YADAVINDRA PUBLIC SCHOOL ASSOCIATION PATIALA vs. STATE OF PUNJAB AND ORS.

CWP Nos.13734 & 13787 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Date of decision : 17.02.2011 Yadavindra Public School Association Patiala ...Petitioner versus The State of Punjab and others ...Respondents

CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.Arun Palli, Senior Advocate with Mr.K.S.Kang, Advocate for the petitioner-school. Mr.Sartaj Singh Gill, D.A.G., Punjab for respondent Nos.1 & 3. Mr.Kanwaljit Singh, Senior Advocate with Mr.Rupinder S.Khosla, Advocate for respondent No. 2 M ehinder

S ingh

S ullar

, J. (Oral) As identical questions of law and facts are involved, therefore, I propose to decide the indicated writ petitions, vide this common order to avoid the repetition. However, the factual matrix, which needs a necessary mention for the limited purpose of deciding the sole controversy, involved in these writ petitions, has been extracted from (1) CWP No.13734 of 2009 titled as “Yadavindra Public School Association Patiala vs. State of Punjab and others.” 2. The epitome of the facts, culminating in the commencement, relevant for disposal of the instant writ petitions and emanating from the record, is that Municipal Corporation, Patiala (respondent No.2) (for short "respondent- Corporation") levied the house tax on the properties of Yadavindra Public School Association Patiala (for brevity "petitioner-school”), in view of the provisions of The Punjab Municipal Corporation Act, 1976 (hereinafter referred to be as "the M.C.Act"). The house tax for the assessment years 1995-1996 and 1996-97 was paid by the petitioner-school, vide receipt dated 15.10.1996 (Annexure P4). 3. Sequelly, as the respondent-Corporation proposed to change the rate of tax, therefore, it issued impugned show cause notice dated 11.01.2008 (Annexure P8)

CWP Nos.13734 & 13787 of 2009 2 under Section 103 (D) to the petitioner-school, intimating the method of calculation of annual valuation under Section 93 (C) of the M.C.Act mentioned therein for the purpose of assessment of house tax for the assessment year 2007- 08. The petitioner-school filed the objection-petition to the proposed method of the calculation of the tax. In the wake of notice (Annexure P8), the House Tax Sub Committee of the respondent-Corporation, revised the rate of the tax, by means of impugned order dated 29.1.2009 (Annexure P10) in this context. 4. Aggrieved by the order (Annexure P10), the petitioner-school preferred the appeal (Annexure P11) along with the stay application, under Sections 146 & 147 of the M.C.Act before the Divisional Commissioner, Patiala (Appellate Authority) (respondent No.3). The respondent-Corporation was stated to have raised the demand of exorbitant amount of house tax for the year 2008-09, vide bill (Annexure P12) and for the year 2009-10, by way of bill (Annexure P14). 5. Petitioner-school claimed that the respondent-Corporation has illegally issued another notice dated 07.08.2009 (Annexure P17) under Section 138 of the M.C.Act, forcing it either to pay the amount of the tax, failing which, the auction proceedings of the property were proposed to be commenced. In pursuance of the the representation dated 11.8.2009 (Annexure P18) of petitioner-school, the auction proceedings were kept in abeyance till 08.09.2009 by the respondent- Corporation, the date for which, the appeals were listed for hearing in the Court of Divisional Commissioner, Patiala (respondent No.3), by means of letter dated 11.08.2009 (Annexure P19). 6. The petitioner-school still did not feel satisfied and preferred the instant writ petitions, challenging the impugned notice (Annexure P8) and impugned order/bills/notices (Annexures P10, P12, P14, P15 & P17) and all other subsequent recovery/auction proceedings, arising therefrom, invoking the provisions of Articles 226 and 227 of the Constitution of India or in the alternative for issuance of any writ in the nature of mandamus directing the Appellate Authority to decide

CWP Nos.13734 & 13787 of 2009 3 the appeal as expeditiously as possible by exempting the petitioners from depositing the alleged house tax amount. 7. Levelling a variety of allegations and narrating the sequence of events, in all, the case set up by the petitioner-school, in brief in so far as relevant, was that the action of the respondent-Corporation from the stage of issuance of impugned notice (Annexure P8), upto the passing of the impugned order (Annexure P10) and all other subsequent proceedings, are illegal, arbitrary, without jurisdiction and against the statutory provisions of law. On the basis of aforesaid allegations, the petitioner-school sought the quashment of impugned order/bills/notices, in the manner depicted herein above. 8. The respondents contested the claim of the petitioners-school and filed the written statement, inter alia, pleading certain preliminary objections of maintainability of the writ petitions, cause of action and locus standi of the petitioner-school. On merits, the contesting respondents claimed that the House Tax Sub Committee has rightly assessed the house tax of the property of the petitioners-school, in view of the method/formula contained under Section 93 of the MC Act and no interference is warranted in this regard. The contesting respondents claimed that since the statutory appeal of the petitioners-school has already been admitted and pending under Sections 146 & 147 of the MC Act before the appellate authority, therefore, the instant writ petitions are not maintainable in this regard. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petitions and prayed for their dismissal. 9. Controverting the allegations of the written statement and reiterating the pleadings contained in the writ petitions, the petitioner-school filed the replication. 10. Having heard the learned counsel for the parties at some quite length, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant writ petitions deserve to be

CWP Nos.13734 & 13787 of 2009 4 partly accepted in this context. 11. As is evident from the record, that in the wake of impugned show cause notice (Annexure P8), the House Tax Sub Committee of respondent-Corporation revised the house tax, by means of impugned order (Annexure P10). The petitioners-school has already filed the statutory appeal under Sections 146 & 147 of the MC Act, before the Divisional Commissioner, Patiala (Appellate Authority). 12. Ex facie, the argument of learned counsel for the respondent-Corporation that in view of admission/pendency of statutory appeal filed by the petitioner- school before the appellate authority, the present writ petitions are not maintainable, has considerable force. At the same time, the grievance of the petitioner-school that the Appellate Authority will not decide the appeal, unless it deposits the entire amount of house tax, has merit and deserves to be redeemed. 13. What is not disputed here is that in pursuance of impugned notice (Annexure P8), the House Tax Sub Committee has assessed the house tax of the property in question for the assessment year of 2007-2008 of the petitioner-school, by way of impugned order (Annexure P10). 14. Sequelly, the appeal against the impugned order is maintainable before the Appellate Authority under Section 146 of the MC Act. Section 147 postulates that no appeal shall be entertained under Section 146 unless:- "(a) xxx xxx xxx (b) the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation." 15. Meaning thereby, the Appellate Authority can only demand the pre-deposit of the impugned amount of the relevant assessment year and not subsequent accrued amount of tax. In the instant case, as the amount of tax in dispute, is only for the assessment year 2007-08, therefore, the petitioner-school is not legally required to pre-deposit the entire amount of tax accrued upto date for the purpose of disposal of the statutory appeal. Thus, the pre-deposit demand of the amount of tax after the years 2007-08 would be illegal for the purpose of Sections 146 & 147

CWP Nos.13734 & 13787 of 2009 5 of the MC Act, in this respect. This matter is not res integra and is well settled. 16. An identical question came to be answered by a Coordinate Bench of this Court (Ajai Lamba, J.), vide order dated 11.2.2009 rendered in CWP No.16476 of 2008 titled as “M/s Sham Bagh Palace vs. State of Punjab and others”. Having considered the relevant provisions of sections 146 and 147 of the MC Act, it was ruled that the appellate authority can require a pre-deposit of the disputed amount of house tax, which is subject matter of the appeal only and the demand of the subsequent amount of house tax accrued upto date, cannot legally be raised to enable the assessee to file the appeal and the assessee was liable to deposit only the impugned amount for the relevant assessment year as pre-deposit amount for hearing the appeal. The same view was again reiterated by this Court, by virtue of order dated 11.2.2011 passed in CWP No.19048 of 2009 titled as “M/s Sham Bagh Palace Vs. State of Punjab and others”. 17. The ratio of the law laid down in the aforesaid judgments 'mutatis mutandis' is applicable to the facts of the present case and is the complete answer to the problem in hand in this behalf. Therefore, the contrary arguments of learned counsel for respondent-Corporation that petitioner-school is liable to pay the amount of house tax accrued upto date “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 18. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent hearing of the appeal, the instant writ instant petitions are partly accepted with the direction to the Appellate Authority to decide the statutory appeal already filed by the petitioner-school, provided it to deposit the amount of tax accrued for the relevant assessment year 2007-08 or furnish the bank guarantee of the entire amount due in the name of the respondent-Corporation, as prayed on its (petitioner-school) behalf, within a period of fifteen days, from the first date of appearance of the parties i.e. 23.3.2011.

CWP Nos.13734 & 13787 of 2009 6 19. Taking into consideration the urgency, the amount involved and the nature of litigation, the appellate authority is directed to decide the appeal within a period of two months, after the deposit of the amount in the manner indicated hereinabove, by passing a speaking order in accordance with law. 20. The parties through their counsel are directed to appear before the Divisional Commissioner, Patiala (Appellate Authority) on 23.03.2011 for further proceedings. (Mehinder Singh Sullar) Judge February 17, 2011 AS Whether to be referred to reporter?Yes/No