Madras High Court
S.Rajendra Prasad vs The Commissioner on 16 November, 2021
W.P.(MD)No.20753 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P.(MD)No.20753 of 2013
and
M.P.(MD)Nos.2 of 2013 & 1 of 2014
S.Rajendra Prasad ... Petitioner
Vs.
The Commissioner,
Nagercoil Municipality,
Nagercoil,
Kanyakumari District. ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India for issuance of Writ of Certiorari, to call for the records of
the impugned notice passed by the respondent in Taxation No.
27681-WD-19 dated 09.12.2013 and quash the same as illegal.
For Petitioner : Mr.H.Velavadhas
For Respondent : Mr.P.Athimoolapandian
Standing Counsel
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W.P.(MD)No.20753 of 2013
ORDER
There is a sea of confusion in this matter. The reason is, the
pleadings are not adequate and the facts have not been set out with
clarity. In the hearing also, unfortunately, the factual details could
not be culled out with specificity. To be noted, the respondent
Municipality has not filed a counter affidavit, though this writ
petition has been pending for eight long years, but learned Counsel
chose to advance arguments in main writ petition without a counter
affidavit and therefore main writ petition was taken up and heard
out.
2. Be that as it may, suffice to say that the aforementioned
position, captioned writ petition was taken up and heard out with
the consent of the learned Counsel on both sides with the available
papers and facts that have been projected in the hearing.
3. The facts projected in the hearing are as follows:
3.1. The writ petitioner purchased a immovable property in
and by a registered sale deed dated 11.03.2010, registered as
Document No.892, on the file of the jurisdictional Joint Registrar,
viz., Joint Registrar Nagercoil. The immovable property purchased
by the writ petitioner as can be culled out from the schedule in the
sale deed is as follows:
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W.P.(MD)No.20753 of 2013
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W.P.(MD)No.20753 of 2013
4. Mr.H.Velavadhas, learned Counsel for writ petitioner,
adverting to a Civil Court judgment dated 16.07.2003 submits that
the aforementioned immovable property (said property) was
assessed to property tax by the respondent Municipality on the
basis that the writ petitioner's vendor was using the same for
commercial purpose ie., running a biscuit factory but the writ
petitioner's vendor had assailed enhancement of property tax by
way of a civil suit being O.S.No.37 of 2000, on the file of the
Principal District Munsif's Court, Nagercoil and the same was
decreed on 16.07.2003.
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W.P.(MD)No.20753 of 2013
5. A perusal of the judgment reveals that a notice dated
01.04.1999 issued by the respondent to the writ petitioner's vendor
has been assailed and a declaration regarding enhancement of
property tax qua writ petitioner's vendor has been sought and an
injunction in this regard has also been sought. The usual residual
prayer has been framed as Issue No.4. The four issues framed in
the suit reads as follows:
“4.jPh;khdj;jpw;Fhpa vGtpdhf;fs;:
1.jhth fl;olj;jpw;F gpujpthjp efuhl;rp
1.4.99 njjpapy; mDg;gpa jd; mwptpg;g[ rl;lg;go
bry;yj;jf;fjh?
2.thjpf;F jhthtpy; nfl;Ls;sgo tpsk;gi
[ f
ghpfhuk; fpilf;fj; jf;fjh?
3.thjpf;F jhthtpy; nfl;Ls;s
cWj;Jf;fl;lis ghpfhuk; fpilf;fj; jf;fjh?
4.thjpf;F fpilf;f ntz;oa ghpfhuk;
vd;d?”
[Extracted and reproduced as such]
6. The notice dated 01.04.1999 said to have been received by
the writ petitioner's vendor has not been placed before this Court.
It is not necessary to dilate more on this as there is no disputation
that a suit of this nature is not maintainable.
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W.P.(MD)No.20753 of 2013
7. The grievance of the petitioner is qua a notice signed on
09.12.2013 [to be noted, the notice does not bear a date, but it has
been signed by the Commissioner of the respondent Municipality
on 09.12.2013]. This notice does not mention the provision of law
under which it has been issued. Learned Counsel for the
respondent drew the attention of this Court to Rule 9-A(3) of
Schedule IV of the Tamil Nadu District Municipalities Act, 1920,
when this issue came up for consideration in the hearing. The said
Rule reads as follows:
“Rule 9-A. (3) The executive authority
shall dispose of the revision petitions to reduce
the tax already filed and those deemed to have
been filed in terms of sub-rule (2) subject to, and
in accordance with, the provisions contained in
sub-rule (1).”
[Extracted and reproduced as such]
On a plain reading of the above provision, I am unable to
agree that the impugned notice could have been issued under the
above provision, but the power of the Municipality to assess the
said property to property tax and demand the same besides
enhancement of its revision from time to time cannot be disputed.
8. There cannot also be any disputation about the obtaining
legal position that the writ petitioner's vendor's property tax
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W.P.(MD)No.20753 of 2013
liability up to the date of sale will become a charge on the said
property and the writ petitioner has to necessarily discharge the
same. If there is any disputation about the quantum of arrears, it is
well open to the writ petitioner to take it up with the respondent
Municipality.
9. Be that as it may, what is of significance is, learned
Counsel for writ petitioner would submit that the said property has
not been used for commercial purpose and it has been used as a
residential house and it is let out to various lessees.
10. As a one-off case ie., meaning not to be cited as a
precedent, considering the need to balance the rights of the
assessee as well as the need to protect the Revenue, I dispose of
the captioned writ petition by making the following order:
a) The respondent Municipality shall assess the said property
in accordance with Section 82 of the Tamil Nadu District
Municipalities Act, 1920 and the applicable Rules under the
Taxation and Finance Rules, forming part of Schedule IV of this Act.
b) The above exercise shall be commenced within a fortnight
from today ie., on or before 30.11.2021 and shall be completed
within four weeks therefrom ie., on or before 28.12.2021.
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W.P.(MD)No.20753 of 2013
c) The above assessment will be operative from the current
half year (now running) which commenced on 01.10.2021.
d) Up to 30.06.2021, the tax to be paid by the writ petitioner
from the date of purchase ie., 01.03.2010 shall also be determined
by the respondent Municipality after giving adequate opportunity
to the writ petitioner.
e) With regard to the arrears of the writ petitioner's vendor, it
is open to the respondent Municipality to raise a separate demand
in accordance with law and the same will be subject to any rights
which the writ petitioner may have in this regard.
f) All payments made by the writ petitioner thus far, including
payments made pursuant to interim orders in the captioned writ
petition shall be given due credit to.
11. The above order has been made (as alluded to supra), to
end uncertainty qua quantum of property tax for said property for
the writ petitioner assessee and also to protect the Revenue (in
exercise of powers under Article 226).
12. As already alluded to supra, this order will not serve as a
precedent as this has been made owing to the peculiar facts and
circumstances of the case also set out supra and the trajectory
which the matter has taken thus far.
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W.P.(MD)No.20753 of 2013
13. The captioned writ petition is disposed of on above terms.
However, there shall be no order as to costs. Consequently,
captioned miscellaneous petitions are closed.
16.11.2021
Index : Yes / No
Internet: Yes / No
MR
NOTE: In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct copy,
shall be the responsibility of the
advocate/litigant concerned.
To
The Commissioner,
Nagercoil Municipality,
Nagercoil, Kanyakumari District.
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W.P.(MD)No.20753 of 2013
M.SUNDAR., J.
MR
ORDER MADE IN
W.P.(MD)No.20753 of 2013
16.11.2021
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