Madras High Court
Tamil Nadu Nursery vs The State Of Tamil Nadu on 23 August, 2021
W.A.No.1746 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.08.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
W.A.No.1746 of 2011
and M.P.Nos.1 and 2 of 2011
Tamil Nadu Nursery, Primary
Matriculation and Higher Secondary
Schools Managements Association
rep. by its General Secretary
Mr.D.Christdass,
Old No.64, New No.122,
T.P.Koil Street, Triplicane,
Chennai-600 005. ... Appellant
-vs-
1. The State of Tamil Nadu
rep. by its Secretary to Government,
Rural Development and Panchayat Raj
(PR-1) Department,
Fort St. George, Chennai-600 009.
2. The Director of Rural Development,
Government of Tamil Nadu,
Chennai. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent
against the order of the learned Single Judge made in W.P.No.5757 of
2009 dated 30.07.2010.
For Appellant : Mr.Isaac Mohanlal,
Senior Counsel
for M/s.Rameshkumar
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1/9
W.A.No.1746 of 2011
For Respondents : Mr.R.Shanmugasundaram,
1 and 2 Advocate General
assisted by
Mr.T.Arun Kumar,
Government Advocate
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA.J)
This Writ Appeal has been filed against the Common Order of
the learned Single Judge made in W.P.No.5757 of 2009 dated
30.07.2010 in and by which the prayer of the appellant to issue a Writ
of Declaration, declaring the provision of Rule 15(c) of the Tamil Nadu
Village Panchayats (Assessment and Collection of Taxes) Rules, 1999
as amended by G.O.Ms.38, Rural Development and Panchayat Raj (PR-
1) Department dated 5.3.2008, published in the Tamil Nadu
Government Gazette Issue No.69, dated 5.3.2008 as void, unlawful,
ultra vires and unconstitutional in respect of the buildings used for
educational purposes by the member educational institutions of the
writ petitioner Association, was refused.
2. Learned Senior Counsel appearing for the appellant
explaining the need for challenging the above mentioned amended
provision stated that originally, the Rule 15(3) of the Tamil Nadu
Village Panchayats (Assessment and Collection of Taxes) Rules, 1999,
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W.A.No.1746 of 2011
stated that the buildings used for educational purposes including
hostels and libraries which are open to the public and public buildings
used for charitable purpose of sheltering the destitutes or animals, if
they fall within the meaning of house as defined in the Act, shall be
exempted from paying the house tax. When the above provision was
governing the subject-in-question, the State Government has
introduced G.O. Ms.No.38, Rural Development and Panchayat Raj (PR-
1) Department dated 5.3.2008, carrying out certain amendments,
amending the column ''buildings used for educational purposes
including hostels and libraries which are open to the public and public
buildings used for charitable purpose of sheltering the destitutes or
animals'' to the effect that buildings used for educational purposes by
the Government aided institutions for conducting self-financing
unaided courses, shall be subject to levy of house tax, as a result, the
impugned Government Order in G.O.Ms.No.38 has come forward to
grant exemption only to the buildings owned by the local bodies and
private institutions aided by the Government.
3. Learned Senior Counsel for the appellant further stated
that since the appellant, namely, the Tamil Nadu Nursery, Primary
Matriculation and Higher Secondary Schools Managements Association
are running only matriculation unaided schools, they are kept away
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W.A.No.1746 of 2011
from the exemption provision, as a result, they are all liable to pay the
taxes. Therefore, the appellant is constrained to approach this Court
by filing a Writ Petition raising various grounds inter alia the impugned
amendment made to Rule 15(c) of the Tamil Nadu Village Panchayats
(Assessment and Collection of Taxes) Rules, 1999, has to be declared
as void, unlawful, ultra vires and unconstitutional in respect of the
buildings used for educational purposes by the member educational
institutions of the writ petitioner Association. It is also stated that the
State Government has attempted to distinguish the educational
institutions on the basis of the aid to be provided to them and by view
of the amendment, the unaided educational institutions which are
already over burdened are further put to face extra financial burden to
pay the house/property tax whereas the institutions which are getting
aid are in a comfortable position as they did not need to pay any salary
for teaching and non-teaching staff, because they are given exemption
from paying house tax. As a result, the State Government is
discriminating the private institutions which come under self-financing
basis against Act 14 of the Constitution of India. Therefore, the
appellant challenged the impugned amendment on the ground that the
same cannot have a nexus to the object and constitutional mandate
sought to be achieved in this regard.
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W.A.No.1746 of 2011
4. Learned Senior Counsel for the appellant also stated that
however, when similar provisions in the Chennai City Municipal
Corporation Act, 1919, Madurai City Municipal Corporation Act, 1971,
Coimbatore City Municipal Corporation Act, 1981 and Tamil Nadu
District Municipalities Act, 1920, were put to challenge on the similar
line, a Division Bench of this Court in a batch of Writ Petitions in
W.P.Nos.18008/2019 etc. batch by its judgment dated 13.09.2019,
considering the similar and identical issue raised therein upholding the
challenge to Act 6 of 2018 i.e. Tamil Nadu Municipality Laws (Second
Amendment) Act, 2018, rejected all the Writ Petitions. However, the
Division Bench has left open the question demanding the quantum of
tax, as and when any need arises. Therefore, Mr.Isaac Mohanlal,
learned Senior Counsel for the appellant fairly stated that nothing
survives in this Writ Appeal.
5. Learned Advocate General assisted by the learned
Government Advocate appearing for the respondents in support of the
amendment submitted that although the learned Senior Counsel for
the appellant fairly conceded the dismissal of the Writ Petition, so far
as the challenge made by them to the amendment relating to taxation
provision is concerned, there are plenty of judgments by this Court as
well as the Apex Court holding consistently that it must be left open to
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W.A.No.1746 of 2011
the appropriate and competent authority, namely, the legislature. In
support of his submission, soliciting our attention to a judgment of the
Apex Court in the case of Commissioner of Customs (Import),
Mumbai vs. Dilip Kumar and Company and others reported in
(2018) 9 SCC 1 submitted that every taxing statute including
charging, computation and exemption clauses at the threshold stage
should be interpreted strictly.
6. Learned Advocate General further drawing our attention to
yet another judgment of the Apex Court in Sri Krishna Das vs. Town
Area Committee, Chirgaon, reported in 1990 (3) SCC 645
submitted that taxing policy to be determined by the competent
legislature or competent taxing authority and it is not open for the
Court to question the same, unless there is a abusive of its powers and
transgression of the legislative function in levying a tax. It is also
further held that taxes may be and often are oppressive, unjust and
even unnecessary, but, this can constitute no reason for judicial
reference.
7. Interestingly enough, the Hon'ble Full Bench of our High
Court in The President, K.Vellakulam Panchayat, Kallikudi
Chatram, Madurai District vs. Kamaraj College of Engineering
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W.A.No.1746 of 2011
and Technology, Virudhunagar [2009-5-L.W.193] has already
answered the issue against the appellant that the exemption
prescribed under Rule 15 is not mandatory and it is an enabling
provision empowering the Village Panchayat or Panchayat Union to
grant exemption to class of buildings as specified therein. The
corollary is that it is open for the Village Panchayat or Panchayat Union
not to grant such exemption in favour of one or other class of such
buildings and the Court cannot force the Panchayat to exercise its
discretionary power to grant exemption to one or other class of
buildings in the absence of any decision taken by the Village Panchayat
or Panchayat Union to grant such exemption. The above said decision
in Kamaraj College of Engineering and Technology,
Virudhunagar (cited supra) has been followed by another Division
Bench of this Court in Periyapattinam Panchayat President,
Thiruppullani Union, Ramanathapuram District Vs. the
Correspondent, St.Joseph's Higher Secondary School,
Periyapattinam, Ramanatha puram District [W.A.(MD)
Nos.1384 and 1385 of 2013, dated 08.09.2017].
8. In view of all the above reasons, since the issue raised in
this Writ Appeal is no longer res integra and the learned Senior
Counsel for the appellant also fairly conceded that the Division Bench
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W.A.No.1746 of 2011
of Our High Court, while considering the similar and identical issue in
W.P.No.18008/2019 etc. batch, has rejected all the writ petitions by a
Common Order dated 13.09.2019, we do not find any issue for
adjudication.
9. In the result, the Writ Appeal fails and the same is
accordingly dismissed. No costs. Consequently, connected
Miscellaneous Petitions are also closed.
(T.R.J.,) (T.V.T.S.J.,)
tsi 23.08.2021
To
1. The Secretary to Government,
State of Tamil Nadu,
Rural Development and Panchayat Raj
(PR-1) Department,
Fort St. George, Chennai-600 009.
2. The Director of Rural Development,
Government of Tamil Nadu,
Chennai.
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W.A.No.1746 of 2011
T.RAJA, J.
and
T.V.THAMILSELVI, J.
tsi
W.A.No.1746 of 2011
23.08.2021
https://www.mhc.tn.gov.in/judis/
