# and another v. Pushpendra

- **Citation:** (2001) 1 ILRA 130
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/and-another-v-pushpendra-39002
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
130
Government in 1998. The learned counsel
for petitioner claims the petitioner was
covered in clause (f) and, therefore, he
had the essential qualification. This is
disputed by the learned counsel for
respondents. I have given my anxious
consideration to this argument. Clause
(3)(f) envisages, "Intermediate Grade
Drawing Examination of Bombay", as an
essential qualification .Petitioner does not
possess this qualification. The clause does
not provide intermediate Grade Drawing
Examination conducted by Maharashtra
Government. The entry is specific. It does
not include similar courses conducted by
Maharashtra government. This is further
clear from a perusal of other clauses of
(3).For instance, Fine Art Diploma of
Kala Bhavan of Shanti Niketan or
Certificate of Government Drawing and
Handicraft Centre, Allahabad or Final
Drawing Teacher ship Examination of
Calcutta, etc. The clause (3) recognize
certificates issued by specific institutions
mentioned of a particular city for state.
Therefore, it is not possible to accept that
the
certificate
obtained
from
any
institution in Maharashtra would be
covered in it. Clauses(3) is not illustrative
but it is exhaustive. The certificate of
Intermediate Grade Drawing Examination
conducted by Maharashtra Government,
possessed
by
the
petitioner
is
not
recognized as essential qualification in
serial number 10 of Appendix. 'A' to
chapter II of the Regulations. In Sanjeev
Kumar Dubey (supra) the division bench
has held that under the dying in harness
rule a candidate could be appointed if he
possess the essential qualifications for
appointment on the post of assistant
teacher.
Therefore,
the
decision
in
Sanjeev Kumar Dubey(supra) is of no
help to the petitioner and he is not
qualified to be appointed as Assistant
Teacher(art).

7. The next question is if a class-III
post was not vacant the DIOS should have
created a supernumerary post of class-III
for appointing he petitioner. The DIOS
appointed the petitioner on class-IV post,
as no class-III post was vacant. The apex
court
in
Director
of
Education
(Secondary) and another v. Pushpendra
Kumar and others 1998 (2) UPLBEC
1310 has held that under the Regulations
if a vacancy is not available in class-III
post the dependant would be appointed on
a class-IV post but a supernumerary post
of class-III cannot be created nor any
direction can be issued by High Court for
creating a supernumerary post of class-III
.The rejection of the application of
petitioner by DIOS is upheld but for a
different reason.

8. For the reasons aforesaid, I do not
find any merit in this petition.

9. This petition fails and a
accordingly dismissed.

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By the Court.

1. This writ petition has been filed
for a mandamus directing the respondents
to refund the amount of Rs. 346875/-
illegally realised from the registrar on
13.2.1997 alongwith interest @ 18% .By
an amendment application a prayer for
certiorari has also been made to quash the
assessment order Annexure 2 to the
amendment application . There is a
further prayer of mandamus commanding
the respondents to pay damages to the
petitioner for physical and mental torture
suffered
by
the
employees
of
the
petitioners.

2. We have heard learned counsels
for the parties.

3. The petitioner is a registered
society and is running a charitable
hospital in the name of Mariampur
Hospital in the city of Kanpur. In para 7
of the petition it is allege that all medical
advice and treatment to most of the
patients coming to the hospital is given
free of cost. No charge is taken from poor
patients for beds in general wards and
medicine is also given free of cost to such
patients. By order dated 21.3.1976 passed
by the U.p-Nagar Adhikari Kanpur the
said officer assessed the annual rental
value of the premises in dispute to be at
Rs. 1,58,880/- vide annexure 1 to the
petition. In the year 1982 for the first time
a dispute arouse as to the liability of the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
132
petitioner to pay general taxes in respect
of the premises in dispute By an order
dated 26.5.1982 passed by the learned
Judge Small Causes court Kanpur the
premises in dispute was assessed to
annual value of Rs. 80,000/- from
1.6.1976 to 30.9.1978 Both the orders
dated 26.5.1982 were challenged by the
petitioner by filing 2nd Taxation appeals
No. 13 of 1982 and 15 of 1982
respectively. Both the appeals were
disposed of by an order dated 27.4.1984
and it was held that the premises in
dispute is not subject to payment of
general taxes being a charitable society.
However, the respondents were at liberty
to make annual assessment thereof only
for
collateral
purpose
other
than
realisation of general taxes under Section
177(1)
of
U.P.
Nagar
Mahapalika
Adhiniyam. A true copy of the order
dated 27.4.1984 is Annexure 2..

4. In Jan 1987nagain annual rental
value of the premises in dispute was fixed
by issuing notice to the petitioner. In its
reply
dated
28.1.87
the
petitioner
informed the Nagar Mahapalika, Kanpur
that in view of the decision in Taxation
Appeals Nos. 13 and 15 of 1982 decided
on 27.8.74 the Mariampur Hospital
society has already been held to be a
charitable society and has thus been
exempted from payment of general taxes,
and therefore the notice fixing the annual
rental value should be cancelled. A true
copy of the letter dated 28.1.87 is
Annexure 3. However, the respondents
assessed two annual valuations of the
premises in dispute at Rs. 2 lacs and
Rs.1,17,000
Being
aggrieved
the
petitioner filed appeal in the court of
Judge small Causes Court ,Kanpur .True
copy of the memo of appeal is Annexure
4. In the aforesaid memorandum of appeal
the attention of the court was drawn to the
fact that the petitioner is running a
charitable
hospital,
wherein
medical
advice and treatment to patients is mostly
given free of cost and that by an order
dated
27.4.1984
passed
by
nagar
mahapalika tribunal, Kanpur it was held
to be a charitable society and has thus
been exempted from payment of general
taxes under section 177(b) This appeal
was allowed vide order dated 11.9.87
Annexure 5 to the petition and it was held
that the petitioner is exempt from general
taxes.

5. In para 18 of the petition it is
stated that the aforesaid two judgments
dated 27.4.1984 and 11.9.1987 were not
subject to further appeals before any other
competent courts and thus, the said
judgments because to remain final and
conclusive as between the parties. In
jan.1990 a demand of Rs. 300865.75 was
raised as arrears of general taxes against
the
petitioner.
The
petitioner
filed
objection dated 22.1.90 vide Annexure 6
to the petition in which it mentioned that
the premises has already been exempted
from general taxes by judgements dated
27.4.1987 and 11.9.87 and 30.12.93 the
Nagar Mahapalika Kanpur was apprised
of the fact that the premises in dispute is
wholly exempt from payment of general
taxes ass per judgments dated 27.4.1984
and 11.9.1987. A true copy of the letter
dated 30.12.1993 is Annexure 7 to the
petition in this connection and another
letter dated 30.1.97 is Annexure 8 to the
petition. However, instead of dropping the
aforesaid demand the respondents issued
a demand dated 6.2.97 seeking t realise a
sum of Rs. 346875/- as general taxes, It is
alleged in para 23 of the petition that the
staff of the respondents misbehaved and
harassed Sister Phyllis who had gone to
1All] Mariampur Hospital Society V. Nagar Nigam, Kanpur & another 133
visit the office of respondents in order to
apprise the officer concerned that the
petitioner is not liable to pay any general
taxes. The said Sister was illegal detained
and only set free when she assured the
authorities that she would make the
payment as early as possible of the
amount demanded. In para 24 of the
petition it is alleged that the concerned
sister was coerced and forced to pay the
said amount and the jeep of the hospital
had been illegally attached for the
payment of the aforesaid dues. The
aforesaid facts were brought to the
knowledge of the then Administrator,
Nagar Nigam, Kanpur vide letter dated
14.2.1997. The petitioner was compelled
to
pay
the
aforesaid
amount
of
Rs.346875/- on 13.2.1997 The petitioner
filed assessment appeal No. 89 of 1997
which is still pending in the Court of
judge, Small Causes, Kanpur Nagar.

6. In this case no counter affidavit
has been fined by the respondents though
Sri N. Mishra has appeared for the
respondents and several opportunities had
been given to file counter affidavit. The
court on 5.11.98 had issued notice to the
respondent and on that date Sri N. Mishra
had appeared and prayed fro two weeks to
file counter affidavit. The order dated
5.11.98 reads as follows:

"Issue notice. Notice on behalf of
respondent Nos.1 and 2 have been
accepted by Sri N. Mishra Advocate .
He Prays for and is granted two weeks'
time to file a counter affidavit.

List for admission on 23.11.98"

When the case was listed on 23.11.98 no
one appeared for the respondents. Hence
the case was ordered to be put on the next
date i.e. 24.11.98. The order sheet of
21.11.98 states that Sri N. Mishra is out of
station and hence the case was adjourned
to 7.12.98 .On 7.12.98 it was adjourned
and thereafter on several occasions the
respondents counsel was granted time to
file counter affidavit. On 8.12.99 he was
granted three weeks and no further time to
file counter affidavit. On 8.11.2000 the
respondents were again granted time to
file counter affidavit. However, despite
these orders no counter affidavit has been
filed so far.

7. We are not inclined to grant any
further time as a stop order has already
been passed in this case on 4.5.99 that
three weeks and no more further time is
granted to file counter affidavit.

8. No doubt an appeal is pending
against the bill dated 6.2.97 being
Assessment appeal No.89 of 1997 but in
our opinion no useful purpose would be
served by directing that the aforesaid
appeal be decided since the point involved
has already been decided in the appellate
order
dated
27.4.87
and
11.9387
Annexures 2 and 5 to the petition. In
those orders it has been held that the
property of the petitioner is exempt under
Section 177-(b) state:

"The general tax shall be levied in respect
of all buildings and lands in the City
except
(b) buildings and lands or portions thereof
solely occupied and used for public
worship of for a charitable purpose"

9. There can be no manner of doubt
that the petitioner is doing charitable work
and hence the properties of the petitioner
are exempt under s 177(b) the Hospital,
Nursing Homes etc are being run by the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
134
Sisters of The Roman Catholic church. It
is well known that the sisters of the
Roman Catholic Church are doing very
noble work in India and they have made
great sacrifices denying to themselves
family life and other comforts and
pleasure and are serving society by
running
excellent
convent
schools
,hospitals etc. It is deeply regrettable that
Sister Phyllis was detained by the
authorities and the jeep of the petitioner
was attached although the point had
already been decided by orders dated
27.7.84 and 11.9.87 which held that the
properties of the petitioner except from
general taxes. In the circumstances the
writ
petition
is
allowed
and
the
respondents are directed to refund the
amount of Rs.346875/- illegally realised
on 13.2.97 along with 15% interest from
13.2.97 till date. The refund of this
amount with interest must be made to the
petitioner within two month from today
by
the
respondents.
addition
the
respondents must pay an extra amount of
rupees Rs.25,000/- to the petitioner as
damages for the harassment caused to the
Sister who are running the hospital and
this amount must also be paid to the
petitioner within two month from today.
The impugned assessment order which is
Annexure 2 to the amendment application
is quashed. The respondents are also
restrained from realising water tax sever
tax and other municipal dues from the
petitioner is future till the aforesaid
amounts are paid to the petitioner.

10. The writ petition is allowed with
the aforesaid directions.

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