Madras High Court
P.S. Raghavachari vs The Special Officer, Corporation Of ... on 28 September, 1995
Equivalent citations: 1996(1)CTC324
ORDER S.M. Ali Mohamed, J.
1. The prayer of the petitioner is to issue a writ, direction or order in the nature of certiorarified mandamus calling for the records relating to C.E. No. 268 of 1993 issued by the third respondent to quash the demand dated: 29.10.93 as modified by the further demand dated 10.2.94 and direct the third respondent to issue the building permit forthwith to the petitioner's property at No. 213, St. Mary's Road, Madras 600 028.
2. The petitioner in his affidavit filed in support of the writ petition states that he is the owner of the property at No. 213, St. Mary's Road, Madras-28 (Old No. 74). He has further stated that in order to develop the vacant site and put up new building, he approached the M.M.D.A. for planning permission which was approved by their Lr. No. C2/28411/92. Thereafter the Corporation of Madras issued the building plan permit and suggested certain modifications and the same was carried out by the petitioner and the petitioner paid a sum of Rs. 29,570 towards licence fee and Rs. 270/- towards scrutiny fee. By letter dated 24.6.93 the second respondent directed the petitioner to comply with certain requirement and the same were complied by the petitioner. Thereafter the third respondent issued a letter dated: 23.9.93 demanding building fee of Rs. 29,570 and scrutiny fee of Rs. 270 and N.S.C. for Rs. 750 and the same were paid and complied with by the petitioner. Thereafter by letter dated: 29.10.93, the third respondent once again called upon the petitioner to remit tentative improvement charges of Rs. 43,860 Thereafter once again the third respondent directed the petitioner to remit tentative improvement charges of Rs. 52,098 by the impugned order. Aggrieved by the same, the petitioner approached this court for the necessary relief.
3. A counter affidavit has been filed on behalf of the second respondent wherein it is stated that the Corporation of Madras has incurred a total expenses to the extent of Rs. 58,100 for laying the road to the entire length of 128 metres and the expenses incurred in providing street lights for the said 128 metres road has come to Rs. 29,440 Thus a sum of Rs. 87,540 has been incurred by the Corporation for making improvements in the said street and the Corporation is entitled to reimburse the said amount by recovering it from the owners of the buildings and the lands abutting the road in equal proportions.
4. In the additional counter affidavit it has been stated as follows:
"I submit that on 7.3.88, the Commissioner passed orders to initiate action under Section 218 of Madras City Municipal Corporation Act to provide road and street light and accordingly the notice under Section 218 of the M. C. M. C. Act has been served on the owners of the land abutting the said street calling upon them to carry out the Work mentioned in the said notice i.e., laying the road and lighting the street. The notices served on the owners were acknowledged the receipt of the said notice. But, the said notice under Section 218 could not be served on the petitioner herein due to the non-availability of the petitioner in the said premises. But, the notice have been served on other owners."
5. Mr. Sampath, the learned senior counsel appearing on behalf of the petitioner contended that the impugned order dated: 10.2,94 of the third respondent directing the petitioner to remit a sum of Rs. 52,098 towards tentative improvement charges is not maintainable in law. In this connection the learned counsel referred to section 218 of the Madras City Municipal Corporation Act, 1919 (hereinafter refer to as "The Act') which says that if any private street or part thereof is not levelled, paved, metalled, flagged, channelled, sewered, drained, conserved, or lighted to the satisfaction of the commissioner, He may by notice require the owners of such street or part and the owners of buildings and lands fronting or abutting on such street or part including in cases where the owners of the land and the building thereon arc different, the owners both of the land and of the building to carry out any work which in his opinion may be necessary, and within such time as may be specified in such notice. In the instant case, the learned senior counsel submitted that no notice was issued to the petitioner. The counter affidavit filed by the second respondent also corroborate the contention that no notice was issued to the petitioner. Whereas notice was issued to other owners of the property situated in the area for improvement carried out by the Corporation to the street. The learned Senior counsel further submitted that in any event the claim of the tentative improvement charges of Rs. 52,098/- are barred by limitation by virtue of Section 390-A of the Act. In support of his contention the learned senior counsel referred to the judgment of the Division Bench of this Court reported in Corporation of Madras, in RE 1954 (2) MLJ 219) wherein Rajamannar C.J. has observed as follows:
"Section 390-A lays down that no suit shall be instituted in respect of any sum due to the Corporation after the expiration of a period of three years from the date on which the suit might first have been instituted in respect of such sum. The contention on behalf of the Corporation is that till the properties are settled by the Commissioner a suit could not have been instituted. In our opinion, this contention is based on a fallacy. It is true that under section 218 (2) each of the several owners is not liable to pay the entire amount of the expenses incurred in respect of the street or part thereof in respect of which the work was carried out by the Corporation. But it is not correct to say that the Corporation is not entitled to recover the expenses by suit the moment such expenses were incurred. There is no time-limit nor is any particular procedure laid down for the Commissioner to settle proportions. Indeed, we see no reason why the commissioner cannot make the apportionment in the suit itself which may be instituted for the recovery of the amount of the expenses from the several concerned owners. If we accept the contention of the Corporation, the logical result would be that it would rest entirely with the Commissioner to fix an arbitrary date for the starting of limitation, that is, it would lie, within his power by settling the proportions or any day he pleases to postpone the commencement of limitation. We cannot contemplate with equanimity such result. There is nothing in section 390-A nor in section 218(2) which compels us to take this view"
He further submitted that the ruling of the Division Bench referred to above has been followed by the ruling of this Court reported in Corporation of Madras v. Vijayalakshmi Ammal . He also referred to a judgment of Kerala High Court reported in Krishna Das v. Pathanamthitta Municipality 1983 KLJ 656, wherein the learned single Judge of the Kerala High Court has followed the ruling of the Division Bench of the Madras High Court.
6. On the other hand, the learned counsel for the Corporation referred to Section 384 of the Act and submitted that improvement expenses shall be a charge on the premises, in respect of which or for the benefit of which the same shall have been incurred and shall be recoverable in instalments of such amounts, and at such intervals, as will suffice to discharge such expenses together with interest thereon, within such period not exceeding twenty years as the commissioner may in each case determine and submitted that the provisions of section 384 of the Act was not brought to the notice of the Division Bench of this court in the above case reported in Corporation of Madras, In RE 1954 (2) MLJ 219 and therefore he contended that the period of limitation for recovery of improvement expenses is extended for 20 years and therefore the impugned order is valid and in accordance with law.
7. I have given my anxious thought to the respective contention made on behalf of the petitioner and respondents. In the fact of the instant case, it is admitted that the Corporation of Madras have carried out the improvement abutting the premises of the petitioner by providing road and street lights, under Section 218 of the Act. It is also admitted that the Corporation has issued prior notice to all the owners of the houses and buildings abutting the street: however, the same notice was not given as far as the petitioner is concerned.
8. The cardinal point for consideration in this writ petition is whether the claim of the Corporation for demand of Rs. 52,098 from the petitioner towards the improvement charges is barred by limitation by virtue of section 390-A of the Act. Section 390-A reads as follows:-
"No distraint shall be made, no suit shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the Corporation under this Act, after the expiration of a period of three years from the date on which distraint might first have been made, a suit might first have been instituted or prosecution might first have been commenced as the case may be, in respect of such sum"
A/reading of the above section makes it clear that no distraint shall be made;, suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the Corporation after the expiry of the period of three years from the date on which distraint might first have been made, a suit might first have been instituted or prosecution might first have been commenced. In the instant case, it is admitted by both the petitioner and respondents that the impugned order, demanding the improvement charges has been passed after a lapse of six years, from the date of carrying out the improvement. The contention of the learned counsel for the petitioner is that the impugned demand is barred by limitation as it squarely comes within the limitation period mentioned in section 390-A of the Act. It is clear that if the petitioner fails to pay the improvement charges, the Corporation has to institute a suit to enforce the same and such a suit is barred under Section 390-A of the Act. In this connection, the Division Bench of this Court in the judgment reported in Corporation of Madras, In RE 1954 (2) MLJ 219 has settled the issue as far back as 1954. The learned Chief Justice has observed in the judgment as follows:
"If we accept the contention of the Corporation, the logical result would be that it would rest entirely with the Commissioner to fix an arbitrary date for the starting of limitation, that is, it would lie within his power by settling the proportions on any day he pleases to postpone the commencement of limitation. We cannot contemplate with equanimity such a result."
The same ruling has been followed by Justice Veeraswami (as he then was) in the Judgment reported in the Corporation of Madras v. Vijayalakshmi Animal .
9. I am therefore of the view that the above referred judgment of the Division Bench squarely applies to the facts of the instant case.
10. The learned counsel for the Corporation submitted that the provisions of section 384 of the Act were not brought to the notice of the Division Bench. No doubt in the ruling of the Division Bench, there is no reference to section 384 of the Act. Even if section 384 of the Act is applied to the instant case, the Corporation is not better off. Section 384 says that improvement expenses shall be a charge on the premises, in respect of which or for the benefit of which the same shall have been incurred and shall be recoverable in instalments of such amounts and at such intervals, as will suffice to discharge such expenses together with interest thereon, within such a period not exceeding twenty years as the Commissioner may in each case determine. The said instalments shall be payable by the owner or occupier of the premises on which expenses are so charged the Proviso to the section proves that when the occupier pays the improvement charges, he shall be entitled to deducted the amount so paid from the rent payable by him to the owners. From the reading of the said section, it is clear that the legislature has created a charge on the property to which the improvement is carried out by the Corporation irrespective of the ownership of the property is concerned and a charge is created and the said charge shall be for a period of 20 years. After a combined reading of sections 384 and 390-A of the Act, I am of the view that section 384 is subject to the limitation specified under section 390-A of the Act. To accept the contention of the Corporation, the logical result would be it would entirely rest with the commissioner to fix an arbitrary date for starting of limitation defeating the provisions of section 390-A notwithstanding the charge on the property for payment of improvement charges. In the facts of the instant case, a suit is not maintainable after a lapse of six years and right to approach the court for any relief has been barred by operation of law. In this connection, the Supreme Court in M/s. Bharat Barrel and Brum Manufacturing Company Private Limited and Anr. v. The Employees' State Insurance Corporation , has observed as follows:
"A statute prescribing limitation however does not confer a right of action nor speaking generally does it confer on a person a right to relief which has been barred by efflux of time prescribed by the law. The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him: secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant without asserting them in a court of law."
11. The Supreme Court in the course of the above judgment has also made reference to an earlier decision, which reads as follows:
"In the East and West Steamship Company George Town, Madras v. S.K. Ramalingam Chettiar one of the questions that was considered by this court was whether the clause that provided for a suit to be brought within one year after the delivery of the goods or the date when the goods should have been delivered, only prescribes a rule of limitation or does it also provide for the extinction of the right to compensation after certain period of time. It was observed by Das Gupta, J. at page 836:
"The distinction between the extinction of a right and the extinction of a remedy for the enforcement of that right though fine, is of great importance. The legislature could not but have been conscious of this distinction when using the words 'discharged from all liability' in an article purporting to prescribe rights and immunities of the ship owners. The words are apt to express an intention of total extinction of the liability and should specially in view of the international character of the legislation, be construed in that sense. It is hardly necessary to add that once the liability is extinguished under this clause there is no scope of any acknowledgement of liability thereafter."
Section 390-A of the Act reads as follows:
"390-A Limitation for recovery of dues : No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the Corporation under this Act after the expiration of a period of three years from the date on which distraint might first have been made, a suit might first have been instituted or prosecution might first have been commenced as the case may be, in respect of such sum"
Applying the test given by the Supreme Court in the above ruling to section 390-A of the Madras City Municipal Corporation Act, it is clear that the conditions contained in the said section relate to a bar an extinguishment of a remedy for the enforcement of the right of the Corporation, if proceedings are not taken within a period of three years. In the instant case, no doubt, as per section 384, by operation of law, a charge is created upon the property, if improvements have been carried by the Corporation for a period of twenty years. However, section 390-A bars the remedy of the Corporation to enforce the same, if steps are not taken within three years to recover improvement charges in a single payment or in instalments.
12. Under the above circumstances, I am of the view that the Judgment of the Division Bench of this court in Corporation of Madras, in RE 1954 (2) M.L.J.219) rendered by Rajamannar, C.J., still holds the field.
13. In the result, the writ petition is allowed and the impugned order, dated: 10.2.1994 with reference to the demand for payment of tentative improvement charges of Rs. 52,098 is quashed. No costs.
14. The learned senior counsel for the petitioner Mr. K. Sampath submits that building, application CE. No. 268 of 1993 dated:24.6.1993 may be disposed of by the respondent. The respondent is directed to dispose of the said application of the petitioner within a period of four weeks from the date of receipt of copy of this order on merits and in accordance with law.