YOGRAJ Vs. ASSESSING AUTHORITY URBAN PROPERTY TAX

JUDGEMENT

(1.) THE petitioner has brought this writ petition under section 103 of the Constitution of Jammu and Kashmir read with Art. 32 (2 -A) of the Constitution of India against the Assessing Authority Urban Immovable Property for directing the respondent not to charge or recover by any process urban immovable property tax in regard to the petitioners properties situate in Ram Munshi Bagh Srinagar. The petitioner has averred that he owns two Banglows with land under these and appurtenant thereto at Ram Munshi Bagh in Cantonment Area. The Cantonment Act of 1924 applies to the State of Jammu and Kashmir. That in exercise of the powers conferred by Section 60 of the Cantonment Act and in partial modification of the notification of Jammu and Kashmir No. 14 dated 29 -12 -38 the Cantonment Board Badami Bagh has with the previous sanction of the Central Government imposed tax on all buildings and lands situate within the Badami Bagh Cantonment area payable by the owners of such buildings and lands @ 10% of annual value thereof excepting the building or land, the annual value of which is less than rupees three hundred. The annual value of the petitioners said buildings is much in excess of Rs. 300 -00 and the petitioner has therefore been imposed an annual tax amounting to Rs. 4261 -70 on the said properties which was being paid regularly and no tax is in arrears. The State of Jammu and Kashmir also promulgated the Jammu and Kashmir Urban Immovable Property Tax Act 1962 (hereinafter called the State Act.) Under Section 3 of the said Act the tax is charged or levied on buildings and lands situate in the rating area at such rate not exceeding 10% of the annual value. Under Section 2 rating area has been defined to be one which is administered by a local authority. The local authority has been defined in Section 2 to mean a Municipal Committee, a Cantonment Board, a Town Area Committee or other authority legally entitled to or entrusted by the Government with the control or management of a Municipal or local fund. The rating area under the State Act No. XII includes areas within a radius of 7 miles from the end of Municipal Limits. Though the Badami Bagh Cantonment Area, falls under the rating area apparently it does not and cannot fall within Srinagar City since the use of the word city excludes cantonment area for the purposes of the State Act. The local authority for the purposes of Cantonment is the Cantonment Board and not any other authority. In these circumstances if under the Cantonment Act a Cantonment Board imposes in any Cantonment area any tax which under any enactment may be imposed in any Municipality in the State where such Cantonment is situate it is evident that the operation of the State Act is excluded to the extent of Cantonment areas. It would create an anomalous and intriguing position if a similar tax could he levied with a common object by the authorities exposing an individual owning immovable property to double taxation in rating area. The State Assessing authority, therefore, in exercise of its powers and without jurisdiction has levied the urban immovable property tax in regard to the properly situate within Cantonment area. The respondent is making demand of Rs. 4254.00 as arrears of the Urban Immovable Property Tax under rule 12 (4) of the Act, and is enforcing coercive pro ­cess for its realisation which as indicated above is ultra vires of the respondent. The acts of respondent amount to violation of relevant provisions of law and of the principles of natural justice. The petitioner has averred that the order of demand of tax be quashed on the ground that it exposes the petitioner to jeopardy of double taxation by two different authorities in regard to the same immovable property; that the State Act excludes from its operation the Cantonment areas ; the reading of two Acts shows that the respondent can have no power to levy tax where the Cantonment authority has exclusive power to impose tax on houses within Cantonment area.

(2.) IN support of the petition the petitioner has filed an affidavit and has also produced various annexures by way of notices, for demand etc. The respondent has in his objections admitted that urban immovable property tax has been imposed on the petitioner in accordance with the provisions of the State Act, but he has disputed the proposition of the petitioner that no tax can be levied in an area which falls within the jurisdiction of the Cantonment Board. Any area administered by the Municipality stands on the same footing as any other area administered by a Cantonment Board. Schedule to the Jammu and Kashmir Urban Immovable Property Tax Act con ­tains the rating areas liable to tax and Srinagar city is listed at Serial No. 1 among the areas aforementioned and for purposes of the said Act which includes the areas within the radius of 7 miles from the end of municipal limits of Srinagar city. This position is, however, denied by the respondent that Badami Bagh Cantonment area does not and cannot fall within Srinagar city and therefore buildings situate within this area are not liable to be taxed under the State Act. It is denied that the operation of the State Act is excluded to the extent of Cantonment area. The State Legislature is within its jurisdiction to enact the State Act provisions whereof are applicable to the areas adminis ­tered by the Srinagar Cantonment Board. The State Act or the Cantonment Act are not similar, nor have they common object. The one does not oust the other so far as the ambit of the two Acts is concerned. Respondent No. 1 has not acted in excess of its jurisdiction in regard to taking the petitioners property. It is also denied that the acts of the respondent amount to violation of the principles of natural justice. The reasons assign ­ed for quashing the demand of tax are untenable, misconceived and without substance. So also is the plea of jeopardy of double taxation misconceived. lt is, therefore, prayed that the writ petition he dismissed.

(3.) AFTER a notice was issued to the respondent No. 1 and the writ petition came up for consideration it was considered proper and desirable to issue notice to the State as the vires of the provision of the State Act relating to the imposition of tax in Can ­tonment area were challenged by the petitioner. A notice was there ­fore issued to the Advocate General to appear in this case. He has put in his appearance. Both sides have addressed their respective arguments on the constitutional objections raised and on the merits of the case.