RAM PARKASH RAKHRA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This petition under Arts. 226 and 227 of the Constitution of India has been filed on the following allegations. The petitioner's father, on his death, is said to have left an ancestral house situated in village Kainthan, Tehsil Dasuya, District Hoshiarpur. The petitioner and his three real brothers succeeded to the property. this property was divided amongst these four brothers by means of a family arrangement which was reduced to writing and the Municipal Committee, Dasuya, was also informed of the division. In 1957 this property was included within the municipal limits of Dasuya and was assessed to property tax for the year 1957-58. It is alleged that this assessment was made without any notice for information either to the petitioner or to any of his other brothers. A notice of demand of payment of the tax was received by the petitioner on 14-6-1957 whereupon objections were duly preferred by him. his principal objection was that the property in question should be treated as consisting of four units having been divided by the four brothers as intimated to the Municipal Committee. The petitioner was asked to appear before the Excise and Taxation Officer, Horshiarpur, on 6th November 1957. He did appear on that date but his objections were rejected. With the object of filing an appeal the petitioner applied on 20-11-1957 for a certified copy of the order of the Excise and Taxation Officer dated 6-11-1957; the copying department was requested to supply the copy per V. P. P. The petitioner thereafter sent several reminders, but on 15-2-58 when the petitioner personally appeared in the office of the Excise & Taxation officer Hoshiarpur, he was informed by Shri Sardari Lal, Head Cleark, and Jagtar Singh Inspector that there existed no regular order of the Excise and Taxation Officer dated 6th November 1957. The petitioner was informed that there was only a note on the file and the petitioner could have a copy of that note. The petitioner's original application for the grant of a certified copy of the order was thus got amended & the petitioner preferred an appeal by attaching a copy of the note as supplied to him. The Deputy Excise and Taxation Commissioner, Jullundur Division, however, refused to entertain the appeal without a copy of the regular order of the Excise and Taxation Officer, Hoshiarpur. The petitioner there upon again approached the Excise and Taxation Officer requesting him to grant a copy of the order dated 6th of November, 1957. The Excise and Taxation Officer again refused to supply him the copy of the order on the ground that no such order existed on the record. The petitioner then resubmitted his appeal but the same was again ordered to be returned, on the ground that no appeal could be entertained without a copy of the impugned order. The petitioner alleges that several demand notices have been issued to him and the tax is being demanded from him for the subsequent years also on the basis of the assessment made for the year 1957-58. The petitioner, by means of the present petition, assails the order of assessment on various grounds. He also complains that he has statutory right to file an appeal against the order of the Excise and Taxation Officer of which he is being illegally deprived on account of the non-supply of the copy of the order. It is alleged in para 17 of the petition that his appeal is not being heard as no copy of the order has been supplied to him. The respondents have, in the written statement dated 2nd of June 1959, stated that the records of the case are not traceable, with the result that the allegations made by the petitioner can neither be accepted nor denied. It is admitted that a copy of the order of the Excise and Taxation Officer has not been supplied to the petitioner, but this failure is being sought to be justified on the ground that the whole record is untraceable. The contents of para 17 of the petition are expressly admitted. When the case came up before me on 30-71959 I asked the learned counsel for the respondents to let me know as to what is the real position with respect to the appeal which the petitioner alleges to have preferred and how does with the petitioner's appeal. The counsel wanted time to get the necessary information and on his request the case was adjourned. On 13th of August Mr. Anand Mohan Suri informed me that the appeal had since been disposed of and rejected. The counsel for the petitioner expressed complete ignorance about the alleged hearing of the appeal. On my enquiry Mr. Anand Mohan Suri has very properly and fairly informed me that no notice for the hearing of the appeal was in fact served on the petitioner. He has produced for perusal by this Court the entire file and I find that this appeal was actually heard ex parte on 8th of August 1959 and disallowed. At page 103 of the office file produced by Mr. Suri is a copy of the notice dated 6th of August 1959 addressed to Shri Ram Parkash Rakhra informing him that his appeal would be heard on 8th of August 1959 at 8 a.m. sharp and that he was required to appear before the Deputy Excise and Taxation Commissioner in person or through authorised agent along with the documentary proof in support thereof. There is a report by one Thakur Singh, of the same date, which says that he went to the house of Ram Parkash Rakhra for service of the notice, but he was told that the address had gone out on tour and was likely to return by the 20th, with the result that the service could not be effected. Notwithstanding this clear report the appeal was disposed of on 8th of August 1959 ex parte. In my view, the order disposing of the appeal in these circumstances cannot be sustained and it must be quashed.

(2.) Section 10 of the Urban Immovable Property Tax Act gives right of appeal to every person aggrieved by an order of the appropriate authority upon an objection made before that authority under sections 8, 9 and 15 of the said Act. The State Government has framed rules under section 24 of the Act and rule 7 prescribes the procedure for preferring such appeals and for the hearings thereof. Sub-rule (2) lays down that the appeal shall be decided inter alia after giving an opportunity to the appellant, and such other persons, as in the opinion of the appellate authority may directly be interested in the result of the appeal, of being heard in person or by a duly authorised agent. The appellate authority is also empowered before deciding the appeal itself to hold such further enquiry or to direct the same to be held by the authority against whose decision the appeal has been preferred, as may appear necessary to the said appellate authority. Rule 20 prescribes the mode of service etc. It lays down that notice etc. may be sent or served either.

(3.) I asked the learned counsel for the respondents if he had anything to submit in support or in justification of the appellate order, but he could hardly find useful material from the record which he had with him, to enable him to urge anything in justification of the order. It must be emphasised that according to our Constitution Courts are the ultimate authority to restrain all exercise of absolute or arbitrary power by subordinate tribunal and as observed by me in another case, on thing truly Indian, after 26th of January, 1950, which distinguishes us from totalitarian or fascist world and military dictatorship in particular, is that no department of Government can interfere with the life, liberty or property of a citizen of this Republic except when it can support the legality of its Act before a Court of justice. It is indeed the duty of this Court to protect the citizens of the Democratic Republic from having their personal rights and property taken away by any means which are not strictly legal. This brings me to the question as to what relief is to be granted to the petitioner. He has inter alia prayed for a suitable writ, order or direction in the nature of mandamus to be issued to respondent No. 2 to hear and dispose of the petitioner's appeal pending before him and also to direct respondent No. 3 to grant to the petitioner a copy of his regular order. I think the petitioner is entitled to both these reliefs. In case, however, the original record is not traceable then it is for the department to consider as to what steps should be taken to see that the present petitioner does not suffer on account of the loss of the record by the department, and no injustice is done to him on this account. If the record has been reconstructed, well and good; if, however, it has not been reconstructed so far, but it is possible, properly, to so reconstruct it then I have no doubt that the department would try to do so and supply the required copy to the petitioner and dispose of his appeal according to law. Failing this, it may well be that the entire assessment proceedings are to be held de novo, but a citizen of the Indian Republic is entitled to have adequate and full hearing before the original as well as the appellate tribunals as provided by the statute; and this Court would be failing in its duty if it were to refuse relief to a citizen in the present circumstances.