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Judgment
Ramesh Ranganathan, CJ
These six special appeals are preferred against the common order passed by the learned Single Judge in Writ Petition (M/S) No.328 of 2018 dated 12.02.2019 and batch.
In WPMS No. 328 of 2018 and batch, imposition of property/house tax by the Nagar Palika Parishad, Mahuakhera Ganj, District Udham Singh Nagar was subjected to challenge, and a direction was sought to quash the demand notice dated 22.08.2015 and recovery citation dated 28.10.2015.
In the order under appeal, the learned Single Judge observed that sub-section (i) of Section 128 of the Act empowers the Municipal Board to impose tax on the annual value of the building or land or both; the contention of the petitioner, that the second respondent lacked authority to impose house/property tax in view of the proviso to Article 243-Q of the Constitution of India, had no force; the State Government had notified the area in question as a municipal area, and the decision of the State Government had not been challenged; the proviso to Article 243-Q of the Constitution of India did not apply; the contention that, since all the amenities have been provided by the developers of the Nand Nagar Industrial Estate and the second respondent is not providing any amenities to the petitioners, the second respondent cannot impose any tax, is misconceived; the second respondent had the authority to impose house/property tax or tax on land in view of sub-section (i) of Section 128 of the Act; tax on building is not in lieu of any kind of service rendered by the second respondent; there is a distinction between tax and fee; imposition of tax is by statute, and the authority is empowered to impose tax, whereas imposition of fee is regarding service rendered by the authority; the Mahuakhera Ganj Municipality was notified in the year 1985, and its area has been increased subsequently by the notification of the Governor of the State of Uttarakhand; the property of the petitioners fell within the territorial jurisdiction of the second respondent; and the second respondent had authority to impose building tax upon the petitioner's property.
The learned Single Judge, thereafter, held that the petitioners had deliberately concealed the fact that the developers of Nand Nagar Industrial Area Phase I & II were sanctioned the map from the second respondent and, thereafter, the petitioners had also got sanctioned their respective maps from the second respondent; the petitioners had failed to disclose this fact; they had approached the Court under Article 226 with unclean hands; and, hence, they were not entitled to get any relief from this Court. On the ground that they had concealed correct facts, cost of Rs.20,000/- was imposed upon the petitioners.
Mr. Shobhit Saharia, learned counsel for the petitioner, would submit that, while the power to levy tax on the annual value of building is referable to Section 128 (1) of the Act, before tax can be imposed, the procedure prescribed under Section 131, 132, 133, 134 should be followed; and no tax could have been imposed on the petitioners under Section 135 of the Act, as the Municipality had failed to follow the procedure prescribed under Sections 131 to 134 of the Act. While this submission is not without merit, the fact remains that none of these contentions have been raised or pleaded in the affidavit filed in support of the writ petition.
When a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. There is a distinction between a pleading under the CPC and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. (Bharat Singh & others vs. State of Haryana & others : (1988) 4 SCC 534).
As none of the aforesaid contentions have been urged or raised in the affidavit filed in support of the writ petition, it was wholly unnecessary for the learned Single Judge to examine these contentions.
Mr. Shobhit Saharia, learned counsel for the petitioner, would contend that, since the power to levy tax can only be exercised on complying with the procedure prescribed under Sections 131 to 134 of the Act, the question, whether the procedure prescribed by the U.P. Municipalities Act has been followed by the respondent, is a pure question of law and could, therefore, be raised during the course of arguments before the learned Single Judge or even in an appeal before a Division Bench. We must express our inability to agree. The question whether the Municipality had followed the procedure prescribed under Sections 131 to 134, before imposing tax under Section 135 of the Act, is a mixed question of fact and law. It is only if the petitioner had specifically pleaded that the procedure prescribed under Sections 130 to 134 of the U.P. Municipalities Act had not been followed by the respondent-Municipality, was the Municipality required to rebut this contention by placing material before this Court to show that the procedural requirements of the U.P. Municipality Act has been followed before tax was imposed under Section 135 of the Act. We see no reason, therefore, to permit this ground to be raised before us or to call upon the respondents to now file a counter affidavit thereto.
While elaborate submissions were made both by Mr. Shobhit Saharia, learned counsel for the petitioner and Mr. Shiv Bhatt, learned counsel for the respondent no. 2/Municipality on the scope and extent of Section 298 of the U.P. Municipalities Act, and whether the Municipality had the power to levy property tax under Section 298 read with List 1 thereof and the byelaws framed thereunder, this contention would have necessitated examination only if this Court were to hold that the Municipality had not adhered to the procedure prescribed under Sections 131 to 134, before imposing tax under Section 135 of the Act, for it is only then would the question, whether the Municipality could have alternatively exercised power to impose tax in terms of the bye-laws made under Section 298, have arisen for consideration. Suffice it to observe that, on a plain reading of Section 298(1), the submission of Mr. Shobhit Saharia, learned counsel for the petitioner, that the said provision does not confer power on the Municipality to frame byelaws for imposition of tax on buildings, cannot be said to be without merit.
We are, however, satisfied that the appellant-writ petitioners have not suppressed relevant and material facts before this Court. The learned Single Judge has faulted them for not referring to the fact that they had obtained permission for construction of their buildings from the Municipality. The mere fact that building permission was granted to them would not disable the appellant-writ petitioner from contending that the respondent-Municipality lacked power to impose municipal tax on the buildings constructed by them. Grant of permission for constructing a building is distinct for the power of Municipality to levy tax on the annual value of such buildings. Failure of the appellant-writ petitioner to disclose, that they had obtained permission from the Municipality for constructing the industrial unit, has no material bearing on their contention that the Municipality lacked power to levy tax on the annual value of the buildings. The learned Single Judge was, in our opinion, not justified in holding that the appellant-writ petitioner had abused the process of Court, or that they had suppressed material facts. Consequently the order of learned Single Judge, to the extent costs was imposed on the appellant-writ petitioner, is set aside.
Before parting with the case, we must take note of the submission put forth by Mr. Shobhit Saharia seeking liberty for the appellants-writ petitioners to question non-compliance of Sections 130 to 135 of the U.P. Municipalities Act in subsequent legal proceedings, as also the submission of Mr. Shiv Bhatt learned counsel for the Municipality, that, in view of the interim order passed by this Court in the writ petitions, the Municipality had been deprived of their legitimate revenues, due to them several years earlier, and they should be granted liberty to institute appropriate proceedings to claim interest for the period during which the interim order of stay continued to operate.
In so far as liberty is sought by the appellants-writ petitioners to question the failure of the Municipality in adhering to the procedural requirement of Section 131 to 135 of the Municipalities Act, suffice it to make it clear that, for the period subsequent to which the impugned demand notices relate to, neither the order under appeal nor the order now passed by us shall disable the appellants-writ petitioners from questioning the subsequent demand notices issued by the Municipality in appropriate legal proceedings.
In so far the submission of Mr. Shiv Bhatt, learned counsel for Municipality, is concerned the doctrine of restitution (as enunciated under Section 144 of the C.P.C.) would enable the Municipality to claim compensation for the loss, if any, which they may have suffered because of the interim order passed by this Court in the writ petitions.
Subject to the aforesaid modifications and clarifications, all these appeals fail and are, accordingly, dismissed.