Regular Second Appeal No.3655 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.3655 of 2008 Date of decision: 17.07.2009 1.Municipal Corporation of Faridabad, B.K. Chowk, NIT Faridabad through its Commissioner. 2.Joint Commissioner (Old Faridabad Zone), Municipal Corporation Faridabad, Faridabad. ..... Appellants. Versus 1.Gaurav son of late Satpal Ahuja, r/o H.No. 735, Sector 15, Faridabad. 2.Sandeep s/o late Satpal Ahuja, r/o H. No. 735, Sector 15, Faridabad. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:-Mr. M.K. Sood, Advocate for the appellants. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 31.08.2005, rendered by the Court of Civil Judge (Junior Division), Faridabad, vide which it decreed the suit of the plaintiffs, by setting Regular Second Appeal No.3655 of 2008 2 aside the demand notices, (Ex.P5 and Ex.P6), being illegal and void and inoperative against the rights of the plaintiffs (now respondents) and the judgment and decree dated 30.01.2008,rendered by the Court of Additional District Judge, Faridabad, vide which it dismissed the appeal. 2. Shorn off unnecessary details, the facts relevant for the decision of the appeal, are that the plaintiffs (now respondents) claimed themselves to be the owners of industrial plot no.A-DLF Industrial Area, Phase -1, Faridabad. It was stated that the suit property was assessed for the purpose of house tax by the Municipal Corporation, Faridabad. It was further stated that the plaintiffs (now respondents) have been paying the house tax, in accordance with law. It was further stated that the Municipal Corporation, vide its letter dated 20.10.2000, raised additional demand of Rs.1,01,373/- towards the arrears of house tax. It was further stated that the said demand was raised, on the basis of an enquiry report, submitted by the State Vigilance Bureau, Haryana, Chandigarh. The plaintiffs (now respondents) deposited the amount, under protest, Regular Second Appeal No.3655 of 2008 3 but filed a suit challenging the said demand, as illegal, arbitrary and without jurisdiction, on the grounds, that the defendants could not increase the annual rental value of the property of the plaintiffs, in an arbitrary manner, without affording them an opportunity of being heard and presenting their case. It was further stated that the defendants (now appellants) were asked, many a time, not to do so, but to no avail. On their final refusal to withdraw the aforesaid notices, creating additional demand of house tax, left with no alternative, a suit for declaration and permanent injunction, was filed. 3. The defendants, put in appearance, and contested the suit, by way of filing their joint written statement. They pleaded therein that the plaintiffs had furnished wrong and false information about the rental value of the suit property. This fact came to the notice of the defendants(now appellants) after inquiry, conducted by the Vigilance Department. It was stated that under these circumstances, on the basis of the enquiry report of the Vigilance Department, additional demand of house tax in the sum of Regular Second Appeal No.3655 of 2008 4 Rs.1,01,373/- was created. It was further stated that the demand created, was legal and valid. The remaining averments were denied. 4. From the pleadings of the parties, the following issues, were framed, by the trial Court :- “1- Whether the house tax as well as demand of house tax for the year 1999-2000 vide notice dated 20.10.2000 are illegal, unjust, unconstitutional, unauthorized, against the principle of natural justice ? OPP 2- Whether the plaintiffs are entitled to decree of mandatory injunction directing the defendants to refund or adjust the amount of Rs.76569/- as deposited by the plaintiffs ?OPP 3- Whether the defendants are liable to be restrained from recovering any amount towards alleged arrears ?OPD 4- Whether the plaintiffs have no locus standi to file the present suit ?OPD 5- Whether the suit of the plaintiffs is not maintainable ?OPD Regular Second Appeal No.3655 of 2008 5 6- Whether the plaintiffs are estopped by their own act and conduct to file the present suit ?OPD 7- Relief.” 5. The parties led evidence in support of their case. The trial Court after hearing the Counsel for the parties, and, on going through the evidence and record of the case, decreed the suit of the plaintiffs by holding that the demand notices were illegal, invalid and inoperative against the rights of the plaintiffs. 6. Feeling aggrieved, against the judgment and decree dated 31.08.2005, passed by the trial Court, the appellants (defendants) filed an appeal before the Appellate Court, at Faridabad, which vide its judgment and decree dated 30.01.2008, dismissed the same. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed by the appellants. 8. I have heard the Counsel for the appellants, and have gone through and perused the documents, on record, carefully. Regular Second Appeal No.3655 of 2008 6 9. The Counsel for the appellants submitted that the additional demand of house tax, was raised by the Municipal Corporation, Faridabad, on the basis of enquiry, conducted by the Vigilance Department. He, however, submitted that no notice under Section 146 of the Municipal Corporation Act, 1994 for assessing the rental value of the property, in question, and creating the additional demand was issued to the plaintiffs (now respondents). He however, submitted that, as per the provisions of the Municipal Corporation Act, such a demand could not be raised, on the basis of the enquiry, conducted by the Vigilance Department. He further submitted that the judgments and decrees,of the Courts below, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. Admittedly, the plaintiffs (now respondents) were paying the house tax, in accordance with the provisions of law to the Municipal Corporation, Faridabad. In case, Regular Second Appeal No.3655 of 2008 7 the Municipal Corporation, Faridabad, wanted to revise the annual rental value of the property of the plaintiffs(now respondents), which had already been assessed to house tax by it, it was required of it to resort to the procedure, contained in Section 146 of the Municipal Corporation Act, 1994, which reads as under:- “1. Notwithstanding anything contained in this Chapter, where the prescribed authority is satisfied that any property has been erroneously valued or assessed through fraud, accident or mistake whether on the part of the Corporation or any officer or employees of the Corporation or the assessee, it may, after giving to the assessee an opportunity or being heard and after making such enquiry as it may deem fit, pass an order amending the assessment already made and fixing the amount of tax for that property and on the issue of such an order assessment list then in force shall, subject to the order, if any, passed Regular Second Appeal No.3655 of 2008 8 in appeal or revision be deemed to have been amended accordingly with effect from first day of January, or first day of April, or first day of July, or first day of October, next following the month, in which the order is passed. 2. Any person aggrieved by an order or the prescribed authority may, within a period of thirty days of the date of communication to him or the order, file an appeal to the Government which shall decide the appeal after giving to the appellant an opportunity of being heard.” 11. The plain reading of Section 146 of the Municipal Corporation Act, 1994, clearly reveals that a notice to the assessee is required to be served, before making revised assessment of house tax. No such notice was admittedly given to the plaintiffs (now respondents), by the defendants (now appellants ). They only acted upon the enquiry report of the Vigilance Department, and revised the annual rental value of the property of the Regular Second Appeal No.3655 of 2008 9 plaintiffs (now respondents). Since the plaintiffs were not given any notice, nor they were asked to put forth their version, they were condemned unheard. Since the order of re-assessment of house tax, was passed at the back of the plaintiffs, it could not be said, by any stretch of imagination, to be legal and valid. It was completely in- derogation to the mandatory provisions of Section 146 of the Municipal Corporation Act, 1994. Under these circumstances, the concurrent findings of fact, recorded by the Courts below, that the revised assessment of house tax of the plaintiffs, without giving notice to them, under the provisions of Section 146 of the Municipal Corporation Act, 1994 and the demand notices for the recovery of revised house tax, being illegal and inoperative against the rights of the plaintiffs, were liable to be set aside, being based on the correct appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and, as such, warrant no interference. The judgments and decrees, of the Courts below, are liable to be upheld. The submission of the Counsel for the appellants, being without merit, must fail and the Regular Second Appeal No.3655 of 2008 10 same stands rejected. 12. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 13. In view of the above, finding no merit in the appeal, the same stands dismissed with costs. It is, however, made clear, that the appellants shall be at liberty, to proceed in accordance with the provisions of law. ( Sham Sunder ) July 17, 2009 Judge dinesh