# Cantonment Board, Meerut v. St. John's School, 117 Bank Street, Meerut Cantt. & another

- **Citation:** (2002) 2 ILRA 509
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-07-17
- **Case number:** Civil Misc. Writ Petition No. 4789 of 1999
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/cantonment-board-meerut-v-st-john-s-school-117-bank-street-meerut-cantt-another-39998
- **Pages:** 11

## Headnote

Act-Section
87(b)-
the
amount, if any in dispute in the appeal
under section 87 (B) of the Act means
the amount which was in dispute when
the appeal was filed. (Held in para 16)

Amount sought to be deposited is the
amount alleged to be due with accruals,
which was in dispute at the time of filing
of the appeal and not the amount at the
time of hearing or determination of
appeal. The objection of the counsel for
the petitioner is as such over-ruled.
Case Law referred:
1993 (1) SCC 22
1989 (1) SCC 345
1994 (6) SC JT 80
1990 (4) SCC 256
AIR 1966 SC 108
1996 (I) SCC 427
AIR 1979 SC 564
AIR 1931 Madras 55
1974 (2) ACC 393
1975 (2) SCC 175
1988 (4) ACC 402
1981 Lab. I.C. 1015

## Text

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2 All] Cantonment Board, Meerut V. St. John's School and another
509
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.7.2002

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 4789 of 1999

Cantonment Board, Meerut ...Petitioner
Versus
St. John's School, 117 Bank Street,
Meerut Cantt. & another ...Respondents

Counsel for the Petitioner:
Sri S.D. Dube
Sri Samir Sharma
S.C.

Counsel for the Respondents:
Sri Ashok Khare
Sri Vivek Chaudhary

Cantonments
Act-Section
87(b)-
the
amount, if any in dispute in the appeal
under section 87 (B) of the Act means
the amount which was in dispute when
the appeal was filed. (Held in para 16)

Amount sought to be deposited is the
amount alleged to be due with accruals,
which was in dispute at the time of filing
of the appeal and not the amount at the
time of hearing or determination of
appeal. The objection of the counsel for
the petitioner is as such over-ruled.
Case Law referred:
1993 (1) SCC 22
1989 (1) SCC 345
1994 (6) SC JT 80
1990 (4) SCC 256
AIR 1966 SC 108
1996 (I) SCC 427
AIR 1979 SC 564
AIR 1931 Madras 55
1974 (2) ACC 393
1975 (2) SCC 175
1988 (4) ACC 402
1981 Lab. I.C. 1015

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Cantonment Board, Meerut has
filed
this
writ
petition
challenging
judgment and order dated 23.11.1998
passed by Additional District Judge,
Meerut by which he has allowed an
appeal
under
section
84
of
the
Cantonments Act, 1924 in short "the Act"
setting aside notice dated 24.3.1988
levying property tax on Bungalow No.
117 Bank Street, Meerut, occupied by St.
John." School, Meerut (in short "the
School").

2. I have heard Sri Samir Sharma
appearing for petitioner and Sri Vivek
Chaudhary for respondent.

3.

The
Executive
Officer,
Cantonment Board issued notice dated
27.6.1987 to St. John's School, Meerut to
revise assessment of tax on property no.
117, Bank Street, Meerut under section 68
of the Act. The Principal of the school in
his objection to the notice, stated that the
entire building is used for educational
purposes, and is thus exempt from paying
any tax whatsoever. No house tax can be
proposed on the said building. He further
stated that no additional building has been
constructed during the period and that no
portion of the building has been given on
hire, nor any rental income is being
derived from the building or any portion
thereof. A notice was issued fixing
27.10.1987 as a date for hearing. The
Principal
attended
the
office
and
requested
to
give
further
date.
Accordingly a notice was given to him on
17.12.1987 by the Executive Officer,
calling upon him to give details and
particulars of the students, as well as
books relating to the income of school.
The Principal sought another date vide his
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
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letter dated 18.12.1987. On 22.12.1987
Principal
appeared
before
Executive
Officer, but did not give any details nor
any affidavit was given providing before
said information. The assessment was
consequently revised for the year 1989-90
increasing annual burden to the tune of
Rs.7,24,654.76 over and above the tax
paid by the school. According to report of
the Cantonment Engineer, the total area of
the school is 1.674 acres i.e. 72919.44 Sq.
Ft.=6774.21 Sq. Meters of which the built
up area is 1973.91 Sq. Meters. The
assessment list was authenticated by the
Assessment Committee after publishing
notice dated 24.3.1988 under section 69
(2) of the Act, and was confirmed by the
Board vide CBR No. 13 dated 13.4.1988.
An increased bill was sent to the school
for payment of the aforesaid amount,
annually over and above the amount paid
by the school.

4. The school preferred an appeal
under section 84 of the Act, challenging
assessment as authenticated on 24.3.1988
and filed a stay application along with
memo of appeal. The Cantonment Board
objected to the maintainability of the
appeal under section 87 (b) of the Act on
the ground that school has not deposited
the amount due, and thus the Court has no
jurisdiction to hear the appeal. By
judgment and order dated 21.5.1988, IInd
Additional District Judge, Meerut allowed
Tax Appeal No. 3 of 1988 holding that
educational institutions are exempted
from assessment of tax on their property
and accepted the argument that an
affidavit was given before the Board that
no income is being derived from the
building. The Board preferred a writ
petition No. 1452 (Tax) of 1988 which
was allowed by this Court on 25.8.1994
directing St. John's School Meerut to
comply with the provisions contained
under section 87 (b) of the Act. In other
connected matters Sophia Girls School
and St. Mary's School, situated in Meerut
Cantt. Civil Appeal No. 2922-24 of 1996
was filed. Theses civil appeals were
dismissed by Hon'ble Supreme Court
relying upon the decision in Shyam
Kishore
and
others
Vs.
Municipal
Corporation of Delhi and another 1993 (1)
SCC 22 wherein similar provision of
appeal provided under section 107 (b) of
the Delhi Municipal Corporation Act,
1957 upholding that same observation
namely
that
there
is
no
bar
in
entertainment of the application before
deposit of tax due but the same cannot be
heard unless the tax is deposited were
considered. The Civil Appeals were
accordingly disposed off.

5. St. Mary's School and Sophia
Girls School, appellants withdrew their
appeals, admitted tax liability and paid the
same. St. John's School, however, chose
not to pay the amount and decided to
contest the appeal. The said appeal has
been allowed by impugned order.

6. Sri Samir Sharma has made two
fold submissions. He submits that the
appeal was preferred in 1988, at which
time, the amount of Rs.7,24,654.76 was
due by way of house and water tax. On
the date when it came up for hearing, the
School was served with a notice for
payment of Rs.1,04,52,534.69 and which
the school was required to pay before the
appeal could be heard. Secondly, he
submits that the interpretation to the
exemption clause provided in section 99
(2) (b), given by the Appellate Authority
is wholly incorrect and violative to the
object of the Act and cannot be sustained.
Accordingly to Samir Sharma, a building
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2 All] Cantonment Board, Meerut V. St. John's School and another
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used for educational purposes can only be
exempted if it is proved that no income is
derived and that the burden of proving the
same lies upon the person who alleges it.
The Principal of the School submitted his
objection but did not chose to file any
material, more particularly the documents,
namely, the number of students and the
details of the income of the school,
demanded from him and as such the view
taken by appellate Court cannot be
sustained. He has relied upon the
judgments in (1989) 1 SCC 345, 1994(6)
SC; JT 80, 1990(4) SCC 256 in support of
his submission that the exemption in
taxing statutes must be strictly construed
against those who wish to invoke its
benefits, and that wherever there is any
ambiguity, benefit of it must go to the
State. He has also relied upon AIR 1966
SC 108; Cantonment Board Ambala Vs.
Pyarey Lal on submitting that tax on
property can also be levied on educational
institutions.

7. Sri Vivek Chaudhary appearing
for St. John's School in reply submits that
under section 87 (b) of the Act the
amount, if any, in dispute in the appeal, is
to be deposited by the appellant in the
office of the Board. The amount as such is
an amount which is challenged in appeal
and that if during the pendency of appeal
the amount in dispute gets increased, the
appellant cannot be penalized for the
same. With regard to second submission
Sri Chaudhary has relied upon a plain and
simple interpretation of section 99 of the
Act providing for exemption of payment
of tax on buildings falling under Chapter
of special provisions relating to taxation.
He submits that clause (b) of Section 99
(2) of the Act, exempts building used for
educational purposes and public property.
The word, 'and from no income is
derives', qualifies to play grounds and
Dharmshalas which are open to the
public. According to him these two
properties
namely
for
educational
purposes, libraries and play ground and
dharmshalas belong to different class and
that a coma separates the two classes of
properties separates them. With this
interpretation, he submits that building
used for educational purposes and play
grounds are exempted from the property
tax and that appellate court has rightly
interpreted the exemption clause in
allowing the appeal. He has relied upon in
Samaalana Abdulla Vs. State of Gujrat
(1996) 1 SCC 427; Mohd. Shabbir Vs.
State of Maharashtra, AIR 1979 SC 564
and the judgment in Municipal Council,
Trichinopoly Vs. S. Venkatarama Aiar,
AIR 1931 Madras, 55 in submitting that
in case of Madras Municipal Act having
similar provisions Mr. Justice Madhavan
Nair held that a school is exempt from
property tax on the ground that it is a
building used for educational purposes,
even though the proprietor of it makes
profit out of the school which he caries on
in that building.

8. The Cantonment Act, 1924 was
enacted to municipalize the governance of
those
cantonments
which
contains
substantial civil population having no
essential connection with or dependence
upon
military
administration.
The
cantonment committees were replaced by
Cantonment
Board
municipal
in
character, to be essentially a Local Self
Government body. Under Section 60 of
the Act the Board may, with previous
sanction of central Government impose in
any cantonment any tax which under any
enactment for the time being in force,
may be imposed in any municipality in
the State wherein such cantonment is
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situated to take effect from the date of its
notification in the official gazette. Section
61 and 62 provides for framing of
preliminary proposal to impose tax and to
invite objections and their disposal under
section 62 after which the central
government may authorize Board to
impose tax under section 63 of the Act.
"Annual Value" is defined under section
64 and section 65 provides for incidence
of taxation which is primarily upon the
actual occupier of the property. Section
67 and 72 provides for assessment list, its
revision and amendment. Section 99 and
99 (a), which is relevant for this case,
provides for exemption in case of
buildings and is quoted as below:

"99. Exemption in the case of
buildings:- (1) When, in pursuance of
section 98, a Board has fixed a special
rate for the cleansing of any factory,
hotel, club or group of buildings, or lands,
such premises shall be exempted from the
payment
of
any
conservancy
or
scavenging
tax
imposed
in
the
cantonment.

(2) The following buildings and lands
shall be exempt from any tax on property
other than a tax imposed to cover the cost
of specific services rendered by the
Board, namely:-

(a) places set apart for public worship
and either actually so used or used for no
other purpose;
(b) buildings
used
for
educational
purposes and public libraries, playgrounds
and dharmasalas which are open to the
public and from which no income is
derived;
(c) hospitals
and
dispensaries
maintained
wholly
by
charitable
contributions;
(d) burning and burial-grounds not being
the property of the Government or Board,
which are controlled under the provisions
of this Act;
(e) buildings or lands vested in a Board;
and
(f) any buildings or lands, or portion of
such buildings or lands, which are the
property of the Government.

99A. General power of exemption:-
The
Central
Government
may,
by
notification in the Official Gazette,
exempt, either wholly or in part from the
payment of any tax imposed under this
Act, any person or class of persons or any
property or goods or class of property or
goods."

9. Section 99 (2) (b) exempts
buildings used for educational purposes
and public libraries, playgrounds, and
dharamasalas which are open to the public
and from which no income is derived.
Each of the categories of building exempt
has a condition attached to it. Buildings
and lands set apart for public worship are
qualified by the words that they are
actually so used, or used for no other
purposes. In case of hospitals and
dispensaries the condition is that they
must be maintained wholly by charitable
contribution. Burning and Burial-grounds
not being property of the Government or a
Board, are exempt only if they are
controlled under the provisions of the Act
and that buildings or lands vested in a
Board and buildings or lands or a portion
of such buildings or lands, which are the
property of the Government. The question
to be decided in this case is whether
buildings or lands open to public purposes
and from which no income is derived is
applicable to the buildings used for
educational purposes and public libraries.
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10. The counsel for the petitioner
has challenged the interpretation given to
the provisions by the Appellate Court. He
submits that only those buildings used for
educational purposes are exempt from
which no income is derived, and that the
exemption clause has to be strictly
construed. No evidence was produced or
material
submitted
in
support
of
particulars given by the school and as
such it cannot claim exemption from tax
on property. Reliance has been placed on
following decisions:

In Collector of Central Excise,
Bombay-I and another Vs. M/s Parle
Exports (P) Ltd. (1989) 1 SCC 345,
Supreme Court held that the expression in
the schedule and in the notification for
exemption should be understood by the
language employed therein bearing in
mind the context in which the expression
occur. The words used in the provision,
imposing taxes or granting exemption
should be understood in the same way in
which these are understood in ordinary
parlance in the area in which the law is in
force or by those people who ordinarily
deal with it. The notification must be read
as a whole in the context of the other
relevant provisions. When two views of a
notification are possible, it should be
construed in favour of the subject as
notification is part of a fiscal enactment.
Though in taxing Act provision enacting
an exemption to the general rule of
taxation has to be construed strictly
against those who invoke its benefit, but
while interpretating an exemption clause,
liberal interpretation should be imparted
to the language thereof, provided no
violence
is
done
to
the
language
employed. It is only, however, in the
event of there being a real difficulty in
ascertaining the meaning of a particular
enactment that the question of strictness
or of liberality of construction arises.
However, absurd results of construction
should
be
avoided.
In
Hindustan
Alumunium Corporation Ltd. Vs. State
of
Uttar
Pradesh,
Supreme
Court
emphasized that the notification should
not only be confined to its grammatical or
ordinary parlance but it should also be
construed in the light of the context.

In
M/s
Novopan
India
Ltd.
Hyderabad Vs. Collector of Central
Excise and Customs, Hyderabad, J.T.
1994 (6) SC 80 while interpreting
notification No. 55 of 1979 under Rule 81
(1) of Central Excise Rules, 1944
exempting plywood and Boards, the Court
while holding that the words unveneered
particle boards, cannot and do not take
any melamine faced particle board and
emphasized the principle that in case of
ambiguity, a taxing statute should be
construed in favour of an assessee does
not apply to the construction of an
exception or an exempting provision and
that these are to be construed strictly. A
person invoking an exemption of an
exemption provision to relieve him of the
tax liability must establish clearly that he
is covered by the said provision. In case
of doubt or ambiguity, benefit of it must
go to the State.

In Union of India and others Vs.
Wood Papers Ltd. and another (1990) 4
SCC 256 while interpreting exemption
notification No. 163/65 issued under Rule
8(1) of Central Excise Rules, 1944,
exempting paper, Supreme Court held that
the notification has to be read in its
entirety and construed as a whole. A close
reading of both the parts together makes it
clear that it was intended to be exhaustive
granting
exemption
to
all
factories
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
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producing, packing and wrapping paper.
It held that an exemption provision is like
any exemption and on normal principle of
construction or interpretation of statute it
is construed strictly either because of
legislative intention or on economic
justification of inequitable burden of
progressive approach of fiscal provisions
intended to augment revenue. But strict or
liberal construction of an exemption
provision are to be invoked at different
stages of interpreting it. When the
question is whether a subject falls in the
notification or in the exemption clause
then it being in nature of exception is to
applicability is lifted and the subject falls
in the notification then full play should be
given to it and it calls for a wider and
liberal construction.

11. Section 99 (2)(b) exempts
buildings used for educational purposes
and public libraries, playgrounds and
dharmasalas. The exemption clause is as
such applicable to buildings used for
educational
purposes.
A
plain
grammatical construction of sub clause
(b) goes to show that this clause divides
two categories of building by a coma. The
building used for educational purposes
and public library have been put in one
category, whereas, the playgrounds and
dharamasalas have been put in a different
category with a cama intervening these
two class of building. The question to be
considered is whether the words from
which no income is derived is applicable
to both categories of building, or is
qualified only to the later category play
grounds and dharamasalas which are open
to the public.

In
Municipal
Council,
Trichinopoly
Vs.
S.
Venkatarama
Aiyar, A.I.R., 1931 Madras 55, same
expression occurring in clause (a) of
Section 83 of the Act came up for
interpretation. The said clause is quoted
as below:

"Coming now to the propriety of the
collection of the tax of Rs.58-14-2 under
Act 5 of 1920 we have to construe Cl.(a)
S.83, of that Act which says that the
following buildings and lands shall be
exempt from property tax.

"Places set apart for public worship and
either actually so used or used for no
other purposes choulties, buildings, used
for educational purposes, and libraries and
playgrounds which are open to the public
and from which no income is derived."

12. Justice Madhavan Nair did not
agree to construe the clause by applying
the words "which are open to public and
from which no income is derived" to the
buildings used for educational purposes
and library. He found that there can be no
justification for the use of the word "and"
between 'purposes' and 'libraries' and held
that if the legislature wanted said
interpretation then the first "and" between
"purposes and Libraries" would have been
dropped retaining only the "and" between
"libraries and playgrounds". But that has
not been done, and so he found that the
words which are open to the public, and
from which no income is derived, are
referable
according
to
the
natural
construction of the words only to 'libraries
and playgrounds' and not to buildings
used for educational purposes.

In Mohd. Shabbir Vs. State of
Maharashtra, A.I.R., 1979 SC 564,
Section 27 of the Drugs and Cosmetics
Act,
1940
came
for
interpretation.
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Paragraphs 3 and 4 are relevant and are
quoted as below:

"3 Section 27 is the penal section
under which the offence is punishable and
this section runs thus:

"Whoever himself or by any other
person on his behalf manufactures for
sale, sells, stocks or exhibits for sale or
distributes-
any drug-
(i) deemed to be misbranded under
Cl.(a), Cl.(b), Cl.(c), Cl.(d), Cl.(f) or
Cl.(g) of S.17 or adulterated under section
17-B; or
(ii) without a valid licence as required
under clause (c) of S.18". shall be
publishable with imprisonment for a term
which, shall not be leas than one year but
which may extend to ten years and shall
also be liable to fine.

Provided that the Court may, for any
special reasons to be recorded in writing,
impose a sentence of imprisonment of less
than one year."

"4. It was contended by Mr. Singh
that in order to fall within the ambit of
this section the accused must manufacture
the drugs for sale or stock or exhibit for
sale or distribute the same. There is no
evidence in this case to show that the
appellant had any shop or that he was a
distributing agent. All that has been
shown is that the tablets concerned were
recovered from his possession. It was
urged that possession simpliciter of the
tablets of any quantity whatsoever would
not fall within the mischief of S.27 of the
Act. On an interpretation of S.27, it seems
to us that the argument of Mr. Singh is
well founded and must prevail. The words
used in S.27, namely "manufacture for
sale, sells," have a comma after the clause
"stocks or exhibits for sale". Thus the
section
postulates
three
separate
categories of cases and no other. (1)
manufacture for sale; (2) actual sale; (3)
stocking
or
exhibiting for sale or
distribution of any drugs. The absence of
any comma after the word "stocks"
clearly indicates that the clause "stocks or
exhibits for sale" is one individual whole
and it contemplates not merely stocking
the drugs but stocking the drugs for the
purpose of sale and unless all the
ingredients of this category are satisfied,
S.27 of the Act would not be attracted. In
the present case there is no evidence to
show that the appellant had either got
these tablets for sale or was selling them
or had stocked them for sale. Mr. Khanna
appearing
for
the
State,
however,
contended that the word :stock: used in
section is wide enough to include the
possession of a person with the tablets
and where such a person is in the
possession of tablets of a very huge
quantity, a presumption should be drawn
that they were meant for sale or for
distribution.
In
our
opinion,
the
contention is wholly untenable and must
be rejected. The interpretation sought to
be placed by Shri Khanna does not flow
from a true and proper interpretation of
S.27. We, Therefore, hold that before a
person can be liable for prosecution or
conviction under section 27 (a) (i)(ii) read
with section 18(c) of the Act, it must be
proved by the prosecution affirmatively
that he was manufacturing the drugs for
sale or was selling the same or had
stocked them or exhibited the articles for
sale. The possession simplicities of the
articles does not appear to be punishable
under any of the provisions of the Act. If,
therefore, the essential ingredients of S.
27 are not satisfied the plea of guilty
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
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cannot lead the Court to convict the
appellant.

In Samaalana Abdulla Vs. State of
Gujrat, 1996 (1) SCC 427, Section
3(1)(c) and 3(2) of the Official Secret Act,
1923 came for interpretation on which
Supreme Court held in paras 7 and 8 as
follows:

"It was next contended that the High
Court has misinterpreted Section 3(1) (c)
and erroneously held that the sketch, plan,
model, article or note or other document
or information need not be secret for
establishing an offence under that section.
In order to appreciate this contention, it is
necessary to refer to Section 3 which
reads as follows:

"3. Penalties for spying:- (1) If any
person for any purpose prejudicial to the
safety or interests of the State-
(a) approaches, inspects, passes over or is
in the vicinity of, or enters, any prohibited
places; or
(b) makes any sketch, plan, model or
note which is calculated to be or might be
or is extended to be, directly or indirectly,
useful to an enemy; or
(c) obtains, collects, records or publishes
or communicates to any other person any
secret official code or password, or any
sketch, play, model, article or note or
other document or information which is
calculated to be or might be or is intended
to be, directly or indirectly, useful to an
enemy or which relates to a mater the
disclosure of which is likely to affect the
sovereignty and integrity of India, the
security of the State or friendly relations
with foreign States."

The High Court held that the word
'secret' in clause (c) qualifies only the
words "official code or password" and not
"any sketch, plan, model, article or note or
other document or information". The
reason given by the High Court is that
after the phrase any secret official code or
password" there is a comma and what
follows is thus not intended to be
qualified by the word secret". The
Calcutta High Court in Sunil Ranjan Vs.
State has also taken the same view. It has
held that the word 'secret' in the said
section qualifies official code or password
and not any sketch, plan, model, article or
note or other document or information.
This is clear from the comma and the
word 'or' which comes after the word
'password'.

8. In our opinion, the view taken by the
Gujrat High Court in this case and by the
Calcutta High Court in the case of Sunil
Ranjan Ds is correct. We find that the said
interpretation also receives support from
sub-section (2) of Section 3. While
providing for a presumption to be raised
in prosecution for the offence punishable
under that section the phraseology used
by the legislature is "if any sketch, plan,
model,
article,
note,
document
or
information relating to or used in any
prohibited place, or relating to anything in
such a place, or any secret official code or
password is made, obtained collected,
recorded, published or communicated.
From the way the said sub-section is
worded it becomes apparent that the
qualifying word 'secret' has been used
only with respect to or in relation to
official code or password and the
legislature did not intend that the sketch,
plan, model, article, note, document or
information should also be secret. As we
do not find any substance in the second
contention raised on behalf of the
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appellant it is also rejected. In the result
the appeal fails and is dismissed."

13. Plain grammatical interpretation,
in the light of the decisions cited above as
such supports the interpretation given by
appellate Court. Section 99(2) divides into
two categories of building by use of
comma between buildings used for
educational purposes and public libraries
in one category and for playgrounds and
dharamashalas which are open to public
and that the qualifying words, 'from
which no income is derived', as applicable
only to the later categories of properties.

14. The aforesaid interpretation is
further supported by the reasons that
ordinarily buildings, used for education
purposes and public libraries are not used
for deriving income whereas playgrounds
and dharmsalas can be put to both kind of
user namely for purposes which may
derive income or may not derive any
income. In the year 1924 when the Act
was enacted, the buildings used for
educational purposes and public libraries
could not be conceived to be erected for
the purpose of income and profit and
public libraries are not known to derive
any income other than membership fee for
their
subscriptions
and
maintenance.
Secondly the averment made in the
petition that the school building, which is
fifteen years old and was never subjected
to the property tax and further that this
was the first assessment, has not been
denied. There is no assertion on behalf of
petitioner that the building or any portion
thereof was let out for hire, or that any
rental income was derived. By notice
issued to the school, the Executive
Officer
demanded
production
of
documents
relating
to
details
and
particulars of the students as well as
books relating to the income of the
school. The Board did not have any
material either from any inspection report
or otherwise that any part of the building
was let out for hire, and further there was
nothing
on
record
to
show
that
Municipalities in the State levy property
tax on the buildings used for educational
purposes, to give the Board's jurisdiction
to impose tax under section 60 of the Act,
which provides that the Board may, with
the
previous
sanction
of
Central
Government, impose in any cantonment
any tax which under any enactment for
the time being in force, may be imposed
in any municipality in the State wherein
such cantonment is situated.

15. Coming to the last submission of
the counsel for petitioner that tax due was
not deposited, and thus the appeal was
incompetent, I find that section 87 (b)
provides that amount, if any, in dispute in
the appeal, has to be deposited by the
appellant in the office of the Board. In the
present case the amount in dispute in the
appeal was the amount given in the notice
against which the appeal was filed and the
said amount was deposited by the school.
During the period of pendency of appeal,
in case any further amount fell due, the
appellant was not required to deposit the
same as a condition for hearing of the
appeal. The matter with regard to amount
due as a pre-condition of hearing of
appeal, in case of St. Marry School which
was connected with writ petitions filed by
Saint John's School went up to Supreme
Court in which the Apex Court relied
upon Shyam Kishore Vs. Municipal
Corporation, Delhi, 1993(1) SCC 22 and
disposed of the civil appeal in terms of the
observations made in the said judgment.
In the said case Supreme Court was
interpreting the provisions of section 170
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
518
(b) of the Delhi Municipal Corporation
Act, 1957 in which same words are used
to the effect that no appeal shall be heard
or determined under this Chapter unless
the amount, if any, in dispute, in the
appeal, has been deposited by the
appellant in the office of the Corporation.
Supreme Court upheld the condition for
hearing and determination of the appeal,
and Court did not agree to the challenge
against the condition being ultra-virus of
Article 14 of the Constitution of India on
the ground that such provisions have been
upheld by Supreme Court in Ganga Bai
Vs. Vijay Kumar, 1974(2) ACC 393,
Anant Mills Company Limited Vs.
State of Gujrat, 1975 (2) SCC 175,
Vijay Prakash Mehta Vs. Collector of
Bombay, 1988(4) ACC 402, and other
decisions. In para 38 of the judgment.
Supreme Court held that aforesaid cases
had no occasion to consider what the
decision would be, if the condition placed
on the right of appeal were unduly
onerous or such as to render the right of
appeal totally illusory. In M/s Wire
Netting Stores, Delhi Vs. The Regional
Provident Funds Commissioner, New
Delhi, 1981 Lab.I.C. 1015 Delhi High
Court held the provision in Employees
Provident Fund Act to this effect as
violative of the provisions against which
appeal was pending. Supreme Court,
however, took another route, in the facts
of the said case, to construe the provisions
of section 170 (b) for saving its
constitutionally. It held firstly that the
words 'heard and determined' under
section 170 (b) are capable of broader
interpretation and that the payment of
disputed tax is not a condition precedent
to the entertainment or admission of the
appeal and that such an interpretation will
provide some much needed relief for the
harshness of the provision. The assessee
may not be able to deposit tax while filing
the appeal but may be able to pay it up
within a short time or at any rate before
appeal comes on for hearing in the normal
course. Some times to compel the
assessee to pay the demanded tax for
several years in succession might very
well cripple him, or, the hearing of the
appeal may be adjourned to give him a
chance to pay up the tax and thus clause
(b) of section 170 was read down as
precondition to the hearing of the appeal
at its disposal and not to as a condition to
entertainment of the appeal itself. A
careful reading of the report shows that
Supreme Court tried to save its validity by
softening rigour of deposit of tax due only
as a condition of hearing and its disposal
on merit and made observations against
compulsion to pay demanded tax of
several years or tax alleged to have
accrued during pendency of appeal.

16. Applying the same principle I
hold that the amount, if any, in dispute in
the appeal under section 87 (b) of the Act
means the amount which was in dispute
when the appeal was filed. Any other
interpretation will bring harshness into the
provision and will make the right of
appeal illusory. For example in the
present
case
whereas
the
amount
challenged
in
the
notice
was
Rs.7,24,654.76, the amount claimed to be
due by the Board at the time of hearing of
the appeal was Rs.1,04,52,534.69 with
interest up-to March, 1999. For a school
having about 800 students a payment of
such a huge amount as a pre-condition of
hearing
the
appeal,
was
virtually
impossible and thus the hearing of appeal,
would have become totally illusory. In the
circumstances, in order to save clause
section 67 (b) from the vice of invalidity
and by taking the same escape route of
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2 All] Babu Lal V. State of U.P. and others
519
statutory
interpretation
provided
by
Supreme Court, in Shyam Kishore's case
(Supra), I take the liberty in extending
the same reason a little further, in holding
that the amount sought to be deposited is
the amount alleged to be due with
accruals which was in dispute at the time
of filing of the appeal, and not the amount
at the time of hearing or determination of
appeal. The objection of the counsel for
petitioner is as such over-ruled.

17. For the reasons detailed and
discussed above, the order of appellate
court is upheld and the writ petition is
dismissed. Costs on parties.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.7.2002

BEFORE
THE HON'BLE S.R. SINGH, J.
THE HON'BLE D.R. CHAUDHARY, J.

Civil Misc. Writ Petition No.43533 of 2000

Babu Lal

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Bhanu Prakash Misra
Sri Dhananjay Awasthi
Sri U.S. Awasthi

Counsel for the Respondents:
S.C.

Constitution
of
India-
Article
226-
Opportunity has to be given to the
delinquent
to
cross-examine
the
witnesses and to lead evidence in his
defence- for this it is necessary to issue a
notice
to
the
employee
concerned
intimating him date, time and placement
of the enquiry. (Held in para 13)

From the perusal of the record it is also
evident
that
the
petitioner
was
prevented to place his defence before
the enquiry officer as no opportunity,
admittedly,
was
approved
to
the
petitioner, therefore, it cannot be said
that the submissions advanced by the
petitioner are without force. Having
perused the record and after hearing
arguments advanced across the Bar we
are of the view that the judgment and
order passed by the learned tribunal, in
totality, suffers from misreading of fact,
non application of mind, legal infirmities
and being based on conjuncture and
surmises deserves to be quashed.
Case law referred:
(i) 1995 Supp. (3) SCC 212
(ii)
AIR 1968 SC 158
(iii) AIR 1963 SC 1719
(iv) AIR 1960 SC 160
(v)
2001 (2) UPLBEC 1475
(vi) (1993) 4 SCC 727

(Delivered by Hon'ble D.R. Chaudhary, J.)

1. The services of the petitioner who
was an employee in the Collectorate,
Etah, have been terminated by means of
the order dated 29.5.1998 (Annexure-4 to
the Writ Petition). The statutory appeal
preferred against the termination order
was dismissed by the Commissioner,
Agra Division, Agra by his order dated
26.11.1998 (Annexure-5 to the writ
petition)
and
the
claim
petition
challenging the aforesaid two orders also
came to be dismissed by the U.P. Public
Services Tribunal, Lucknow vide its order
and judgment dated 24.7.1998 (Annexure7 to the writ petition). The petitioner has
assailed the aforesaid orders by means of
the present petition.

2. The petitioner, who entered in
service on 6.11.1985, was transferred to
join as Arms Clerk-II on 1.1.1995. One
Shri Hari Singh Rana- a B.S.P. activist,