# Mawana Sugars Ltd v. Nagar Palika Parishad, Mawana & Anr

- **Citation:** (2014) 3 ILRA 1434
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-12
- **Case number:** Civil Misc. Writ Petition No. 745 of 2014
- **Bench:** Tarun Agarwala, Dr. Satish Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mawana-sugars-ltd-v-nagar-palika-parishad-mawana-anr-43032
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-read with
U.P. Municipalities Act, 1916-Section-
3 All]. Mawana Sugars Ltd. Vs. Nagar Palika Parishad, Mawana & Anr.
1435
143-Alternative
remedy-writ
petitionagainst demand notice of house tax and
water
tax-on
enhanced
rate-without
notice opportunity to petitioner-held
order passed in violation of principle of
Natural Justice-alternative remedy no
bar-demand
notice
quashed
with
direction to take fresh decision after
complying the procedure contained in
Section 143.
Held: Para-8 &10

## Text

1434
 INDIAN LAW REPORTS ALLAHABAD SERIES
India in respect of any judgment, order or
award of
(i) the Government or
(ii) any officer or
(iii) authority,
made or purported to be made in the
exercise or purported exercise of appellate
or revisional jurisdiction under any such
Act, i.e. under any Uttar Pradesh Act or
under any Central Act, with respect to any
of the matters enumerated in the State List
or the Concurrent List in the Seventh
Schedule to the Constitution of India."
13. It is true that the judgments,
which have been relied upon by Sri Singh
for the appellants, have not been referred
to in the Full Bench judgment in the case
of Sheet Gupta (supra) but in our opinion
the issue of maintainability of a Special
Appeal was not involved either in the case
of Asha Devi (supra) or Gaudia Mission
(supra) which may have any impact on
the Full Bench judgment in the case of
Sheet Gupta (supra). Thus, even if the
same have not been noticed in the Full
Bench decision referred to herein above,
it is of no consequence, inasmuch as, as
noted above, the issues in both matters
were different.
14. To clarify it may be stated that
the judgments of the Apex Court that
have been relied upon by the learned
Counsel for the appellants involved the
issue of the scope of appellate powers as
to whether the same powers are available
when a concurrent jurisdiction is being
exercise keeping in view the provisions of
Section 96 and Section 100 of the Civil
Procedure Code. The question was as to
whether in a letters patent appeal or a
Special Appeal, the powers of the Court
are limited only to substantial questions of
law or the powers are co-extensive as that
of the subordinate court that had decided
the matter. It is in this context that the
aforesaid two decisions were rendered
and they proceeded on the assumption of
maintainability, and also contention of the
parties that there was no dispute relating
to the maintainability of a Special Appeal.
The said decisions, therefore, in our
opinion, do not come to the aid of the
appellants for maintaining the present
Special Appeal.
15. We are, therefore, of the clear
view that the present Special Appeal is
barred in view of the Full Bench decision
in the case of Sheet Gupta (supra), and the
report of the Stamp Reporter has to be
upheld.
16. Both the Special Appeals are
dismissed as being not maintainable.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2014
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE DR. SATISH CHANDRA, J.
Civil Misc. Writ Petition No. 745 of 2014
Connected with W.P. No. 2222 of 2009
Mawana Sugars Ltd. ...Petitioner
Versus
Nagar Palika Parishad, Mawana & Anr.
 Respondents
Counsel for the Petitioner:
Sri S.D. Singh, Sri Rohan Gupta
Counsel for the Respondents:
Sri Ajay Rajendra
Constitution of India, Art.-226-read with
U.P. Municipalities Act, 1916-Section-
3 All]. Mawana Sugars Ltd. Vs. Nagar Palika Parishad, Mawana & Anr.
1435
143-Alternative
remedy-writ
petitionagainst demand notice of house tax and
water
tax-on
enhanced
rate-without
notice opportunity to petitioner-held
order passed in violation of principle of
Natural Justice-alternative remedy no
bar-demand
notice
quashed
with
direction to take fresh decision after
complying the procedure contained in
Section 143.
Held: Para-8 &10
8. Sri Ajai Rajendra, the learned counsel
appearing for the Parisahd contends that
against the assessment order passed
under Section 143 of the Act, the
petitioner has a remedy of filing an
appeal under Section 160 of the said Act
and, therefore, the petitioner should be
relegated to the alternative remedy.
There is no quarrel with this proposition.
An appeal can only be filed against an
assessment order and in the instant
case,
we
find,
that
there
is
no
assessment order in the eyes of law
passed under Section 143 of the Act.
Consequently, we are of the opinion, that
the petitioner cannot be relegated to the
remedy of availing an appeal under
Section 160 of the Act in the present
facts and circumstances of the case.
10. We direct the Nagar Palika Parishad,
Mawana to issue a fresh notice fixing a
date intimating the petitioner to appear
before them for disposal of its objection.
Upon
hearing
the
petitioners,
the
competent authority will decide the
objections and make an assessment
order under Section 143 of the Act within
six weeks thereafter. Based on such
assessment order, the petitioner will
take recourse to its remedy as advised to
them. During this period, the interim
order passed by this Court directing the
petitioner to pay Rs.8 lacs will continue
to operate.
(Delivered by Hon'ble Tarun Agarwala, J.)
1. Heard Sri S.D.Singh, the learned
senior counsel assisted by Sri Rohan
Gupta, the learned counsel for the
petitioner and Sri Ajai Rajendra, the
learned counsel for the Nagar Palika
Parishad.
2.

The
dispute
between
the
petitioner and the Nagar Palika Parishad,
Mawana with regard to imposition of
house tax, water tax and assessment of the
annual value has been going on for the
past four decades. The petitioner is
resisting the jurisdiction of the Nagar
Palika Parishad, Mawana in imposing the
taxes upon them. The earlier round of
litigation went upto the Supreme Court
where they lost the battle and the Parishad
became empowered to impose taxes.
Based on the decision of the Supreme
Court the assessment of house tax, water
tax amounting to Rs.5,32,000/- per annum
for the period 1987 to 2005 was charged.
This
assessment
order
has
been
challenged by the petitioner in an appeal
filed under Section 160 of the U.P.
Municipalities Act, 1916 (hereinafter
referred to as the "Act"), which is pending
consideration before the Civil Court.
3. For the assessment year 20072012 the Nagar Palika Parishad, Mawana
issued notices to the petitioner proposing
to
revise
the
annual
value
and
accordingly, enhanced the water tax and
house tax. The petitioner filed its
objection under Section 143 of the Act.
Without considering its objection a
demand
notice
was
issued
to
the
petitioner. It is alleged that the petitioner
made a request for supplying the
assessment orders, which they failed to
receive, but, got certain information under
the Right to Information Act. Armed with
such information, the petitioner filed Writ
Petition No.2222 of 2009 in which an
interim order was passed directing the
1436
 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner to pay a sum of Rs.8 lacs per
annum towards taxes during the pendency
of the writ petition. Pending this writ
petition, fresh notices have been issued
for the assessment year 2013-18 whereby
the Nagar Palika Parishad proposed to
enhance the tax to Rs.25,02,470/- per
annum. The petitioner filed its objection
and, without disposing of its objection, a
demand notice has been issued directing
the petitioner to pay the said amount. It is
alleged that the assessment order has not
been furnished and consequently, the
present writ petition No.749 of 2014 has
been filed. Both the writ petitions were
clubbed together and are being decided on
the basis of the counter affidavit filed in
the earlier writ petition.
4. We are of the opinion that no
counter affidavit is required in this writ
petition No.749 of 2014 since no disputed
questions of fact are involved for disposal
of both the writ petitions.
5. From a perusal of the information
supplied to the petitioner under the Right
to
Information
Act,
the
petitioner
contends that the information so supplied
is not an assessment order under Section
143 of the Act nor does it disposes the
objection. We have perused the said order
and we do not find it to be an assessment
order disposing of the objection of the
petitioner and accepting the proposal of
the Committee. The said order is no
assessment order in the eyes of law and
consequently, the demand cannot be
sustained.
6. Section 143 of the Act indicates
that the Municipality or the Parishad shall
give a public notice and proceed to
consider the valuation and after due
investigation, dispose of the objection
relating to valuation and assessment and
cause the result thereof to be noted in a
book kept by the Parishad/ Municipality.
From a perusal of the provision under
Section 143 of the Act it is apparently
clear that where the objection are invited
in writing, it is implicit that the
Municipality or the Parishad, as the case
may be, passes an order in writing dealing
with such objection which would be in
consonance with the principles of natural
justice as embodied under Article 14 of
the Constitution of India.
7. The proforma of the assessment
order indicates that the objection of the
petitioner is required to be recorded and
the decision of the official or the
Committee is required to be indicated,
which in the instant case has been left
blank.
8. Sri Ajai Rajendra, the learned
counsel appearing for the Parisahd
contends that against the assessment order
passed under Section 143 of the Act, the
petitioner has a remedy of filing an appeal
under Section 160 of the said Act and,
therefore,
the
petitioner
should
be
relegated to the alternative remedy. There
is no quarrel with this proposition. An
appeal can only be filed against an
assessment order and in the instant case,
we find, that there is no assessment order
in the eyes of law passed under Section
143 of the Act. Consequently, we are of
the opinion, that the petitioner cannot be
relegated to the remedy of availing an
appeal under Section 160 of the Act in the
present facts and circumstances of the
case.
9. Since there is no valid assessment
order in the eyes of law and the
information given to the petitioner, as
3 All]. Ghaziabad Development Authority Vs. Kashi Ram & Ors.
1437
annexed in Annexure 11 to the writ
petition, purporting to be the assessment
orders, we allow the writ petition No.2222
of 2009 and quash all these alleged
assessment orders.
10. We direct the Nagar Palika
Parishad, Mawana to issue a fresh notice
fixing a date intimating the petitioner to
appear before them for disposal of its
objection. Upon hearing the petitioners,
the competent authority will decide the
objections and make an assessment order
under Section 143 of the Act within six
weeks
thereafter.
Based
on
such
assessment order, the petitioner will take
recourse to its remedy as advised to them.
During this period, the interim order
passed by this Court directing the
petitioner to pay Rs.8 lacs will continue to
operate.
11. For the reasons stated aforesaid,
Writ Petition No.745 of 2014, which is
based on identical facts is, accordingly,
allowed. The alleged assessment orders,
for the period 2014 to 2018, are quashed.
The Nagar Palika Parishad, Mawana will
proceed in the same fashion as stated
aforesaid. For this period, the petitioner
will deposit a tentative amount of Rs.10
lacs per annum, which would be subject
to fresh assessment orders.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2014
BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE DINESH GUPTA, J.
First Appeal No. 910 of 2000
alongwith
W.P. No. 911 of 2000, W.P. No. 912 of
2000 and other connected cases
Ghaziabad Development Authority
...Appellant
Versus
Kashi Ram & Ors.
...Respondents
Counsel for the Appellant:
Sri Mahendra Pratap, Sri Ajay Kumar
Misra
Counsel for the Respondents:
Sri D.P. Singh, Sri Shiv Sagar Singh, Sri
J.N. Sharma, Sri V.B. Singh, Sri Vijai Sinha
Land Acquisition Act-Compensation land
situated near Vasundhara Residential
Scheme-surrounded by Industrial area
adjacent to BHEL, Dover and other well
known
units-Delhi-Lucknow
national
highway-2 km away from Delhi-SLO
ignoring certified copy of sale deed relied
exumpler of builder-awarded @ 50 per
square yard-reference court enhanced
Rs. 90/-held-if the claimants deprived
from
such
rate-would
be
highly
prejudicial-and violative to constitutional
mandate-entitled to Rs. 297 per square
yard-appeal by GDA dismissed-claimants
appeal allowed.
Held: Para-36
In the backdrop of the aforesaid facts, it
would be highly prejudicial to the
interest of the claimants/landloosers to
be deprived of such a rate when they are
placed in similar circumstances. In our
view, such an action would certainly be
the
arbitrariness
and
violative
of
constitutional mandate. Therefore, the
claimants are entitled to Rs.297/- per
square yard in respect of the land
acquired by the aforesaid notification.
Case Law discussed:
[1995(2) SCC 305]; [AIR 2012 SC 446]; AIR
1959 SC 429; [AIR 94 SC 1160]; (2008) 2 SCC
568; 2008 (11) SCC 65:2008(4) Supreme 74;
2009 (4) SCC 402; 2008 (14) SCC 745; 2009
(4) SCC 719; First Appeal No. 34 of 2007;
[(2003) 1 SCC 354]; [(2010) 13 SCC 398].
(Delivered by Hon'ble Rajiv Sharma, J.)