Madras High Court

A.R.A.S.Duraisamy Nadar & Sons vs Kovilpatti Municipality on 21 October, 2021

                                                                               S.A.No.2102 of 2003

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 21.10.2021

                                                      CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                              S.A.No.2102 of 2003

                   A.R.A.S.Duraisamy Nadar & Sons
                   H.U.F rep by its Kartha and Manager
                   D.Ganesan, S/o.A.R.A.S.Duraisamy Nadar
                   Giri Nivas, Kadalaiyur Road,
                   Kovilpatti Town.                    ... Appellant / Respondent / Plaintiff



                                                      -Vs-


                   Kovilpatti Municipality
                   rep. by its Commissioner
                   Kovilpatti.                          ... Respondent / Appellant / Defendant


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the Judgment and decree dated 08.04.2003 made in A.S.No.7
                   of 2002 on the file of the Sub Court, Kovilpatti, reversing the judgment and
                   decree dated 29.11.2001 made in O.S.No.190 of 2001 on the file of the
                   District Munsif Court, Kovilpatti.


                                      For Appellant          : Mr.Anand Chandrasekaran
                                      For Respondent         : no appearance




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                                                                                S.A.No.2102 of 2003

                                                      JUDGMENT

The plaintiff in O.S.No.190 of 1999 on the file of the District Munsif

Court, Kovilpatti is the appellant in this second appeal.

2. The suit was filed by the appellant for declaring that the

enhancement and revision of property tax by the defendant Municipality in

respect of the suit buildings is null and void. The plaintiff sought

consequential injunction restraining the municipality from collecting the

enhanced tax from the plaintiff. The municipality filed written statement

controverting the plaint averments. Based on the divergent pleadings, the

trial court framed the necessary issues. On behalf of the plaintiff, one

Kumar was examined as P.W.1 and Ex.A1 to Ex.A18 were marked. On the

side of the defendant, a municipal official was examined as D.W.1 and

Ex.B1 to Ex.B39 were marked. After a consideration of the evidence on

record, the trial court by judgment and decree dated 29.11.2001 set aside

the impugned revision and decreed the suit. Aggrieved by the same, the

defendant municipality filed A.S.No.7 of 2002 before the Sub Court,

Kovilpatti. The first appellate court by the impugned judgment and decree

dated 08.04.2003 set aside the decision of the trial court and allowed the

appeal and dismissed the suit. Challenging the same, the present second

appeal came to be filed. The second appeal was admitted on the following

substantial questions of law:-

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S.A.No.2102 of 2003

“1.Whether the lower appellate court is correct in law in reversing the well considered judgment and decree of the learned District Munsif, totally overlooking the fact that the respondent herein has not followed the principles laid down by the Supreme Court when enhancing the property tax in respect of the property?

2.Whether the lower appellate court is correct in law in confirming the enhancement made by the respondent especially when the respondent has failed to follow the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act for fixing the rental value of the premises? and

3.Whether the lower appellate court is correct in law in coming to the conclusion that the appellant is not competent to file the suit on behalf of the appellant's undivided family, totally overlooking the fact that the appellant has been authorised to do so?”

3. Though the respondent Municipality has been served and its name

has also been printed in the cause list, there is no appearance on its behalf.

The learned counsel appearing for the appellant reiterated all the

contentions set out in the memorandum of grounds and called upon this

Court to answer the substantial questions of law in favour of the appellant

and set aside the impugned judgment and decree and restore the decision of

the trial court.

4. I carefully considered the contentions advanced by the learned

counsel appearing for the appellant. I also went through the entire evidence

on record. Since the respondent has not been represented, I undertook an

independent scrutiny. The appellant is owning the suit buildings and they

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S.A.No.2102 of 2003

are situated within the jurisdictional limits of kovilpatti municipality. The

suit buildings have already been assessed to property. The defendant issued

notice on 19.03.1999 under Rule 9(2) of Schedule IV of Tamil Nadu

District Municipalities Act, 1920 proposing to revise the property tax of the

suit buildings by 100%. The plaintiff sent a reply dated 15.04.1999 Ex.A8

lodging their objections. The municipal commissioner by order dated

10.05.1999 rejected the assessee's objections and confirmed the revision

and enhancement. Aggrieved by the same, the assessee filed an appeal

before the municipal council which by order dated 18.08.1999 dismissed

the same. Hence, the plaintiff filed the suit for the reliefs set out (supra).

5. The contention of the plaintiff was that without assigning any

reason, enhancement has been effected. This contention was accepted by

the trial court and the suit came to be decreed. The first appellate court

came to the conclusion that the reasons have in fact been assigned in the

impugned proceedings and that therefore, the reason given by the trial court

was erroneous. That was the primary ground on which the first appellate

court interfered with the judgment and decree passed by the trial court. The

other reason was that the suit had been filed by the karta of H.U.F and that

the locus standi of the karta to file the suit on behalf of H.U.F was not

established. I am afraid that the exercise adopted by the first appellate court https://www.mhc.tn.gov.in/judis

S.A.No.2102 of 2003

was really not warranted. The suit buildings are owned by H.U.F in

question and if really, Ganesan who filed the suit in his capacity as karta

was not really authorised, certainly, objection would have been raised by

the other members of H.U.F. No such objection has come forth. In fact,

notice issued by the defendant municipality itself refers to the assessee as

'Ganesan Vagaiyara'. Therefore, I have no hesitation to answer the third

substantial question of law in favour of the appellant. I also note that the

suit buildings are not new buildings. It is not as if the assessment is being

made for the first time. The suit buildings are old buildings and they were

already subjected to assessment. The defendant municipality has only

made what is known as quinquennial revision. In fact, such general

revisions of property tax are mandated to be undertaken by all the local

bodies from time to time. The circulars and government orders are issued

and the local bodies have to carry out the revision strictly in terms of the

said parameters laid down.

6. In the case on hand, the defendant municipality has marked Ex.B38

and B39. The commissioner of municipal administration had issued

circulars dated 23.10.1998 and 31.12.1998 setting out the manner in which

the revision has to be effected. If the buildings are commercial buildings,

enhancement should not exceed 100%. If it is owner-occupied residential

building, enhancement should not exceed 25%. If it is a rented residential https://www.mhc.tn.gov.in/judis

S.A.No.2102 of 2003

building, enhancement should not exceed 50%. In the case on hand, the

suit buildings are commercial buildings. The municipality had enhanced

half yearly property tax only by 100%. For instance, the building bearing

Door No.877, main road was assessed to property tax at Rs.138/-

originally. By the impugned proceedings, it was revised and enhanced to

Rs.276/-. Thus, the revision made by the defendant municipality had not

exceeded the outer limit fixed by the Government and the commissioner of

municipal administration, Chepauk at Chennai. Therefore, prima facie I do

not find any illegality in the revision made by the defendant municipality.

However, the manner in which the revision had been effected leaves a lot to

be desired.

7. As rightly pointed out by the learned counsel appearing for the

appellant, the revision was accompanied by a working sheet. The

municipality had originally given notice to the appellant to appear before

them. The appellant / plaintiff had submitted a letter seeking adjournment.

Without granting such time, the municipality had on its own arbitrarily

fixed the value of the suit buildings. The arbitrariness is evident from the

fact that even the age of the very old buildings has been given as zero. It is

again well settled that the valuation exercise has to be undertaken by

following the provisions of the Tamil Nadu Buildings (Lease and Rent) https://www.mhc.tn.gov.in/judis

S.A.No.2102 of 2003

Control Act for fixing the rental value of the premises. There is nothing on

record to show that such a procedure was adopted by the defendant

Municipality. Therefore, the second substantial question of law is answered

in favour of the appellant.

8. The learned counsel appearing for the appellant submitted that in

Paragraph No.15 of the plaint, it has been stated that 16 buildings out of

the 42 suit buildings were lying vacant. Section 87 of the Tamil Nadu

District Municipalities Act, 1920 reads as follows:-

87.Vacancy remission:- (1) When any building whether ordinarily let or occupied by the owner himself has been vacant and unlet for thirty or more consecutive days in any half year, the executive authority shall remit so much, not exceeding one-half of such portion of the tax as relates to the building only as is proportionate to the number of days during which the building was vacant and unlet in the half-year.

(2) Every demand for remission under sub-Section (1) shall be made during the half-year in respect of which the remission is sought or in the following half-year and not afterwards.

(3) (a) No demand for such remission shall be entertained unless the owner of the building or his agent has previously thereto delivered notice to the Executive Authority -

(I) that the building is vacant and unlet; or

(ii) that the building will be vacant and unlet from a specified date either in the half-year in which none is delivered or in the succeeding half-year.

(b) The period in respect of which the remission is made shall be https://www.mhc.tn.gov.in/judis

S.A.No.2102 of 2003

calculated-

(i) if remission is sought in respect of the half-year in which notice is delivered from the date of delivery of the notice or from the date on which the building became vacant and unlet, whichever is later; and

(ii) if remission is sought in respect of the half-year succeeding that in which the notice is delivered from the commencement of the half-year in respect of which remission is sought or from the date on which the building became vacant and unlet, whichever is later.

(iii) Every notice under clause (a) shall expire with the half-year succeeding that during which it is so delivered and shall have no effect thereafter.

9. Therefore, the plaintiff is entitled to vacancy remission. In fact, the

plaintiff had also submitted request letters in this regard. Municipal official

who was examined as D.W.1 had also admitted in his testimony that the

municipality had to pass orders in respect of the request made in terms of

Section 87 of the Act. But no orders were passed by the municipality.

Therefore, the first substantial question of law is also answered in favour of

the appellant.

10. Though I answer all the substantial questions of law in favour of

the appellant and I set aside the impugned judgment and decree passed by

the first appellate court, the judgment and decree passed by the trial court

cannot be automatically restored. It is modified in the following terms:-

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