Civil Misc. Writ Petition (Tax) No. 1217 of 2003. Case: Dharni Dhar Vs State of U.P. and Others. High Court of Allahabad (India)
| Case Number | Civil Misc. Writ Petition (Tax) No. 1217 of 2003 |
| Counsel | For Appellant: Anil Babu and Smt. Sunita Agrawal, Advs. And For Respondents: S.C. and Pradeep Kumar, Adv. |
| Judges | Prakash Krishna and Ram Surat Ram Maurya, JJ. |
| Issue | Uttar Pradesh Municipalities Act, 1916 - Sections 140, 140(1)(b), 141, 142, 143, 144, 145, 145(1), 145(2), 147, 147(1), 147(c), 149, 149(1)(b), 160 |
| Judgement Date | April 12, 2013 |
| Court | High Court of Allahabad (India) |
Judgment:
Prakash Krishna, J.
1. The petitioner is the owner of House Nos. 47, 48 and 49 situate at Rail Bazar, Etawah. House Nos. 48 and 49 are small and old houses and are not directly in issue, submits the petitioner. House No. 47 which is in the occupation of Life Insurance Corporation as tenant is involved with regard to the determination of house tax. The petitioner now a retired Commissioner of Income Tax, by legal engineering has successfully avoided payment of any municipal tax in respect of said house for the last around 15 years by taking recourse to legal proceedings.
2. Admittedly, the said house is fetching handsome amount of rent but the petitioner inspite of various communications, on the one pretext or the other has failed to disclose its actual rate of rent.
3. The Nagar Palika Parishad, Etawah by its order dated 5th March, 1997 determined the annual letting value at Rs. 1,66,627.44. The matter was carried in appeal before the Prescribed Authority, namely, Chief Judicial Magistrate, in Appeal No. 4 of 1997. There a strange plea was put forward that annual assessment of the building in question has been wrongly determined at lesser figure than annual rent, therefore, the matter be remanded for fixing the annual value. The Prescribed Authority set aside the assessment order and restored the matter back to re-determination the annual letting value in the light of the objections raised by the petitioner.
4. In pursuance of the assessment order, the petitioner was called upon to appear and participate in the assessment proceedings. The multiple dates were fixed and he was asked to produce the annual rent receipts and lease-deed, but in vain. He sought adjournments on the ground of personal illness which were also accepted on some occasions but finally failed to appear. One of the pleas raised was that the proceedings are bad in view of the fact that order dated 19th May, 2000 passed by the C.J.M. has already been complied with, as according to him, in pursuance thereof, a fresh reassessment order dated 2nd August, 2000 has been passed. The said plea was not accepted as there is no such record of passing a fresh assessment order on 2nd August, 2000. The matter was considered on merits on the basis of the information furnished by life Insurance Corporation.
5. Originally the writ petition was filed challenging the notices for fresh assessment being notices dated 3rd September, 2003 and 26th September, 2003 issued by the Executive Officer and the writ petition was presented on 18.10.2009 before the registry of the Court. It was taken by the Court on 20.10.2003, it was prayed for that it may be taken up in due course and was taken up on 4.12.2003. In the meantime, the assessment order was passed on 3.12.2003. The annual letting value was determined at Rs. 2,66,352/-. Challenging the said order by way of amendment, the present writ petition has been filed on various grounds.
6. The respondents have filed counter-affidavit, one supplementary counter-affidavit on behalf of respondent No. 3 and another on behalf of respondent No. 5 refuting the allegations made in the writ petition.
7. Parties have filed various affidavits and counter-affidavits etc. from time to time. However, during the course of arguments, only limited documents were referred to by the learned counsel for the parties. The Court has considered only such documents which were referred by the parties.
8. The main controversy revolves around the alleged order dated 2nd August, 2000 passed by one R.S. Trivedi claiming himself as Executive Officer in compliance of the directions given by the C.J.M. who passed the remand order on 19th May, 2000. The case of the petitioner in the present petition is that the remand order passed by the C.J.M. has been culminated in the alleged fresh assessment order dated 2nd August, 2000 passed by Sri R.S. Trivedi, the subsequent proceedings giving rise to the present writ petition is null, void and uncalled for.
9. In rebuttal, the case of the respondents is that no such order dated 2nd August, 2000 alleged to have been passed by Sri R.S. Trivedi is on record nor Sri Trivedi could have pass such order as he on the relevant date was not the Executive Officer. Only it is Executive Officer who could pass any order. Sri R.S. Trivedi was not authorized to pass any such order. When the matter was taken up earlier, the following order dated 12th September, 2012 was passed, which is self speaking.
We have heard Shri Navin Sinha, Senior Advocate assisted by Shri Anil Babu for the petitioner. Shri Pradeep Kumar appears for the Nagar Palika Parishad, Etawah.
There are serious allegations made in this writ petition by the petitioner against the Executive Officer, and the officials of the Nagar Palika Parishad, Etawah. In the writ petition and the amendment application it is alleged that the order dated 2.8.2000 was passed by the then Executive Officer, which was also ratified by Smt. Radha Tiwari the then Executive Officer by letter dated 11.8.2003, regarding assessment of house tax and water tax of the subject property fixing the annual value at Rs. 15,000/-, after remand. In the order creating demand on rental value of LIC, the existence of order dated 2.8.2000, has been denied.
Shri Navin Sinha has relied upon long correspondence made by the petitioner with Nagar Palika Parishad, Etawah referring to order dated 2.8.2000. In the impugned order, allegedly made in pursuance to the remand order passed by the Chief Judicial Magistrate, Etawah dated 19.5.2000, fresh assessment has been made creating a huge demand.
In view of the allegations made by the petitioner against the officers and officials of the Nagar Palika Parishad, Etawah, we find it appropriate to summon the original records of the house tax assessments in respect of house Nos. 47, 48 and 49, Rail Bazar, Etawah.
Shri Pradeep Kumar appearing for Nagar Palika Parishad, Etawah will produce all the three original files with all the documents contained in it. He will also file an affidavit of the present Executive Officer, and Shri Ram Sewak Chauhan, Tax Superintendent, Nagar Palika Parishad, Etawah verifying the genuineness of the records produced in Court.
List on 8.10.2012.
10. On 8th October, 2012, when the matter was taken up the following order was passed:
Counter-affidavit has been filed by Sri Pradeep Kumar. The Executive Officer is present. It is stated that the records of the case were sent to the Office of the Commissioner, and they are still in search.
On his request, list on 6.11.2012.
The Executive Officer will make the records available on that date.
11. Learned counsel for the respondents submits that the order dated 2nd August, 2000 is forged order. There is no such file with regard to it in the Office of Nagar Palika Parishad nor there is anything to show that Sri Trivedi could have pass such order. We proceeded to hear the matter, on merits.
12. The matter was placed before us on 21st February, 2013. Sri Naveen Sinha, learned senior counsel appearing on behalf of the petitioner raised argument that powers were delegated on Sri Trivedi to exercise the power of Executive Officer and in that capacity, he passed the order dated 2nd August, 2000. He submitted that earlier Tax Committee was no longer in existence and assessment order could be passed by Executive Officer. It was refuted by Sri Pradeep Kumar who submitted that Sri Trivedi was a tax clerk, could not pass the alleged assessment order dated 2.8.2000, at any rate. In rejoinder-affidavit, it was submitted that the power of Executive Officer was delegated on Sri Trivedi. The hearing was adjourned to 26th...
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