Sai Surgical Industries vs State of Punjab and Another

N.K. Agrawal, J.—This is a petition under Articles 226/227 of the Constitution for quashing assessment order passed by the Municipality, Patiala, and for quashing the amendment of Section 3(1) of the Punjab Municipal Act, 1911 (for short, "the Act"), on the ground that the amendment made in the year 1994 is ultra vires and violative of Article 14 of the Constitution.

The petitioner is a partnership-firm and ran an industrial unit at village Alipur Road, Patiala. The petitioner-firm owned an old construction which was earlier situated outside the municipal limits but came to be included therein in the month of January, 1993. A notice u/s 65 of the Act was issued by the Municipal Committee, Patiala, to the petitioner in February, 1993 wherein rental value was estimated at Rs. 4,000/- per month and house tax was proposed at Rs. 69480/- for the year 1993-94 (1-4-1993 to 31-3-1994). The petitioner filed objections. Rental value was reduced to Rs. 2,500/- per month, vide assessment order dated 12.5.1993. House tax amounting to Rs. 3,646/- was levied. The petitioner deposited the amount of house tax, so levied, by cheque dated 13.5,1993.

The petitioner received another notice dated 4.11.1993 from the Municipal Committee, Patiala, for reassessment of the same property and for the same period, whereby the house tax was proposed to be enhanced from Rs. 3646/- to Rs. 23,625/-. The petitioner filed objections. House tax, however, came to be finalized at Rs. 23,625/- as had been proposed in the notice, vide order dated 29.3.1994. The petitioner has raised several grievances against the revised assessment. First, there was no reason to revise the assessment inasmuch as the petitioner had made no additions or alterations in the property. Second, the Municipal Committee had no authority or jurisdiction to reopen the assessment once finalized. Third, annual rental value is required to be determined on the basis of the fair rent which can be fixed under the relevant rent law applicable to the town of Patiala.

The petitioner has also challenged amendment of Section 3(1) of the Act but this challenge is not required to be examined inasmuch as assessment was required to be made for the relevant assessment year 1993-94 under the pre-amended law. The amendment in question was made by the Amending Act No. 11 of 1994 and, therefore, for the assessment year 1993-94, it was not the amended law but the preamended provisions of the Act which were actually invoked. Therefore, challenge to the amendment on the ground that the amendment was violative of Article 14 of the Constitution, is found to be not relevant and is, therefore, not being examined.

Shri Rakesh Gupta, learned counsel for the petitioner, has argued that assessment had been completed, vide assessment order dated 12.5.1993 and the house tax, as assessed, had been duly paid by the assessee. Therefore, there was no occasion nor any justification to review, revise or reopen the assessment. There was no provision in the Act empowering the Municipal Committee to do so. Though assessment could only be made on the basis of the fair rent as per the settled law decided by the Courts, the petitioner, however, did not agitate and deposited the house tax levied, vide assessment order 12.5.1993. There was no evidence on record nor there was any complaint before the Municipal Committee, showing that the petitioner had made any addition, alteration or improvement in the property. Unless there was any reasonable ground to raise a plea or presumption that the assessee had made any alteration or improvement, there was no justification to reopen the assessment which had been completed. In the order dated 29.3.1994, whereby the assessment had been revised, there is no mention of any reason or ground on the basis of which, the annual value was enhanced and the house tax was reassessed. There is no reference to the earlier assessment also. In these circumstances, Shri Rakesh Gupta has argued that the order dated 29.3.1994 was wholly without jurisdiction, illegal and without any basis in law.

The plea regarding the fair rent, raised on behall of the petitioner, is based on a decision of the Supreme Court in Dewan Daulat Rai Kapoor and Others Vs. New Delhi Municipal Committee and Others, . That was also a case of determination of the annual value under the Act. Section 3(l)(b) of the Act, containing the definition of "annual value", was examined and it was held that the annual value could not exceed the standard rent if the property was governed by the rent control legislation. This decision of the Supreme Court has subsequently been followed by this High Court in Smt. Urmila Devi Gupta v. The Municipal Committee, Faridabad and Ors. 1986(1) PLR 470, and again in Phul Theatre, Patiala v. The Municipal Committee, Patiala, and Ors. 1986(1) PLR 538. Since the view stands settled, annual rental value of a property, governed by a rent control law, has to be determined on the basis of the fair rent or standard rent. Since the property in question is situated in the town of Patiala in the State of Punjab, it is governed by the East Punjab Urban Rent Restriction Act. In this situation, assessment order dated 29.3.1994 is found to be not sustainable.

Shri Arun Palli, learned counsel for respondent-Municipal-Committee, has argued that the present petition is not maintainable inasmuch as the petitioner had earlier filed a civil suit challenging the enhancement of the assessment. That suit was subsequently withdrawn without any permission to pursue the matter through a writ petition. It is argued that the petitioner is debarred from agitating over the same question after the petitioner chose to seek dismissal of his suit on the basis of withdrawal. Order 23, Rule 1, Code of Civil Procedure, is said to be applicable to the writ proceedings also, as has been held by the Full Bench of this Court in Teja Singh v. The Union Territory of Chandigarh (1982)84 P.L.R. 160 (FB). The question about the applicability of the provisions of the CPC to a writ petition was examined in detail. It was held that, where a writ petition is dismissed after contest by passing a speaking order, that would operate as res-judicata. Even if an earlier petition is disposed by one word ''dismissed'', second petition on similar facts was not maintainable. Even if a petition is dismissed on the ground of laches or on the ground of alternative remedy, the second petition on the same cause of action is barred. Shri Palli has argued that the petitioner had chosen to withdraw his suit without seeking permission to seek his remedy elsewhere and, for that reason, the present writ petition must be held to be not maintainable. It is also pointed out that the assessment had been made by the Municipal Committee on 29.3.1994 whereas the present petition has been filed on 12.9.1995 and, since it is a belated action, it suffers from laches.

The plea raised against the maintainability of the writ petition and about the delay in its filing is not found to have any substance inasmuch as the petitioner was not required to seek permission to file a writ petition under Article 226 of the Constitution while withdrawing his civil suit. Shri Rakesh Gupta, learned counsel for the petitioner, at this stage, has pointed out that the suit was required to be withdrawn inasmuch as the Civil Court had no jurisdiction to decide a question of assessment of house tax. It was under these peculiar circumstances that the petitioner found himself unable to pursue the matter further before the civil Court and sought an order of dismissal of the suit on the ground of withdrawal. It was not necessary to seek permission of the civil Court to file a writ petition as it is not required in law. So far as the delay in the action of filing of the writ petition is concerned, it is pointed out by Shri Rakesh Gupta that it was on account of the civil proceedings in the civil Court that the delay took place, but that should not debar the petitioner from seeking relief if once the order of assessment is found to be totally without jurisdiction and illegal.

The plea raised against the maintainability of the writ petition is rejected inas-1 much as the petitioner was not supposed to seek permission from the civil Court to file the writ petition while withdrawing his civil suit. The delay in the filing of the writ petition is also found to be of not much consequence. Looking to the civil proceedings, the petitioner was pursuing that under the belief that he would get the relief from the civil Court.

Shri Palli has next argued that the petitioner should have resorted to the alternative remedy of filing an appeal before the Deputy Commissioner u/s 84 of the Act. It is argued that the petitioner cannot be allowed to challenge the order of assessment through the writ petition if the remedy of appeal was not exhausted. Attention is invited to a decision of the Supreme Court in Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, . It has been held in paragraph 3 of the judgment as under:-

" Article 226 is not meant to short-circ lit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extra-ordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice requires it that recourse may be had to Article 226 of the Constitution. But, then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely, matters involving the revenue where statutory remedies are available are not such matters. The Supreme Court can take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice needs to be strongly discouraged."

Shri Rakesh Gupta has, in rejoinder, argued that the petitioner has challenged the very legality and validity of the order dated 29.3.1994 and, therefore, the petitioner should not be thrown out. It is correct that the remedy of appeal was not resorted to, but, looking to the grossly illegal and invalid order passed by the Municipal Committee, the petitioner should be allowed to be heard under Article 226 of the Constitution. When an order is found to be wholly without jurisdiction and illegal, the proper remedy to prevent the injury lay under Article 226 of the Constitution.

As it has been seen, the order of reassessment was passed without giving therein any reasons whatsoever for reopening the assessment. The said order is found to be wholly without jurisdiction. The Municipal Committee earlier issued a notice to the petitioner before finalizing the reassessment. The value of land measuring 5000 square feet had been assessed at Rs. 15,00,000/- and the cost of construction had been determined, at the rate of Rs. 200/- per square foot, at Rs. 20,00,000/-. No basis has, however, been given as to how the value of the land at the rate of Rs. 300/- per square foot and the cost of construction at the rate of Rs. 200/- per square foot had been adopted. In these circumstances, the petitioner cannot be said to have invoked the jurisdiction of this Court under Article 226 without sufficient reasons. The pleas raised by Shri Arun Palli, that the petitioner is debarred from invoking jurisdiction under Article 226 because alternative remedy was not availed of, is found to have no force and is rejected.

Shri Arun Palli next argued that it was an assessment u/s 3(1)(c) of the Act and, therefore, the question of determining the annual rental value of the property on the basis of fair rent u/s 3(l)(b) did not arise. This plea has also no substance inasmuch as clause (c) of Section 3(1) can be invoked in a situation where annual rental value cannot be determined under clause (b). Nothing has been shown as to how and why annual rental value of the property in question could not be determined under clause (b). Simply because the Municipal Committee was of the opinion that the property should have been assessed at a higher figure, that would not empower the Municipal Committee to make assessment at a higher value.

Shri Arun Palli has also referred to Sections 67 and 68 of the Act, which empowered the Municipal Committee to amend the assessment list. It is argued by him that the Municipal Committee has powers to settle and modify the assessment list for any property for any year. This power enabled the Committee to revise the assessment list by making any alteration therein. This plea of Shri Palli is found to be misplaced one, because Section 67 intends to enable the Municipal Committee to make amendment in the assessment list for any assessment year at the beginning of the year. It has been held by a learned Single Judge of this Court in Phul Theatre''s case (supra) that Sections 66 and 68 do not permit settlement of an assessment list which can take effect retrospectively. Assessment for any particular year has to be completed before the said year commenced. Therefore, assessment list can be amended or settled before the commencement of the relevant year only. That was a case where assessment list was finalized on 10th April, 1976 whereas the tax was imposed with effect from 1.4.1976. It was held that the assessment list, as modified, could not be made effective from 1st April, 1976.

In Smt. Urmila Devi Gupta''s case (supra), a similar question had also been examined and it was observed by learned Single Judge of this Court that assessment list cannot be enforced in the middle of the year.

Section 67, of the Act enabled a Municipal Committee to amend an assessment list before the commencement of the year and not in the middle of the year. Moreover, it does not empower the Municipal Committee to reopen an assessment once completed. In these circumstances, Section 67 of the Act is found to be of no help to the respondents so far as the revised assessment dated 29.3.1994 is concerned.

Though the plea of fair rent has been raised by the petitioner and has also been found to be available in his favour for determination of the annual value of the property in question, the said plea is found to be of no help to the petitioner so far as the assessment dated 12.5.1993 is concerned. That was the first assessment made by the Municipal Committee which has, however, not been challenged in the present writ petition. That order dated 12.5.1993, therefore, stands and cannot be quashed inasmuch as it has not been challenged though a plea of determination of annual value on the basis of fair rent has indeed been raised.

In the result, the writ petition is allowed and the order of re-assessment dated 29.3.1994 is quashed. No order as to costs.