Allahabad High Court
Cantonment Board And Another vs Guru Teg Bahadur Public School on 8 May, 2017
Bench: Arun Tandon, Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- SPECIAL APPEAL DEFECTIVE No. - 118 of 2013
Appellant :- Cantonment Board And Another
Respondent :- Guru Teg Bahadur Public School
Counsel for Appellant :- Mohd. Isa Khan,Udit Chandra
Counsel for Respondent :- K.K. Arora
Hon'ble Arun Tandon,J.
Hon'ble Mrs. Rekha Dikshit,J.
Civil Misc. Delay Condonation Application No. 33107 of 2013
Delay in filing the special appeal has been sufficiently explained.
Delay condoned.
The delay condonation application is allowed.
Order Date :- 8.5.2017
Junaid
.
.
AFR
Hon'ble Arun Tandon,J.
Hon'ble Mrs. Rekha Dikshit,J.
Heard learned counsel for the parties.
Proceedings under Section 56 of the Provisions of the Cantonments Act, 2006 for realization of the property tax were initiated against Guru Tegh Bahadur Public School situate within the territorial limit of the Cantonment Board, Meerut.
A bill dated 18.11.2009, demanding a sum of Rs.2,74,651/- as property tax and Rs.1,43,047/- as water tax was raised by the Cantonment Board. Not being satisfied Guru Tegh Bahadur Public School filed Tax Appeal no. 1 of 2011 in the said appeal an application for condoning the delay as well as for stay of recovery proceedings was also moved.
The School also approach the writ court by means of the writ no.525 of 2010 which was disposed of by providing that the stay application shall be considered within 6 weeks and for a period of 6 weeks or till the disposal of the application whichever is earlier no recovery proceedings shall be taken.
The Appellate Court condoned the delay but rejected the interim stay application. This led to filling of writ petition no.1690 of 2011, the writ petition has been disposed of without calling for counter affidavit by providing that so long as the appeal is not decided and no tax is to recover from the petitioner.
It is against this order that the present intra-court appeal has been filed. Counsel for the petitioner points out that the order impugned virtually amount to allowing the writ petition. Inasmuch as nothing further remained to be decided nor any other relief was prayed for in this petition.
It is further submitted that complete stay of the recovery proceedings during the pendency of the appeal without examining the merits of the order of the appellate authority whereby the interim stay application was rejected is not fair.
Lastly, it is submitted that the minimum required from the writ court was to have affording opportunity to the respondents to the writ, namely, Cantonment Board to file their counter affidavit which has also not been done.
Sri Kiran Arora, on behalf of the respondents submit that the appellants have not asked for time from the writ court. Since no such time was prayed for the plea of violation of principles of natural justice need not be gone into by this Court. It is further submitted that in view of Section 100 and 11b of the Cantonment Board, Educational Institution are exempt from the property tax and, therefore, the order of writ court may not be interfered by this Court.
We have heard learned counsel for the parties gone through the records of present writ petition. In our opinion, absolutely no reason have been recorded in the order impugned by the learned Single Judge on the merits of the order passed by the appellate authority rejecting the stay application.
As a matter of fact the order of the appellate authority has not ever been taken notice of. The law in the matter of grant of interim orders in tax matters has been well settled. The appellant is not only required to demonstrate that the demand is illegal, but he is also required to establish that in case the demand is insisted upon he may be put to uncalled for harassment or he may not be able to meet the entire demand because of financial constrains. We have only highlighted these only with a view that all these aspects did need consideration in the matter of grant of interim stay in the tax matters, at the hands of the writ court.
We are not expressing any final opinion inasmuch as the order of the learned Single Judge. In the facts of the case cannot be legally sustained on one short ground that it has not considered the merits of the order of the appellate authority rejecting the stay application and has disposed of the writ petition with stay of entire recovery proceedings.
The judgment and order of the learned Single Judge is hereby set aside. Since the appeal is of the year 2011, we deem it fit and proper to direct that appellate authority to consider and decide the appeal itself on merits finally without being influenced by any of the observations made by the writ court or that made by us hereinabove preferably within one month from the receipt of certified copy of this order.
This appeal is allowed.
Order Date :- 8.5.2017
Junaid
