Madras High Court
E.Muthiah vs Tirunelveli Corporation on 25 October, 2021
1 S.A.No.542 OF 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.10.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.542 of 2005
1. E.Muthiah
2. M.Seetha ... Appellants / Respondents /
Plaintiffs
Vs.
Tirunelveli Corporation
Municipal Council,
Through its Commissioner,
Tirunelveli – 11. ... Respondent / Appellant /
Defendant
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the judgment and decree dated 13.08.2004
passed by the Principal District Judge, Tirunelveli in A.S.
No.205 of 2003 reversing the judgment and decree dated
07.03.2003 passed by the I Additional District Munsif,
Tirunelveli, in O.S.No.394 of 2002 and allow this appeal.
For Appellant : Mr.S.Kumar
For Respondent : Mr.Aayiram K.Selvakumar
***
1/12
2 S.A.No.542 OF 2005
JUDGMENT
The plaintiffs in O.S.No.394 of 2002 on the file of the
I Additional District Munsif, Tirunelveli, are the appellants in
this second appeal.
2. The case of the plaintiffs was that the suit property
belonged to them and that they had put up a cinema theatre
after getting proper approvals. The construction of the theatre
was completed in the year 2000. The theatre is situated within
the territorial limits of Tirunelveli City Municipal Corporation.
The Corporation issued Ex.A.1 notice dated 08.05.2002 calling
upon the plaintiffs to pay half yearly tax quantified at
Rs.1,04,365/- with effect from 01.10.1998. The first plaintiff
submitted a letter dated 20.05.2002 setting forth his
objections (Ex.A.2). Though the Commissioner of Tirunelveli
Corporation received the said notice, no order was passed on
the said objections. Instead the second defendant issued
Ex.A.4 notice dated 04.06.2002 proposing to take
consequential action. Several representations and objections
submitted by the plaintiffs did not elicit any response. Left
with no other option, the plaintiffs had to file the aforesaid suit
for declaration that the action taken by the respondent for
collecting property tax in respect of the suit building is illegal
and for consequential permanent injunction restraining the
defendant authorities from collecting the same.
3. The Corporation filed written statement
controverting the plaint averments. Based on the divergent
pleadings, the trial Court framed the necessary issues. On the
side of the plaintiffs, the theatre manager was examined as
P.W.1 and Ex.A.1 to Ex.A.15 were marked. On the side of the
defendants, a municipal official was examined as D.W.1.
Ex.B.1 to Ex.B.6 were marked. After a consideration of the
evidence on record, the trial Court by judgment and decree
dated 07.03.2003 decreed the suit as prayed for. Aggrieved by
the same, the defendant Corporation filed A.S.No.205 of 2003
before the Principal District Judge, Tirunelveli. By judgment
and decree dated 13.08.2004, the first appellate Court
reversed the decision of the trial Court and allowed the appeal
and dismissed the suit. Challenging the same, this second
appeal came to be filed.
4. On 23.03.2006, the second appeal was admitted on
the following substantial question of law?
“ i) Whether the process of assessment is in
accordance with law? “
5. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
question of law in favour of the appellants and set aside the
impugned judgment and decree and restore the decision of the
trial Court.
6. Per contra, the learned Standing counsel appearing
for Tirunelveli Corporation submitted that the impugned
judgment and decree do not warrant any interference.
7. I carefully considered the rival contentions and
went through the evidence on record.
8. The suit was filed for declaration that the property
tax assessment made by the defendant Corporation is illegal.
The first appellate Court held that the suit is not maintainable.
The jurisdiction of the civil Court to go into the validity of the
assessment of the property tax is no longer res integra. A
learned Judge of this Court in the decision reported in (2010)
2 CTC 51 (K.A.Arokkiam V. The Dindigul Municipality) after
referring to a catena of earlier decisions held that if the
assessment in question has been made in consonance with the
provisions of the relevant statute or in substantial compliance
of the same, the assessment in question cannot be challenged
before the civil forum. But at the same time, if the assessment
in question is totally erroneous and has not been made in
substantial compliance with the provisions of the statute, the
civil Court would certainly have the jurisdiction to entertain
the suit questioning the very assessment. In the case on hand,
the suit building is a newly constructed one which was being
assessed for the first time by the defendant Corporation. The
defendant Corporation issued Ex.A.1 notice dated 08.05.2002
proposing levy of half yearly tax at the rate of 1,04,365/-.
9. In the case of quinquennial revisions, where the
revision is made with reference to existing tax and the local
body complies with the standard parameters uniformly as laid
down by the Commissioner of Municipal Administration or the
Government, omission to issue individual notices to the
assessees may not really matter but where the assessment is
made for the first time, certainly the assessee ought to be
heard. Tirunelveli Municipal Corporation is governed by the
provisions of the Coimbatore City Municipal Corporation Act,
1981. Section 121(3) of the Coimbatore City Municipal
Corporation Act, 1981 states that for the purpose of assessing
the property tax, the annual value of any building or land shall
be determined by the Commissioner. Valuation is a
quasi-judicial exercise. Based on such valuation, tax will be
determined. Therefore, the affected party will have to be
necessarily put on notice. In the instant case, the assessee was
not put on notice. That apart, the building in question is a
cinema theatre. Therefore, the procedure set out in Section
122 (2) (a) (ii) must have been followed. The said provision
states that in the case of any building of a class not ordinarily
let, the gross annual value of which cannot, in the opinion of
the Commissioner, be estimated, the annual value of the
premises shall be deemed to be six per cent of the total of the
estimated market value of the land and the estimated present
cost of erecting the building after deducting for depreciation a
reasonable amount which shall in no case be less than ten per
cent of such costs. In the case on hand, it does not appear
that this provision was followed. In as much as the statutory
procedure has not been followed and since there has been
violation of the principles of natural justice, the impugned
assessment is certainly vulnerable and the civil Court is
certainly having the jurisdiction to entertain the present suit.
Therefore, I answer the substantial question of law in favour
of the appellants.
10. The impugned judgment and decree is set aside
and the decision of the trial Court is restored.
11. It is stated that in terms of the interim order
granted by this Court, the assessee has been remitting 75% of
the assessment amount to the credit of the suit before the trial
Court. I may fault the respondents for not having followed the
statutory procedure. But the liability of the assessee to pay
property tax cannot be disputed. I am also informed that in
view of the pendency of these proceedings, there has been no
periodical revision also. Therefore, I permit the defendant
Corporation to withdraw whatever amount that has been
credited by the plaintiffs to the credit of the suit. The
respondent is permitted to redo the entire exercise. The
respondent is directed to adhere to the statutory procedure,
while assessing the property tax of the suit building. I permit
the respondent not only to reassess the property tax for the
suit property, but also effect revisions for the subsequent
period. The appellant is not entitled to raise the plea of
limitation. As and when the respondent does so, the appellant
will be entitled to the benefit of vacancy remission as
provided in Section 127 of the Coimbatore City Municipal
Corporation Act, 1981. The said provision is as under:-
“ 127. Vacancy remission .— (1) When
any building whether ordinarily let or occupied
by the owner himself has been vacant and unlet
for ninety or more consecutive days in any half-
year, the Commissioner 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 claim 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 claim for such remission shall
be entertained unless the owner of the building
or agent has previously thereto delivered a
notice to the commissioner,-
(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 notice is delivered or the succeeding
half-year;
(b) The period in respect of which the
remission is made shall be 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,
(ii) if remission is sought in respect of
the half-year succeeding that in which the notice
as 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.
(c) 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. ”
I can take judicial notice of the fact that since March 2020, the
nation has been reeling under the pandemic. The Government
had imposed total lock down for certain period. Even after
lifting of the lock down, theatres were not allowed to open.
For the said period when theatres were ordered to be closed,
the suit building should be deemed to have remained vacant
and not let. For the said period, the defendant is directed to
give vacancy remission as contemplated by law.
12. This second appeal is allowed. No costs.
25.10.2021
Index : Yes / No
Internet : Yes/ No
PMU
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:
1. The Principal District Judge,
Tirunelveli.
2. The I Additional District Munsif,
Tirunelveli,
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
G.R.SWAMINATHAN,J.
PMU
S.A.No.542 of 2005
25.10.2021
