Civil Writ Petition Nos.19048 & 19124 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Civil Writ Petition No.19048 of 2009 M/s Sham Bagh Palace, Bhupindra Road, Patiala ....Petitioner Versus State of Punjab and others ...Respondents 2. Civil Writ Petition No.19124 of 2009 M/s Raj Kamal Palace, Bhupindra Road, Patiala ....Petitioner Versus State of Punjab and others ...Respondents Date of Decision:- 11.2.2011 CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.M.L.Sarin, Senior Advocate with Mr.Vijay Sharma, Advocates for the petitioners. Mr.Sartaj Singh Gill, Deputy Advocate General, Punjab for respondent Nos.1 and 2. Mr.H.S.Brar, Advocate for respondent No.3. M ehinder S ingh S ullar , J. (Oral) As identical questions of law and facts are involved, therefore, I propose to dispose of above indicated writ petitions, by means of this common judgment, in order to avoid the repetition. However, the factual matrix, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petitions, has been extracted from (1) CWP No.19048 of 2009 titled as “M/s Sham Bagh Palace Vs. State of Punjab and others” in this context. 2. The compendium of the facts, culminating in the commencement, relevant for disposal of the present writ petitions and emanating from the record, is that the assessment order dated 24.3.2000 (Annexure P1) of the House Tax Sub Civil Writ Petition Nos.19048 & 19124 of 2009 2 Committee of Municipal Corporation, Patiala (respondent No.3) (for brevity “respondent-Corporation”) was challenged by the petitioner-firm in this Court in Civil Writ Petition No.15813 of 2000, which was dismissed, by virtue of order dated 19.5.2001 (Annexure P2). However, liberty was granted to petitioner-firm to file statutory appeal alongwith an application for condonation of delay. The appeal (Annexure P3) filed by it, was accepted by the appellate authority, by way of order dated 17.3.2005 (Annexure P4). The review applications filed by the respondent-Corporation was dismissed by the Divisional Commissioner, Patiala, by means of order dated 29.9.2005 (Annexure P5). However, CWP No.5311 of 2006 filed by the respondent-Corporation was accepted and the matter was remanded back by this court, through the medium of order dated 15.12.2006 (Annexure P6). The petitioner -firm deposited an amount of ` 3,49,868/-, vide cheque No.010776 dated 19.1.2007 through the application (Annexure P7). 3. Sequelly, the petitioner-firm filed the application dated 29.1.2007 (Annexure P8) under section 147 of The Punjab Municipal Corporation Act, 1976 (hereinafter to be referred as “the M.C.Act”) read with section 5 of the Limitation Act. The appeal filed by the petitioner-firm was dismissed for want of deposit of entire amount of ` 63,34,442/-, accrued upto year 2006-07, vide order dated 15.5.2007 (Annexure P10). The application (Annexure P11) for recalling of this order was dismissed as well, for want of deposit of the amount. However, delay in filing the appeal was condoned by the Commissioner, Jalandhar Division, by virtue of order dated 25.8.2008 (Annexure P12). Vide application (Annexure P13), the petitioner-firm was stated to have deposited the total balance amount of ` 10,49,604/-, accrued upto year 2003. The another CWP bearing No.16476 of 2008 filed by the petitioner-firm was accepted and the matter was remitted back to the appellate authority for deciding the appeal on merits, vide order dated 11.2.2009 (Annexure P14). Instead of considering the matter on merits, the appellate authority emotionally dismissed the appeals being time barred, by way of Civil Writ Petition Nos.19048 & 19124 of 2009 3 impugned order dated 23.9.2009 (Annexure P15). 4. The petitioners-firm did not feel satisfied and preferred the instant writ petitions, challenging the impugned order (Annexure P15), invoking the provisions of Articles 226 and 227 of the Constitution of India, inter-alia, pleading that once the delay in filing the appeal has already been condoned by the appellate authority, vide order (Annexure P12), then there was no occasion for it to again dismiss the appeal on the ground of limitation, specially when this Court has directed it to decide the case on merits, by means of order (Annexure P14). Inter- alia on the basis of aforesaid allegations, the petitioners-firm sought the quashment of the impugned order (Annexure P15), in the manner indicated hereinabove. 5. The respondents contested the claim of the petitioners-firm. Respondent No.1 filed its written statement, while the respondent-Corporation filed its separate written statement, inter-alia pleading therein that the petitioners- firm did not deposit the impugned amount, which is a condition precedent for hearing the appeals and since it did not file the appeals within limitation, so, the appellate authority has rightly dismissed the same, being time barred, vide impugned order (Annexure P15). The contesting respondents have termed the impugned order as legal and in accordance with the statutory provisions of the M.C.Act. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petitions and prayed for their dismissal. That is how I am seized of the matter. 6. Having heard the learned counsel for the parties, having gone through the record and relevant law with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant writ petitions deserve to be accepted, for the reasons mentioned hereinbelow. 7. As is evident from the record, that the House Tax Sub Committee of the respondent-Corporation revised the house tax assessment for the year 2000-01 of petitioners-firm, vide order (Annexure P1). CWP No.15813 of 2000 filed by the Civil Writ Petition Nos.19048 & 19124 of 2009 4 petitioner-firm was dismissed as withdrawn by this court. However, liberty was granted to it to file the appeal before the appellate authority, by virtue of order (Annexure P2). The petitioner-firm filed the appeal (Annexure P3), which was accepted by respondent No.1 (appellate authority), by way of order (Annexure P4). The review applications filed by the respondent-Corporation were dismissed by the appellate authority, by means of the order (Annexure P5). 8. Dis-satisfied with this order, the respondent-Corporation filed CWP No.5311 of 2006, which was accepted by a Division Bench of this Court and the matter was remanded back, by way of order (Annexure P6), the operative part of which is as under:- “This Court feels that orders under challenge are contrary to the established law. Before filing the appeal, pre-deposit of tax assessed, is a condition precedent , which has to be fulfilled. Appeal was entertained contrary to the provisions of Section 147 of the Act. Finding regarding limitation was also not recorded. We feel that order passed is liable to be set aside and are quashed accordingly. However, keeping in view the ratio of judgment in ANZ Grindlays Bank Limited,Amritsar v. Municipal Corporation, Amritsar 1999 (2) RCR (Civil) 430, we allow respondent Nos. 1, to deposit tax assessed and also to give an application for condonation of delay. If tax assessed is deposited within five weeks from today, respondent No.2, shall decide application for condonation of delay and appeal on merits , as per law within two months,thereafter. If amount is not deposited, as directed, this writ petition shall be deemed to have been allowed without any further direction as referred to above.” 9. Thereafter, in pursuance of this order, the petitioner-firm deposited the amount of ` 3,49,868/- through cheque No.010776 dated 19.1.2007, by way of application dated 19.1.2007 (Annexure P7). It has also moved an application (Annexure P8) under section 147 of the M.C.Act read with section 5 of the Limitation Act for condonation of delay. Although petitioner-firm had already deposited the impugned amount for the assessment year 2000-01, but an objection was raised on behalf of respondent-Corporation that it has not deposited the entire Civil Writ Petition Nos.19048 & 19124 of 2009 5 subsequent amount upto the year 2006-07, amounting to ` 63,34,442/-. The Divisional Commissioner, Patiala sustained the objection of the Corporation and directed the petitioner-firm to deposit the entire amount upto the year 2006-07, vide order (Annexure P10). The petitioner-firm moved an application (Annexure P11) for recalling of this order. Although the appellate authority condoned the delay in filing the appeals, but dismissed the appeals for want of depositing the entire amount accrued till 2006-07, by way of order (Annexure P12). In the meantime, the petitioner-firm was stated to have deposited the balance amount of arrears of house tax amounting to ` 10,49,604/- upto the year 2003, vide application (Annexure P13). 10. Felt aggrieved by the order (Annexure P12), the petitioner-firm again filed CWP No.16476 of 2008, which was allowed by a Coordinate Bench of this court (Ajai Lamba, J.) and directed the appellate authority to decide the appeal on merits, by means of order dated 11.2.2009 (Annexure P14), the operative part of which is as under:- “Learned counsel for the petitioner has pointed out that the limited claim of the petitioner in appeal was against order Annexure P- 1. Annexure P-1 is a decision in regard to the assessment of house tax for one year. In such circumstances, the petitioner could not have been directed to deposit the entire amount of house tax due till 2006-07. Learned counsel for the respondents have highlighted that the petitioner has been dilly dallying the payment and has in fact not paid since the year 1995-96. Learned counsel for the respondents has, however, not been able to show to the Court that the amount of house tax at issue before the Appellate Forum was for the period upto 2006- 07. I have considered the issue. Relevant provision that requires deposit of the amount under Section 147 (b) of the act reads as under:- “Section 147: Conditions of right to appeal: No appeal shall be entertained under Section 146 unless: xx xx xx xx Civil Writ Petition Nos.19048 & 19124 of 2009 6 (b) The amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the corporation.” Learned counsel for the petitioner has asserted that the amount disputed in appeal by the petitioner was only Rs. 3,75,788/- and, therefore, the authority could not have held that the amount disputed by the petitioner was more. Having considered the issue, I am of the opinion that the appellate forum can require a deposit of the disputed amount of house tax which is subject matter of the appeal only. Annexure P-1 is the order that was challenged in appeal. The house tax assessed under Annexure P-1 is only Rs. 3,75,788/- and, therefore, the respondents could not have asked for deposit of Rs. 64,65,745/-. The petitioner already having deposited Rs. 3,49,868/- i.e. The amount disputed in appeal (house tax to the tune of Rs. 25,920/- having already been deposited) the appeal is required to be entertained as per law. Accordingly, the writ petition is allowed. Order Annexure P-11 is set aside. The appellate authority would hear the parties on the deposit already made by the petitioner and pass orders according to law. In view of the delay already caused, the appeal shall be decided within a period of 60 days of receipt of copy of this order.” 11. What is not disputed here is that instead of deciding the matter on merits, the appellate authority again (emotionally) dismissed the appeal being time barred, by virtue of impugned order dated 23.9.2009 (Annexure P15), which, in substance, is as under:- “The petitioner in all these three cases have mis-utilized the legal process to avoid deposit of the house tax with the Municipal Corporation. Going to courts and authorities other than the competent one shows very clearly that on one pretext or the other they did not want to deposit the house tax to the Corporation. They have least regard for the law as they want to get favourable decision by putting political pressures on the officers deciding the matter. It is a well settled law that ignorance of law is no excuse. If the rich persons like the petitioners mis-utilize the judicial process for their own vested interests, the Local Bodies like Corporation would come to stand still and would be unable to perform its lawful duties of providing basic Civil Writ Petition Nos.19048 & 19124 of 2009 7 amenities to the residents of its jurisdiction. The disputed amount is very well interpreted in the Act itself but this court would not like to touch this issue again as same judgment have already been passed by the Hon'ble Court in 2009. However, in compliance of second issue of condonation of delay, though the courts are very liberal and the decision of case on delay issue should not be a hindrance in normal circumstances, but in these cases, the petitioners seem to be extra intelligent, extra vigilant and extra influential to thwart the natural process of law. Though courts are there to ensure justice to whosoever approaches them but in these cases it seems that petitioners believe in the maxim “show me the face I will show you the law”. The delay which is in explainable cannot be condoned. Dismissed.” 12. Therefore, the arguments of learned counsel for petitioner-firms that (i) once the delay in filing the appeal has already been condoned by the appellate authority, vide order (Annexure P12), then there was no occasion for it to again dismiss the appeal on the ground of limitation and (ii) since the impugned assessment of house tax pertains to the year of 2000-01, so, the petitioners-firm were not legally liable to pay the entire amount, accrued till 2006-07, for pursuing the appeal for the assessment year 2000-01, have considerable force in this respect and the contrary arguments of learned counsel for the respondents “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 13. Keeping in focus all the indicated facts, lastly this Court (earlier) directed the appellate authority to decide the appeals on merits, vide order (Annexure P14). It is also not a matter of dispute that the petitioner-firm has already deposited an amount of ` 3,49,868/-, vide indicated cheque and it has also deposited the amount of ` 10,49,604/- till the year 2003. Not only that, the petitioners-firm were stated to have already deposited the amount of ` 5 lacs more, in pursuance of interim order dated 10.12.2009 of this court. Meaning thereby, although the petitioner-firm was liable to deposit only the impugned amount for the assessment year 2000-01 as pre-deposit amount for hearing of appeal, but still it has already deposited the amount of ` 3,49,868 + 10,49,604 + 5,00,000 = Civil Writ Petition Nos.19048 & 19124 of 2009 8 18,99,472/- in the wake of order of this Court in excess accrued till the year 2003. 14. In this manner, to me, the appellate authority was duty bound to decide the appeal on merits instead of jumping to dismiss the same on the non- existent technical ground of limitation, which (limitation) has already been condoned, vide order (Annexure P12). Thus, the impugned order cannot legally be maintained in the obtaining circumstances of the case. 15. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties. 16. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of hearing of the appeal, the instant writ petitions are accepted. Consequently, the impugned order (Annexure P15) is hereby quashed and the matter is remitted back and the Commissioner, Patiala Division (appellate authority) is specifically directed to decide the appeal of the petitioner-firms on merits, treating it to have been filed within limitation and without demanding any pre-deposit amount in excess of the impugned amount for the assessment year 2000-2001, within a period of three months positively, from the date of receipt of certified copy of this order. 17. The parties through their counsel are directed to appear before the appellate authority on 21.3.2011 for further proceedings. (Mehinder Singh Sullar) Judge 11th Feb., 2011 AS Whether to be referred to reporter? Yes/No