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2012 Supreme(All) 2732
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND ABHINAVA UPADHYA, JJ.
Dr. A.C. MULLICK AND OTHERS ....Petitioners
Versus
STATE OF U.P. AND OTHERS .....Respondents
(Civil Misc. Writ Petition No. 191 of 2011, decided on 12th October, 2012)
Counsel :
Manish Goyal and Ms. Priyanka Midha for the Petitioners; S.D. Kautilya, S.K. Gupta and C.S.C. for the Respondents.
Headnote:Constitution of India, 1950—Articles 243 Q and 14—U.P. Municipal Corporation (Amendment) Act, 1999—Section 11—U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Sections 7, 179, 207, 207-A, 207-B, 208, 209—U.P. Municipal Corporation Act, 1959—Sections 174 and 179—U.P. Municipalities Act, 1916—Section 149—U.P. Nagar Maha Palika (Depreciation of Building) Rules, 1983—Rule 1(2), 2, 3, 4 and 5—Recovery—House tax—Mandamus sought and recover the house tax from owners of building—Whether Section 11 of 1999 Act is ultra vires the Article 14 of Constitution—Petitioners claim to be allottees of shops under Act of 1972—Whether two classes of tenants have been created by impugned amendment ?—Whether the payment of house tax alongwith rent to landlord, absolve petitioners to pay house tax to municipal corporation—Whether 1983 Rules are applicable to commercial buildings owned by private individuals and Nagar Nigam is liable to be provide depriciation ?—Building in question undisputedly a commercial building—Annual value of a commercial building falling under Section 174 (1) (a) is to be determined as per the provisions contained under Section 174 (1) (a)—1983 Rules are applicable for determination of annual value of buildings under Section 174 of 1959 Act—Corporation failed to realise the house tax as per the correct annual value—Person who is primarily liable to pay house tax have every right to have his say on the assessment—Petitioners not barred under 1959 Act to file objection against the assessment of house tax—Petitioner directed to deposit house tax as per the assessment prevalent prior to 2003—Municipal Corporation also directed to make assessment of building in question in accordance with Section 174 (1) (a) of 1959 Act and 1983 Rules—Further direction also issued—Impugned recovery proceedings as initiated by citation dated 29.12.2010 quashed—However, prayer to declare Section 11 of U.P. Act 17 of 1999 as ultra vires is refused. [Paras 4o to 55]
Hon’ble Ashok Bhushan, J.—The petitioners by means of this writ petition have challenged the recovery proceedings initiated by Nagar Nigam Allahabad through Collector, Allahabad for recovery of house tax of building No. 35, Mahatma Gandhi Marg, Allahabad. A mandamus has also been sought commanding the respondents to realise and recover the house tax from respondent Nos. 7 to 9 owners of the building. Further prayer has been made for issuance of a writ, order or direction declaring Section 11 of the U.P. Act No. 17 of 1999 (U.P. Municipal Corporation (Amendment) Act of 1999 as ultra vires to Article 14 of the Constitution of India.
2. We have heard Sri Manish Goyal, assisted by Ms. Priyanka Middha for the petitioners, Sri S.D. Kautilya, learned counsel appearing on behalf of Nagar Nigam, Allahabad and Smt. Archana Srivastava, learned Standing Counsel for the State. Notices have not been issued to the respondent Nos. 7,8 and 9 who have been arrayed as owners of the building in question.
3. Counter-affidavit and Supplementary counter-affidavit have been filed on behalf of Nagar Nigam, Allahabad. A counter-affidavit has also been filed by the State. Rejoinder-affidavit and supplementary rejoinder-affidavit have been filed by the petitioners. The issues raised in the writ petition can be conveniently decided on the pleadings of the parties which are on the record and it is not necessary to have presence of respondent Nos. 7,8 and 9. However, liberty is reserved to the said respondents to make an application for alteration/modification or variation of this order if, they feel so aggrieved.
4. Brief facts of the case as emerged from pleadings of the parties are; the petitioners, who are five in numbers, are tenants of building bearing municipal No. 35 Mahatma Gandhi Road, Allahabad. The predecessor in interest of respondent Nos. 8 and 9, the owners of the shops have let out the shops to the petitioners on rent. The petitioners claim to be allottees of the shops under the provisions of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U.P. Act No. 13 of 1972 (hereinafter referred to as ‘1972 Act’). The petitioners claim to have paid house tax to the respondent Nos. 7,8 and 9 on whom according to the petitioners the liability to pay property tax rest. The officials of the respondent Nos. 2 and 3 pasted a citation on the individual shop of the petitioners whereby the dues of house tax were shown to be for an amount of Rs. 30,72,048/- besides interest and recovery charges. The official, who visited the shop pasted the notice and asked the petitioners to immediately pay the aforesaid amount otherwise, the shops shall be attached. Copy of the citation dated 29.12.2010 has been brought on record as Annexure-1 to the writ petition. The citation was issued in the name of respondent Nos. 7 and 8 mentioning amount of Rs. 30,72,048/- as house tax dues. An order was issued by the Sub Divisional Officer on 8.2.2011 attaching the property belonging municipal No. 159/35 Mahatma Gandhi Marg, Allahabad. This writ petition was filed on 5.2.2011 by the petitioners and an interim order was passed on 21.2.2011 to the effect that the proceedings of attachment dated 8.2.2011 of the shop may continue however, shops of the petitioners be not closed. In the writ petition following reliefs have been prayed by the petitioners:
“(a) issue a writ, order or direction in the nature of Certiorari calling for the record and quashing the entire recovery process initiated against the petitioners by respondent No. 2,3,5 and 6 with respect to house tax of Building No. 35 M.G. Road, Allahabad (Annexure-1 to the present writ petition).
(b) issue a writ, order or direction in the nature of Certiorari calling for the record and quashing the entire proceedings against the petitioners or the shops in occupation of the petitioners for realization of house tax.
(c) issue a writ, order or direction in the nature of Mandamus commanding
