Karnataka High Court
Bhagwan Mahaveer Memorial Jain Trust vs The Bruhath Bangalore Mahanagara ... on 31 July, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31ST DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
W.P.Nos.7232-7233/2010 & 7386-7399/2010
(LB-TAX)
Between:
1. Bhagwan Mahaveer Memorial Jain Trust
A Charitable Trust
Millers Road, Vasanthanagar
Bangalore-52
(Rep. by its Hon.President
Mr.Parasmal Bhansali)
2. Bhagwan Mahaveer Jain Hospital
Millers Road, Vasanthanagar
Banalore-52
(Rep. by its Hon.President
Mr.Parasmal Bhansali) ...Petitioners
(By Sri H.R.Narayana Rao, Adv. for
Sri Goutam & Sri Rajeshwar, Advs.)
And :
1. The Bruhath Bangalore Mahanagara Palike
Rep. by its Commissioner
N.R. Square
J.C. Road, Bangalore-02.
2. The Additional Commissioner (East)
The Bruhath Bangalore
Mahanagara Palike
Bangalore.
3. The Assistant Revenue Officer
Vasanthanagara Sub-Division
The Bruhath Bangalore
2
Mahanagara Palike
Bangalore.
... Respondents
(By Sri Vinayaka B, Adv. for
M/s. Ashok Haranahalli Associates for R1-3)
These Writ Petitions are filed under Articles 226 & 227
of the Constitution of India, with a prayer to quash the order
dated 28.01.2010, vide Ann-E, passed by the R2 & declare
the same as arbitrary, illegal & without jurisdiction and etc.,
These Writ Petitions coming on for Preliminary hearing
in 'B' group, this day, the Court made the following :
ORDER
The petitioners are before this Court assailing the order dated 28.01.2010 which is impugned at Annexure-E to the petition. The petitioners have also sought for issue of mandamus directing the second respondent to extend the general exemption from payment of property tax as per the provisions contained in Section 110 (e) of the Karnataka Municipal Corporations Act, 1976 (for short 'the Act'). Further, the petitioners have sought for quashing the demand notice dated 02.02.2010 which is impugned at Annexure-F to the petitions.
2. Heard the learned counsel for the parties and perused the petition papers.
3
3. The contention put forth in the instant petition is that the petitioners' hospital is under the Charitable Trust and therefore, they are entitled to exemption from payment of property tax to be paid to the respondent-BBMP. At an earlier point in time, when the demand for property tax was made, the petitioners were before this Court in W.P.No.11793/2005 c/w W.P.No.20330/2004. This Court after taking note of the rival contentions and the reliance placed by the petitioners therein on the judgment of this Court, had directed the respondents to keep in view the objections put forth by the petitioners and reconsider the matter afresh. Thereafter, the respondents have passed the order impugned at Annexure-E dated 28.01.2010 and the consequent demand notice dated 02.02.2010 at Annexure-F has been issued. It is in that context, the petitioners are before this Court assailing the same.
4. The respondents have filed their objection statement and have sought to justify their action. 4 Though it has been contended by the respondents that the action on their part is justified inasmuch as the petitioners have not established the fact that they are running the hospital as a Charitable Institution, the respondents have also pointed out that these are factual aspects which would have to be considered in an appropriate statutory appeal and these factual disputes cannot be decided in a writ petition. Hence, both on merits as well as on the maintainability of the writ petition, the respondents have prayed that the writ petition be dismissed.
5. In the light of the above, considering the fact that the respondents have raised the preliminary question with regard to the maintainability of the writ petition in view of there being an alternate remedy of appeal, in my opinion, at this stage, the fact as to whether the petitioners have made out a case for exemption would not arise for consideration in the instant writ petitions inasmuch as such question would have to be decided by the Appellate Authority while 5 considering the validity of the demand notice. In that regard, a perusal of Section 113 (3) of the Act would indicate that an appeal is provided against the demand notice for taxes. The designated Appellate Authority is provided in Rule 19 to Schedule III of the Act and the appeal would lie before a District Judge in whose jurisdiction the property is situate.
6. If that be the position, in the instant case, it is to be noticed that at the first instance when the petitioners were before this Court, they had assailed the demand notice. Though this Court had directed the respondents to consider the matter keeping in view the provision contained in Section 110 of the Act and the decision of this Court referred to in the said order, the order subsequently passed on 28.01.2010 in effect is an order for reaffirming the demand notice which has been made earlier. Further, pursuant to the said order dated 28.01.2010, the demand notice at Annexure-F dated 02.02.2010 has been issued. Therefore, necessarily, what is assailed is the demand notice on the ground 6 that such demand is not sustainable in view of the exemption that would be available to the petitioners and the determination made is assailed. This aspect of the matter would have to be considered by the Appellate Court viz., the District Court where the appeal in the instant case would lie.
7. Hence, keeping open all questions to be considered by the Appellate Court, the writ petitions are disposed of, reserving liberty to the petitioners to file the appeal. Since a time frame has been contemplated under the provision for filing the appeal as thirty days, the petitioners shall avail the appeal remedy within thirty days from the date of receipt of a copy of this order.
8. Considering that the petitioners had the benefit of the interim order during the pendency of the instant proceedings to the effect that they shall pay 25% of the demand, the benefit of the said interim order would be available to the petitioners till the Appellate 7 Court considers and disposes of the appeal. However, it is made clear that the benefit of the interim order would be available to the petitioners only if they avail the remedy of appeal within the time frame provided herein.
With the above liberty, the writ petitions are disposed of. No order as to costs.
Sd/-
JUDGE hrp/bms