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1997 DIGILAW 178 (HP)

JAI KRISHAN THAKUR v. UNION OF INDIA

1997-05-15

A.L.VAIDYA, M.SRINIVASAN

body1997
JUDGMENT M. Srinivasan. C. J.—These three writ petitions are in challenge of the reversion of rates of various items to be charged by the Cantonment Board, Kasauli and the consequent notices issued to the petitioners calling upon them to pay the revised charges. 2. The earliest writ petition is C.W.P. No 10 of 1994 filed by four persons In paragraph 3, it it stated that the petitioners belong to different groups and different professions, In paragraph 7, it is stated that respondent No.3, that is, the Cantonment Executive Officer issued notices upon the petitioners for recovery of taxes vide Annexures P-2, P-3, P-4 and P-5. respectively. A perusal of Annexures P-2 to P5 shows that Annexure P-2 is connected with the first petitioner as evident from the name and description given therein Annexure P-3 is addressed to M/s. Babu Ram Shesh Pal M.B. Kasauli and M/s Madan Gopal and Sons, M.B., Kasauli. None of the petitioners is either of the addressees in Annexure P-3 but learned Counsel for the petitioners states that the third petitioner Shesh Pal Sharma son of Babu Ram Sharma is representing M/s. Babu Ram Shesh Pal, though, there is nothing on record to connect the two. There is no information to us with regard to M/s Madan Gopal and Sons, who is the other addressee in Annexure P-3,. Annexure P4 is addressed to M/s, Daily Needs, but none of the petitioners is stated to be connect ed with the said annexure. Annexure P-5 is addressed to Raj Kumar Singla, Hotel R Maidens, Kasauli It is obviously the fourth petitioner in this case Thus we are able to connect on the basis of the records only Annexure P-2 and Annexure P-5 with petitioners 1 and 4 and on the basis of oral statement made by learned Counsel for the petitioners in the course of arguments Annexure P 3 with the third petitioner Hence, the statement in paragraph 7 of the petition that respondent No. 3 issued notices to the petitioners for recovery of taxes vide Annexures P-2, P-3, P-4 and P-5, respectively, is not correct, 3. At the out set, it should be mentioned that the petition is as vague as possible. No relevant particulars have been given about any of the petitioners as to what exactly is the business carried on by them or profession carried on by any of them. At the out set, it should be mentioned that the petition is as vague as possible. No relevant particulars have been given about any of the petitioners as to what exactly is the business carried on by them or profession carried on by any of them. Nothing is stated as to how they are made liable to pay the charges and notices have been issued to them It is not in dispute that the petitioners were paying the said charges previously before the present increase. The petitioners are challenging the levy of charges only after they are increased on the ground that the respondent-Board is not entitled to levy such charges. 4. The petition proceeds on the assumption that what is claimed by the respondents is tax and not charge or fee. For filing a petition on that assumption no particulars have been given by the petitioners there is only one sentence in paragraph 5, in which it is stated that the respondents are charging for such services also like conservancy charges for which it does not render any service. Apart from this sentence, one will have to search in vain through the entire petition to find any relevant averment to show that the respondents are claiming taxes and not fee or changes. Hence, the petition deserves to be dismissed on that simple ground. 5. However, we find that in this petition, the petitioners are concerned only with conservancy charges and Sign Board charges, which are demanded by Annexures P-2, P-3, P-4 and P-5. As regards the conservancy charges, the statement contained in paragraph 5 of the petition has been denied in the reply it is slated in the reply that the Cantonment is providing conservancy services regularly in the Bungalow area where the charges are levied. As regards the conservancy charges, the statement contained in paragraph 5 of the petition has been denied in the reply it is slated in the reply that the Cantonment is providing conservancy services regularly in the Bungalow area where the charges are levied. There is nothing in the petition or in the rejoinder that such charges were not being levied at any time previously and that for the first time the Cantonment Board is levying the said charges without rendering such services, which arc claimed to have been rendered by the Board if really no services have been rendered by the Board and the charges are being demanded from by the petitioners for the first time, such an allegation would have been made in the petition In the absence of such an allegation in the petition or in the rejoinder, we have to proceed on the footing that the statement contained in the reply that the conservancy services were regularly provided in Bungalow area is correct. 6. It is also seen from the record, to be specific, from the reply filed by the Cantonment Board in C.M.P. No 1041 of 1994 in C.W.P. No. 452 of 1994 (which was previously shown as C.W.P. No 221 of 1994), that the conservancy charges were last fixed at Rs 3 per tenement per month on 23-6-1953 more than 40 years back Thus, it is evident that the charges are increased by the Cantonment Board for the first time after a period of 40 years having regard to the rise in prices and the present market situation, we are of the opinion that the increase in the charges is wholly reasonable and it cannot be assailed as arbitrary or unreasonable. But, it must be pointed out that the petition does not contain any averment as to how the increase is unreasonable. The only averment made in. the petition is that the respondent Board has no power to increase the tax and that it should have been done only after getting previous sanction of the Central Government, in view of the fact that there is nothing to show that the charges are only taxes and not fees, we are unable to accept the contention of the petitioners that the increase is not valid in view of the absence of sanction from the Central Government. 7. 7. As regards the Sign Board charges, which has been increased from Rs. 60 per annum to Rs 80 per annum, on the face of it, such an increase is quite reasonable and no exception can be taken to it. 8. Learned Counsel places reliance on the provisions of Chapter V of the Cantonments Act, 1924. The Chapter deals with taxation as we have already pointed out that there is nothing on record to show (hat what is levied by the respondent-Cantonment Board is a tax. On the other hand there are sufficient materials to show that it is only a fee or charge for the services rendered. Hence, the provisions of Chapter V will not apply as such 9. As regards the conservancy charges, section 130-A of the Act provides that it shall be the duty of an occupier of a building or land to make adequate arrangements for the house scavenging of the building or land and to provide receptacles of the type etc. It is not necessary to set out the entire section but it is to be noted that the duty of the occupier is to make adequate arrangements for the house scavenging Section 131 provides that where the occupier fails to make such arrangements to the satisfaction of the Executive Officer, the latter after giving notice in writing to the occupier may undertake the house scavenging of the building or land for such period as he thinks fit on such terms as he may specify in this behalf As there are materials in this case to show that the conservancy services are being rendered by the Cantonment Board over 40 years, the charges are being levied by the Cantonment Board under the provisions of section 131. Thus, there is a statutory sanction for charges levied by the Board, 10. Thus, there is a statutory sanction for charges levied by the Board, 10. Learned Counsel for the petitioners places reliance on the judgments of the Supreme Court in Union of India and others v. R.C. Jain and others, (1981) 2 SCC 308; Om Prakash Agarwal and others v Girt Raj Kishori and others, (1986) 1 SCC 722 and Srikrishna Das v. Town Area Committee, Chirgaon, (1990) 3 SCC 645 None of the rulings is applicable in the present case In those cases, the distinction between fee and tax is pointed out and it has been held that it is not permissible constitutionally for any State Government to collect any amount, which is not strictly of the nature of a fee in the guise of a fee It is also said that if in the guise of a fee the legislation imposes a tax it is for the Court on a scrutiny of the scheme of the levy to determine its real character. That principle is not available to the petitioners in the present case, as we have found that what is charged is a fee in return for services rendered by the Cantonment Board, We have already pointed out that the imposition of the charges was not challenged at the inception and only when they are increased after a period of 40 years, a challenge has been put forward by these petitioners. 11. In C.W.P No. 432 of 1994, the position is worse. There are 33 petitioners. The averments are just the same as those found in C.W.P. No. 10 of 1994 but there are two differences, one, in C.W.P. No. 10 of 1994, each petitioner has paid separate court-fee but in C.W.P. No. 432 of 1994 only one Court fee has been paid by all the petitioners together. It is brought to our notice by learned Counsel for the petitioners that payment of Court fee for others, i.e. petitioners No. 2 to 33 was waived by an order of this Court dated 19-7-1994, further, the petitioners in C.W.P. No 10 of 1994 have filed the notices issued to them by the antonment Board calling upon them to pay the charges, of course one of them is not connected with any of the petitioners but other three petitioners are connected with them as already pointed out. In C.W.P. No. 452 of 1994 the petitioners have not taken care to produce any of the notices excepting one notice, which is issued to the first petitioner, namely, Lok Nath» That notice calls upon the petitioners to pay conservancy charges for the year 1993-94 Our reasoning given above will apply in this case also. It is seen that another notice has been produced, which is addressed to one Charan Dass Agent Dharam Prakash, but there is nothing on record to connect the said notice with any of the petitioners. In the view, we have expressed earlier, there is no merit in this petition and it deserves to be dismissed. 12. In C.W.P. No. 620 of 1995, learned Counsel for the petitioners has stated that he has got power only from petitioners No. 6 and 7 and he is not representing the other petitioners None of them has appeared in Court in this case, the averments are almost the same as the averments in C.W.P. No 10 of 1994. In this case, no notice issued by the Cantonment Board to any of the petitioners has been produced in is not possible for us to known what charges are sought to be collected from these petitioners. In the absence of any of the particulars regarding the petitioners, the merits of the case cannot at all be considered 13 As regards the other items of charges found in Annexure P-1 (produced in C.W.P. No. 10 of 1994) there is no averment whatever in any of the writ petitions. As pointed out earlier, it is not known as to which of the petitioners is aggrieved by the increase for which service. Hence, the validity of Annexure P-1 cannot be assailed. 14. In such circumstances, all the three writ petitions fail and they are dismissed. 15. Interim orders in all the three writ petitions, are vacated Petition dismissed.