Aligarh Muslim University vs State Of U.P. And 4 Others
2021 Latest Caselaw 311 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 12 of 2021
 

 
Petitioner :- Aligarh Muslim University
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Rohan Gupta
 
Counsel for Respondent :- C.S.C.,Shiv Kumar Singh
 

 
Hon'ble Prakash Padia,J.

1. Heard Sri Naveen Singh, learned Senior Counsel assisted by Sri Rohan Gupta, learned counsel for the petitioner, learned Standing Counsel for respondent No.1 & Sri Manish Goyal, Senior Counsel/Additional Advocate General assisted by Sri D.S. Chauhan, learned counsel for respondent Nos.2, 3 and 4.

"(i) To issue a suitable order, or direction in the nature of mandamus commanding the Judge, Small Causes Court, Aligarh/Appellate Authority under the U.P. Municipal Corporation Act, 1959 to decide the interim application filed by the Petitioner in the pending 11 Appeals No.15 to 25 of 2009, within a specified period of time as may be determined by this Hon'ble Court, without insisting on the condition of pre-deposit at this state:

(ii) To issue a suitable order or direction in the nature of mandamus commanding the Judge, Small Causes Court, Aligarh/Appellate Authority under the U.P. Municipal Corporation Act, 1959 to decide 11 Appeals No.15 to 25 of 2009, filed by the Petitioner, within a specified period of time as may be determined by this Hon'ble Court;

(iii) To issue a suitable order or direction in the nature of mandamus commanding the Respondent-Authorities not to adopt any coercive measures, pursuant to the demand for property tax, last agitated vide demand notice dated 03.12.2020, during the pendency of the interim applications/Appeals filed by the Petitioner, before the Judge, Small Causes Court, Aligarh/Appellate Authority under the U.P. Municipal Corporation Act, 1959;

(iv) Any other relief which this Hon'ble Court deem just and proper in the circumstances of the case may also be awarded to the petitioner.

(v) Award the cost of the writ petition to the petitioner."

2. After some arguments, learned counsel for the petitioner confines his prayer only in respect of prayer No.1 made in the petition.

3. It appears from perusal of the record that earlier a petition under Article 227 of the Constitution of India being Petition No. (Matters under Article 227) 2104 of 2020 (Aligarh Muslim University Vs. State Of U.P. And 4 Others) was filed by the present petitioner before this Court. The said petition was finally disposed of by a co-ordinate Bench of this Court vide judgment and order dated 28.07.2020. The order passed in the aforesaid petition is reproduced below:-

"1. This petition under Article 227 of the Constitution has been filed by the petitioner, Aligarh Muslim University, Aligarh seeking the following material reliefs:

"(i) To issue a suitable order or direction in the nature of mandamus commanding the Judge, Small Causes Court, Aligarh/ Appellate Authority under the U.P. Municipal Corporation Act, 1959 to decide the interim application filed by the Petitioner in the pending Appeals, within a specified period of time as may be determined by this Hon'ble Court, without insisting on the condition of pre-deposit at this stage;

(ii) To issue a suitable order or direction in the nature of mandamus commanding the Respondent-Authorities not to adopt any coercive method pursuant to the demand for property tax, last agitated vide demand notices dated 05.03.2020, during the pendency of the interim application filed by the Petitioner in the pending appeals before the Judge, Small Causes Court, Aligarh/ Appellate Authority under the U.P. Municipal Corporation Act, 1959;"

2. Heard Sri Navin Sinha, learned Senior Advocate assisted by Sri Rohan Gupta, learned Counsel for the petitioner, Sri Manish Goyal, learned Senior Advocate assisted by Sri D.S. Chauhan, learned Standing Counsel appearing on behalf of the Nagar Nigam and Sri Ajeet Kumar Singh, learned Additional Advocate General assisted by Sri Sudhanshu Srivastava, learned Standing Counsel appearing on behalf of respondent no.1, all through tele-conferencing.

3. The submission of the learned Counsel for the petitioner is that eleven separate Appeals against separate assessment orders were filed way back in the year 2009 before the Judge, Small Causes Courts, Aligarh, under Section 472 of the Uttar Pradesh Municipal Corporation Act, 1959.

4. It is the petitioner's grievance that these Appeals, since they were filed on 13.04.2009, are lingering on with no order of moment being passed by the learned Judge. It appears that the petitioner was issued with eleven demand notices, all dated 05.03.2020, by the respondent, Nagar Nigam, Aligarh, relative to the eleven assessment orders, where against the Appeals are pending before the learned Judge. The petitioner, at that stage, approached this Court by way of Writ Tax No.458 of 2019, challenging those demand notices dated 18.02.2019 issued by the Zonal Officer (Tax), Nagar Nigam, Aligarh and a communication dated 22.09.2019 issued by the Chief Tax Assessment Officer, Nagar Nigam, Aligarh. There was a prayer not to take coercive steps for the recovery of a sum of Rs.12,62,36,294/- from the petitioner University, pursuant to the demand notices dated 18.02.2019, impugned in the last mentioned writ petition.

5. It appears that when the writ petition came up for admission before a Division Bench of this Court, their Lordships took the view that since the petitioner had already preferred Appeals from the assessment orders to the Judge, Small Causes Court, which are pending, it is open to them to move a stay application in the Appeal before the Judge, Small Causes Court. The writ petition was, accordingly, dismissed.

6. Now, the petitioner has moved stay applications in the pending Appeals, where it is complained that there is utter inaction on the part of the learned Judge, Small Causes Court, both in hearing and determining the Appeals and in passing orders on the applications for stay. Section 472 of the Uttar Pradesh Municipal Corporation Act, 1959 (for short, the Act) reeds as under:

"Section 472. Appeals when and to whom to lie. - (1) Subject to the provisions hereinafter contained, appeals against any annual value or tax fixed or charged under this Act shall be heard and determined by the Judge:

Provided that any such appeal pending at any stage before the Judge may be transferred by the District Judge for hearing and disposal, to any Additional Judge of the Court of Small Causes or Civil Judge or Additional Civil Judge having jurisdiction in the City.

(2) No such appeal shall be heard unless -

(a) it is brought within fifteen days after the accrual of the cause of complaint;

(b) in the case of an appeal against an annual value an objection has previously been made and has been disposed of under Section 209;

(c) in the case of an appeal against any tax in respect of which provision exists under this Act for an objection to be made to the Municipal Commissioner against the demand, such objection has previously been made and disposed of;

(d) in the case of an appeal against any amendment or alteration made in the assessment list for property taxes under sub-section (1) of Section 213, an objection has been made in pursuance of a notice issued under the proviso to the said sub-section and such objection has been disposed of;

(e) in the case of an appeal against a tax, or in the case of an appeal made against an annual value after a bill for any property tax assessed upon such value has been presented to the appellant, the amount claimed from the appellant has been deposited by him with the Municipal Commissioner."

7. Shri Manish Goyal, learned Senior Advocate appearing for the Nagar Nigam has impressed upon the Court that in case of Appeal against a tax the amount of money, subject matter of Appeal, has to be deposited with the Municipal Commissioner, which has not been done by the petitioner.

8. This Court does not wish to go into the aforesaid question as that has to be examined by the Judge, Small Causes Court, before whom the eleven Appeals, bearing Appeal nos.15 to 25 of 2019, are pending. The Judge, Small Causes Court is nevertheless obliged to hear and determine all the pending Appeals, preferred by the petitioner, expeditiously, and also to pass orders on the applications for interim relief, if there be jurisdiction and authority with the Judge, Small Causes Court to grant interim relief under the law. It is also for the Judge, Small Causes Court to examine whether the Appeals are competent and maintainable, bearing in mind the requirement of Section 472 of the Act. In case, the Appeals are competent and maintainable, it is for the Judge, Small Causes Court to decide them on merits, within a reasonable period of time, which under the circumstances, this Court now proposes to fix. If for some reason, the Appeals are not competent and maintainable, then too orders have to be passed determining the Appeals after provision of requisite opportunity to the petitioner to remove any defect, that may be found by the learned Judge, Small Causes Court.

9. Learned Senior Counsel for the petitioner pressed his second relief for a stay of the demand of property tax levied by the demand notices dated 05.03.2020. This court does not think that it can or ought to usurp jurisdiction midway from the Judge, Small Causes Court, who is in seisin of the Appeals from the orders of assessment, where interim relief applications have already been made.

10. This Court makes it clear that the scope of an application for interim relief is to be examined by the Judge, Small Causes Court, when the said applications are pressed by the petitioner, but the learned Judge, Small Causes Court ought to dispose of interim relief applications as soon as they are pressed, in accordance with law, without being influenced by anything said in this order. So far as the Appeals are concerned, the learned Judge, Small Causes Court Aligarh shall proceed to hear and determine each of the eleven pending Appeals, bearing Appeals nos.15 to 25 of 2009, preferred by the petitioner from the assessment of House Tax made by the respondent, Nagar Nigam within a period of four months, in accordance with law, after hearing all parties concerned.

11. This petition under Article 227 of the Constitution is disposed of in terms of the aforesaid orders. There shall be no order as to costs."

4. It is argued by Sri Naveen Singh, learned Senior Counsel that in spite of the aforesaid order, no final decision has been taken in the matter. It is further argued that the petitioner has pressed his pending interim application before the respondent No.5 namely Judge, Small Causes Court, Aligarh/Appellate Authority but no final decision has been taken till date. It is further argued that despite the fact that the petitioner being represented on each and every date fixed before the Court below, the interim application are not being decided on account of the fact that the Presiding Officer being on leave and only the dates were fixed. It is further argued that due to pendency of the interim application, the petitioner is suffering from irreparable loss.. A supplementary affidavit has been filed by the petitioner annexing therewith a letter dated 04.01.2021 written by the Municipal Commissioner, Municipal Corporation, Aligarh to Branch Manager, State Bank of India Branch AMU, Alighar stating therein to cease the bank account of the petitioner unless and until the petitioner will pay a sum of Rs.14,98,11,380/-. It is further argued that immediately after the aforesaid letter was written, the bank account of the petitioner has been ceased.

5. A preliminary objection has been raised by Sri Manish Goyal, Senior Counsel/Additional Advocate General appearing on behalf of respondent Nos.2, 3 and 4 that the present petition is not at all maintainable since this is a second petition for the same cause of action. It is argued that for the same relief, earlier the petitioner has approached this Court by filing a petition under Article 227 of the Constitution of India being Petition No. (Matters under Article 227) 2104 of 2020, Aligarh Muslim University (supra),. In this view of the matter it is argued that the present petition is barred by the provisions contained under Order 2 Rule 2 of C.P.C. as well as Chapter 22 of the Rules of the High Court Rules. It is further argued that in case, the order passed by this court has not been complied with, the remedy lies with the petitioner to take appropriate proceedings by filing a contempt petition, therefore, the present petition is not at all maintainable. Sri Manish Goyal, Senior Counsel further relied upon a decision of this Court in the case of Kanpur Development Authority Vs. Nanku and others (2002) 46 ALR 393.

6. In response to the same, it is argued by learned counsel for the petitioner that there is absolutely no fault on the part of the petitioner and due to the fact that Presiding Officer is not available, no orders were passed on the pending appeals/stay application filed by the petitioner. It is further argued that since the court is vacant, which is also clear from perusal of the order-sheets and even filing of contempt petition will not serve the purpose. It appears from perusal of the record that in spite of the direction given by a co-ordinate Bench of this Court on 28.07.2020, till date no decision has been taken by the respondent No.5 in the matter.The petitioner cannot be permitted to remedyless. In this view of the matter, the Court is of the opinion that the present petition filed by the petitioner is maintainable.

7. In the special facts and circumstances of the case, the present petition, under Article 227 of the Constitution of India, is disposed of directing the respondent No.5Judge, Small Causes Court, Aligarh/Appellate Authority to pass appropriate orders on the stay application filed by the petitioner expeditiously and preferably on the next date fixed 11.01.2021. In case, on the said date on account of any reason, the said application could not decide, the respondent No.5 will decide the same expeditiously and preferably within a period of 15 days thereafter.

8. It is also made clear that in case, Presiding Officer is not available on the said date, i.e., 11.01.2021, the petitioner will approach the concerned District Judge to transfer the matter in some other court having jurisdiction of hearing.

9. A direction is also issue that no coercive action be taken against the petitioner pursuant to the recovery notices issued against the petitioner from time to time till the disposal of the application or till 31.01.2021 whichever is earlier. In case, the account of petitioner has also been ceased, the same should be made operative only till 31.01.2021.

Order Date :- 7.1.2021

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