Madras High Court
P.Ramasubbu vs The Commisssioner on 18 November, 2019
Author: J.Nisha Banu
Bench: J.Nisha Banu
S.A.No.1557 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.11.2019
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
S.A.No.1557 of 2002
P.Ramasubbu .. Appellant /
Plaintiff
Vs.
The Commisssioner,
Kodaikanal Municipality,
Kodaikanal. .. Respondent /
Defendant
PRAYER: Second Appeal filed under Section 100 of C.P.C., against
the judgment and decree, dated 22.03.2002, made in A.S.No.43 of
1997 on the file of the Sub Court, Palani, reversing the judgment
and decree, dated 31.03.1997, made in O.S.No.205 of 1995 on the
file of the District Munsif cum Judicial Magistrate's Court, Kodaikanal.
For Appellant : Mr.T.T.Ravichandran
for Mr.Satish Parasaran
For Respondent : Mr.S.Kadarkarai
JUDGMENT
This second appeal has been filed by the appellant / plaintiff in the suit, against the judgment and decree, dated 22.03.2002, passed in A.S.No.43 of 1997 by the Sub Court, Palani, reversing the judgment and decree, dated 31.03.1997, passed in O.S.No.205 of 1995 by the District Munsif cum Judicial Magistrate's Court, Kodaikanal.
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2.For better appreciation and understanding, the parties are referred to as per their ranking in the suit.
3.The plaintiff had filed the suit in O.S.No.205 of 1995 for the relief of declaration declaring that the enhancement of assessment in respect of the suit property under Special Notice No.856037, dated 16.06.1995, in assessment No.3320, is illegal and also for the consequential injunction restraining the defendant from collecting the property tax based on the said notice.
4.It is the case of the plaintiff that he is the owner of the suit property, in which, he is running a Hotel under the name and style of Hotel Astoria and it was assessed with property tax for a sum of Rs.9,302/-. While so, in the month of January, 1994, the defendant served a notice stating that the defendant has proposed to enhance the assessment at Rs.27,906/- from 01.10.1993, against which, he has preferred a revision before the defendant. The said notice does not disclose any ground for enhancement of property tax and the defendant has not adopted the procedure prescribed under the Tamil Nadu District Municipalities Act, 1920. The plaintiff filed a writ petition through their association before this Court and pursuant to the interim order dated 27.07.1994, made in W.M.P.No.19642 of 1994 in W.P.No.12946 of 1994, the plaintiff paid 50% of the disputed http://www.judis.nic.in2/12 S.A.No.1557 of 2002 amount and as per the said order, the defendant issued the fresh notice dated 16.06.1995, fixing the annual property tax for more than 200%. The said notice has been issued without following the procedures contemplated under Rule 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act and Section 82 of the Tamil Nadu District Municipalities Act, 1920. Hence, the suit.
5.Denying the facts and admitting the ownership of the plaintiff, the defendant had resisted the suit contending that the last general revision of property tax in terms of the existing rule was undertaken during the year 1987-1988 and since then, no general revision has been undertaken. The property mentioned by the plaintiff in the plaint, is put in use for commercial purpose. As per the guidelines for municipalities in the State issued by the Commissioner of Municipal Administration, Madras, the property tax has been enhanced and based on which, the special notice was served to the plaintiff. Against which, the plaintiff filed a writ petition before this Court and this Court directed the plaintiff to pay 50% of the disputed amount and also directed the defendant to issue fresh notice stating reasons and pursuant to the same, the defendant issued the special notice dated 16.06.1995. The value of the property has been assessed as per the guidelines issued by the Commissioner of Municipal Administrations, Madras-5 in Circular http://www.judis.nic.in3/12 S.A.No.1557 of 2002 Roc.No.4314/R1/92, dated 14.05.1993. During the period from 1987-88 to 1992, the value of the property in Kodaikanal has gone up manifold. Considering the above, the land cost has been arrived at and tax was fixed. The defendant has furnished all relevant particulars and detailed working sheet in the notice, dated 16.06.1995, which was duly served on the plaintiff on 27.06.1995. The defendant, as an Assessing Authority, has revised the property tax strictly in terms of the statutory provisions. Thus, the defendant prayed to dismiss the suit.
6.Before the trial Court, on the side of the plaintiff, the Manager of the plaintiff hotel, was examined as P.W.1 and Exs.A1 to A3 were marked and on the side of the defendant, the Revenue Inspector of the respondent municipality, was examined as DW1 and Exs.B1 and B2 were marked.
7.The Trial Court decreed the suit. Aggrieved by the same, the defendant in the suit, filed appeal. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, allowed the appeal setting aside the Judgment and decree passed by the Trial Court and ultimately dismissed the suit. Challenging the said judgment and decree passed by the first appellate Court, the plaintiff has filed this second appeal. http://www.judis.nic.in4/12 S.A.No.1557 of 2002
8.At the time of admission, the following substantial questions of law were framed for consideration:
“1.Whether the property tax can be levied and assessed on the basis of the provisions contained in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 or on the only basis of the guidelines issued by the Government?
2.Whether the ratio of the Judgment and that of this Hon'ble Court in regard to the levy of property tax will have to be applied rather than the guidelines issued by the Government?”
9.The learned counsel for the appellant / plaintiff would submit that the special notice issued by the respondent does not contain the reasons with regard to the market value of the land and building, expenditure involved in the construction of the building and no particulars are available as to how the annual tax value of the building, has been arrived at. The respondent / defendant did not give any notice to the appellant / plaintiff before making inspection of the property. The respondent / defendant has revised the property tax without following the procedures contemplated under the Tamil Nadu District Municipalities Act and the provisions contained in the Tamil Nadu Buildings (Lease and Rent Control) Act. The respondent / defendant did not consider the revision preferred by the appellant / plaintiff. He would also rely upon the Judgment of http://www.judis.nic.in5/12 S.A.No.1557 of 2002 this Court in Dindigul Anna District Tax Payers Sangam rep. by its President M.V.R.A.Soundararajan, No.116, Big Bazaar Street, Dindigul v. Government of Tamil Nadu rep. by its Secretary to Government, Municipal Administration and Water Supply Department, Madras – 9 and Others reported in 1994-Writ L.R. 805.
10.The learned counsel for the respondent / defendant would submit that subsequent to the above decision of this Court, some Government Orders have been passed in respect of the issue involved in this matter and therefore, appropriate orders may be passed.
11.The respondent / defendant issued special notice to the plaintiff assessing the property tax for the property owned by them. The appellant / plaintiff has challenged the said notice on the ground that the same is void for want of particulars, details and no particulars were called for before the enhancement and the procedures contemplated under the Tamil Nadu District Municipalities Act and the provisions contained in the Tamil Nadu Buildings (Lease and Rent Control) Act, are not followed. The appellant / plaintiff also filed his objections, which is substantiated through Ex.A.2.
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12.The issue involved in this case has already been dealt with by this Court in Dindigul Anna District Tax Payers Sangam rep. by its President M.V.R.A.Soundararajan, No.116, Big Bazaar Street, Dindigul v. Government of Tamil Nadu rep. by its Secretary to Government, Municipal Administration and Water Supply Department, Madras – 9 and Others reported in 1994-Writ L.R. 805, wherein this Court has held as follows:
“21.In the present cases, 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 the 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. The special notices produced in 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 http://www.judis.nic.in7/12 S.A.No.1557 of 2002 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 taxpayers, 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 taxpayers along with the special notices issued under Rule
9. In these circumstances, it has to be held that the special notices served by the Executive Authorities of Municipalities under Rule 9 in these case on the owners and occupier of properties are not in accordance with the principles laid down by the decision of this Court referred above inasmuch as no reason is stated in the special notices for enhancement of property tax, and they cannot sustained. Consequently, the special notices served under Rule 9 by the Municipal Authorities on the members of the 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. Points 4, 5 and 6 are answered accordingly.
22.The next question we have to examine is what are the other directions which should issue on the facts and circumstances of these case and in the light of Rule 14(2) of the Rules. No doubt Rule 14(2) of Schedule IV of the Act says that in a case where a special notice is required to be served on the owner or occupier of the http://www.judis.nic.in8/12 S.A.No.1557 of 2002 property under first proviso to Rule 9, the general revision shall be deemed to have taken effect on the 1st day of the half year following that in which such special notice is served on the owner or occupier of the property. The Executive Authorities of the Municipalities have served the special notices under Rule 9 enhancing the assessment on the owner or occupier, in these cases, long prior to 1.10.93 stating that the assessments in respect of their properties have been increased with effect from the half year commencing from 1.10.93. As we are setting aside the said special notices under Rule 9 on the technical ground that the reasons for enhancement is not given therein, we are inclined to direct the Executive Authorities of Municipalities in question to issue fresh special notices containing the reasons for enhancement of the property tax, giving liberty to the owners or occupiers to apply for revision of the proposed enhancement. In these circumstances, we are also of the view that such special notices served on the owners or occupiers of the properties pursuant to our order in these writ petitions and the general revision can be very well be directed to take effect from 1.10.1993, because the Municipalities in question have as a matter of fact served special notices though without giving reasons under first proviso to Rule 9 long prior to 1.10.93. The mere fact that the special notices under Rule 9 served on the owners or occupiers of the properties are invalid as they did not contain reasons for enhancement of property tax and are quashed for the reason stated above, does not preclude this Court from issuing the directions to the executive authorities of Municipalities in question to issue fresh notices under Rule http://www.judis.nic.in9/12 S.A.No.1557 of 2002 9 to the assesses giving reasons for enhancement of property tax, for the half year from 1.10.93.
23.Accordingly we direct the executive authorities of Municipalities in question to issue fresh special notices under Rule 9 of the assesses giving reasons for the enhancement of the property tax, for the year commencing from 1.10.1993. On receipt of such notices, it is open to the members of the petitioners Sangams to file their objections or apply for revision of the proposed enhancement. As and when the revisions are filed by the owners or occupiers of properties within the prescribed time, the Municipal Authorities shall consider the same and pass appropriate orders on merits. ... ... ...”.
13.It is not in dispute that the said decision of this Court has not been followed by the first appellate Court. The learned counsel for the respondent / defendant has also submitted that subsequent to the said decision of this Court, several Government Orders have been passed. Therefore, the Judgment and decree passed by the first appellate Court are liable to be set aside and the matter is liable to be remanded back to the first appellate Court. Since the matter is liable to be remanded back to the file of the first appellate Court, the substantial questions of law formulated in the present second appeal need not be decided.
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14.In the result, this second appeal is allowed and the Judgment and decree passed by the first appellate Court are set aside and the matter is remanded back to the first appellate Court for fresh consideration and the first appellate Court shall consider the issue in the light of the decision of this Court in Dindigul Anna District Tax Payers Sangam rep. by its President M.V.R.A.Soundararajan, No.116, Big Bazaar Street, Dindigul v. Government of Tamil Nadu rep. by its Secretary to Government, Municipal Administration and Water Supply Department, Madras – 9 and Others reported in 1994-Writ L.R. 805 and the subsequent Government Orders passed in respect of this issue and pass fresh Judgment within a period of three months from the date of receipt of a copy of this Judgment. No costs.
18.11.2019
Index : Yes/No
Internet : Yes/No
smn
To
1.The Sub Judge,
Palani.
2.The District Munsif cum Judicial Magistrate, Kodaikanal.
3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in11/12 S.A.No.1557 of 2002 J.NISHA BANU, J.
smn JUDGMENT MADE IN S.A.No.1557 of 2002 18.11.2019 http://www.judis.nic.in12/12