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2012 DIGILAW 1817 (PNJ)

S. K. Computers, Patiala v. State of Punjab

2012-12-12

RANJIT SINGH

body2012
JUDGMENT Mr. Ranjit Singh, J.: - M/s S.K.Computers, M/s T. Graphics and M/s Mab and Max Beauty Treatment Shop are the three petitioners, who have filed this writ petition for quashing the action of the respondents taken under Section 138 of the Municipal Corporation Act, 1976 (for short, “the Act”), which is termed as illegal, discriminatory, arbitrary and without jurisdiction. Prayer further is to direct respondent No.2 to attach the rent for recovery of dues of respondent No.3 towards house tax for the business premises of the petitioners and for issuing mandamus directing respondent No.3 to pay the arrears of house tax in respect of the properties occupied by the petitioners. 2. The main ground advanced by the petitioners is that liability to pay the house tax is of a landlord and the petitioners being tenants on the premises are not liable to pay house tax and, thus, would be immune from paying the house tax. As per the petitioners, the issue which may have to be seen is whether respondent No.2 is competent to issue threats to put lock to their business premises pursuant to the notice issued under Section 138 of the Act, when they were not associated or served with any notice for any proceedings either under Section 101 or under any other provisions of the Act. 3. As per the petitioners, it is clear that the property is not the personal property of the petitioners and is on lease/rent with them. The petitioners otherwise concede that they are running their respective businesses and are occupying the property since 2003 on the basis of oral tenancy of Rs.4000/- per month. Respondent No.3 is the owner of the shops and is a politically influential person. Respondent No.2, without issuing any notice to the petitioners, had carried out assessment proceedings and, thus, are bent upon evicting the petitioners from the demises shops by adopting a novel method, which is termed innovative as well. It is stated that a highly inflated amount of house rent @ Rs.8000/- per month has been charged as house tax whereas they are only paying a sum of Rs.4,000/- per month as a rent. 4. It is stated that a highly inflated amount of house rent @ Rs.8000/- per month has been charged as house tax whereas they are only paying a sum of Rs.4,000/- per month as a rent. 4. By making reference to the provisions of Section 97 of the Act, the counsel pleads that the tax on the lands and buildings, which is let out, is upon the lessor and if the land or a building is sublet, then upon the superior lessor and when the building is unlet, then upon the person in whom the right to let the same vests. On this basis, the counsel pleads that the petitioners would not be liable to pay any house tax and accordingly respondent No.3 can not be permitted to adopt this method to seek their eviction by getting the property sealed upon non-payment of house tax. 5. Reply is filed by respondent No.3. A preliminary objection is raised, making allegation that the petitioners have not approached the Court with clean hands. It is alleged that Ajit Singh Mahal is the owner of Shop Nos.2 and 3. Earlier respondent No.3 was the general power of attorney holder of said Ajit Singh Mahal and the shops in question were mortgaged to Ramesh Kumar on 22.3.2004. Shop No.3 was given to Ramesh Kumar vide registered mortgage deed on 23.3.2004. The copy of the deed is attached with the reply. Ajit Singh had filed a civil suit in which redemption has been ordered. Copy of the judgement dated 12.1.2011 is annexed with the reply. Shop No.10 is under the ownership of respondent No.3, which was also mortgaged to Gurbir Singh on 15.10.1998. Reference is made to the mortgage deeds to plead that house tax is to be paid by the mortgagee-petitioners. As per the answering respondent, the tax is to be paid by the owner or the occupier of the land or building and even the notices were also sent to the mortgaged property. Accordingly, it is pleaded that liability would be of the petitioners, who are not the lessees as claimed but are the mortgagees and had agreed to pay the house tax specifically. 6. The entire case of the petitioners is based on the premise that the petitioners are the lessees. Accordingly, it is pleaded that liability would be of the petitioners, who are not the lessees as claimed but are the mortgagees and had agreed to pay the house tax specifically. 6. The entire case of the petitioners is based on the premise that the petitioners are the lessees. Except for averments made in the petition that they have occupied the property on the basis of oral lease, there is no document placed on record in this regard to show that the petitioners are lessees. 7. The reply in this case was filed by respondent No.3 on 12.3.2011, pleading that the property in question is under mortgage with the petitioners but till date, the petitioners have not rebutted the same in any manner. The mortgage deeds have been placed on record and are referred to during the course of arguments. Except in a case where mortgage is redeemed, the liability to pay tax in remaining cases, where the mortgage deeds still stand, apparently may have to be on the basis of the agreed terms contained in the mortgage deed. 8. No doubt, notice in this case was issued to respondent No.3 but he is referred to as an owner, however, the possession of the property in dispute is shown in the names of the petitioners. Respondent No.3 was required to discharge the liability and in the event of non-compliance the recovery was to be effected under Section 138 of the Act by sale of the property by way of attachment. Subsequently, however, the property was attached vide order dated 11.12.2008, copy of which is annexed as Annexure P-10. Respondent No.3 has not raised any challenge to the same but the petitioners have filed this writ petition to challenge the order of attachment or the liability which has been fastened on them. 9. The reply filed by respondent No.1 would show that the petitioners have directly approached this Court to challenge the notice or the attachment without availing the alternative remedy under Section 146 of the Act. This is termed as efficacious remedy. Thereafter, further remedy is available under the provisions of Section 148 of the Act. It is also pointed out that the petitioners have neither challenged any order of assessment nor the action or decision of the answering respondent, claiming any specific relief against the State. This is termed as efficacious remedy. Thereafter, further remedy is available under the provisions of Section 148 of the Act. It is also pointed out that the petitioners have neither challenged any order of assessment nor the action or decision of the answering respondent, claiming any specific relief against the State. There may be a difficulty on the part of the petitioners as being tenants as they may be at disadvantage to challenge the assessment. 10. The Municipal Corporation has also filed a short reply. It is pointed out that the owner-respondent No.3 has not disputed the assessment of the house tax and it has become final. It is stated that the tenant has no right to challenge the assessment. The Corporation, however, has further stated that other method of recovery of house tax is by attaching the rent and accordingly the petitioners have been asked to disclose the rent payable, which can then be attached, which is an alternative mode of recovery available with the Corporation. 11. The whole issue in this case relates to the determination whether the petitioners are tenants or not. Prima-facie, I have not been able to locate any document, which would show that the petitioners are tenants. Rather, the documents on record would show that the petitioners are the mortgagees. There is no denial forthcoming to this fact that there is a registered mortgage deed between the parties, which contains a clause fastening the liability of payment of house tax on to the mortgagee. The question still would be to see if the petitioners, even if taken as tenants, can have locus to challenge the assessment. The petitioners have not been asked to make the payment. Assessment is not under challenge. Corporation is concerned with recovery of house tax and is not concerned with the dispute between the petitioners and respondent No.3. Still, if the petitioners are aggrieved against the action of attaching the properties or putting locks to the properties, for which they can make any challenge, then they would be at liberty to either discharge the liability and then contest the same and recover from the respondents or alternatively may invoke their remedy under Section 146 and 148 of the Act, if permissible under law. 12. The writ petition is accordingly disposed of. ---------0.B.S.0------------