(Per : HONOURABLE MR.JUSTICE V. M. SAHAI)
1. Admit.
Since the facts are not disputed, with the consent of the learned counsel for the parties, this Appeal is taken up for final hearing today itself.
2. We have heard Mr.N.J.Shah, learned Assistant Government Pleader appearing for the appellants and Mr.Bharat Jani, learned counsel appearing for respondent. This Letters Patent Appeal has been filed challenging the judgment of the learned Single Judge dated 23.11.2009 passed in Special Civil Application NO.5695 of 2003, by which the learned Judge has allowed the writ petition by giving reasons in para-5 of the judgment. Para-5 of the judgment is extracted below.
"5. This court has heard learned advocates appearing for the parties and perused the papers on record. From the averments made in the petition and the order of this court dated 01.07.2003, it is quite clear that the petitioner has paid for overload and he is challenging only the assessment made by the respondent authorities qua Rs. 327530/- retrospectively inasmuch as while registering the vehicle trailor was also registered for which he has produced two documents being Form 23 and registration no. NL-02/D1650 & NL-02/D1649. The respondents have not justified retrospective recovery of the tax. No reply is filed either stating out the justification for the said recovery. In that view of the matter, the contention raised by the petitioner is required to be accepted. There is no justification to sit in appeal over the decision of the earlier registration authority. Therefore this court is of the view that the retrospective recovery of the tax is bad in law."
3. The learned Single Judge has allowed the writ petition on the ground that affidavit-in-reply was not filed by the appellants and further there was no justification to sit in appeal over the decision of the earlier Registration Authority. Which decision of the Authority was there has not been mentioned by the learned Single Judge nor any such decision of the earlier Registration Authority has been shown from the record of the writ petition by the learned counsel for the respondent. In absence of such decision having been placed on record, in our opinion, the learned Single Judge was not justified in allowing the writ petition on the ground that earlier Registration Authority's decision would prevail.
4. For the aforesaid reasons, since the learned Single Judge has not appreciated the facts in true perspectives, therefore, the order of the learned Single Judge cannot be maintained and is liable to be set aside.
5. In the result, this Appeal succeeds and is allowed. The order dated 23.11.2009 passed by the learned Single Judge in Special Civil Application NO.5694 of 2003 is set aside. The matter is remanded back to the learned Single Judge. The appellants shall file affidavit-in-reply before the learned Single Judge within one month from today. Learned counsel for the respondent may also file additional documents by way of supplementary affidavit in the writ petition which he may desire to file, thereafter one month's time is granted to the learned Assistant Government Pleader for filing affidavit-in-rejoinder to the writ petition and additional affidavit-in-reply by the petitioner to the writ petition. Affidavit-in-rejoinder shall be filed thereafter within three weeks. List this matter before the learned Single judge after expiry of the aforesaid period.
(V.M.SAHAI,J) (A.J.DESAI,J) ***vcdarji Top