Jal Parkash Sharma And Another v. Chief Commissioner Of Income- Lax, Haryana And Other

In the High Court of Punjab and Haryana, at Chandigarf Civil Writ Petition No. 2784 of 2015 (O&M) Reserved on: 28.07.2015Date of Decision:01.10.2015 Jal Parkash Sharma and another ... Petitioner(s) Versus Chief Commissioner of Income- lax, Haryana and other ... Respondent(s) CORAM: HON'BLE MR. JUSTICE S.J. VAZIFDAR, ACTING CHIEF JUSTICE.HON’BLE MR. JUSTICE G.S. SANDHAWALIA| Present: Mr. Aman Bansal, Advocatefor the petitioner(s),for the petitioner(s), Mr. Yogesh Putney, Senior StandingCounsel for the Revenue/respondents. G.S. SANDHAWALIAJ. in the present writ petition, challenge Is raised to order aated31.12.2014 (Annexure P11) passed by the Chief Commissioner ofIncome Tax, Haryana vide which the application of the petitioners forregistration as a “Valuer of Immovable Property’ under Section 34AB ofthe Wealth Tax Act, 1957/7 (hereinafter referred to as ‘the Act) warejected. Liberty was given to resubmit the application as and when therequisite conditions under the relevant rules are satisfied. The reasoning given by the said respondent was that theapplicants must have been practicing as a Consulting Engineer, Valuerof real estate, Surveyor or Architect for a period of not less than tenyears after having obtained the qualification as defined in Rules 8A(2)(i).it was noticed that the applicant nad obtained the graduate Degree in Civil Writ Petition No. 2784 of 2015 (O&M) Civil Engineering in 2009 ana, therefore, the experience acquired priorto the acquisition of the degree would be of no benefit. The pleaded case of the petitioners is that they had applied forregistration under the Act on 23.11.2011 and were granted the saidbenefit on 2.3.2012 for a period of three years. They had workedcontinuously with the department to its satisfaction. On expiry of theabove said period, they had applied for continuation of registration on18.11.2014. A snow cause notice was issued that as per Rules 8A(2)(1)(A) & 8A(2Z)(1I)(B) of the Wealth Tax Rules, 1995/7 (nereinatter referredas ‘the Rules), graduation in Civil Engineering or Architecture or TownPlanning of a recognized University and the period of experience notless than ten years was required and now the petitioners were eligible.Accordingly, the petitioners had submittea their reply that they nadworked with Taneja & Associates for more than ten years since May2001. It was further replied that on account of the graduate degree inCivil Engineering in 2009, the petitioner had worked for two years withthe said firm and thereafter, worked independently for three years andhad the necessary qualifications. Resultantly, the impugned order waspassed. In the written statement filed by the department, the plea takenwas that the petitioner did not fulfill the statutory requirements. Theearlier registration granted was an erroneous action and will not conferany indefeasible right to claim registration. The degree in CivilEngineering had been taken by Distance Education and not as a regularstudent. The competent authority was well within his right to rectify its Civil Writ Petition No. 2784 of 2015 (O&M) mistake and the same coulda not be allowed to be perpetuatedReference was made to section 34AB of the Act, which providesregistration of valuers and Rule 8A(2)(1) of the Rules, which pertains tothe qualifications. Accordingly, it was pleaded that the erroneousregistration had been’ earlier granted but when they had applied forcontinuation, it was noticed that they did not fulfill the requisiteconditions. Ine experience of ten years would be completed in the year2019 and, therefore, on account of ineligibility, the impugned order hadbeen passed which was accordingly justified, Civil Writ Petition No. 2784 of 2015 (O&M) mistake and the same coulda not be allowed to be perpetuatedReference was made to section 34AB of the Act, which providesregistration of valuers and Rule 8A(2)(1) of the Rules, which pertains tothe qualifications. Accordingly, it was pleaded that the erroneousregistration had been’ earlier granted but when they had applied forcontinuation, it was noticed that they did not fulfill the requisiteconditions. Ine experience of ten years would be completed in the year2019 and, therefore, on account of ineligibility, the impugned order hadbeen passed which was accordingly justified, Admittedly, the petitioners were granted the registration forspecific period of three years as per the initial registration on 2.3.2012(Annexure P3). In pursuance of the said term expiring they had appliedafresh. In such circumstances, the respondents were well Justified inconsidering the matter afresh. Merely because earlier they had beenregistered as a Valuer of Immovable Property’ would not grant themsuch right to continue for all times to come. As per their letter ofregistration itself, the period of registration was only for three years. Theargument that once registration had been granted would continue andthe respondents were precluded from examining the eligibility afresh iswithout any basis. The registration was for a specific period and evenas per Clause 3(vi), after giving an opportunity of hearing, the ChiefCommissioner could delete the name from the valuation register in casehe felt appropriate, which could be on account of pertaining to wrongand actual facts as per sub clause (a) or (c) that the name could not beincluded in the valuation register as per Section 34AB of the Act. Civil Writ Petition No. 2784 of 2015 (O&M) section 34AD also provides that the Chief Commissioner mayremove the name of any person from the register of valuers after beingsatisfied and giving that person a reasonable opportunity of being neardand after such further enquiry, if any, as he thinks Tit. The second submission made by learned counsel tnat thepetitioners had an adequate experience of ten years since they hadworked trom the year 2001 and, therefore, reasoning given for rejectingtheir application that the experience should be ajiter the date of navinacquired the minimum educational qualification, is the legal question forconsideration that arises in the present writ petition. A perusal of theRules would go on to show that apart from being a graduate in CivilEngineering, Architect or Town Planning, the applicants were required tonave work experience also. — Tne relevant provisions’ pertaining to tne _~ requis qualifications read as under:- “34ABRegistration of valuers(1)|The Chief Commissioner or Director-General shalmaintain a register to be called the Register of Valuers inwhich shall be entered the names and addresses of personsregistered under sub-section (2) as valuers. (2)|Any person who possesses the qualiticationsprescribed in this behalf may apply to the Chief Commissioneror Director-General in the prescribed form for being registeredas a valuer under this section: Provided that differentqualifications may be prescribed for valuers of differentclasses of assets. (3)|Every application under sub-section (2) shall beveritied in the prescribed manner, shall be accompanied by Civil Writ Petition No. 2784 of 2015 (O&M) such fees as may be prescribed and shall contain adeclaration to tne effect that the applicant willdeclaration to tne effect that the applicant will (1)make an impartial and true valuation of any asset wnich ne may be required to value; (il)furnish a report of such valuation in the prescribedform;form; (11)charge fees at a rate not exceeding the rate or ratesprescribed in this behalf;prescribed in this behalf; (VI)not undertake valuation of any asset in wnicn ne hasa airect or indirect interest.a airect or indirect interest. (3)|Every application under sub-section (2) shall beveritied in the prescribed manner, shall be accompanied by Civil Writ Petition No. 2784 of 2015 (O&M) such fees as may be prescribed and shall contain adeclaration to tne effect that the applicant willdeclaration to tne effect that the applicant will (1)make an impartial and true valuation of any asset wnich ne may be required to value; (il)furnish a report of such valuation in the prescribedform;form; (11)charge fees at a rate not exceeding the rate or ratesprescribed in this behalf;prescribed in this behalf; (VI)not undertake valuation of any asset in wnicn ne hasa airect or indirect interest.a airect or indirect interest. (4)Tne report of valuation of any asset by a registeredvaluer shall be in the prescribed form and be verified in thevaluer shall be in the prescribed form and be verified in the prescribed manner. Qualifications of Registered Valuers 8A.(7)|For the purposes of sub-section (2) of section 34AB,the gualitications for registration as valuers of different classesof asset snali be as specified in sub-rules (2) to (17).the gualitications for registration as valuers of different classesof asset snali be as specified in sub-rules (2) to (17). (2)A vaiuer of immovable property (other thanagricultural lands, plantations, forests, mines and quarries)Shall have the following qualifications, namely :—(i) he must—agricultural lands, plantations, forests, mines and quarries)Shall have the following qualifications, namely :—(i) he must— (A)be a graduate in civil engineering, architecture or town planning of a recognized university; or (B)be a post-graduate in valuation of real estate from a recognized university; or (C)possess a qualification recognized by the Central Government for recruitment to Superior services or posts under the Central Government in the field ofcivil engineering, architecture or town planning;andcivil engineering, architecture or town planning;and (11)(A)he must be a person formerly employed— (a)in a post under Government as a gazetted officer; Or Civil Writ Petition No. 2784 of 2015 (O&M) (D)in a post under any otner employer carrying aremuneration of nof less than.4.2,000 per month,remuneration of nof less than.4.2,000 per month, ana, in eitner case, must nave retired or resignedtrom such employment after having renderedservice for not less than ten years as a valuer,architect or town planner, or in the field ofconstruction of buildings, designing of structures, ortrom such employment after having renderedservice for not less than ten years as a valuer,architect or town planner, or in the field ofconstruction of buildings, designing of structures, or development of land; or (Ccas a professor, reader or lecturer in a university,college or any other institution preparing students fora degree in civil engineering, architecture or townplanning, or for any qualification referred to in clause(i), and must have retired or resigned trom suchemployment after having taught for not less than tenyears any of the subjects of valuation, quantitysurveying, building construction, arcnitecture, ortown planning;college or any other institution preparing students fora degree in civil engineering, architecture or townplanning, or for any qualification referred to in clause(i), and must have retired or resigned trom suchemployment after having taught for not less than tenyears any of the subjects of valuation, quantitysurveying, building construction, arcnitecture, ortown planning; OR B)ne must nave been in practice as a consultingengineer, valuer of real estate, surveyor or architect for aperiod of not less than ten years and must have acquiredengineer, valuer of real estate, surveyor or architect for aperiod of not less than ten years and must have acquired experience in any of the following four fields :— (a)valuation of buildings and urban lands; or (D)quantity surveying in building construction; or (Ccarchitectural or structural designing of buildings ortown planning; ortown planning; or OR B)ne must nave been in practice as a consultingengineer, valuer of real estate, surveyor or architect for aperiod of not less than ten years and must have acquiredengineer, valuer of real estate, surveyor or architect for aperiod of not less than ten years and must have acquired experience in any of the following four fields :— (a)valuation of buildings and urban lands; or (D)quantity surveying in building construction; or (Ccarchitectural or structural designing of buildings ortown planning; ortown planning; or (d)construction of buildings or development of land; and his gross receipts from such practice should notbe less than fifty thousand rupees in any three of the fivepreceding years.”preceding years.” The issue is that whether the experience only after theacquisition of the qualifications is to be seen and whether it is mandatory Civil Writ Petition No. 2784 of 2015 (O&M) to nave 10 years of the said experience, after having the saidqualifications. Ihe said legal issue nas come up time and again beforethe Apex Court. Reference can be made tolV. Suresh Nathan VsUnion of India 1992 AIR (SC) 564wherein the relevant rule was asfollows‘ “1. Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years|service in the grade failing whicn section Officersnolding Diploma in Civil Engineering with six years|service in the grade — 50%. 2. section Officers possessing a recognised Diploma in Civil Engineering with six years’ service in thegrade — 50%’grade — 50%’ The three Judges Bench held that service of Diploma holdersprior to obtaining the degree cannot be counted as service in the gradewith the degree. It was, accordingly, held that the period of 3 years cancommence only from the date of obtaining the degree and not earlier.The issue was promotion of the Junior Engineers to the post of AssistantEngineers and whether the Diploma nolder Junior Engineers wno nadobtained a degree in the service, became eligible for appointment byway of promotion on the completion of the 3 years of service. Thecontest was with the degree nolders. Ihe decision was based on thepractice prevailing in the department for a number of years. Moreover,the Diploma was to be °witn~ SIX years service in the grade. The said judgment was clarified by a two Judges Bench in M.B.Joshi Vs. Satish Kumar 1993 AIR (SC) 267wherein it was heldthat if the period is to be counted after obtaining the graduate degree, Civil Writ Petition No. 2784 of 2015 (O&M) Incentive of adding In the educational qualification, auring the serviceand continuation In service and getting the advantage of acceleration inpromotion for all practical purposes would become nugatory. Ihe relevant observation reads as under: “13. If we accept the contention of Mr. Ashok Sen, itwould defeat the very scheme and the purpose ofgiving incentive of aading educational qualificationby aiploma-holders while continuing in service incase the period of & years is counted from the dateof obtaining graduate degree in engineering. It maybe noted that no sucn argument was raised evenfrom the side of the respondents before the Tribunal./f such interpretation as now sought to be advancedby Mr. Ashok Sen, learned senior counsel isaccepted, no relief could have been granted to tnerespondent satisn Kumar Pandey. We _ woulillustrate the above position on admitted facts thatShri Satish Kumar Pandey had joined as Sub-Engineer on 23.8.1980, but had acquired the degreeof engineering in May, 1987. In that situation, Mr.Satish Kumar becomes eligible only in May 1995and ne could not be considered as eligibie inDecember 1989 when these Sub-Engineers wereconsidered for promotion as Assistant Engineers.Even otherwise, if this period of 8 years is countedfrom the date of acquiring degree then this incentiveof adding the qualification during the continuation ofservice and getting the advantage of acceleration inpromotion in 8 years would for all practical purposesbecome nugatory and of no benetit. In|Subhash Vs. State of Maharashtra & another 1995 Civil Writ Petition No. 2784 of 2015 (O&M) (Sup3) SCC 332while examining the Maharashtra Motor VeniclesDepartment (Recruitment) Rules, 1991, it was held by the Apex Courtthat the working experience of one year could be prior to or after theacquisition of the basic qualifications, which was a Diploma inAutomobile Engineering. Ihe decision of the Iribunal was set aside andthe appellant was to be considered for appointment If he satisfied theother conalitions In D.Stephen Joseph Vs. Union of India 1997 (4) SCC 753 the view followed in the case of —Vi.B.Josn(Supra) was preferred and itwas held that It woulda not be appropriate to count the experience onltrom the date of acquisition of a superior educational qualification. Theview of the Tribunal that the experience of 3 years was not to be countedfrom the date of acquisition of the degree in Electrical Engineering, wasupheld. InAnil Kumar Gupta & others Vs. Municipal Corporation of Delhi & others (2000) 1 SCC 128the question for consideration by the Apex Court was framed as under: “Whether, while deciding whether the respondentsnad two years experience, the experience gainedwnile holding diplomas could also be counted Inaddition to the experience gained after obtainingdegree? The said question was answered by holding that the languageof the notification was not as such that the two years’ professionalexperience had to be gained after obtaining the degree. Thequalifications for appointment were (a) degree in Civil Engineering and Civil Writ Petition No. 2784 of 2015 (O&M) (0) two years professional experience. [ne qualifications are, therefore,similar to those In the case before us. Moreover, the word “and and notthe word ‘with’ connects the two qualifications which makes this casecloser to the case before us than the one inN. Suresh Nathan'sCase(Supra). The Supreme Court has held as under; "20. We may at the outset state that the provisionregarding experience speaks only of ‘professionalexperience for two years and does not, in anymanner, connect it with the degree qualification. Inour view, the case on hand Is similar to Subhasn Vs.State of Maharashtra (1995 Supp.(3) SCC 332)where, while considering Rule 3(e) of the relevantRecruitment Rules, namely, the Manarasntra MotorVehicles Department (Recruitment) Rules, 1991, thisCourt pointed out that the rule 3(e) whicn requiredone year experience in_ registered AutomobilWorkshop did not make any aifference betweenacquisition of such experience prior to or after theacquisition of the basic qualification.regarding experience speaks only of ‘professionalexperience for two years and does not, in anymanner, connect it with the degree qualification. Inour view, the case on hand Is similar to Subhasn Vs.State of Maharashtra (1995 Supp.(3) SCC 332)where, while considering Rule 3(e) of the relevantRecruitment Rules, namely, the Manarasntra MotorVehicles Department (Recruitment) Rules, 1991, thisCourt pointed out that the rule 3(e) whicn requiredone year experience in_ registered AutomobilWorkshop did not make any aifference betweenacquisition of such experience prior to or after theacquisition of the basic qualification. ,,,,,,,,,,,, 24. Therefore, on the language of the notificationdated 30.6.89, we are of the view that the 2 yearsprofessional experience need not entirely bedated 30.6.89, we are of the view that the 2 yearsprofessional experience need not entirely be experience gained after obtaining the degree. ,,,,,,,,,,,,26. For the aforesaid reasons, we hold that theservice rendered by the Diploma holders beforeobtaining degree can also to be counted. 26. For the aforesaid reasons, we hold that theservice rendered by the Diploma holders beforeobtaining degree can also to be counted. A similar view was taken InA.K.Raghumani Singh & others Vs. Gopal Chandra Nath & others 2000 (4) SCC 30Tne issue therein Civil Writ Petition No. 2784 of 2015 (O&M) ,,,,,,,,,,,, 24. Therefore, on the language of the notificationdated 30.6.89, we are of the view that the 2 yearsprofessional experience need not entirely bedated 30.6.89, we are of the view that the 2 yearsprofessional experience need not entirely be experience gained after obtaining the degree. ,,,,,,,,,,,,26. For the aforesaid reasons, we hold that theservice rendered by the Diploma holders beforeobtaining degree can also to be counted. 26. For the aforesaid reasons, we hold that theservice rendered by the Diploma holders beforeobtaining degree can also to be counted. A similar view was taken InA.K.Raghumani Singh & others Vs. Gopal Chandra Nath & others 2000 (4) SCC 30Tne issue therein Civil Writ Petition No. 2784 of 2015 (O&M) was also question of promotion to the post of the SuperintendingEngineer from the post of Executive Engineer and apart from thequalifications, 6 years regular service in the grade was the requirement,Tne writ petittoner had more than the required service but It was onlyafter little over 2 years of service that he had been granted the AIMEDiploma. It was, accordingly, held that the Courts would not be justifiedIn reading a qualification into the conjuctive word and Imply the word‘Subsequent after the word witn. The view of the High Court which hadneld that the professional experience meant not only experience gainedafter obtaining the degree, was, accordingly, upheld. A perusal of the Rule 8A would show that there was arequirement of being a graduate in Civil Engineering, Architecture orTown Planning of a recognized university ana ten years experience as avaluer, architect or town planner having earned not less than42,000/-per month in the field of construction of buildings, designing of structuresunder any other employer as per Rules 8A(a) & 8A(b), respectively, fromwhich he would have retired or resigned. As per Rule 8A(c), if the personhad worked as a Professor or Reader or Lecturer in the University,College or any other institution preparing students for a degree in thesald field, also ten years experience was required. — In case the said experience was not there of employment asnoticed above with the Government or other employer or educationalinstitution, the experience as a professional and having practice of notless than L90,000/- as a Consulting Engineer for a period of not lessthan ten years was required in the fields pertaining to valuation of the Civil Writ Petition No. 2784 of 2015 (O&M) Dulldings and urban lands, quantity in surveying building construction,architectural or structural designing of buildings and town planing orconstruction of bullaings and development of land under Rule 8B. Counsel for the respondents has laid great stress on thejuagment of the Apex Court InIndian Airlines Limited and Others v. S.Gopalakrishnan 2007(7) R.S.J. 495. A perusal of the said judgment would go on to show that inadaition to the wording of the rule, It was noticed that In the generalInformation instructions at Item No.6, the experience was to becomputed aiter tne date of acquiring the necessary qualifications wnicnalso weighed with the Apex Court. The case is, therefore, clearlydistinguishable from the case before us. In.ohailenara Dania & otners Vs. S.P.Dubey & others 2007 Counsel for the respondents has laid great stress on thejuagment of the Apex Court InIndian Airlines Limited and Others v. S.Gopalakrishnan 2007(7) R.S.J. 495. A perusal of the said judgment would go on to show that inadaition to the wording of the rule, It was noticed that In the generalInformation instructions at Item No.6, the experience was to becomputed aiter tne date of acquiring the necessary qualifications wnicnalso weighed with the Apex Court. The case is, therefore, clearlydistinguishable from the case before us. In.ohailenara Dania & otners Vs. S.P.Dubey & others 2007 (9) SCC 535a Inree Judges Bencn considered tnat whether tneDiploma holder Engineer who obtains a degree while in service,becomes eligible for promotion to the post of Assistant Engineer oncompletion of three years of service after he obtains the Engineeringdegree or on completion of three years of service prior to obtaining thedegree in Engineering. Accordingly, it was held that the classificationbetween the Diploma holders and the Graduate Engineers have beenupheld on the basis of the requirements of the promotional posts, in theinterest of efficiency and service. The argument that there was anydiscrimination in the different period of experience for the two categoriesof Degree holders and Diploma holders, was rejected and it was held tobe a valid classification for promotion to the higher post. Civil Writ Petition No. 2784 of 2015 (O&M) Very recently, the same Issue again came up before the Apex Court InK.K.Dixit Vs. Rajasthan Housing Board & others 2014 (4) SCT 219wherein the promotions were to the posts of Project Engineer(Senior) trom amongst the Project Engineer (Juniors) wno were Diplomaholders with 7 years total experience of service. The dispute was againbetween Diploma holders and the Degree holders. Accordingly, it washeld that the qualifications of AIME and the experience of service had tobe post the acquisition of the degree. In tne present case, as noticed,the Issue Is not of any disputeInter sethe Diploma holders and Degreenolders. Ine Rules provide that a person nas to be a graduate In CivilEngineering and he must have the experience of working either underGovernment, private employment or on the academic side. In thealternative, the experience as a Consulting Engineer, Valuer of not lessthan 10 years, nas been made mandatory, subject to certain conditions. The observations made by the Apex Court in the case ofA.K.Raghumani Singh(Supra) andAnil Kumar Gupta(Supra) wouldsquarely apply and the respondents were not justified in reading thequalification into the conjective word and implying that experience had tobe subsequent to the acquisition of the degree. | In such circumstances, the question of law is answered infavour of the writ petitioners that it is not necessary to gain theexperience under the Rules, after the acquisition of the educationalqualifications and accordingly, the order dated 31.12.2014 (AnnexureP11), is quashed and the writ petition is allowed. The respondents shallreconsider the applications of the petitioners, afresh and decide the Civil Writ Petition No. 2784 of 2015 (O&M) same within a period of 2 months trom the receipt of a certified copy of this order. (S.J. Vazifdar) (G.S.Sandnawallia) Acting Chief Justice Judge October 1[st], 2015 2saliesn3 Note: Whether reportable: YES