Kanchedi Lal v. Town Area Committee — 1962 DIGILAW 128 (ALL)

JUDGMENT V.G. Oak, J. - These three petitions under Article 226 of the Constitution are by two tax-payers. These writ petitions are directed against assessment of circumstances and property tax by the Town Area Committee of Mahroni or Ranipur district Jhansi. It will be convenient to dispose of the three writ petitions by a common judgment. 2. In order to appreciate the various questions of law which have arisen in these writ petitions, it will be convenient to outline the scheme for the imposition and assessment of circumstances and property tax in Town Areas in Uttar Pradesh. The U.P. Town Areas Act, 1914 (hereafter referred to as the Act) enables Town Area Committees to impose and assess circumstances and property tax. Sec. 15 of the Act provides for assessment of tax. Sec. 15-A deals with preliminary proposals for taxes. Under Sec. 15-B the preliminary proposals are submitted to the District Magistrate for approval. After such approval, the assessment list is published under Sec. 17. Sec. 18 provides for appeals from assessment or levy of tax. 3. The State Government has framed rules for assessment and collection of circumstances and property tax within Town Areas (hereafter referred to as the Rules). The Rules are to be found on pages 103 to 105 of the Town Area Manual of Uttar Pradesh. R. 7 prescribes a timetable for preparation of assessment list. R. 9 provides for objections. The Town Area Committee has to dispose of such objections under sub-R. (3) of R. 9. The list so finalised has to be submitted to the District Magistrate for confirmation under R. 10. 4. I now proceed to consider the three writ petitions one by one. I. Writ Petition No. 1217 of 1958: In this case Kanchhedi Lal is the petitioner. He was assessed to circumstances and property tax for the financial year 1957-58. The assessment work was taken up by the Town Area Committee in February, 1958. The assessment for 1957-58 was higher than the assessment for the previous year 1956-57. The Committee resolved that objections against preliminary tax proposals should be considered by the Sub-Divisional Officer of Lalitpur. Accordingly, the petitioner filed an objection before the Sub-Divisional Officer, Lalitpur against the assessment for 1957-58. The objection was partly allowed. The Sub-Divisional Officer reduced the assessment from Rs. 112.50 to 80.50. 5. The first contention of Mr. The Committee resolved that objections against preliminary tax proposals should be considered by the Sub-Divisional Officer of Lalitpur. Accordingly, the petitioner filed an objection before the Sub-Divisional Officer, Lalitpur against the assessment for 1957-58. The objection was partly allowed. The Sub-Divisional Officer reduced the assessment from Rs. 112.50 to 80.50. 5. The first contention of Mr. M. L. Agrawal appearing for the petitioner was that, the assessment was made beyond the prescribed time. In support of this contention, Mr. M. L. Agrawal relied upon R. 7. R. 7 lays down that on or before the 15 of December each year a Town Area Committee shall prepare or cause to be prepared a list of persons within the Town Area liable to pay tax. The assessment list should be completed on or before the 20th of January. R. 7 does not expressly lay down that the assessment list so prepared shall relate to a particular year. But when the rules are read together, the general plan appears to be this. The financial year commences on the first of April each year, and ends on the 31st of March in the following year. The assessment list should be completed by the 20th of January, immediately before the commencement of the assessment year to which the list relates. According to that plan, the assessment list for the financial year 1957-58 should have been ready by the 20th of January, 1957. But the respondent did not take up this work until February, 1958. I agree with Mr. M.L. Agarawal that there was inordinate delay in preparing the assessment list for the year 1957-58. But the delay does not by itself vitiate the entire assessment proceedings. R. 7 appears to be directory, and not mandatory. It is, therefore, permissible to prepare an assessment list, even if a Town Area Committee is not able to adopt the time table prescribed by R. 7. 6. Another grievance of the petitioner is that, he did not get a notice of the assessment, although the assessment for 1957-58, exceeded the assessment for the previous year. It is, therefore, permissible to prepare an assessment list, even if a Town Area Committee is not able to adopt the time table prescribed by R. 7. 6. Another grievance of the petitioner is that, he did not get a notice of the assessment, although the assessment for 1957-58, exceeded the assessment for the previous year. For this contention, reliance is placed upon Sub-R. (1) of R. 9 R. 9(1) runs thus:- "The Committee shall, when public notice is given as required in R. 8, fix a date..........., and in all cases in which any person is assessed for the first time or the amount of his assessment is increased, it shall give notice thereof to the person concerned." This sub-rule indicates notices of two kinds. Firstly, there is to be a public notice directed to all the assesses. Secondly, there should be an individual notice for a person assessed for the first time and for a person whose assessment has been enhanced in 1957-58. He could, therefore, claim a separate notice under sub-R. (1) of R. 9. It appears that no separate notice was given to the petitioner as laid down in R. 9 (1). The object of this provision is to enable an assessee to file an objection. The petitioner did file an objection. So, we need not attach importance to the absence of a separate notice under sub-R. (1) of R.9 to the petitioner. 7. The main contention of Mr. M.L. Agarwal was that the committee could not delegate its power of investigation and disposal of objections to the Sub-Divisional Officer. It is stated in para. 6 of the affidavit that, the committee resolved that, because time was short in arrear, it was not considered necessary to consider the objection to the preliminary tax proposals, which should instead be considered by the Sub-Divisional Officer, Lalitpur. This allegation was not denied in the counter - affidavit. We may, therefore, take it that, the Committee did delegate this power to the Sub-Divisional Officer, Lalitpur. The question is whether the Committee was competent to delegate this function to the Sub-Divisional Officer. Sub-Sec. (4) of Sec. 15-A of the Act states:- "Any inhabitant of the Town Area may file an objection in writing on such proposals, and the Committee shall take into consideration the objections so filed and finally settle its proposals." R. 9 provides for objections against preliminary proposals. Sub-Sec. (4) of Sec. 15-A of the Act states:- "Any inhabitant of the Town Area may file an objection in writing on such proposals, and the Committee shall take into consideration the objections so filed and finally settle its proposals." R. 9 provides for objections against preliminary proposals. Sub-R. (3) of R. 9 states: - "The Committee shall, after allowing the applicant an opportunity of being heard, investigate and dispose of any objections and cause any necessary amendments to be made in the list." 8. Sec. 15-A and R. 9 clearly indicate that, it is the Committee which has to consider and dispose of objections against the preliminary proposal. There is no provision in the Act or the Rules enabling the Committee to delegate this function to the Sub-Divisional Officer. 9. Mr. K.P. Agrawal appearing for the respondent contended that action was taken under Section 35 of the Act. Sec. 35 of the Act enables the District Magistrate to assume functions of a Committee if a Committee refuses or omits to perform any prescribed duty. This plea was not raised in the counter-affidavit filed on behalf of the respondent. Whether the District Magistrate took action under Section 35 of the Act, is a question of fact. This point could not be raised for the first time during arguments. The validity of the proceedings must be judged in the light of the pleadings of the parties. According to the affidavits filed by the parties, the Town Area Committee delegated this function to the Sub-Divisional Officer; and the Sub-Divisional Officer disposed of the petitioner's objection. As already discussed, the Committee could not delegate this function to the Sub-Divisional Officer. Since the Sub-Divisional Officer's order was without jurisdiction, that order ought to be quashed. The proper procedure would be to allow the petitioner to file an objection against the provisional assessment before the Committee itself. It is then for the Committee to deal with such an objection in accordance with law. II. Civil Miscellaneous Writ No. 899 of 1959: In this case Ram Bharose is the petitioner. This case also relates to the assessment for the year 1957-58. Ram Bharose petitioner was a member of the Town Area Committee, Ranipur at the material time. In February 1958 the Sub-Divisional Magistrate on behalf of the Town Area Committee assessed the petitioner to circumstances and property tax. This case also relates to the assessment for the year 1957-58. Ram Bharose petitioner was a member of the Town Area Committee, Ranipur at the material time. In February 1958 the Sub-Divisional Magistrate on behalf of the Town Area Committee assessed the petitioner to circumstances and property tax. An appeal filed by the petitioner was dismissed by the Additional District Magistrate, Jhansi. 10. One of the contentions of Mr. M. L. Agrawal appearing for the petitioner was that, no notice under R. 9 was given to the petitioner. Respondent No. 1 relies on a general notice. Annexures `C' and `D' to the counter-affidavit are copies of such general notices. As discussed in Kanchhedi Lal's case, the petitioner was entitled to an individual notice. But the point is not of much importance. The petitioner was aware of the assessment; and he filed an appeal against the assessment. 11. The main contention of Mr. M.L. Agrawal was that, the Sub-Divisional Magistrate had no jurisdiction to assess the tax against the petitioner. This contention is well founded. According to the scheme of the Act and the Rules, the assessment list has to be prepared by the Town Area Committee, and not by the Sub-Divisional Magistrate. 12. The Chairman of the Committee has filed a counter-affidavit on behalf of the Committee. He relies upon an order passed by the District Magistrate of Jhansi on 17-2-1928. Annexure `A' to the counter-affidavit is a copy of the District Magistrate's order dated 17-2-1928. The material portion of the District Magistrate's order runs thus:- "The assessment of Panches of Town Area must be made separately on a distinct schedule of its own. This schedule will be prepared by the Bakshi who will submit it to the Town Magistrate. The column showing the proposed assessment for the next year will be filled by the Town Magistrate, who will then forward the schedule with his own remarks to the District Magistrate for order..." The Magistrate's order refers to a Government Order dated 4-8-1927. Annexure `B' to the counter-affidavit is a copy of the Government Order dated 4-8-1927. The material part of the Government Order dated 4-8-1927 runs thus:- "....................................... Town Areas should be advised to adopt the practice of showing the assessment of Panches in a separate list for the special confirmation of Town Magistrate; and that Town Magistrate should be instructed to scrutinise such assessments with particular care." 13. The material part of the Government Order dated 4-8-1927 runs thus:- "....................................... Town Areas should be advised to adopt the practice of showing the assessment of Panches in a separate list for the special confirmation of Town Magistrate; and that Town Magistrate should be instructed to scrutinise such assessments with particular care." 13. The idea underlying the Government Order appears to be this. There is the possibility of members of a Town Area Committee making low assessment against themselves. In order to guard against such malpractice, Town Magistrates were instructed to scrutinise carefully assessments against members of the Town Area Committee. The Government Order did not lay down that, the Sub-Divisional Officer should himself fix the assessment against members of the Committee. The District Magistrate's order dated 17-2-1928 goes beyond the instructions issued by Government. The Government Order was of administrative character. So was the District Magistrate's order. These two orders could not possibly have the effect of amending the provisions of the Act or the Rules. 14. As already pointed out, Sec. 15 of the Act provides for assessment of tax. Sub-Sec. (1) of Section 15 states :- "Subject to any rules made in this behalf by the State Government, the Committee..........shall........prepare a list of the persons liable to pay the tax....and of the amounts to be paid respectively by such persons." R. 7 also lays down that the Committee shall prepare a provisional assessment list. Thus we find that both the Act and the Rules contemplate a provisional list to be drawn up by the Town Area Committee, and not by the Sub-Divisional Officer. The Sub-Divisional Officer may of course supervise and scrutinise such a list. But the primary responsibility for preparing the list is that of the Town Area Committee. This principle holds good even if the persons to be assessed are members of the Town Area Committee. In the present case, it is conceded that it was the Sub-Divisional Magistrate who assessed the petitioner to tax for the year 1957-58. The Sub-Divisional Magistrate had no power to make such an assessment. Since the Sub-Divisional Magistrate acted without jurisdiction, the assessment made by him must be quashed. The appellate order passed by the Additional District Magistrate may also be quashed. It will be open to the Committee to assess a tax against the petitioner in accordance with law. III. The Sub-Divisional Magistrate had no power to make such an assessment. Since the Sub-Divisional Magistrate acted without jurisdiction, the assessment made by him must be quashed. The appellate order passed by the Additional District Magistrate may also be quashed. It will be open to the Committee to assess a tax against the petitioner in accordance with law. III. Civil Miscellaneous Writ No. 983 of 1959: In this case also Ram Bharose is the petitioner. The assessment year is 1958-59. The petitioner filed an objection against the provisional assessment. That objection was dismissed by the Committee. The petitioner filed an appeal, which was dismissed by the Sub-Divisional Magistrate on 8-12-1958. An appeal against that order dated 8-12-1958 was dismissed by the Additional District Magistrate, Jhansi on 2-3-1959. 15. The Sub-Divisional Magistrate's order dated 8-12-1958 is very brief. It consists of a single word, `Rejected.' His office submitted a report that the appeal was barred by time. The Sub-Divisional Magistrate apparently accepted the office report, and rejected the appeal. 16. It is stated in paras. 6, 7, 8, 9 and 10 of the affidavit that, the petitioner was informed on 30-5-1958 about the dismissal of his objection by the Committee. Within thirty days the petitioner sent by registered post the memorandum of appeal to the Sub-Divisional Magistrate. 29-6-1958 was Sunday. 30-6-1958 was a holiday on account of Id-uz-Zuha. The memorandum of appeal was delivered in the office of the Sub-Divisional Magistrate on 1-7-1958. Mr. M.L. Agrawal contended that the appellant was entitled to exclude the 29th and the 30th of June, 1958, as they were holidays and the appeal was within time. It is stated that respondent no. 2 dismissed the appeal without hearing the appellant. It is stated in the counter-affidavit filed by the Chairman of the Committee that, these matters are not within the knowledge of the deponent. It is, therefore, quite possible that the appeal was within time. 17. The learned counsel for the Committee, however, raised a preliminary objection that the writ petition was filed beyond time. It is pointed out that, the Sub-Divisional Magistrate dismissed the appeal on-8-12-1958. The writ petition was not filed until 31-31958. There was delay in filing the writ petition. 18. On this point, it is stated in the rejoinder affidavit that, the petitioner filed an appeal to the District Magistrate against the appellate order of the Sub-Divisional Magistrate. It is pointed out that, the Sub-Divisional Magistrate dismissed the appeal on-8-12-1958. The writ petition was not filed until 31-31958. There was delay in filing the writ petition. 18. On this point, it is stated in the rejoinder affidavit that, the petitioner filed an appeal to the District Magistrate against the appellate order of the Sub-Divisional Magistrate. That was the cause of delay in filing the writ petition. Now, the petitioner was at one time a member of the Town Area Committee, Ranipur. He ought to have known that Section 18 of the Act contemplates only one appeal. There was no point in filing a second appeal to the District Magistrate. The petitioner should not, therefore, be excused for wasting time in filing an appeal against the appellate order of the Sub-Divisional Magistrate. The writ petition should be dismissed on the ground of delay in filing the petition. Considering that the Sub-Divisional Magistrate did not decide the appeal on merits, and did not properly deal with the question of limitation, parties may be directed to bear their own costs in this case. 19. Civil Miscellaneous Writ No. 1217 of 1958 is allowed. The order of the Sub-Divisional Magistrate, Lalitpur disposing of the petitioner's objection against the assessment for the year 1957-58 is quashed. Respondent No. 1 is directed to give the petitioner a reasonable opportunity to file an objection to the Committee against the provisional assessment. If the petitioner does file such an objection, the Committee shall dispose of the objection in accordance with law. The petitioner shall get costs of the petition from respondent No.1. 20. Civil Miscellaneous Writ No. 899 of 1959 is allowed. The provisional assessment made by the Sub-Divisional Magistrate, Mau-Carotha against the petitioner for the year 1957-58 and the appellate order of respondent No. 3 dated 10-3-1959 are quashed. It will be open to respondent No. 1 to make fresh assessment for the year 1957-58, if that is permitted by law. The petitioner shall get costs of the petition from respondent No. 2. 21. Civil Miscellaneous Writ No. 983 of 1959 is dismissed. Parties shall bear their own costs.