Madras High Court
K.R.Abirami vs The Kumbakonam Municipality on 5 September, 2007
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 05/09/2007 CORAM: THE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Second Appeal (MD) No.37 of 2007 K.R.Abirami .. Appellant Vs. The Kumbakonam Municipality rep. By its Executive Authority, The Commissioner, Dr.Muthy Road, Kumbakonam Town. .. Respondent PRAYER Second Appeal has been filed under Section 100 of C.P.C. against the judgment and decree dated 26.04.2006 in A.S.No.211 of 2005 passed by the learned Additional Subordinate Judge, Kumbakonam, confirming the judgment and decree in O.S.No.136 of 2003, dated 24.08.2005 on the file of the I Additional District Munsif, Kumbakonam. !For Appellant .. Mr.M.V.Santharaman ^For Respondents .. Mr.K.Raj Kumar :JUDGMENT
This second appeal has been preferred against the judgment in A.S.No.211 of 2005 on the file of the Additional Sub-Judge, Kumbakonam, which had arisen out of the judgment and decree in O.S.No.138 of 2003 on the file of the First Additional District Munsif, Kumbakonam.
2.The plaintiff, who had lost her case before the Court below has preferred this second appeal. The plaintiff had approached the Court challenging the order of enhancement of house tax from Rs.357/- per half-year to Rs.3,517/- per half-year for her house bearing Door No.9/763, Andiyappan Street, Kumabkonam. After receiving Ex.A.1, the plaintiff had preferred a petition dated 16.12.2002 requesting the defendant-Municipality to reassess the tax as per the fair rent principles and also after following the Rule 9 of the Tamil Nadu District Municipalities Act. But without conducting any enquiry the defendant had revised the house tax suo moto from Rs.365/- per half-year to Rs.3,517/- per half-year, which necessitated the plaintiff to approach the Court by way of a civil suit.
3.The defendant in his written statement would contend that as per section 82 of the Tamil Nadu District Municipalities Act, (amendment act 65/97 & 34/98) there is no need for the Muncipality to give any opportunity before revising the house tax and only on the basis of Ex.B.1 & Ex.B.2 assessment was made and the house tax was enhanced in accordance with law.
4.The learned trial Judge has framed three issues. The plaintiff has examined herself as P.W.1 and exhibited Ex.A.1 to Ex.A.6. On the side of the defendant, the Revenue Inspector of Kumbakonam Municipality was examined as D.W.1 and Ex.B.1 to Ex.B.4 were marked. After going through the evidence both oral and documentary the learned trial Judge has dismissed the suit, which necessitated the plaintiff to approach the first appellate Court in A.S.No.211 of 2005.
5.The learned first appellate Judge, after scanning the evidence and after giving due deliberations to the submission made by the counsel on either side, has come to the conclusion that there is no reason to interfere with the findings of the learned trial Judge and accordingly dismissed the appeal, thereby confirmed the findings of the learned trial Judge, which made the plaintiff to knock at the doors of this Court by way of this second appeal.
6.The substantial questions of law involved in this second appeal are as follows:-
i)Whether the first appellate Court can go beyond the pleadings and hold that the fair rent principles need not be followed while assessing the property tax under the District Municipalities Act?
ii)Whether the first appellate Court can rely upon the calculation which is based on Act 65/1997 and 34/1998 which is not notified?
iii)Whether the first appellate Court can hold that the act has come into force till the notification that the act is not notified is notified in the year 2005 in the absenceof a prior notification that the Amending Act 65/97 and34/98 is notified?
iv)Whether the Municipality can assess without giving opportunity to the appellant prior to the same is converted into a demand by entering in the assessment book to make the same a demand?
v)Whether the assessment by the Municipality without giving opportunity to the assessee is valid under law?
vi)Whether the assessment in violation of the Municipality Act in force by the Municipality is valid under law?
7.The Point:- 7(a) Heard Mr.M.V.Santharaman learned counsel for the appellant and Mr.K.Raj Kumar the learned counsel appearing for the respondent and considered their respective submissions.
7(b) The impugned order of assessment raising the half-yearly house tax for the plainttiff's house bearing door No.9/763, Andiyappan Street, Kumbakonam, from Rs.365/- to Rs.3,517/- is Ex.A.1. D.W.1 is the Revenue Inspector of the defendant-municipality. According to him, as per the amended act of 65/97 and 34/98 of the Tamil Nadu District Municipalities Act, 1920, Ex.A.1-assessment was made to the house of the plaintiff under Sections 82 & 84.
7(c) It is the case of the plaintiff that the amended Act65/97 & 34/98 was so far been not notified and hence the assessment made under Ex.A.1 is non-est in law. The learned counsel relying on the Rules of the Municipality would contend that as per the Addenda issued by the respondent-Kumbakonam Municiplaity after section 1 to 81 of the Act, it has been clarified that the Government have not notified the date of coming into force of the amending act 65/97 & 34/98 and that till the amended act are notified by the Government,the erstwhile provisions relating to property tax in Sections 81 to 91 would be in force. At page one of the additional typed set of papers the copy of the Rules and Regulations of the respondent-Municipality along with Addenda relating to Section 1 to 81 of the Tamil Nadu District Municipality Act, has been filed by the learned counsel appearing for the appellant.
7(d)The learned counsel for the appellant relying on Rule 9 of the Taxation Rules to the Tamil Nadu District Municipalities Act,1920, would contend that when assessment books have been prepared at the time of general revision of the tax, the Executive Authority shall give public notice stating that the revision petitions will be considered if they reach the Municipality Office within a period 60 days from the date of notice, in the case of the Government, a railway administration or a company and of thirty days from the said date in other case. But in accordance with the said Rule 9 of the Taxation Rules of the Tamil Nadu District Municipalities Act, 1920, the respondent, after Ex.B.2- assessment had not given any notice to the plaintiff as envisaged under Rule 9 of the Taxation Rules of the Tamil Nadu District Municipalities Act, 1920. The learned counsel would contend that the failure of the above provision under Rule 9 of the Taxation Rules to the Tamil Nadu District Municipalities Act, 1920, vitiates the reassessment of house tax by the respondent-Kumbakonam Municipality and that Ex.A.1 itself will not be sustainable under law. In support of this contention, the learned counsel for the appellant would rely on 1994(2) LW 715 [Dindigul Anna District Tax Payers Sangam rep by its President M.V.R.A.Soundararajan, No.116, Bigh Bazaar Street, Dindigul Vs. 1.Government of Tamil Nadu rep by its Secretary to Government, Municipal Administration and Water Supply Department, Fort St.George, Madras-9. 2.Dindigul Municipality rep by its Commissioner, Dindigul, Dindigul Anna District (W.P.Nos.1946 & 3118 of 1994) and Trichy Town Properties Owners Welfar Association rep by its President T.R.Karunakaran and Secretary A.R.Mohamed Iqbal baving its office at No.51, Jabarsha Street, G.M.R.Jain Bhavan, II Floor, Tiruchirappalli-8 Vs. 1.The State of Tamil Nadu rep by its Secretary to Government, Municipal Administration and Water Supply Department, Fort St.George, Madras-9. 2.The Commissioner of Municipal Administration, Chepauk, Madras-5. 3.The Commissioner, Trichy Municipality, Tiruchirappalli (W.P.No.2160 of 1994)], wherein the writ petitioners have challenged the general revision of property tax of the above said Municipalities (Dindigul Municipality & Trichirappalli Municipality) on the ground that the provision under Rule 9, 10 & 9(A) of Schedule IV to Tamil Nadu District Municipalities Act, 1920, was not followed while revising the property tax by the said Municipalities. In fact in the above ratio decidendi relied on by the learned counsel for the appellant both the Municipalities have issued notices, but they have challenged the notices on the ground that it was not in conformity with Rule 9 of Schedule IV to the Tamil Nadu District Municipalities Act. Relying on an earlier ratio decidendi in AIR 1971 S.C. 353 = 82 LW 20 S.N. Guntur Municipal Council Case, it has been held by the Devision Bench of this Court that:
"The Special notice served by the Executive Authorities of Municipalities under Rule 9 in these cases on the owners and occupiers of properties are not in accordance with the principles laid down by the decision of this Court as no reason is stated in the Special notices for enhancement of property tax, and they cannot be sustained. Consequently, the Special notices served under Rule 9 by the Municipal Authorities on the members of petitioner Sangam in these cases are quashed on the only ground that the reasons for enhancement of property tax are not set out in the Special notices."
While negativing the contentions of the learned Special Government Pleader appearing for the said Municipalities, who was contending that those demand notices were issued only on the basis of the guidelines under Privisons of Section 82 to 84 of the Act, the Division Bench of this Court held that:
The Municipal Authorities have produced in the typed set of papers filed on behalf of the different Municipalities certain special notices issued under Rule 9 of Schedule IV to the Act. The said notices issued under Rule 9 contain a column mentioning annual rental value. In that column the rental value as it existed prior to the issue of the notices is mentioned and the increased value is mentioned in the same column. The other columns in the special notices contained the existing tax and the increased tax. The reason for the increase is given as bghJ brhj;J thp jpUj;jk; meaning the general revision of property tax. The general revision of property tax given as the only reason for the enhancement of the property tax cannot be considered as a reason at all for enhancement of the property tax and it does not satisfy the requirement of law as laid down in the decisions of this Court referred above. (AIR 1971 S.C. 353 ). The special notices produced on behalf of the Municipality in the typed set of papers in these cases, do not contain any reason for increasing the existing property tax. No doubt, the respondents Municipalities have produced in the typed set of papers the assessment work-sheet showing how the executive authorities arrived at the enhanced tax. If the Municipal Authorities have served copies of the assessment work-sheets showing the basis and how they arrived at the enhanced property tax, on the tax payers, along with the special notices issued under Rule 9 that would have satisfied the requirements of law and in such cases, it can be held that the special notices contained the reasons for enhancement in the assessment. However, admittedly copies of the assessment work-sheets prepared by the respondents Municipalities, showing how they arrived at the enhanced property tax were not served on the tax payers along with the special notices issued under Rule 9.
The above said dictum in all four corners apply to the present facts of the case. D.W.1, the Revenue Inspector of the Kumbakonam Municipality would admit in the cross-examination that no copy of Ex.B.2 was served before issuing Ex.A.1, demand notice, to the plaintiff. In the case on hand also in Ex.B.2 nothing transpires how the Municipality has arrived at the fancy amount of Rs.3,517/- as enhanced tax. There is no reasoning given why the general revision of property tax was made under Ex.B.2. It is seen from the evidence of D.W.1 that the provisions contemplated under Rule 9 of the Taxation Rules to Schedule IV to the Tamil Nadu District Municipalities Act, 1920, was not followed in this case. No opportunity was given to the plaintiff to file his objection to Ex.A.1-demand on the basis of Ex.B.2-assessment. 7(e) A vague attempt was made on the side of the respondent that without availing the appellant jurisdiction against the order passed under EX.A.1, the plaintiff has rushed to the Court, which is also not sustainable in view of the catena of case produced by the learned counsel appearing for the appellant reported in 1952(1) MLJ 1953 (The Coimbatore Municipality rep by its Commissioner vs. C.S.Govindayyar), wherein it has been held by this Court as follows:-
"The mere fact of the existence of a right of appeal under the provisions of the Act against the assessment by the municipality does not necessarily oust the jurisdiction of the Civil Court to entertain a suit in challenge thereof."
7(f)The learned counsel for the appellant also relied on 1980(II) MLJ 140 (Shanmugha Nadar Vs. The Corporation of Madurai by its Commissioner). The exact observation in the said dictum for the purpose of deciding the case on hand is as follows:-
"It was suggested that the plaintiff has straightaway come to Court without exhausting his remedies under the Act. I do not find anything in the proviso to Section 495(1) to show that a suit without exhausting the so called statutory remedies will be barred. If an assessment does not in substance and in effect comply with the provisions of the Act, then it is no answer to the suit to set aside the assessment to say that the plaintiff had not filed an appeal against the assessment."
In 1992(1) LW 110 (Chellammal Vs. Alandur Municipality, rep by its Commisioner), it has been held that:
" the Courts below have erred in not applying the ratio decidendi of the Supreme Court in A.I.R.1971 SC 353 and in holding that the Municipality can make an assessment on the basis of rent not in accordance with the fair rent fixed under the Tamil Nadu Act 18 of 1960.
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So it cannot be said that the Municipal Authority has complied with the provisions of the Act, the civil Court has no jurisdiction to go into the question whether the levy is excessive or not. But it is equally well settled that when the basis of the levy itself is wrong or that there is no basis at all for the levy and in that sense there is no substantial compliance with the provisions of the Municipalities Act, it is open to the Civil Court to declare that levy as illegal and it fact it is its duty to do so."
Under such circumstances, I am of the view that the general revision of the house tax by the respondent-Municipality without following the provision contemplated under Rule 9 of the Taxation Rules to Schedule IV to the Tamil Nadu District Municipalities Act, 1920, under Ex.B.2 & Ex.A.1, is non-est in law, which warrant interference with the concurrent findings of the Courts below. Point is answered accordingly.
8.In fine, the second appeal is allowed and the judgment of the learned first appellate Judge in A.S.No.211 of 2005 on the file of the Additional Subordinate Judge, Kumbakonam, is set aside. This Court directs the Executive Authority of the respondent-Kumbakonam Municipality to issue fresh special notice under Rule 9 to the assesses giving reasons for the enhancement of the house tax, for the second half year of 2001 (ie., from 1.10.2001). On receipt of such notice, it is open to the Plaintiff to file her objection or apply for revision of the proposed enhancement and when revision petitions are filed by the plaintiff within a time stipulated under law the respondent-Municipality shall consider the same and pass appropriate orders on merits. At this juncture, the learned counsel appearing for the appellant fairly concedes that the plaintiff/appellant herein is ready to pay the arrears of the house tax without questioning the same on the point of limitation. In the circumstances of the case, there is no order as to costs.
ssv To,
1.The Additional Sub-Judge, Kumbakonam.
2.The I Additional District Munsif, Kumbakonam.