Rajasthan High Court - Jaipur
N E I Ltd vs State & Ors on 12 December, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B. CIVIL WRIT PETITION No.4449/1999 National Engineering Industries Ltd. vs. State & Anr. Date of Order 12/12/2013 HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Shri Sunil Nath for the petitioner. Shri Anuroop Singhi for the respondents.
******** This writ petition has been filed by National Engineering Industries Ltd. against the assessment orders of land and building tax and the recovery notice issued by the respondents.
Facts of the case are that that the petitioner-company acquired agricultural land measuring 13 bighas recorded as Banjad Avval and 4 bighas and 17 biswas and 2 biswani comprised in khasra no.19 of Village Chuhavas from one Shri Satyapal by registered sale deed dated 4.3.1965. Petitioner-company also acquired various adjacent lands during the period 1965 to 1970 so that it owns now agricultural land admeasuring 41.20 acres in khasra no.10, 11, 19, 114 to 118 and 69 to 89 in revenue village Chuhavas, Prempura, Hasanpura, Tehsil and District Jaipur. Petitioner-company has been regularly paying land revenue. The photocopies of jamabandi and khewat khautani has been produced at Annexures 3 and 4 on record.
The respondent no.2 i.e. Assistant Director, Land and Building Tax, Jaipur initiated proceedings in respect of aforesaid land by issuing notice u/s.22 of the Land and Building Tax Act dated 13.1.1999 requiring the petitioner to furnish the necessary information. Petitioner-company filed reply and informed that it had spent a sum of Rs.70,263.50 in purchase of aforesaid land and with the permission of State Government has constructed in one portion in 1985-86 a primary school and also earmarked certain land for cremation ground. It has also made some quarters for security staff of the aforesaid school, but all this construction is existing in less than 1000 sq. meters. Petitioner also produced the receipt of land revenue dated 6.2.1976, 12.1.1982, 28.2.1984, 9.4.1986 and of the Senior Town Planner dated 7.2.1981 and the proof of recognition of the school by the Board of Secondary Education, Ajmer dated 11.3.1986 and 11.3.1987. Petitioner-company contended that the land in dispute cannot be deemed to fall within the purview of Section 2(5) of the Land and Building Tax Act, 1964 and the same was not a building site for the construction of any of its proposed projects and land revenue was being paid. The respondentno.2 summarily rejected the aforesaid objection and issued a notice under Section 11(1) on 18.2.1999 proposing the provisional market value of the land and building described by him as open land opposite Kiran Nursing Home, Hathwara Road, Hasanpura, Jaipur at Rs.1,00,63,200 as on 1.4.1973, Rs.1,10,42,600 as on 1.4.1986 and Rs.23,15,23,200 as on 1.4.1997 and called upon the petitioner to submit its objections to provisional market value. The authorised representative of the petitioner-company appeared before the respondent on 24.2.1999 and sought details of the aforesaid valuation and thereafter sent such request by registered letter. The respondent on 25.2.1999 informed the authorised representative of the petitioner-company that it was finalising the assessment on the value proposed by the notice u/s.11(1) in view of the failure of the petitioner-company to deposit a sum of at least Rs.5,00,000 towards its tax liability in respect of land under consideration. The respondent finally passed the order for assessment under Section 11 of the Act on the aforesaid valuation, copies whereof are placed on record at Annexures-10 and 11. It has required the petitioner to deposit Rs.2,35,708.50 as land and building tax for the year 1997-98 and same amount for 1998-99 and penalty of Rs.3,000 and interest of Rs.1,17,854.
Learned counsel for the petitioner has argued that the petitioner-company pointed out to the respondents in their reply to the notice that land in dispute was, in fact, an open agricultural land and that it cannot be considered as a building. Petitioner-company was paying the land revenue on this land at the material point of time. The application has been submitted before the Collector for the purpose of conversion from agricultural to industrial, but so far no conversion took place. The copy of land revenue receipts were also produced. The departmental Inspector has wrongly construed it to be a part of building of cold storage and has illegally taxed the petitioner. Learned counsel argued that in similar matter earlier also the Assistant Director-II, Land and Building Tax Department sought to frame an assessment in respect of another piece of agricultural land in village Gopalpura and created a demand of Rs.26,00,000. Petitioner filed revision petition before the Divisional Commissioner, who declared the assessment order as void ab initio. The respondents preferred writ petition no.2980/2001 against the said order dated 6.5.1995 in which the stay petition was also filed, but the same was dismissed summarily by coordinate bench of this Court vide order dated 2.7.2009. When the respondents did not make payment of the amount deposited by the petitioner, petitioner had to file another writ petition no.3348/1999, which has been allowed by this Court by order dated 14.2.2013 with direction to the respondents to refund the aforesaid amount together with interest @ 6% per annum.
Learned counsel for the respondents opposed the writ petition and submitted that the cited judgement dated 2.7.2009, has routed through the Divisional Commissioner, it is where the alternative remedy is available to the petitioner. The writ petition should not be entertained and the petitioner should be required to approach the revisional authority. The impugned order of assessment would be tested by the revisional authority to find out whether or not the land of the petitioner-company was mere agricultural land or part of building on such land.
On hearing learned counsel for the parties and perusing the impugned order, I find that though it may be a fact that the petitioner has directly approached this Court, but the fact is that this writ petition was filed in the year 1999 and has been admitted long back. Now after 14 years, it would be too harsh upon the petitioner if it was relegated to the alternative remedy that too when the identical controversy has been decided against the respondents with respect of levy of land and building tax on agricultural land. The Divisional Commissioner in revision petition arising out of such agriculture land held that so long as the land is not put into any non-agriculture use and continued to be recorded as agricultural land in the revenue records in the khatedari of the petitioner, it cannot be treated as land for the purpose of Land and Building Tax and no tax can be levied on such land. It was held that nature of land in question and use to which it was put, is a question of fact, which has to be established with reference to the revenue records and conditions at the site.
This Court dismissed the writ petition no.2980/01 filed by the respondents against the aforesaid judgement of Divisional Commissioner dated 6.5.1995. One of the arguments that was advanced before this Court in the aforesaid petition was that if an agricultural land falls within urban area, the same is required to be treated as non-agriculture use. This Court rejected that argument holding that unless the land is converted for non-agricultural use, the land is excluded from the purview of land and building tax.
In view of above, the writ petition is allowed. The impugned assessment orders are quashed and set aside.
(Mohammad Rafiq),J.
RS/All corrections made in the judgement/order have been incorporated in the judgement/order being emailed. (Ravi Sharma,P.A.)