DAMODAR AND OTHERS Vs. HARI SINGH AND OTHERS

JUDGEMENT

(1.) THIS appeal under Clause 10 of the Letters Patent is directed against the judgment and order of a learned Single Judge of this Court dismissing the Appellant's Civil Writ Petition No. 107 of 1964, wherein the assessment of tax on the Appellant Board under the Punjab Urban Immovable Property Tax Act, 1940 (hereinafter called the Act) in respect of the tonga stands, vegetable etc. stalls and teh bazari had been impugned. Section 3 (1) of the Act provides for the levy and payment of an annual tax on buildings and lands situated in the rating area shown in the schedule to the Act. It is not disputed that the impugned imposition relates to the properties situate within the rating area mentioned in the schedule to the Act. Exemption from payment of the tax under the Act in regard to the three sets of properties has been claimed by the Appellant Board, which is a local authority, under Section 4(1)(b) of the Act. The relevant part of that provision reads as follows:

(2.) OBJECTIONS of the Appellant Board in respect of the imposition of tax on tonga stands, vegetable etc. stalls and teh -bazari having been rejected by the order of the Assessing Authority, Ambala, dated February 21, 1960 (Annexure 'B' to the writ petition), and the said order having been maintained in the Cantonment Board's appeal (copy of the grounds of appeal being Annexure 'D' to the writ petition) by the order of the Additional Deputy Excise and Taxation Commissioner, Punjab, dated September 4, 1961 (copy of which order is Annexure 'C' to the writ petition), the Appellant Board went up in revision to the Joint Excise and Taxation Commissioner, Punjab, Patiala, who dismissed the same by his order, dated June 22, 1963 (Annexure 'E'). In the writ petition filed by the Appellant Board for quashing the order of assessment, the appellate order and the revisional order it had been contended (i) that the levy of the tax in question was illegal as tax could be levied under the Act in respect of only such propitiates which fetched rent, which expression (rent) meant payment made by a tenant to the landlord for a demised property, and since the licence fees which were charged by the Appellant Board were not paid by a tenant to a landlord but were payments in the nature of mere fees, the impugned assessment was liable to be struck down ; and (ii) if a property was not fetching any rent, then under the Act its annual value could not be determined and no tax could be levied in respect of the same.

(3.) NOT satisfied with the judgment of the learned Single Judge, the Cantonment Board has come up in appeal. Mr. C.D. Dewan who appears before us on behalf of the Cantonment Board has again pressed his client's claim for exemption under Section 4(1) (b) of the Act though he has confined its claim in this respect to the levy in respect of teh -bazari alone. Counsel submitted that teh bazari is charged from poorer class of shopkeepers like hawkers etc. in order to provide them with space for carrying on some business for earning their living and that license -fee known as teh -bazari is not charged by the Cantonment Board for the purpose of earning a profit. We are unable to find any force in this contention for more than one reason. No such plea has been taken up in the writ petition. The plea involves a question of fact which cannot be allowed to be raised for the first time in appeal It cannot be held that teh -bazari is charged from the licensees for their benefit. It may be a consideration for bestowing certain benefits on the licensees Mr. Dewan then submitted that when fees such as the license -fees are charged, they are only recovered for the services rendered and have a quid pro quo with the services and can never be said to be realised for earning a profit. We are unable to hold that this sweeping proposition must universally be correct. Counsel is probably thinking of certain observations made in the course of judicial pronouncements relating to the validity of levy of fees in contradistinction to taxes. There is no evidence on the record as it stood before the Assessing Authority or even as it stands before us to show that the entire amount recovered by the Cantonment Board by way of teh -bazari is expended exclusively for the services rendered to the licensees and that no part of it goes to the coffers of the Cantonment Board as a profit. Nor is there any evidence to show that no part of the teh -bazari fees recovered from the licensees is intended to be used for the purposes of profit by the Board. No such plea was taken before the Assessing Authority. Even in the grounds of appeal (Annexure 'D') against the order of the Assessing Authority no such point was taken up, This contention also involves a disputed question of fact and cannot be allowed to be raised for the first time in this appeal.