- (1.) P. K. Jain, J. The petitioner M/s. Tribeni Engineering Works Ltd, owns a Sugar Mill known as the Upper Indian Sugar Mills in Khatauli, district Muzaffarnagar. The Mill has godown within the Municipal Limits of Municipal Board, Khatauli, district Muzaffarnagar. Accord ing to the petitioner's case in the year 1977 the annual value of the godown was fixed at Rs. 1800 and house-tax etc. were levied accordingly. In the year 1981- 82 the house-tax was enhanced to Rs. 2880 and water-tax was enhanced to Rs. 36,00. The claim of the petitioner is that no notice as required by Section 143 of the Municipalities Act was ever served upon the petitioner and he was not given an opportunity of being heard nor he was given time to file objection against the proposed enhancement. It was for the first time on 23-3-1982 that he received a notice for deposit of Rs. 7154. 70 paise, out of which Rs. 674. 70 were arrears for the period 1978-79 and 1980-81. The balance amount of Rs. 6,480 related to the year 1981-82. The said amount was deposited under protest through cheque. The Municipal Board, however, did not furnish the receipt of the payment despite several reminders. An appeal was filed before the C. J. M. Muzaffarnagar which was dis missed vide judgment and order dated 21-10-83 illegally holding that the notice under Section 143 of the Municipalities Act was duly served upon the appellant and the appellant did not file any objection; that the appeal has been filed after expiry of the limitation and that the enhance ment was made considering the value of other premises in the vicinity of the appellant's godown. The assessment as well as the order of the appellate authority have been challenged mainly on the ground that no notice as required by Sec tion 143 of the Municipalities Act was served upon the petitioner; that the pro cedure laid down by Sections 141 to 144 of the Act has not been followed; that the annual value fixed by the respondents is highly exorbitant and it has not been fixed in accordance with the Section 140 of the Act, that the actual rent of another build ing cannot be the criteria for determining the annual value of a building which is not let out and that the appellate order was without considering the evidence of the petitioner. Following prayers have been made in this writ petition : (a) To quash the assessment order and the order passed by the Chief Judicial Magistrate, Muzaffarnagar as contained in Annexures 10 and 11; and (b) To issue an order, or direction or writ in the nature of mandamus commanding the respondents not to give effect to the aforesaid orders.
(2.) MR. Kunwar Sen, Tax Collector Municipal Board, Khatauli, district Muzaffarnagar had filed counter- affidavit on behalf of respondents Municipal Board, Khatauli, district Muzaffarnagar in which the allegations with regard to serving of notice under Section 143 of the Act have been specifically denied and it is stated that the notice was served several times by orderly Mohd. Yasin of the Municipal Board and every time the petitioner refused to accept the notice. On 6-10-81 the Orderly has made such endor sement on the back of the notice. The order passed by the appellate Court was just and proper and was passed after con sidering the material before it. The petitioner was given full opportunity to reply the notice under Section 143 of the Act and the enhancement of the tax was just and proper. The appeal was against the bill of demand and not against the assessment made by the Municipal Board. The appeal preferred by the petitioner was not maintainable. The godown of the petitioner was situated in front of the rail way station and on the road itself and has more amenities than other godowns. Before issuing notice under Section 143 of the Act proper inspection was made. The petitioner filed rejoinder-af fidavit almost reiterating the facts staled in the writ petition. It was also stated in the rejoinder-affidavit that the godown referred to as an exemplar was ten times in area than the petitioner's godown. That apart, the said godown was situated just in front of the Khatauli bus stand and whereas the petitioner's godown is out of use on account of its being situated ad jacent to the bone factory which emits foul smell and in fact it has been rendered out of use for a pretty long lime. Besides this the distance between two godowns was 1 km. Sri C. P. Ghildyal, learned Counsel for the petitioner and Sri N. A. Abidi hold ing brief for Sri N. A. Kazmi, learned Counsel appearing for the respondents have been heard at length
(3.) SRI Ghildyal has vehemently ar gued that provisions of section 143 of the Act have not been complied with and, therefore, the assessment as well as appellate Court's order cannot be sustained. He further submits that the annual value of the petitioner's godown has been fixed without consideration of any maierial and the exemplar relied upon by the Assessing authority as well as the lower appellate Court was not a good exemplar in the facts and circumstances stated in the rejoinder-affidavit. Learned Counsel appearing for the respondents has submitted that there is categorical finding of the lower appel late Court that notice was served upon the petitioner and he failed to appear to file objection against the notice served upon him. Therefore, the assessment was rightly made and the annual value was fixed on consideration of the inspector, report as also considering the fact that the other godowns in the vicinity were fetching at the rate of Rs. 12,000 per month. The lower appellate Court has recorded a categorical finding on con sideration of the material placed before it that attempts to serve the notice were made by the respondents and actually after going through the contents of the notice the employee responsible for receiving the same had refused to accept the same. No error is indicated in the finding arrived at by the lower appellate Court in this regard.;