lump sum contribution of taxes. The Court held that the Society was not a 'factory' and was not the owner or occupier of the premises, rendering it incompetent to enter the agreement or make the application under Section 125 of the Bombay Village Panchayats Act

What did the court decide?

Subject to liberty to apply for refund of deposited amount, the Writ Petition is rejected as the Petitioner was not competent to enter the agreement or make the application under Section 125.

Parvati Co-Operative Industrial Estate Ltd, Yadrav… — Landlord and Tenant | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.6477 OF 2013

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Parvati Cooperative Industrial Estate Ltd. .. Petitioner Vs The State of Maharashtra & Others. .. Respondents

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Shri Tejpal S. Ingale for the Petitioner. Ms. P.S. Cardozo, AGP for Respondent Nos.1 and 2. Shri Ramesh D. Rane for Respondent No.3. Shri Satyajeet M. Mirajkar for Respondent No.4.

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CORAM : A.S. OKA & M.S. SONAK, JJ DATE : 24TH FEBRUARY 2014

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ORAL JUDGMENT : ( PER A.S. OKA, J )

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Heard learned counsel appearing for the Petitioner. The

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Petitioner is a Cooperative Society formed by the owners of various industrial plots. The Petitioner Society has 325 members who have admittedly erected independent factories on their respective plots. On 22^nd September 2009, an agreement purporting to be an agreement under Section 125 of the Bombay Village Panchayats Act, 1958 ( for short “the said Act”) was entered into between the PetitionerSociety and the Village Panchayat which is the fourth Respondent in this Petition. The said agreement was executed on the basis of a Resolution passed by the Managing Committee of the Petitioner on 31^st May 2009. The agreement entered into was purportedly for payment of a lump sum contribution by various members of the Petitioner Society who

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have erected factories in lieu of property taxes levied by the Village Panchayat fourth Respondent for the years 200405, 200506 and 200607.

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On 10^th July 2007, the Divisional Commissioner, Pune Division, Pune, acted on the basis of the report submitted by the Zilla Parishad. The Divisional Commissioner on the basis of order passed in Public Interest Litigation No.16 of 2007 submitted a report to the Registrar of this Court on 10^th July 2007. In Clause (I) and (J) of the said report, the Divisional Commissioner observed that the concession under Section 125 of the said Act was available only to the factories within the meaning of the Factories Act, 1948 ( for short “the Factories Act”) and the Petitioner is not a factory. In short, the Divisional Commissioner was of the opinion that the agreement purportedly executed under Section 125 of the said Act was not legal and valid.

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On 11^th November 2011, according to the case of the Petitioner, the Chief Executive Officer of the Zilla Parishad agreed that the Petitioner is entitled to benefit of lump sum contribution. On 20^th September 2012, the Divisional Commissioner passed an order/communication addressed to the Chief Executive Officer of the Zilla Parishad, Kolhapur recording that the Petitioner does not fall under the definition “Factory” under the Factories Act, and therefore,

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the proposal for grant of approval to the Agreement cannot be considered. He observed that the Village Panchayat should make recovery of 100% of the taxes payable in relation to the industries in question. The case of the Petitioner is that the said order was passed without giving an opportunity of being heard to the Petitioner. The fourth Respondent by letter dated 22^nd October 2012 demanded 100% taxes payable. Therefore, the Petitioner Society filed an Appeal/Revision by invoking the provisions of Subsection (6) of Section 124 and Section 155 of the said Act. The Petitioner challenged the order dated 20^th September 2012 issued by the Divisional Commissioner, Pune Division, Pune. By letter dated 26^th June 2013, the first Respondent State Government declined to entertain the Appeal/Revision filed by the Petitioner with an observation that the remedy of the Petitioner is to challenge the order of the Divisional Commissioner dated 20^th September 2012 before this Court. Accordingly, the present Petition has been filed by the Petitioner wherein the challenge is to the order dated 20^th September 2012 passed by the Divisional Commissioner. The second prayer in the petition is for a declaration that the Petitioner Society is entitled to benefit of lump sum contribution only to the extent of 51% in lieu of the total taxes payable by the factories run in its area in accordance with Section 125 of the said Act.

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The submission of the learned counsel appearing for the Petitioner is that the Petitioner is an industrial society as is clear from the name of the Petitioner. His submission is that the Petitioner Society represents 325 members who have set up their separate factories. He has invited our attention to the agreement dated 22^nd September 2009 and urged that the said agreement was entered into by the Petitioner on behalf of all its members. He pointed out that a Resolution was passed by the Managing Committee of the Petitioner authorizing the ViceChairman of the Petitioner Society to negotiate with the Village Panchayat and to enter into an agreement. He submitted that as the Petitionersociety is representing its 325 members, there was nothing illegal about the agreement entered into under Section 125 of the said Act. He urged that apart from the fact that the Divisional Commissioner while passing an order dated 20^th September 2012 has not given any hearing to the Petitioner, the Divisional Commissioner has proceeded on the wrong premise that the Petitioner is not a Factory. He urged that the members of the Petitioner are having factories within the meaning of the Factories Act and the Petitioner was representing them. Lastly, he submitted that the State has erroneously rejected the application under Subsection (6) of Section 124 of the said Act as Subsection (6) of Section 124 of the said Act squarely applicable. He submitted that in any event, no reasons have been assigned for rejecting the said application. He submits that

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the benefit of lump sum contribution towards taxes cannot be deprived to the members of the Petitioner on the grounds which are wholly untenable.

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We have heard the learned AGP for Respondent Nos.1 and 2, the learned counsel appearing for the Zilla Parishad – the third Respondent and the learned counsel appearing for the fourth Respondent Village Panchayat.

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It is necessary to advert to the admitted position. It is not in dispute that the Petitioner is not claiming to be the owner or occupier of the separate factory premises constructed by 325 members. It is also an admitted position that the Petitioner Society is not liable to pay the property taxes in relation to the factory premises constructed by its 325 members. Under Subsection (2) of Section 124 of the said Act, the taxes on buildings or lands referred to in Clause (i) of Subsection (1) of Section 124 of the said Act shall be leviable from the owners or occupiers thereof. The proviso to Subsection (2) thereof provides that when an owner of a building or land has left the village or cannot be otherwise found, any person to whom such building or land has been transferred shall be liable for the tax leviable from the owner. Thus, it is the owner or the occupier of a land or building who is primarily liable to pay the taxes. In the present case, admittedly the members of the

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Petitioner Society are the owners of their respective factories and hence, are primarily liable to pay taxes to the Village Panchayat.

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Reliance is placed on Section 125 of the said Act which

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reads thus:

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“125. Lump sum contribution by factories in lieu of taxes levied by Panchayat :

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(1) Subject to any rules that may be made under the Act, and regard being had to the fact that a factory itself provides in the factory area all or any of the amenities which such Panchayat provides, a Panchayat may arrive at an agreement with any factory with the sanction of the State Government to receive a lump sum contribution in lieu of all or any of the taxes levied by Panchayat.

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(2) Where no such agreement as is referred to in subsection (1) can be reached the matter may be referred to the State Government in the manner prescribed and the State Government may after giving to the Panchayat and the factory concerned an opportunity of being heard decide the amount of such contribution. The decision of the State Government shall be binding on the Panchayat and the factory concerned.”

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On plain reading of Section 125 of the said Act, the agreement contemplated by the Section is the one between a Village Panchayat and a factory with the sanction of the State Government. Subsection (1) of Section 125 of the said Act contemplates an agreement in relation to a particular factory governing a factory area.

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The Subsection (8) of Section 3 of the said Act defines the

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word “Factory” as a Factory under the Factories Act. The definition of “Factory” is in clause (m) of Section 2 of the Factories Act which reads thus:

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“2(m) "factory" means any premises including the precincts thereof

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(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or

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(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, but does not include a mine subject to the operation of 3[ the Mines Act, 1952 (35 of 1952 ),] or 4[ a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place]. 5[Explanation. 6[I] For computing the number of workers for the purposes of this clause all the workers in 6[ different groups and relays] in a day shall be taken into account;] 6[ Explanation. II. For the purposes of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof, shall not be construed to make it a factory f no manufacturing process is being carried on in such premises or part thereof;]”

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Clause (n) of Section 2 of the Factories Act defines

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“occupier” of a factory as the person who has ultimate control over the affairs of the factory.

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It is not in dispute that the Petitioner is not a factory within the meaning of the Factories Act. Subsection (1) of Section 125 of the said Act, as stated earlier, contemplates an agreement by the Village Panchayat with a factory. At this stage, it will be necessary to make a reference to the relevant provisions of the Rules framed under the said Act. Rule 18 of Maharashtra Village Panchayats Taxes and Fees Rules, 1960 reiterates the principles laid down by the Section 125(1) of the said Act that the taxes shall be leviable primarily from the actual occupier of the building or land upon which it is assessed, if such occupier is the owner of such building or land. Separate set of Rules have been framed which governed the agreement under Section 125(1) of the said Act. The said Rules are Maharashtra Village Panchayats (Payment of Lump Sum Contribution by Factories In Lieu of Taxes ) Rules 1961 (for short “the said Rules of 1961”). The Rule 3 thereof provides that it is for an occupier of a factory desiring to arrive at an agreement to make an application not later than 60 days from the commencement of the particular financial year. Clause (c) of Rule 2 of the said Rules of 1961 defines “occupier” of a factory as the person who has ultimate control over the affairs of the factory.

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Apart from the fact that the individual owner or the occupier of each factory is primarily liable to pay property taxes, only

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the occupier of the factory can make an application for execution of the agreement in accordance with Subsection (1) of Section 125 of the said Act. Rule 3 of the said Rules of 1961 provides that only an occupier of a factory can apply for execution of an agreement under Subsection (1) of Section 125 of the said Act. The obvious reason is that only a person who is primarily liable to pay taxes can enter into such an agreement inasmuch as the execution of the agreement attaches several liabilities and several consequences. Subsection (1) of Section 125 of the said Act provides that the sanction of the State Government is required for such Agreement.

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The admitted position which emerges is that the Petitioner purported to enter into an agreement under Subsection (1) of Section 125 of the said Act in relation to 325 factories of which the Petitioner is neither an owner nor an occupier. Apart from the fact that the Petitioner is not a factory within the meaning of the Factories Act, the application made by the Petitioner for execution of the agreement under Sub section (1) of Section 125 of the said Act was itself not competent. The Divisional Commissioner in the impugned order has rightly stated that the Petitioner is not a factory within the meaning of the Factories Act. It is not possible to find fault with the reasons assigned by the Divisional Commissioner. In the affidavit filed by Shri Bharat Balbhim Shendage, the Deputy Commissioner (Establishment), Pune Division,

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Pune, it is pointed out that the Petitioner has been registered as a Co operative Industrial Society and, therefore, the Petitioner has no right to make an application under Subsection (1) of Section 125 of the said Act.

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Now turning to Subsection (6) of Section 124 of the said Act, what was challenged before the State Government was the order dated 20^th September 2012 passed by the Divisional Commissioner. Looking to the scheme of Subsection (6) of Section 124 of the said Act, we have serious doubt whether the application was competent. In any event, we find that the view taken by the Divisional Commissioner is not at all erroneous. The Petitioner was not competent to enter into an Agreement contemplated under Subsection (1) of Section 125 of the said Act.

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The learned counsel appearing for the Petitioner today pointed out that individual members of the Petitioner who are occupiers of the factories have made an application to the Village Panchayat for grant of benefits under Subsection (1) of Section 125 of the said Act. Though we are rejecting this Petition, the rejection of the petition will not come in the way of an individual owner or occupier of the factory prosecuting the application before the Village Panchayat and it is for the Village Panchayat to consider the said application in accordance with law.

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Subject to what is observed above, there is no merit in the Petition. The Petition is accordingly rejected.

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At this stage, the learned counsel appearing for the Petitioner submits that on the basis of the agreement and on the basis of the interim order, the Petitioner has deposited a sum of Rs.79,53,417/ with the RespondentVillage Panchayat.

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We grant liberty to the petitioner to apply to the Village Panchayat for grant of refund of the said amount. If such application is made, the Village Panchayat shall decide it in accordance with law as expeditiously as possible and in any case within a period of two months from today.

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(M.S. SONAK, J)

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( A.S. OKA, J )

Parvati Co-Operative Industrial Estate Ltd, Yadrav, through Chief Executive Officer v. the State of Maharashtra, through Secretary, Rural Development Dept and Ors.

Case brief

What is this about?

What did the court decide?

Parvati Co-Operative Industrial Estate Ltd, Yadrav, through Chief Executive Officer v. the State of Maharashtra, through Secretary, Rural Development Dept and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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