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The Preceipe for Justice

 
1. I am excited to share an Ordinary, yet an extra-Ordinary ruling of Bombay High Court, which in my view, would may become a Template, in the dispensation of Justice.

2. The Petitioners were in Writ Jurisdiction. The issue before the Court was inherently complex the property tax Assessment. There were cluster of facts, allegations and counter allegations. The easiest approach of the Court would have been to relegate the Petitioners to Statutory Appeal provided under the MMC Act, 1888.

3. The Hon’ble Court didn’t. It took upon the pains to decide the issue, despite the fact that Appeal was already preferred and pending before the Hon’ble Small Causes Courts.

4. Observations of the Hon’ble Court: The assessing authority held that land under construction cannot be treated as vacant land. Though the issue whether the land under construction can be treated as vacant land is subject matter of appeal pending before the Small Causes Court and ordinarily I would not have gone into the question but since the said question is pure question of law and goes to the root of the matter and further it has been examined by the concerned authority in the impugned order, I think it would be in the interest of justice if the said question is considered and decided in the present writ petition instead of leaving it to be decided by Small Causes Court in appeal and then further appeal before this Court. The sole question, therefore, before me is whether the Asstt. Assessor & Collector, "D" Ward was justified in holding that the land under construction cannot be treated as vacant plot of land within the meaning of sec. 154 of the B.M.C. Act. The Judgment was delivered by Justice R.M. Lodha. Reported in 1998 (1) BCR 397 : 1997 (3) BLR 327.

5. Author’s view: Whether a “Plea / Issue” raises a pure question of law, or raises a pure question of fact, or if raises a mixed question of fact and law, the same may be ascertained by employing the following test -

6. If the Plea / issue can be decided by employing the mandate of law, the Plea / Issue raises a pure question of law. In such pleas, the basic material facts must not be in dispute.

7. If the Plea / issue have to be decided by leading evidence, the Plea / Issue raises a pure question of fact. The third category of mixed question of fact and law is covered under this category. This is because, the pleas of disputed facts would be decided by employing the mandate of law. Thus, every plea of question of fact, also raises mixed question of fact and law.

8. The Petitioners must crystallize central issue to be confined in the Mentioning Preceipe, to persuade the Ld. Judge - The Petition raises a pure question of law. Please decide.

Sandeep Jalan
Advocate
https://www.litigationplatform.com/

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