Madras High Court
K.R. Santharam vs The Commissioner, Madurai City ... on 10 March, 1999
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER
1. Aggrieved by the notice of the respondent dated 31.7.95, the petitioner has filed the above-writ petition to quash the same on various ground.
2. The case of the petitioner is briefly stated hereunder:- He is the owner of the premises bearing door No.9, Sowrashtra High School East Lane, Madras-9. As per the original assessment, the property tax for the said premises was Rs.847.14 per half year. In the year 1972 the tax was enhanced to Rs.2,751.84 per half year. He filed a suit in O.S.No.413 of 1972 on the file of District Munsif, Madurai Town for a declaration that the assessment and levy of enhancement of tax is illegal and void. The said suit was decreed on 31.1.73. The appeal filed by the respondent was dismissed. The said judgment and decreed have become final. The respondent issued a special notice enhancing the tax to Rs.3993 per half year on 28.12.76. The petitioner filed another suit in O.S.No.276 of 1977 before the District Munsif's Court, Madurai. Though the said suit was initially dismissed, as per the direction of this Court in S.A.No.711 of 1979 after remand, the trial court decreed the suit on 1.3.84 and the same has become final. While so, he was served with a notice dated 12.6.95, stating that it has been proposed to increase the half yearly tax from Rs. 847.14 to Rs.3,587.60 with effect from 1.4.1971. In the light of the decree granted earlier, the respondent cannot revise the assessment for more than the period of 3 years. The respondent having kept quiet for more than 11 years, now they cannot seek a revise the tax with effect from 1.4.1971 which will be in contravention of section 168 of the Madurai City Municipal Corporation Act. The petitioner also received a notice under Rule 9 read with Rule 15(2) of Part II schedule II and proviso rule 27 of part V schedule II of Madurai Municipal Corporation Act. The said notice is illegal. Contrary to law and all principles of natural justice. The said order fixing the half yearly tax at Rs.3567.60 does not even disclose the basis on which the tax has been fixed. In such circumstance, having no other remedy, he has filed the present writ petition.
3. The respondent filed a counter affidavit disputing various averments made by the petitioner. The impugned notice issued by the respondent is in order and valid in law. In pursuance of the direction of in O.S.No.413 of 1972, fresh notice was issued calling upon the petitioner to submit objection, if any. The petitioner submitted a formal objection petition on 20.12.76. After considering the objections of the petitioner, Rule 8 notice was confirmed by special notice under Rule 9 Part II, schedule II of the Act, advising the petitioner to prefer a revision within 15 days if he is so aggrieved. The annual rental value was calculated after following the elaborate procedure as contained in the Tamil Nadu Buildings (Lease and Rent Control) Act and Rules framed thereunder and in terms of the guidelines following during the general revision made on 1.10.79, 1.4.84 and 1.4.93 property tax was accordingly levied at Rs.3587.60 with effect from 1.4.71. The interpretation placed on Section 168 of the Madurai city Municipal Corporation Act is misconceived and untenable. With these averments, the respondent prayed for dismissal of the writ petition.
4. In the light of the above pleadings, I have heard Mr.R.Subramaian, learned counsel for the petitioner and Mr.P.srinivasan, for respondent.
5. Learned Counsel for the petitioner after taking me through the impugned notice and in the light of section 168 and 483 of Madurai Municipal Corporation Act, contended that the assessment of property tax beyond 3 years cannot be sustained and the proposal to increase the tax with effect from 1.4.71 is liable to be set aside. On the other hand, the learned counsel appearing for the respondent would contend that the impugned notice is in accordance with the Madurai Municipal Corporation Act and they are justified in claiming the same.
6. I have carefully considered the rival submissions.
7. In order to appreciate the contention raised by the learned counsel for the petitioner, it is useful to refer section 168 of the Madurai City Municipal Corporation Act, 1971 (herein after referred to as 'the Act'):-
"168 Power to assess in case of escape from assessment:- Notwithstanding anything to the contrary contained in this Act in the rules made thereunder, if for any reason any person liable to pays any of the taxes or fees leviable, under this chapter has escaped assessment in any half-year or year has been assessed in any half -year or year at a rate lower than the rate at which he is assessable or, in the case of property tax has not been duly assessed in any half-year consequent in the building or land concerned having escaped proper determination of its annual value, the Commissioner may at any time within three years from the date of which such person should have been assessed, serve on such person a notice assessing him to the tax or fee due and demanding payment thereof within fifteen days from the date of such service; and the provisions of this Act and the rule made thereunder shall so for as may be apply as if the assessment was made in the half-year or year to which the tax or fee relates."
The other provision which we are concerned is section 483, which is as follows:-
"483. Limitation of Recovery of Dues"-
No distraint shall be made, no suit shall be institutes in 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 six years from the last day of the period in respect of which such sum is claimed, or in case the same is not claimed in respect of any specific period, form the last day of the year in which the claim arose."
A reading of the above provisions makes it clear that if the tax payable is determined and due, it is open to the respondent to recover the same within a period of six years and after expiry of such period it is not open to the respondent to recover the said due. This is clear from section 483 of the Act. If the amount is un-determined and un-assessed, the same steps have to be taken within 3 years from the date on which such person should have been assessed. This is clear from section 168 of the Act. The impugned notice dated 31.7.95 was issued under Rule 9 read with Rule 15(2) of part II schedule II and proviso to Rule 27 of part V schedule II and proviso to Rule 27 of part V schedule II of the act. It is clear that it is only an assessment. After fixing the annual rental value of the property tax thereon it is sated that it has to be paid with effect from 1.4.71 and also the revised tax for the periods 1.10.78, 1.4.84 and 1.4.93. First of all, it is not clear whether the respondent has considered the decree obtained by the petitioner. There is no dispute that the petitioner had secured a decree on the ground that the respondent cannot revise the assessment for more than a period of 3 years. Even otherwise, as per section 168 of the Act referred to above, the respondent is not entitled to assess property tax and enhance the same for a period of more than 3 years proceeding the period 1995-96. In other words, if at all the respondent, can enhance the property tax from the assessment years 1993-94, 1994-95 and 1995-96 and thereafter, while construing similar provisions in the Madras City Municipal Corporation Act, namely, sections 210 and 390A, S.M.Ali Mohamed, J., in Raghavachari P.S. v. The Special Officer, has taken the same view. In such circumstances, the contention raised by the learned counsel for the petitioner is well-founded.
8. Under these circumstances, the impugned notice of the respondent dated 31.7.95 is quashed. The respondent is permitted to issue notice of assessment for the period commencing from 1992-93. The respondent is duty bound to mention the reason or reasons/details for claiming the enhancement and pass appropriate orders and recover the amount so claim thereafter, writ petition is allowed to the extent mentioned above. No costs.