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Rajasthan High Court · body

2001 DIGILAW 1696 (RAJ)

Ummed Singh v. Land & Building Tax Department

2001-10-12

S.K.KESHOTE

body2001
Honble KESHOTE, J.–Heard the learned counsel for the parties. (2). The petitioner in this petition under Article 226 of the Constitution is praying for issuance of a direction to the respondents to refund the amount of Rs. 1,57,222/- with interest @ 18% per annum. The next prayer made is for direction to the non petitioners not to attach and recover any amount from the pension account of the petitioner. The third prayer made is for direction to the respondents to pay damages to the petitioner as deemed fit by this Court. (3). The facts of the case are that the petitioner a retired government servant and receiving government pension after retirement which he has deposited in Saving Account No. 01190012376 in the State Bank of India, Sanganeri Gate Branch, Jaipur. It is stated to be a Pension Saving Account in the State Bank of India, Sanganeri Gate Branch, Jaipur. In is stated to be a Pension Saving Account in the State Bank of India, Sanganeri Gate Branch, Jaipur. In relation to the demand of land and building tax, against the petitioner and his son Udai Singh in relation to the house property situated at Moti Dungari Road, Jaipur, which is stated to be a separate unit of the petitioner and his son Udai Singh, and the same could not have been clubbed by the respondents for the purpose of land and building tax assessment but the same has wrongly been assessed, a demand of Rs. 1,57,222/- was raised on 25th of May, 1999 by the department. The petitioner aggrieved of the demand of the land and building tax by the respondents, filed an appeal before the appellate authority and the same is stated to be pending before the appellate authority. (4). As per the case of the petitioner, the respondents without issuing any notice to the petitioner directly issued a notice for attachment of his account, in which all the pension amount of the petitioner is deposited, vide notice dated 18th of December, 2000 and an amount of Rs. 1,57,222/- has been withdrawn after attachment. It is pleaded that even the Rs. 20,000/- which was deposited by the petitioner has not been deducted from this amount. (5). 1,57,222/- has been withdrawn after attachment. It is pleaded that even the Rs. 20,000/- which was deposited by the petitioner has not been deducted from this amount. (5). The petitioner submitted that under Sec. 60(g) of the Civil Procedure Code and Sec. 11 of the Pension Act, 1857, the pension amount cannot be attached and realised in any manner under the execution of any decree or order passed by any authority. The attachment of pension amount of the petitioner is without authority of law and against the provisions of the Pension Act and Civil Procedure Code, as such, the Land and Buildings Tax Department is liable to refund the same to the petitioner. (6). Grievance has also been made by the petitioner against the bank authorities (respondent No. 3) that it has illegally released the amount from his account in which his pension amount was lying deposited. It is grievanced that the bank authorities failed have not informed to the petitioner about this attachment and withdrawal of money by the Land and Buildings Tax Department from his account and he could not take any action in advance to prevent them from attaching and withdrawing the amount of his pension. (7). The petitioner then has shown the utility of the amount and stated that the requirement of this amount was for his treatment of his disease of liver, which he is regularly getting at G.B. Pant Hospital, New Delhi. This amount, the petitioner is utilising for his old age day-to-day maintenance and getting treatment of his liver disease. The petitioners son is also stated be suffering from disabling disease of spastic and the petitioner needs the cash money for the treatment of him also. (8). The petitioner served a notice of demand of justice on 9.01.2001 and inspite of receipt of the notice, neither reply has been given nor amount as attached and withdrawn has been paid. Hence, this writ petition. (9). The petition was admitted on 7th of march, 2001. (10). The respondent Nos. 1 and 2 and respondent No. 3 have filed their replies to the petition. (11). The respondents No. 1 and 2 in their reply to the petition raised a preliminary objection that the petitioner has approached to this Court when the appeal filed by him against the assessment order dated 21.5.1999 is pending before the appellate authority. The respondent Nos. 1 and 2 and respondent No. 3 have filed their replies to the petition. (11). The respondents No. 1 and 2 in their reply to the petition raised a preliminary objection that the petitioner has approached to this Court when the appeal filed by him against the assessment order dated 21.5.1999 is pending before the appellate authority. It is stated that if the petitioner was aggrieved by the action of the respondents 1 and 2 he should have approached the appellate authority. The petitioner did not availed the remedy provided under the Rajasthan Land and Building Tax act, 1964 and this petition is liable to be dismissed only on this ground. (12). The second preliminary objection raised by the respondent Nos.1 & 2 is that the petitioner has also filed stay application in the appeal and the same is pending consideration before the appellate authority and if the petitioner is aggrieved against the steps for recovery of the tax amount due, instead of approaching this Court, he should have approached the appellate authority where the appeal is pending. The petitioner may not be permitted to pursue two parallel remedies. (13). On merits, it is stated that the petitioner and his son Udai Sigh owned the building situated at 3, Peelwa Garden, Jaipur in which they are running a hotel known as Rajasthan Palace Hotel and they did not deposit the tax on the property which was valued under the act vide order dated 21st of May, 1990 for Rs. 18,14,3000/- as on 1st of April, 1989 on which a yearly tax of Rs. 20,214.50 paise was assessed which has been reduced to Rs. 18,714.50 paise per year and thus, the total amount of Tax of Rs. 1,57,217/- was due against the petitioner for this property. The petitioner has wrongly mentioned it to be as Rs. 1,57,222/-. It is urged that the petitioner and his son have preferred an appeal against the assessment order dated 21st of May, 1999. An amount of Rs. 20,715/- was deposited in the appeal in the name of Rajasthan Palace Hotel whereas the assessment was made in the name petitioners son Udai Singh. The petitioner did not press they stay application against the demand. An amount of Rs. 20,715/- was deposited in the appeal in the name of Rajasthan Palace Hotel whereas the assessment was made in the name petitioners son Udai Singh. The petitioner did not press they stay application against the demand. It is stated that again a notice under Sec. 17(1) of the Act was issued to the petitioner but it was not respondent by him either by reply or by meeting out the demand of tax. After expiry of period of notice, notice u/Sec. 229 of the Rajasthan Land Revenue Act, 1956 was issued to the petitioner but it was not noticed by the petitioner. Therefore, in these facts, the attachment order attaching the bank account of the petitioner was issued on 18th of December, 2000. The amount of Rs. 20,000/- alleged to be deposited by the petitioner could not be adjusted as it was deposited in the name of the Rajasthan Palace Hotel. (14). The respondent No. 3 in the reply to the petitioner has given out that the petitioner unnecessarily has impleaded it as a party. The bank has to comply with the letter dated 18.12.2000 received from respondent No. 2 that an amount of Rs. 1,57,222/- to be sent to the said department from the account of the petitioner as the said amount has been attached. So in these facts, the respondent had left with no option but to comply with the directions of the letter. (15). Learned counsel for the petitioner in the oral arguments has advanced the submissions which have been taken by the petitioner as grounds in the writ petition. The learned counsel appearing for respondent Nos. 1 and 2 has supported the action taken by the department. (16). I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. (17). The learned counsel appearing for respondent Nos. 1 and 2 has supported the action taken by the department. (16). I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. (17). Shri R.P. Garg, learned counsel for the petitioners submits that the petitioner was retired as Class-I officer of the STate of Rajasthan and on the date he retired from the government service, he was holding the post of Director, Agriculture Department, Government of Rajasthan, Jaipur, Shri Garg, on being put by the Court is unable to satisfy why this officer instead of entering into the litigation has not paid the tax amount and get it refunded with interest from the respondents on his success in the appeal which has been filed and pending against assessment of the tax in pursuance to which the demand has been raised. The petitioner looking to his position and the post from which he retired has to exhibit himself to be a law abiding citizen. In the facts and circumstances of the case and looking at involvement of the petitioner in this litigation, it is difficult to appreciate this conduct of the petitioner. The contention of the petitioner that he is not liable to make payment of tax of his share was wrongly clubbed with the property of his son for the assessment of tax are the matters for consideration of the authorities under the Rajasthan Land and Building Tax Act. But where in the appeal, stay has not been granted looking to the position of the petitioner and the post from which he retired, his first step should have been to pay this amount. (18). Learned counsel for the petitioner submitted that this amount could have been realised by the department by sale of the property but it can be realised from other modes. In a case of the recovery of the land Building Tax due, it is legally permissible to the assessing authority to attach the Bank account of the assessee and recover that amount of tax by withdrawing same therefrom. The land and building was held to be assessable as one unit and an assessment order has been passed undisputedly after notice to the petitioner. (19). The petitioner and his son undisputedly have already filed appeal and the same is pending. The land and building was held to be assessable as one unit and an assessment order has been passed undisputedly after notice to the petitioner. (19). The petitioner and his son undisputedly have already filed appeal and the same is pending. In the appeal, it is to be stated at the cost of repetition the stay was not granted. (20). The petitioner has not filed rejoinder to the reply filed by the respondents Nos. 1 & 2. The averments made by the respondent Nos. 1 and 2 in the reply that the attachment of the Bank account and withdrawal of the amount of tax therefrom, is made after a notice to the petitioner, stands uncontroverted. Thus, the petitioner has not come up before this Court with clean hands. Under Article 226 of the Constitution, this Court is not sitting to protect a dishonest citizen of the persons who are not law abiding or who have not come up with clean hands before the Court. In the case, though the attachment of the Bank account of the petitioner has been ordered after notice to him yet he has made all these grievances in the petition. This conduct of the petitioner itself if sufficient for dismissal of the writ petition. (21). Otherwise also, once the assessment has been made, though its legality, propriety or correctness may be subject to the appeal, but where the stay has not been granted in the appeal it is legal as well as pious obligation of the petitioner to deposit the amount of tax with the department rather than to enter in this type of litigation. (22). In case, ultimately, the petitioner succeeds in the case, the department has to refund the amount back to him and the authorities can also pass the order for payment of interest on this amount in his favour. The petitioner, who was a retired class-I officer of the Government has behaved and proceeded in a manner worst than that what is not expected even from an ordinary citizen. He should have acted as a law abiding citizen and should have voluntarily deposited the tax, which has been assessed after notice to him, moreso when he failed to get any stay order from the appellate authority. (23). I find sufficient merit in the preliminary objection raised by respondents Nos. He should have acted as a law abiding citizen and should have voluntarily deposited the tax, which has been assessed after notice to him, moreso when he failed to get any stay order from the appellate authority. (23). I find sufficient merit in the preliminary objection raised by respondents Nos. 1 and 2 as well as by respondent No. 3 Re maintainability of the petition. The demand of the tax follows form the assessment of tax made after notice to the petitioner. Against this assessment order, and demand the petitioner has an alternate efficacious remedy under the said Act itself. The petitioner undisputedly has availed off that remedy and his appeal is pending. Where the petitioner has availed of this remedy and pending thereon in case any action has been taken by the respondents for the recovery of the tax assessed, he has to make complaint or approach to the appellate authority. The petitioner could have brought all these facts and grievanced before the appellate authority. In this petition involve many disputed question of facts which cannot be gone into be this Court in exercise of its extra ordinary equitable jurisdiction under article 226 of the Constitution of India. The petitioner could have filed stay application before the appellate authority in the matter. Only on this technical approach and ground, the petitioner cannot be permitted to avail this parallel remedy. It is a settled law that simultaneously the litigants cannot be permitted to avail of two parallel remedies. For this, reference may have to the following decisions:- (1) Jai Singh vs. Union of India & Ors. (1) (2) Chemech Engineers Pvt. Ltd. vs. The Director of Industries and Commerce & Ors. (2) (3) Awadh Bihari Yadav & Ors. vs. State of Bihar & Ors. (3) (24). The assessment of the tax has been made as per they reply to the petition filed by the department in the name to the petitioner and his son. This was done on 21.5.99. Against this order of the assessment the petitioner filed the appeal. In the appeal he also filed an application for stay of the assessment order and recovery of the tax. I find from the reply to the petition that the petitioner did not press the stay application against the demand. This was done on 21.5.99. Against this order of the assessment the petitioner filed the appeal. In the appeal he also filed an application for stay of the assessment order and recovery of the tax. I find from the reply to the petition that the petitioner did not press the stay application against the demand. When the petitioner has not pressed this stay application filed by him in the appeal against the demand I failed to see how far it is fair, reasonable and desirable on his part to challenge this action of the respondent to attach his bank account for the recovery of the tax demanded. This tax dues is to be recovered as the land revenue under the Land Revenue Act, 1956. It is not in dispute that under the Land Revenue Act, 1956 it is permissible to the respondent to attach the bank account of the petitioner. In the bank account the petitioner would have been depositing his pension received by him monthly but it is a bank account and it may be liable to the attached for the recovery of tax dues. The petitioner in the facts of this case has not come up with all the fairness before the Court. (25). Even if he any grievance against this action of the respondent Nos. 1 & 2 to attach his bank account it was open to him to approach to the appeal authority where his appeal is pending against the demand of tax by filing the application for interim relief or stay but not this petition. The remedy of the writ petition in this matter is not available to the petitioner. This petition is wholly misconceived, misplaced and an attempt on the part of the petitioner to abuse the process of the Court. (26). So far as the respondent No. 3 is concerned, I am satisfied that it has unnecessarily been impleaded as a party respondent. Respondent No. 3 being a Bank of the petitioner on demand of the amount of the tax due against him has no option to send the amount to the department. This petition suffers from the defect of misjoinder of parties. The State Bank of India was neither necessary nor proper party to the petition to be impleaded by the petitioner. Respondent No. 3 being a Bank of the petitioner on demand of the amount of the tax due against him has no option to send the amount to the department. This petition suffers from the defect of misjoinder of parties. The State Bank of India was neither necessary nor proper party to the petition to be impleaded by the petitioner. The bank has to engage an advocate and has to pay fees for defending the action initiated against it by the petitioner. It is not gain to say that the petitioner before approaching to this Court has not sent any notice for demand of justice to the State Bank of India. That goes to show that the petitioner was not grievanced this alleged action of the Bank. But still, the petitioner has impleaded the State Bank of India as a party. (27). Not only this, this writ petition further suffers from defect of the misjoinder of causes of action. From the writ petition, it is clear that the cause of action against the respondent 3 is altogether different than the cause of action plead by the petitioner against respondents Nos. 1 & 2. (28). Be that as it may, otherwise also, if we go by the grievance of the petitioner against respondent No. 3, it is purely in the realm of the private or a civil dispute which has nothing to do with the constitutional and legal rights of the petitioner. For this dispute, which is in the nature of a private or civil dispute, the remedy for the petitioner is to approach the civil court and not this petition under Article 226 of the Constitution. (29). As a result of the aforesaid discussion this petition fails and the same is dismissed with costs. The petitioner is directed to pay Rs. 100/- as the cost of this petition to respondent Nos. 1 & 2. and Rs. 3000/- to the respondent No. 3.