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1970 DIGILAW 62 (ALL)

Ravindra Kumar Gupta v. Town Area Committee

1970-02-09

H.C.P.TRIPATHI

body1970
ORDER H.C.P. Tripathi, J. - These two writ petitions raise common questions and they are being disposed of together. The Petitioner and his brother Yatendra Kumar were assessed to Circumstances and Property Tax, by the Town Area Committee, Jaswant Nagar for the years 1961-62 and 1962-63. The Petitioner and his brother filed an appeal u/s 18 of the UP Town Area Act challenging the assessment on the ground that they were members of a Joint Hindu Family and their father Shree Narain was the Karta and as Shree Narain has already been assessed to Circumstances and Property Tax, no separate assessment could be levied on them. 2. The Sub-Divisional Officer who heard the appeal held that they were joint with their father and could not be assessed separately. He, therefore, set aside the assessment of tax made on them separately but enhanced the Circumstances and Property Tax of their father from Rs. 98/- to 250/. 3. Shree Narain filed a revision challenging the order of the Appellate Magistrate enhancing his tax. The revision was allowed by the Addl. District Magistrate who held the order of enhancement as illegal and directed that "the order of the learned Sub-Divisional Officer and the appellate authority dated 3-6-1963 against the Applicant Shree Narain is set aside." 4. The Town Area Committee, however, issued a demand notice on 12-9-1964 demanding from the Petitioner Rs. 150/- as Circumstances and Property Tax for the years 1961-1962 and 1962-63. For the years 1963-54 the Circumstances and Property Tax was again assessed separately on the Petitioner, his father and brother. 5. The Petitioner came up in appeal which was heard by the Sub-Divisional Officer, Auraiya who dismissed it on 26-5-1964 holding that the Petitioner was having a separate business on his own and had been correctly assessed for the years 1963-64. The Petitioner came up in revision which was heard by the Addl. District Magistrate Etawah who dismissed it on the finding that the order passed by the Appellate Magistrate was not revisable. 6. The petition is directed against the demand notice dated 12-9-1964 and against the order dated 12-8-1964 passed by the Addl. District Magistrate dismissing the Petitioner's revision. 7. I have heard the learned Counsel for the parties. District Magistrate Etawah who dismissed it on the finding that the order passed by the Appellate Magistrate was not revisable. 6. The petition is directed against the demand notice dated 12-9-1964 and against the order dated 12-8-1964 passed by the Addl. District Magistrate dismissing the Petitioner's revision. 7. I have heard the learned Counsel for the parties. It has been urged by the learned Counsel for the Petitioner that the orders passed by the revising authorities, Etawah, dated 3-6-1963 setting aside the separate assessment of the Petitioner had become final between the parties and the Town Area Committee has no jurisdiction to issue a notice (Annexure VI) demanding the tax for the aforesaid years from the Petitioner. 8. On behalf of the Town Area Committee, however, it is contended that as the revision, filed by Shree Narain, Petitioner's father was allowed by the Addl. District Magistrate, the entire order under revision had been set aside and therefore, the Town Area Committee is quite competent to demand the tax which it had originally assessed on the Petitioner. 9. The operative portion of the order of the revising authority was that the "tax assessed separately is set aside." The Town Area Committee did not challenge this order in revision. It was Shree Narain who was not a party to the proceedings before the Sub-Divisional Officer who had come up in revision before the Addl. District Magistrate on the ground that the Sub Divisional Magistrate had no jurisdiction to enhance the tax on him while setting aside the separate assessment made on the Petitioner because he was not a party to the proceedings. This contention of Shree Narain was upheld by the Addl. District Magistrate who held the order of enhancement as illegal and directed that the order of the Sub-Divisional Officer dated 3-6-1963 against Shree Narain be set aside. A careful perusal of the two orders makes it evident that it was the enhancement order against Shree Narain which was set aside in revision and not the direction of the Sub-Divisional Officer that the assessment of tax on the Petitioner was unjustified. 10. In the petition it has been averred that Shree Narain has already been assessed to tax for the years 1961-1962 and 1962-1963. That assertion has not been denied in the counter-affidavit. 10. In the petition it has been averred that Shree Narain has already been assessed to tax for the years 1961-1962 and 1962-1963. That assertion has not been denied in the counter-affidavit. I am therefore, of the opinion that the Town Area Committee has no jurisdiction to go behind the order dated 3-6-1963 passed by the Sub Divisional Officer and to issue the impugned demand notice. 11. As regards the assessment of tax for the years 1963-64, I am of the opinion that the Addl. District Magistrate was not justified in dismissing the Petitioner's revision on the ground that it was not maintainable. Section 4 of the UP Town Areas Act reads: The prescribed authority or if none is appointed the District Magistrate may, by written order and subject to such conditions and restrictions as he may think fit to impose, delegate all or any of powers conferred on him by this Act or by rules framed under this Act, other than his power u/s 39-A to the officer-in-charge of the sub-division in which the town area is situated or to any other stipendiary officer of the revenue staff of the district above the rank of tahsildar. Provided that the prescribed authority or if none is appointed the District Magistrate may at any time revise an order passed by such officer under the powers so delegated. The proviso to Section 4, therefore, makes it clear that the prescribed authority or the District Magistrate may at any time revise an order passed by such officer under the powers so delegated. There is no dispute between the parties that Sri H.C. Bajpai, the Sub-Divisional Officer, who has passed the appellate order dated 26-5-1964 was exercising the power delegated to him by the District Magistrate u/s 4 of the Act. The power which he was exercising was subject to the condition enunciated in the proviso to Section 4 of the Act. The relevant portion of Section 18 reads: (1) An appeal against the assessment or levy of any tax shall lie to the (prescribed authority or if none is appointed the District Magistrate) or to such Magistrate as he may appoint in this behalf. (4) The decision of the appellate authority prescribed in Sub-section (1) shall be final and shall not be called in question in any court. (4) The decision of the appellate authority prescribed in Sub-section (1) shall be final and shall not be called in question in any court. Section 18, no doubt, makes the decision of the appellate authority final but it does not prevent its being revised by the principal authority which has delegated its power. It is final in the sense that it cannot be called in question in any other court. 12. It is no doubt true that there is some apparent conflict between the proviso to Section 4 and Sub-clause (4) of Section 18. It is, however, well settled that a harmonious construction should be given to the terms of the statute so that none of its part is rendered meaningless. 13. In my opinion, therefore, Section 4 and Section 18 have to be read together and on such a reading it becomes obvious that the finality attached to the appellate order u/s 18(4) is subject to the proviso to Section 4 of the Act. 14. If the appellate court's order has been passed by the prescribed authority or by the District Magistrate, it shall be final and shall not be called in question in any court. If, however, the aforesaid order has been passed by an officer enjoying the power delegated to it by the District Magistrate, such an order shall be re disable by the District Magistrate under the proviso to Section 4 of the Act. 15. I am, therefore, of the opinion that the Addl. District Magistrate, Etawah was not justified in dismissing the Petitioner's revision as not maintainable and his order dated 12-8-1964 is not sustainable. 16. In the result this petition is allowed. The impugned order dated 12-8-1964 passed by the Addl. District Magistrate, Etawah and the notice of demand dated 12-9-1964, (Annexure 6 to the petition), so far as it relates to the assessment in respect of years 1961-62 and 1962-63, are quashed. The Addl. District Magistrate is directed to re hear the revision against the order of Appellate Magistrate dated 26-5-1964 and to decide it on merits in accordance with law. In the circumstances of the case there will be no order as to costs. The tax for the years 1961-62 and 1962-63 if deposited in response to the notice of demand shall be refunded.