Sri Jain Swetamber Moorthi Pujak Samaj vs The State of Karnataka and The Commissioner of Bangalore Mahanagara Palike

A.S. Bopanna, J.

The petitioner is before this Court assailing the order dated 04.04.2003. By the said order, the first respondent has set aside the resolution passed by the standing committee as at Annexure-A to the petition. The matter has been remitted to the Commissioner to re examine the issue in the light of the legal position on the subject.

The case of the petitioner is that they are institutions engaged in charitable work and as such the levy of the property tax in respect of their property bearing No. 11, 3rd cross, Gandhinagar, Bangalore - 09 is not sustainable. In this regard they contend that exemption is available in respect of such property which is utilised for the charitable purpose as contemplated u/s 110(a) and (b) of the Karnataka Municipal Corporation Act (''Act'' for short), In this regard at the first instance the contention raised by the petitioner was not considered favourably by the Commissioner in exercise of his power. The petitioners were before the standing committee in appeal against the said decision. The standing committee by its resolution dated 22.09.1999 has resolved that the petitioner herein is not liable to pay tax in respect of the property in question. The second respondent corporation has thereafter referred the issue to the first respondent as contemplated u/s 72 of the Act. Pursuant thereto the first respondent has initially passed an order holding that the standing committee was not justified. The petitioner herein was before this Court in Writ Petition No. 3502-06/2002. This Court on noticing that the petitioner herein had not been granted sufficient opportunity before the first respondent has set aside the order and remitted, the matter to the first respondent for re-consideration. Pursuant to such remand the first respondent has reconsidered the matter. After such re-consideration, the first respondent was of the opinion that in view of the law on the subject matter, it requires reconsideration by the Commissioner to look into the contentions of the petitioner herein claiming exemption u/s 110(b) of the Act.

The learned Counsel for the petitioner while assailing the said order would contend that the first respondent was not justified in doing so. Firstly it is contended that the first respondent cannot sit in judgment over the decision taken by the standing committee of the second respondent. Therefore at the cut set the order impugned is not sustainable. It is therefore contended that since the petitioner institutions is engaged in charitable work, the properly belonging to the petitioner is entitled to exemption as contemplated u/s 110(b) of the Act. This aspect of the matter in fact was kept in view by the standing committee and thereafter had come to such conclusion and as such the first respondent ought not to have set aside the order it is therefore contended that the present writ petition be allowed and order at Annexure - C be quashed.

Learned Counsel for the respondent however would seek to justify the order impugned in this writ petition. It is contended that u/s 72 of the Act reference was made to the first respondent and therefore the same is competent in law. In any event at the first instance the petitioners were before this Court, assailing the order passed by the first respondent, this Court had set aside the order and remitted the matter to the first respondent to provide opportunity and decide the matter, which means jurisdiction is a foregone conclusion. Therefore at this juncture the competence of the first respondent in any event cannot be questioned. It is further pointed out that even by the impugned order, the first respondent has remitted the matter to the Commissioner to reconsider by providing an opportunity to the parties and redo the matter afresh. Learned Counsel pointed out that the document produced as Annexure - R3 along with the objection statement would indicate that the petitioner in fact has availed the remedy by appearing before the commissioner at the first instance after remand and only thereafter the petitioner has filed this writ petition as an after thought. Hence, it is contended, the writ petition is without merit.

Having heard the respective learned Counsel, firstly with regard to the question of competence of the first respondent to pass the impugned order it is noticed u/s 72 of the Act, the Corporation has the power to refer the matter to the government since the government has the power to look into the resolution which is passed by standing committee. Further, as rightly pointed out by the learned Counsel for the respondent, at the first instance in such reference made to the first respondent, the first respondent passed an order on such reference, When the petitioners were before this Court in Writ Petition No. 3502 - 3506/02 assailing the same, this Court did not examine such contention with regard to the competence of the first respondent and the very fact this Court had remitted the matter to first respondent would indicate that this Court has accepted the position that first respondent could look into the matter and first respondent should however provide opportunity to the parties and thereafter come to the conclusion.

Having come to the said conclusion, the question is as to whether the first respondent is justified in the manner in which the ultimate the order is passed. In this regard a perusal of the order would indicate in fact the first respondent has also taken note of the situation with regard to the nature of filing the appeal against the order passed by the Commissioner. Therefore keeping all aspects in view and also the contentions of the petitioners herein that they are entitled for the benefit of the exemption claimed by them u/s 110(b) of the Act, has though it fit that it should be re-examined by the Commissioner. In this regard, after the order of remand was passed, the petitioner was before the Commissioner as indicated by Annexure - R-3 enclosed along with the objection statement Even otherwise I am of the view that the first respondent had appreciated the legal position and thereafter remitted the matter to the Commissioner to come to a conclusion whether the contention put forth by the petitioner can be accepted by the Commissioner or not. In any event, no prejudice is caused to the petitioner and considering the fact that the petitioner in any event cannot sustain the resolution passed by the standing committee which does not stand to the reason. The very manner of consideration by the standing committee would indicate that the facts involved in the present case has not been properly appreciated,

Therefore, for the above reasons I am of the view that the present petition is devoid of merits, Accordingly, the same stands disposed of, reserving liberty to the petitioner to urge before the Commissioner all the contentions urged in this petition.

In terms of the above, the petition stands disposed of. No order as to costs.