Rajasthan High Court - Jaipur
Shri Swetamber Jain Vidhyallaya vs State Of Raj & Ors on 4 January, 2017
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
1. S.B.Civil Writ Petition No. 13039 / 2009
Shri Swetamber Jain Vidhyallaya Shiksha Samiti, SJ Public School
Premises, Amar Path, Janata Colony, Jaipur a society registered
under the Rajasthan Societies Registration Act, 1958, through its
Secretary Shri Tilak Raj Jain son of Shri Ishwar Lal Jain, aged 64
years, 201, Tilak Apartment, Manu Marg, Jaipur.
----Petitioner
Versus
1. The State of Rajasthan through the Secretary, Department of
Local Self Government, Govt. of Rajasthan, Secretariat, Jaipur.'
2. Municipal Corporation, Tonk Road, Jaipur through its Mayor.
3. Commissioner, Moti Doongri Zone, Municipal Corporation,
Outside Ghat Gate, Jaipur.
----Respondent
2. S.B.Civil Writ Petition No. 13466 / 2009
1. Biyani Shikshan Samiti, a society registered under Rajasthan Societies Registration Act, 1958, through its President Shri Rajeev Biyani S/o late Shri JK Biyani, R-4, Sector-3, Vidhadhar Nagar, Jaipur - 302023.
2. Biyani Girls College, through its Director (ACAD) Sanjay Biyani S/o late Shri JK Biyani, R-4, Sector - 3, Vidhadhar Nagar, Jaipur - 302023.
----Petitioners (2 of 6) [ CW-13039/2009] Versus
1. Jaipur Municipal Corporation, Tonk Road, Jaipur through its Mayor.
2. Commissioner, Vidhadhar Nagar, Jaipur Municipal Corporation, Jaipur.
3. The State of Rajasthan through the Secretary, Department of Local Self Government, Govt. of Rajasthan, Secretariat, Jaipur.
----Respondents ____________________________________________________ For Petitioner(s) : Mr.Ajeet Bhandari For Respondent(s) : Mr.JM Saxena, AA G _____________________________________________________ JUSTICE DINESH MEHTA Order 04/01/2017 Learned counsel for the parties submit that the controversy involved in the present cases is covered by the decision of this Court rendered in bunch of writ petitions led by SB Civil Writ Petition No.3656/2005 titled as Roaman Catholic Diocesan Education Society & Anr. Vs. Commissioner, Jaipur Municipal Corporation, Jaipur & Ors. decided on 19th October, 2016.
While disposing off the bunch of writ petitions, this Court has passed following order :
1. The petitioners would prefer an appeal within a period of three weeks. On an (3 of 6) [ CW-13039/2009] appeal, the appellate authority would consider as to whether petitioners are entitled to get exemption of tax under section 107 of the Act of 1959 and the notification dated 29.8.2007. The appellant authority would take note of definition of 'charitable purpose' given in the Explanation-I to sub-section (4) of section 107 of the Act of 1959 apart from the proviso appended thereto. The appellate authority would determine as to whether any of the institutions, seeking exemption under section 107, is confirming the conditions of the proviso and if it is using the land and building for business or trade or earning rent or derive other income then would not be entitled to exemption of tax unless property exists in the name of a charitable trust, if notification dated 29.8.2007 applies.
2.If the first issue is determined against the petitioners, then further issue would be determined in respect of the tax liability.
The assessment of the tax liability would obviously be on the basis given under the notification dated 29.8.2007. The petitioners would, however, be at liberty to take all the issues in regard to determination of tax liability and if they point out any illegality in determination of 27 tax, then would be considered by the appellate authority in accordance with provisions of law.
(4 of 6) [ CW-13039/2009]
3.The further issue remains in reference to the Act of 2009 because provisions of section 107 of the Act of 2009 is different than what it was under section 107 of the Act of 1959. The exemption is not provided in the manner existing earlier. Section 107 of the Act of 2009 does not provide exemption of tax other than to the places of worship. The issue, however, needs consideration in reference to notification dated 29.8.2007 and subsequent clarificatory notification dated 31.8.2015. The determination of the issue would be after considering the effect of section 344 of the Act of 2009. The appellate authority would accordingly consider the aforesaid issue also apart from the issue of liability after the Act of 2009.
Learned counsel for the parties have referred several judgments on the issue of alternative remedy and all related issues, however, those judgments are not required to be dealt with because the writ petitions are not dismissed on the ground of availability of alternative remedy, rather, cases have been sent to the appellate authority, as agreed by the parties. The matter could have been remanded to the Municipal Corporation for determination of all the issues after taking into consideration the facts of the case. It has been sent to the appellate authority so that (5 of 6) [ CW-13039/2009] controversy can be considered to the satisfaction of the parties after proper opportunity of hearing. It is even to avoid further litigation in the hands of the petitioners.
4.The appeals would be preferred within three weeks from today with advance copy to the Municipal Corporation. They would submit reply thereupon within three weeks. The hearing of the appeals would finally be made by the appellate authority within three months thereupon, for which, date would be informed by the appellate authority. Till the appeal/s is decided within the time given above, Municipal Corporation would not effect demands under challenge, 28 rather, demand notices are made subject to final outcome of the order passed by the appellate authority.
5.It is also made clear that if any other issue remains, then parties would be at liberty to raise it before the appellate authority.
6.The condition of pre-deposit for maintaining the appeal is relaxed as it is taken as substitute of remand of the case to the respondents.
7.If any of the petitioners fails to prefer appeal, respondents would be at liberty to execute the demand."
(6 of 6) [ CW-13039/2009] In view of above, these writ petitions are also disposed off.
Learned counsel for the petitioners submits that powers of the Collector being the Appellate Authority under the Act have been delegated to some other Authority.
Be that as it may, the Collector or any other Authority, competent to hear the appeal, will decide the same accordingly.
A copy of this order be placed in connected file.
(DINESH MEHTA) J.
S/Nos.16 & 17Preeti, PA