RSA No. 3437 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3437 of 2008 Date of Decision: 13.10.09 Sh. Y. P. Kohli son of Sh. Uttam Chand Kohli, resident of J-4, Kailash Colony, New Delhi. ... Appellant Versus 1. Municipal Corporation, Faridabad, through its Commissioner, NIT Faridabad. 2. The Joint Commissioner (Faridabad old Zone), Municipal Corporation, Faridabad. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Arun Singal, Advocate, for the appellant. Mr. Mohnish Sharma, Advocate, for respondents No. 1 and 2. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, dated 30.08.07, rendered by the Court of Additional District Judge (I), Faridabad, vide which, it accepted the appeal, against the judgement and decree dated 10.02.06, rendered by the Court of Civil Judge (Junior Division), Faridabad, and decreed the suit of the defendants. 2. The plaintiff, claimed himself, to be the owner in possession of an industrial plot No. 14/6, Mathura Road, Faridabad. It RSA No. 3437 of 2008 2 was stated that the said industrial plot, was being assessed, for the purpose of recovery of house-tax, by the defendants, and he was making the payment thereof regularly. It was further stated that, though, in the year 1998-99, a sum of Rs. 2363/-, and, in the year 2002-03, a sum of Rs. 23,861/-, was deposited, by the plaintiff, with the defendants, but, on the basis of an inquiry, conducted by the State Vigilance Bureau (Haryana), Chandigarh, they issued a notice dated 23.10.2000/22.11.2000, for depositing the arrears of house-tax, upto 31.03.99, i.e. within seven days, to the tune of Rs. 1,08,779/-. It was further stated that no show cause notice was given, nor an opportunity was granted to the plaintiff before creating the additional demand of house tax and payment thereof. The amount was deposited to avoid harassment, under protest. The demand notice, was challenged as illegal and void. The defendants, were many a time asked, not to harass the plaintiff, by issuing such notices, but to no avail. Ultimately, a suit for declaration and mandatory injunction, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit, was barred by Order 2 Rule 2 of the Code of Civil Procedure, and was liable to be stayed under Section 10 of the Code of Civil Procedure, as a similar suit, was pending between the parties. It was further pleaded that the Civil Court, had no jurisdiction, to try and entertain the suit. It was stated that the plaintiff, was not making the payment of house-tax regularly. It was further RSA No. 3437 of 2008 3 stated that the payment of house-tax, made by the plaintiff, to the defendants, with regard to his industrial plot, was not disputed. It was admitted that the disputed demand was created, on the basis of enquiry, conducted by the State Vigilance Bureau (Haryana), Chandigarh. It was further stated that due opportunity, was given, to the plaintiff, by the defendants, before sending the notice, for the recovery of arrears of house-tax. It was further stated that the house-tax, had been rightly imposed upon the plaintiff, by the defendants, and, was, thus, not refundable. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the alleged notice bearing No. MCF/F/2000/3283 dated 22.10.2000 / 23.11.2000, and order bearing No. MCF/Old/N/19 dated 10.01.01, are unlawful, illegal and void on the grounds as alleged? OPD (ii) Whether the plaintiff is entitled to the injunction, as prayed for? OPP (iii) Whether this Court has no jurisdiction to entertain the present suit? OPD (iv) Whether the suit is not maintainable in its present form? OPD (v) Whether the plaintiff has no cause of action to file the present suit? OPD (vi) Whether the suit is bad for notice under Section 389 of Haryana Municipal Act? OPD (vii) Whether the plaintiff has not come to the Court with clean hands and if so to what effect? OPD RSA No. 3437 of 2008 4 (viii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the defendants/respondents, which was accepted, by the Court of Additional District Judge (I), Faridabad, vide judgment and decree dated 30.08.07. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. The following substantial questions of law arise, in this appeal, for the determination of this Court:- (i) Whether the defendants/respondents, could raise an additional demand of house-tax, without issuing the show cause notice, to the assessee, and affording him an opportunity of putting-forth his version? (ii) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, as also contrary to the settled proposition of law, that the additional demand of house-tax, raised by the defendants/respondents, was legal and valid? 9. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 10. The Counsel for the appellant, submitted that, before creating additional demand of house-tax, no show cause notice, was RSA No. 3437 of 2008 5 issued, to the appellant, in view of the mandatory provisions of Section 99(f) of the Haryana Municipal Corporation Act, 1994. He further submitted that the defendants/respondents, created the additional demand of house-tax merely, on the basis of the report of the State Vigilance Bureau (Haryana), Chandigarh. He further submitted that, under these circumstances, the demand, raised by the defendants/respondents, against the mandatory provisions of law, was illegal, and was rightly set aside, by the trial Court. He further submitted that the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, as also the law, on the point. He further submitted that the judgement and decree of the first Appellate Court, thus, was liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that due procedure, was followed, before creating the additional demand of house-tax. He further submitted that all the departmental remedies, were not exhausted, by the plaintiff/appellant, before approaching the Civil Court. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be accepted, for the reasons to be recorded, hereinafter. Admittedly, the appellant, was a house-tax assessee. He was paying the house-tax, in respect of his premises RSA No. 3437 of 2008 6 regularly. On the basis of enquiry report No. 10/99 dated 30.08.99, conducted by the State Vigilance Bureau (Haryana), Chandigarh, the plaintiff/appellant, was directed, by the Joint Commissioner, (Faridabad Old Zone), vide letter, copy whereof, is P6, to deposit the arrears of house-tax, to the tune of Rs. 1,08,779/-, within a period of seven days, from the date of receipt of the letter. P6, which was not a show cause notice, by any stretch of imagination, but, on the other hand, it was an order, imposing the arrears of house-tax, in the sum of Rs. 1,08,779/-, on the basis of the report of the State Vigilance Bureau (Haryana), Chandigarh. The defendants/respondents, were required to act, in accordance with the mandatory provisions of the Haryana Municipal Corporation Act. Any action, taken by them, in violation of the mandatory provisions of the said Act, could be said to be illegal, and not binding, against the rights of the aggrieved person. According to Section 99 (1) (f) of the Haryana Municipal Corporation Act, 1994, the assessment of house tax on the land or building, which has been erroneously valued or assessed through fraud, mistake or accident, can be amended by the competent authority. However, according to Section 99 (2) of the Act, before making amendment under Sub Section (i), the Commissioner shall give to any person affected by the amendment, notice of not less than one month that he proposes to make amendment and consider any objection which may be made by such person. No show cause notice as envisaged by Section 99(2) of the Act, was given, before creating the additional demand of house tax. P6, does not RSA No. 3437 of 2008 7 answer the requirement of Section 99(2) of the Act. The Officers of the State Vigilance Bureau (Haryana), Chandigarh, did not inspect the premises, in question, in the presence of the plaintiff. No notice, was given, to the plaintiff, before conducting the inspection of the premises. No doubt, in pursuance of the order, copy whereof, is P6, the plaintiff, deposited the house-tax, claimed under protest. However, that did not mean, that the illegality, committed by the defendants, was rectified. The orders, copies whereof, are P2 and P6, were passed, in violation of the mandatory provisions of law, referred to above, and, as such, were liable to be set aside. The first Appellate Court, was wrong, in coming to the conclusion, that the orders, copies whereof, are P2 and P6, were legal and valid. The judgement and decree of the first Appellate Court, being the result of misreading, and misappreciation of evidence, and not taking into consideration the mandatory provisions of law, aforesaid, are liable to be set aside. 13. The substantial questions of law, depicted above, are answered, in favour of the appellant. 14. For the reasons recorded above, the appeal, is accepted, with costs. The judgement and decree of the first Appellate Court, being illegal, are set aside, whereas the judgement and decree of the trial Court, are restored. The respondents shall however, be at liberty, to create an additional demand of house tax, after following the procedure laid down in the mandatory provisions of the Act. 13.10.2009 (SHAM SUNDER) Amodh JUDGE