Madras High Court
S.Kannan vs The Commissioner on 17 July, 2012
Author: R.Banumathi
Bench: R.Banumathi, G.M.Akbar Ali
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/07/2012 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI and THE HONOURABLE Mr. JUSTICE G.M.AKBAR ALI W.A.(M.D) No.13 of 2012 S.Kannan ... Appellant Vs. The Commissioner, Nagercoil Municipality, Nagercoil, Kanyakumari District. ... Respondent PRAYER Writ Appeal filed under Clause 15 of Letters Patent against the order dated 22.11.2011 made in W.P.(MD)No.3683 of 2009 on the file of this Court. *** !For Appellant ... Mr.T.S.R.Venkatramana ^For Respondent ... Ms.S.Srimathy :JUDGMENT
R.BANUMATHI,J This appeal arises out of the order dismissing W.P.(MD) No.3683 of 2009 (22.11.2011) whereby the Writ Court declined to quash levy, demand and collection of vacant land tax as condition precedent for grant of sub division and also approval of building plan.
2. Writ Petitioner owns a plot measuring 239.09 Square Meter in Town Survey No.25/4 (Part) and 26/2A (Part) in Ward No."J" Block, No.5, Nagercoil Municipal Limits. On 16.07.2007, Appellant submitted an application to Nagercoil Municipality seeking approval of sub division of the plot. Nagercoil Local Planning Authority has given planning permission to the Appellant in Roc.No.664/2007/N.L.P.A. dated 27.09.2007 and the same was forwarded to the Respondent Municipality.
3. Grievance of the Appellant is that for approval of sub division of the plot, Respondent Municipality insisted the Appellant to pay vacant land tax for twelve years i.e. for 25 half years. Case of Appellant is that his father Sivathanulingam obtained information under Right to Information Act that no resolution was passed by the Municipal Council to levy the vacant land tax under Section 81 of Tamil Nadu District Muncipalities Act. Contention of Appellant is that without passing any resolution, Respondent Municipality has no power to levy vacant land tax and such levy is unconstitutional and ultra vires the provisions of Tamil Nadu District Municipalities Act and also Article 265 of Constitution of India, Appellant filed the Writ Petition for issuance of declaration declaring that levy, demand and collection of vacant land tax as condition precedent for grant of sub division and also approval of the building plan is illegal, unconstitutional and ultra vires the provisions of Tamil Nadu District Municipalities Act and consequently, direct the Respondent to approve sub division of the plot on the application submitted by the Appellant on 16.07.2007 on the basis of the planning permission accorded in Roc.No.664/2007/N.L.P.A. dated 27.09.2007.
4. When the Writ Petition was pending, G.O.(Ms) No.151 Municipal Administration & Water Supply (Election) Department dated 20.8.2009 came to be passed. In G.O.(MS) No.151 dated 20.08.2009, the Government ordered amendment to Section 81 of Tamil Nadu District Municipalities Act to levy minimum and maximum rates of property tax on vacant lands on square foot basis. After G.O.(Ms) No.151 dated 20.8.2009 was passed, Appellant filed additional affidavit contending that as per the Amended Act, property tax on vacant land could be levied only from 20.08.2009 and that the Act did not stipulate levy of tax restrospectively. In the additional affidavit, it was further averred that Appellant is ready and willing to pay the vacant land tax as per the Amended Act and consequent resolution of the Municipal Council and therefore, sought for further direction to the Respondent Municipality that on payment of vacant land tax paid by the Appellant, as per the newly Amended Act 15 of 2009, the Respondent Municipality to give approval for the sub division and also approval for the plan to the Appellant.
5. Insofar as the Writ Petition filed by the Appellant, referring to the earlier order of the learned single Judge in W.P.(MD) No.1966 of 2005 and batch and also the Judgment in W.A.(MD) No.661 of 2011, the learned single Judge dismissed the Writ Petition filed by the Appellant. Being aggrieved by the dismissal of the Writ Petition, Appellant has preferred this appeal.
6. Mr.T.S.R.Venkatramana, learned counsel for Appellant contended that there was an illegal oral demand for vacant land tax by the Respondent Municipality without following the procedure under Section 78 of Tamil Nadu District Municipalities Act. It was further submitted that levy of tax on vacant land for twelve years i.e. 25 half years as a condition precedent for sub division of plot/building plan approval is illegal and without authority. Learned counsel for Appellant contended that without passing resolution, the Respondent Municipality has no power to demand vacant land tax as condition precedent for sub division of plot/approval of building plan. Taking us through the provisions of Tamil Nadu District Municipalities Act, the learned counsel for Appellant submitted that Section 78 of the Act prescribes specific procedures to be followed before levying the property tax and without following the said procedure, demand of vacant land tax for twenty five half years is illegal and unconstitutional.
7. Heard Ms.S.Srimathy, learned counsel for Respondent Municipality. Learned counsel for Respondent submitted that Section 81 of the Act grants power to impose property tax to building and land and the Respondent Municipality is imposing property tax from 1989 onwards and the Appellant cannot challenge the same. Learned counsel for Respondent has drawn our attention to the Judgment of the Division Bench in W.A.(MD) No.661 of 2011 upholding the levy, demand and collection of vacant land tax as condition precedent for grant of building plan.
8. The issue relating to levy of tax on vacant land is no longer res integra. Levy, demand and collection of vacant land tax as condition precedent for grant of approval of the building plan in respect of the properties in Trichy City Municipality came to be challenged in W.P.(MD) No.3929 of 2005 and batch. Upholding the levy, demand and collection of vacant land tax as condition precedent for grant of plan approval, by the order dated 16.11.2010, the learned single Judge dismissed those Writ Petitions. Challenging the collection of vacant land tax as condition precedent for grant of plan approval in respect of the properties situated in Tirunelveli City Municipal Corporation, W.P.(MD) Nos.1966 of 2005 and 1992 of 2007 and batch. came to be filed. In a separate order dated 16.11.2010, all the Writ Petitions were dismissed. As against the order in W.P.(MD) No. 1992 of 2007 (in respect of the properties in Tirunelveli City Municipal Corporation), Writ Appeal in W.A.(MD) No.661 of 2011 was filed. Referring to Section 121 of Tirunelveli City Municipal Corporation Act, the Division Bench held that under Section 121 of the Act, the Corporation not only collects tax in respect of the buildings but also in respect of vacant lands and by the Judgment dated 20.07.2011, the Division Bench dismissed the Writ Appeal.
9. There is no force in the contention of the learned counsel for Appellant that the Municipality has no power under Tamil Nadu District Municipalities Act to levy, demand and collect vacant land tax. The Municipality is empowered to levy the property tax. Section 81 of the Act empowers the Municipality to levy tax on all buildings and lands within the Municipal limits. Such property tax on vacant land is levied by Nagercoil Municipality from 1989 onwards. Learned counsel for Respondent Municipality had also produced the resolution dated 13.07.1998 wherein the Respondent Municipality resolved to levy 10 Paise per square feet for the vacant land as tax. The said resolution dated 13.7.1998 was produced for our perusal. When the Act empowers the Municipality to levy tax on all buildings and vacant lands and when the Respondent Municipality had also passed resolution to levy vacant land tax, Appellant is not right in contending that Respondent Municipality has no power to levy, demand and collect vacant land tax.
10. G.O.(Ms) No.151 dated 20.08.2009 was passed amending Tamil Nadu District Municipalities Act and also the Rules thereon stipulating minimum and maximum property tax rates for the vacant land on square feet basis. Section 80(3) was substituted by Tamil Nadu Municipal Laws (Amendment) Act, 2009. As per Section 2 of the Amendment Act, Town Panchayats, Municipalities and Municipal Corporations shall be graded as under:-
A Grade .. Municipal Corporations and Special Grade Municipalities.
B Grade .. Selection Grade and First Grade Municipalities. C Grade .. Second Grade, Third Grade Municipalities and Town Panchayats.
11. Section 3 of Amendment Act stipulates minimum and maximum rate of property tax leviable on vacant land. Section 3 of Amendment Act reads as under:-
"3. Minimum and maximum rate of property tax leviable on vacant land. - The council of the Town Panchayat or of Third Grade Municipality, or of Municipality or of Municipal Corporation shall fix the rate of property tax leviable on vacant land which are not used exclusively for agricultural purposes and are not occupied by, or adjacent and appurtenant to buildings, subject to the minimum and maximum rates per square foot, as specified in the Table below:-
Vacant Land with reference A Grade B Grade C Grade to its location Minimum Maximum Minimum Maximum Minimum Maximum
(in Paise)(in Paise)(in Paise)(in Paise)(in Paise)(in Paise) (1) (2) (3) (4) (5) (6) (7)
(a) Streets in residential area 20 40 15 30 10 20
(b) Main roads and bus 30 50 20 40 15 30 route roads other than those which lead to arterial road
(c) Arterial roads, 40 60 30 50 20 40 main roads and bus route roads which lead to arterial road
12. Contention of Appellant is that vacant land tax could be collected only from the date of passing G.O.(Ms) No.151 dated 20.08.2009 and there can be no retrospective levy and in the additional affidavit, Appellant expressed his readiness and willingness to pay the vacant land tax from 20.8.2009 and therefore, seeks for appropriate direction to the Respondent Municipality for approval of sub division as well as approval of the building plan to the Appellant on payment of vacant land tax from 20.8.2009.
13. The above contention cannot be countenanced. G.O.(Ms) No.151 dated 20.8.2009 and Amended Act 15 of 2009 stipulates minimum and maximum property tax on vacant land to be levied on square feet basis. Appellant is not right in contending that vacant land tax could be levied only after 20.8.2009 after passing of the said Government Order and the Amendment Act. As pointed out earlier, Municipality is empowered to levy tax under Section 81 of Tamil Nadu District Municipalities Act. Respondent Municipality had passed resolution to levy, demand and collect vacant land tax way back in 1989. While so, Appellant cannot have a valid grievance in respect of levy of vacant land tax as condition precedent for sub division and for building plan. The learned single Judge has rightly dismissed the Writ Petition and we do not find any reason warranting interference with the order of the learned single Judge.
14. In the result, the Writ Appeal is dismissed. No costs.
bbr