Serial No. 01

Regular Cause List

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

OWP No. 1157/2002

Vijay Lakshmi Khattar and Ors.

… Appellant(s)

Through: -

Mr. Karman S. Johal, Advocate vice Mr. K. S. Johal, Sr. Advocate

V/s

State of J&K and Ors.

… Respondent(s)

Through: -

Mr. D. C. Raina, Advocate General with Mr. Sumeet Bhatia, GA

CORAM:

Hon’ble the Chief Justice

Hon’ble Mr Justice Puneet Gupta, Judge

(ORDER)

10.11.2022

The subject of the instant writ petition has reference to the order of

assessment, made by the respondent No. 3, in respect of the property, viz

15/C (Ext.), situated at Gandhi Nagar, Jammu for the period w.e.f. April,

1997 to March, 2002, as also the Demand notice dated 22.11.2002, issued

by the Collector Dy. Sales Tax Commissioner (Recovery), Jammu-

respondent No. 5, asking the petitioner No. 1, to pay Rs. 35,200/- on or

before 09.12.2002, as per the assessment of the property Tax.

The impugned order and notice are challenged on varied grounds

with particular reference that the petitioners were not at all heard by the

Assessing Authority, while assessing the Tax for the aforesaid period,

which violates the right of the petitioners guaranteed under Constitution and

Law. It is submitted that the property for which the Assessing Authority had

made liable the petitioners for tax is Trust property, which property is

relinquished by the owner to Trust vide relinquishment deed, executed on

20^th Day of November, 1998. It is further submitted that the property is used

for Medical Centre for the poor and marginal classes.

Learned counsel appearing for the petitioners submits that in terms of

Clause (d) of Section 10 of the J&K Urban Immoveable Property Tax Act,

1962 ( for short < the Act=), (now repealed), the property held in Trust

wholly for charitable or religious purposes is exempted from Tax, therefore,

the order of assessment passed and subsequent orders of penalty and

recovery are without jurisdiction. It is further contended that the remedy of

appeal is an alternate and efficacious remedy, which does not bar the

jurisdiction of this Court in the writ petition under Article 226 of the

Constitution of India, which has extraordinary jurisdiction. Learned counsel

further submits that in order to appreciate the application of law and the

jurisdictional aspect, coupled with the exemption under clause 1 of Section

4, this Court has jurisdiction to entertain the writ petition and pass

appropriate orders.

On notice respondents have raised preliminary objections regarding

maintainability of the writ petition on the grounds that the petitioners have

not availed the efficacious and alternate remedy available to them under the

Act. It is further stated that the assessment order has been passed against the

petitioners under the provisions of Section 8 of the Act and the Rules.

Notwithstanding such preliminary objections, the respondents have also

denied the contentions raised in the writ petition that the property taxed for

the period is exempted from Tax in terms of application of clause (d) of

Section 4 of the Act. It is further averred that it is disputed question, which

cannot be gone into by the writ petition filed under Article 226 of the

Constitution of India.

Mr. D. C. Raina, learned Advocate General, submits that the scheme of

law by no stretch of imagination can be made redundant by filing the writ

petition, challenging the order passed by the Assessing Authority and

subsequent orders of penalty and recovery. Learned Advocate General, has

invited the attention of this Court to Section 10 of the Act, which provides

for appeal and revision against the order of the Assessing Authority by any

person aggrieved within thirty days from the date on which the order is

served with the notice of demand. Learned Advocate General further

submits