Allahabad High Court
Sardar Patel Sikshan Samiti Thru Secy ... vs State Of U.P Thru Prin Secy Nagar Vikas ... on 19 June, 2020
Bench: Pankaj Kumar Jaiswal, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No.1 AFR Case No. Misc. Bench No.9822 of 2020 Petitioner:- Sardar Patel Shikshan Samiti & Ors. Respondent:- State of Uttar Pradesh & Ors. Counsel for petitioner:- Jageswari Prasad Mathur Counsel for Respondent:- Shailendra Singh Chauhan Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Dinesh Kumar Singh, J.
1. The present Writ Petition under Article 226 of the Constitution of India has been filed by the petitioners for quashing the Order dated 13.03.2020 (Annexure-6) by the Commissioner of Lucknow Municipal Corporation issued in exercise of powers under Sections 509-516 of the Uttar Pradesh Municipal Corporations Act, 1959 (hereinafter referred to as the Municipal Corporations Act) whereby the Municipal Corporation directed to seize the bank account of the petitioners in ICICI Bank, Teli Bagh, Lucknow. It has been further directed that no money should be allowed to be withdrawn from the said account till ''No Dues Certificate' is issued by the Municipal Corporation, Lucknow in favor of the petitioners. The petitioners are in arrears of the municipal tax (general/house tax) amounting to Rs. 04,39,31,776 (Four Crores Thirty Nine Lakh Thirty One Thousand and Seven Hundred and Seventy Six Rupees) till 31.03.2020 and, despite demand notice, the payment has not been made by the petitioners.
2. Petitioner Number 1 runs and operates Sardar Patel Institute of Dental and Medical Science( Medical College) as well as OP Chaudhary Hospital and Research Centre within the municipal limits of the Lucknow Municipal Corporation.
3. The petitioners had earlier filed a Writ Petition No. 1048 (M/B of 2006) challenging the assessment and demand of tax on the petitioners on the ground that the petitioners were also entitled for exemption from property tax as was given to the educational institutions imparting education up to Class XIIth standard. Initially, this Court granted interim order in favor of the petitioner on the condition of deposit of Rs. 16 Lakhs.
4. The Division Bench of this Court vide its final judgment and order dated 04.06.2010 (Annexure-2) did not find any substance in the Writ petition and challenge to the constitutional validity of section 177(c) of the Municipal Corporations Act and held that the institutions imparting education up to intermediate standard and the professional institutions were two different classes. These were not equals and therefore, they could not be treated equally. It was further held that the differentiation was based on intelligible criteria and State was well within its power to exempt the educational institutes imparting education up to Class 12th standard and, there was no discrimination as alleged or otherwise. It was also held that the petitioners had statutory remedy of appeal under section 472 of the Municipal Corporations Act if they had any grievance against the tax imposed. The petitioners were given opportunity to file appeal within a period of one month and, it was directed that the appellate authority should entertain and decide the appeal on merit preferably within a period of four months without entering into the question of limitation. Thus, the issue of payment of property tax by the petitioners got finally settled by this Court vide Judgment and Order dated 03.05.2010 referred to above.
5. It appears that the petitioners had filed Appeal No. 11 of 2010 before the designated Court, Lucknow and the appeal is still pending. Strangely enough the petitioners approached this Court again second time by filing Writ Petition No. 5320 (M/B) of 2011 on the same ground that the petitioners were not liable for assessment and demand of property tax under the provisions of Municipal Corporations Act, the issue which had attained finality. This Court on the very first day disposed of the said Writ Petition with the following peculiar order:
"Heard counsel for the petitioners Sri J.P. Mathur and Sri Shashi Prakash Singh for the respondents.
Petitioners grievance is that though petitioners are charitable institutes and are entitled for exemption from house tax, yet assessment has been made against them and though appeal has been filed against the assessment which is pending before the Judge, Small Cause Court, the Nagar Nigam is proceeding to make recovery by adopting coercive methods. He further says that there is no provision under the Act to grant any stay order in the appeal.
Under the circumstances we dispose of the petition finally with the direction that till the decision of the pending appeal of the petitioners, recovery of the house tax shall not be made and the appeal be decided expeditiously, say, within a maximum period of three months from the date of receipt of a certified copy of this order.
Order Date :- 31.5.2011"
6. Since then the petitioners have not paid any property tax and they are in arrears of tax amounting to Rs. 4,39,31,776 (Four Crores Thirty Nine Lakh Thirty One Thousand and Seven Hundred and Seventy Six Rupees).
7. In 2012 the Municipal Corporation started proceedings to recover the property tax from and for which there was not stay operating against the Municipal Corporations inasmuch as the the stay was granted by this Court only in respect of demand for which the petitioners had filed the statutory appeal. However, the petitioners filed Contempt No. 381 of 2012 on the ground that in view of the stay order passed by this Court on 31.05.2011 in Writ Petition No. (M/B) 5320 the respondents could not have assessed and recovered the property tax from the petitioners.
This Court issued notice on the contempt petition to the officer concerned and under the pain of contempt, it appears that the proceedings were dropped by the Municipal Corporation. This Court vide Order dated 15.03.2012 disposed of the aforesaid contempt petition by the following order:
"Hon'ble Dr. Satish Chandra J.
In pursuance to the earlier order dated 13.02.2012, Sri Atul Kumar Singh, Tax Superintendent, Zone-V, Nagar Nigam, Alambagh, Lucknow is present in person. He is represented by Sri. S.S. Chauhan, Advocate.
Sri J.P. Mathur, learned counsel for the petitioners submits that the order dated 31.05.2011, passed by this Court in Writ Petition No. 5320 (M/B) of 2011 has been compiled with by the opposite parties. Hence. Contempt petition has become infructuous.
Accordingly, the contempt petition is dismissed being infructuous.
Order Date :- 15.3.2012"
8. Now, the notice for payment of House Tax had been issued to the petitioners by the Lucknow municipal corporation on 26.02.2019. The petitioners had replied to said notice and said that in view of the Order dated 31.05.2011 (supra) they were not liable to pay any property tax. When the petitioners have failed to make payment of the property tax as demanded vide notice dated 26.02.2019, the Municipal Commissioner has issued the impugned order dated 13.03.2020.
9. In the present petition, it has been again averred that the petitioners are exempted from levy and payment of property and other taxes by the Municipal Corporation under the provisions of Section 177(b) of the Municipal Corporations Act. Para 8 of the Writ Petition is reproduced below:
"That in view of the above status and facts, the institution is exempted from imposition and demand of property and other taxes under the provision of 177(b) of the U.P. Municipal Corporation Act 1959 and is not subject to assessment by the Municipal Corporation in any manner whatsoever."
10. It has been further submitted that there is no power to seize the bank account of the petitioners towards the recovery of house tax and Section 507 of the Act only provides to attach the movable property of the defaulter which does not include the bank account. It is also contended that the bank maintains the bank account as custodian/garnishee and the attachment can be done by the Court of law on the request made by the person having money decree from the Court and in execution thereof.
11. Chapter IX of the Municipal Corporations Act provides for taxes which can be imposed by the Municipal Corporationssction 173 of the Act. The taxes so collected become the income of the Corporation and, it is provided under Section 176 of the Act, the proceeds of the water, drainage and conservancy taxes and all other income derived from water works, drainage works, drains etc. is to be used for the purposes connected with construction, maintenance, extension and improvement of such water works and drainage works etc.
12. Section 177 provides the nature of buildings and lands which are exempted from general tax to be levied by the Municipal Corporations. Clause (c) of Section 177 provides for exemption from levying general tax on buildings solely used as schools and intermediate colleges.
Section 177 (c) reads as:
"The general tax shall be levied in respect of all buildings and lands in the City except --
[(c) building solely used as schools and intermediate colleges whether aided by the State Government or not, fields, farms and gardens of Government aided institutes of research and development, playgrounds of Government aided or unaided recognised educational institutions and sports stadium;]"
Thus, except for buildings and lands which are specifically exempted from payment of taxes under Section 177 of the Act, every other building and land is liable to be levied with taxes from the Municipal Corporation. Section 177 does not provide any exemption from levying taxes by the Municipal Corporation in respect of the educational institutions except the education institutions which are imparting education up to intermediate standard. The higher education institutions and professional education institutions are not exempted from levy and payment of taxes by the Municipal Corporation.
13. Section 179 of the Act provides for the primary responsibility of the person for the payment of tax. Section 181 of the Act provides that property taxes to be a first charge on premises on which they are assessed.
14. Chapter XXI of the Municipal Corporations Act provides for recovery of taxes and other corporation dues. Section 506 and Section 507 of the Act provide for notice of demand and warrant if the person liable for payment of the sum of tax fails to make payment within 15 days from the service of notice. Section 506 and Section 507 are extracted hereunder:
"506. Notice of demand. - If the sum for which a bill has been presented as aforesaid is not paid into the office of the Corporation, or to a person empowered by a regulation to receive such payments, within fifteen days from the presentation thereof, the Municipal Commissioner may cause to be served upon the person liable for the payment of the said sum a notice of demand in the form prescribed by rule.
507. Issue of warrant. - (1) If the person liable for the payment of the said sum does not, within fifteen days from the service of such notice of demand either - (a) pay the sum demanded in the notice, or (b) show cause to the satisfaction of the Municipal Commissioner or of such officer as the Corporation by regulation may appoint in this behalf, why he should not pay the same, such sum with all costs of the recovery may be recovered under a warrant caused to be issued by the Corporation in the form prescribed by rule, or to like effect, by distress and sale of the movable property of the defaulter. (2) Every warrant issued under this section shall be signed by the Municipal Commissioner, or by the officer referred to in clause (b) of sub-section (1)."
15. Section 509 provides the manner if executing warrant which reads as:
"509. Manner of executing warrant - (1) It shall also be lawful for such officer to distrain, wherever it may be found, any movable property of the person therein named as defaulter, subject to the provisions-of sub-sections (2) and (3). (2) The following property shall not be distrained:
(a) the necessary wearing apparel and bedding of the defaulter, his wife and children;
(b) the tools of artisans;
(c) books of account;
(d) when the defaulter is an agriculturist, his implements of husbandry, seed grain. and such cattle as may be necessary to enable him to earn his livelihood.
(3) The distress shall not be excessive, that is to say, the property distrained shall be as nearly as possible equal in value to the amount recoverable under the warrant, and if any articles have been distrained which in the opinion of the person authorized under sub-section (2) of Section 507 to sign a warrant, should not have been so distrained they shall forthwith be returned.
(4) The officer shall on seizing the property, forthwith make an inventory thereof, and shall before removing the same give to the person in possession thereof at the time of seizure a written notice in the form prescribed by rule that the said property will be sold as shall be specified in such notice."
The Municipal Corporation is also authorized to recover the tax due from the defaulter by attachment and sale of immovable property as is provided under Sections 512 to 514 of the Act."
16. Heard Shri J.P. Mathur, learned Counsel for the petitioners and Shri S.S. Chauhan, learned Counsel for the respondents. The question regarding the petitioners' liability to pay the property tax and other taxes has already been finally settled by this Court vide judgment and order dated 04.06.2010 passed in Writ Petition 1048(M/B) of 2006 and, therefore, no further discussion is required by us on the aforesaid issue.
17. Under Section 3 (26) of the General Clauses Act ''immovable property' shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. On the other hand, under Section 3 (36) ''movable property' shall mean property of every description, except immovable property. Upon juxtaposing the definitions of ''immovable property' vis-à-vis ''movable property' under the General Clauses Act, it becomes amply evident that a bank account, as such, is not an immovable property. Thus, it has to be treated as movable property.
18. The Supreme Court, while interpreting the term ''property' under Section 102 of Code of Criminal Procedure, 1973, in the case of State of Maharashtra v Tapas D Neogy1, has categorically held that money lying in bank accounts amounts to ''property' for exercise of power to seize ''property' of the accused under Section 102 of the Code of Criminal Procedure.
19. The Hon'ble Supreme Court in the case of Standard Chartered v. Andhra Bank Financial Services2 while interpreting Section 3 (26) of the General Clauses Act in context of Section 17 of the Displaced Persons (Debts Adjustment) Act, 1951, has held that the money lying in the bank account falls within the definition of ''movable property'.
20. Similarly, the Hon'ble Delhi High Court while dealing with almost identical facts and legal provisions under the Delhi Municipal Corporation Act with respect to recovery of property tax, had repelled the submission that the bank account is not a movable property in the case of State Bank of India vs M.C.D.3 and held that:
"7. Learned Counsel contends that the expression used is "distress and sale of the movable property", which did not imply that the bank accounts can be attached. Learned Counsel in this behalf has referred to the expression "distress" under Section 157 of the said Act. The said provision is as tinder:
"157. Distress--
(1) It shall be lawful for any officer or other employees of the Corporation to whom a warrant issued under Section 156 is addressed to distrain, wherever it may be found in any place in Delhi, any movable property or any standing timber, growing crops or grass belonging to the person therein named as defaulter, subject to the following conditions, exceptions and exemptions, namely:
(a) the following property shall not be distrained:
(i) the necessary wearing apparel and bedding of the defaulter, his wife and children and their cooking and eating utensils;
(ii) tools of artisans;
(iii) books of account; or
(iv) when the defaulter is an agriculturist his implements of husbandry, seed, grain and such cattle as may be necessary to enable the defaulter to earn his livelihood;
(b) the distress shall not be excessive, that is to say, the property distrained shall be as nearly as possible equal in value to the amount recoverable under the warrant, and if any property has been distrained which, in the opinion of the Commissioner, should not have been distrained, it shall forthwith be released.
(2) The person charged with the execution of a warrant of distress shall forthwith make an inventory of the property which he seizes under such warrant, at the same time, give a written notice in the form set forth in the Ninth Schedule, to the person in possession thereof at the time of seizure that the said property will be sold as therein mentioned."
"8. Ld. Counsel contends that the said provision of distress cannot apply to the money lying in the account. This is further supported by the contention that the money of assesse lying in the account merges with the money of bank and does not remain the money of the assesse.
9. I am unable to accept the contention of the learned Counsel for the petitioner. The money when deposited with the bank remains the money of the depositor, but in custody of the bank. The expression used in Section 156 (1) refers to "movable property" and the money would certainly fall within the said category. A reading of Section 156 and 157 of the said Act together, in my considered view, imply that it is open to the respondent Corporation to attach money of the assesse lying with the bank in case the property tax is unpaid."
In view of the aforesaid discussion and considering the legal position with regards to the General Clauses Act, particularly Section 3(26) and 3(36) as well as the law laid down in the aforesaid judgments, we find no substance in the submission of the learned counsel for the petitioners that bank accounts is not a movable property and not liable to be attached towards the recovery of tax due from the Petitioners pursuant to exercise of power by the Municipal Corporation under Sections 506 to 509 of the Municipal Corporations Act.
21. It is evident from the aforesaid narration of the facts that the petitioners had not paid any tax and arrears have mounted to Rs. 4,39,31,776 (Four Crores Thirty Nine Lakh Thirty One Thousand and Seven Hundred and Seventy Six Rupees). They have repeated their submissions which have been rejected by this Court earlier and therefore, we dismiss this petition with costs of Rs. 1,00,000/- (Rupees One Lacs only) to be deposited in the Chief Minister Distress Relief Fund, Covid Care Fund, U.P. Order Date:-19.06.2020 prateek*