Madras High Court
Mrs. Prabavathi Muthurama Reddy ... vs The Principal Secretary on 2 September, 2021
W.P. No. 26271 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.09.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P. No. 26271 of 2016
1. Mrs. Prabavathi Muthurama Reddy (deceased)
2. R.Bhavishyavani
Represented by her Power of Attorney
Mr. R.Praveen ...Petitioner
Vs.
1. The Principal Secretary
Commissioner of Land Reforms
Ezhilagam
Chepauk, Chennai – 600 005.
2. The Director
Urban Land Tax
Ezhilagam
Chepauk, Chennai – 600 005.
3. The Assistant Commissioner
Urban Land Tax
Poonamallee Zone @ Poonamallee
Chennai – 56.
4. K.Hemanth Kumar
5. K.M.Bagawandoss Esq
6. K.M.Ravi
7. Meeradevi Chakravarthy
8. M.Kesavalu ... Respondents
1/18
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W.P. No. 26271 of 2016
Petition filed under Article 226 of the Constitution of India, praying
for issuance of a Writ of Certiorari, to call for the records relating to the
final order bearing R.C.No.7517 /2012/C3 dated 23.05.2016 (received on
27.05.2016) issued by the First Respondent and quash the same.
For Petitioner : Mr. K.Bijai Sundar
For Respondents : Mr. V.Nammaran
Government Advocate (For R1 to R3)
ORDER
The Revision order in R.C.No.7517/2012/C3 passed by the First
Respondent in proceedings dated 23.05.2016 under the provisions of Tamil
Nadu Urban Land Tax Act, 1966 amended Act 1991 is under challenge in
the present Writ Petition. The Petitioner purchased agricultural land situated
at Kannapalayam village, Madura Mettupalayam, comprised in Survey
No.118/1, consisting of 77.5 are (1.91 acres) and Survey No. 119 consisting
of 37.0 acres totally consisting of 2.82 acres of Poonamalee Taluk,
Thiruvallur district out of her own funds under a deed of sale dated
14.07.2004, registered as document No.5604 of 2004, of Book I, at Sub
Registrar Office, Kunrathur. The sale deed has described and conveyed the
subject land only as agricultural land, which was duly accepted by the Sub
Registrar Office while registering the documents.
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W.P. No. 26271 of 2016
2. Learned Counsel for the Petitioner contended that the adjacent land to
the land purchased by the Petitioner was classified as agricultural land and
assessed accordingly. Thus, the Petitioner land also to be classified as
agricultural land, which is exempted from payment of the urban land tax
under the provisions of the Tamil Nadu Urban Land Tax Act. For all
purposes the adjacent land is to be construed as the same land and
exemption is to be granted. Contrarily, the Respondent discriminated the
subject land belongs to the petitioner and imposed urban land tax, which is
in violation of the provisions of the Act.
3. The Petitioner admits that they paid the urban land tax, however,
under protest, they preferred an appeal. The Third Respondent inspected the
property and submitted a report stating the subject land as agricultural in
nature with bore well and electricity connection to the First Respondent. In
spite of the report submitted by the Third Respondent and without
considering the further representations submitted by the Petitioner, the First
Respondent issued the impugned order rejecting the claim of the Petitioner.
Thus, the Petitioner is constrained to move the present Writ Petition.
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W.P. No. 26271 of 2016
4. Learned Counsel appearing for the petitioner reiterated that the
subject land belongs to the Petitioner is an agricultural land under
cultivation. Thus, the very classification made by the Respondents is
improper as the adjacent land was classifed as agricultural land.
5. The decision for imposing tax was taken unilaterally even after
recording the facts that the relevant files are not available in the office of the
Assistant Commissioner of Urban Land Tax. In this context, the assessment
under the Act is based on mistaken of facts and the pump set and the motor
installed in the agricultural land are not considered by the First Respondent
despite the report submitted.
6. Learned Counsel appearing for the Petitioner relying on the patta and
chitta made a submission that the land is being cultivated continuously and
the fact was also informed to the First Respondent by submitting
representations. Thus the order impugned is contrary to the facts established
by the Petitioner and in violation of the provisions of the Urban Land Tax
Act.
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W.P. No. 26271 of 2016
7. In support of the said contentions, Learned Counsel for the Petitioner
relied on the judgment of the Madras High Court in the case of
S.Sarangapani Iyengar -vs- The Asst. Commr. Urban Land Tax reported
in [(1988) 1 MLJ 311], wherein the following observations are made:-
“4. At the threshold, it is difficult to uphold the finding
given by the Tribunal that the lands in question are not
agricultural lands. The Tribunal seems to have taken a view
that merely because the lands were kept vacant during the
fasli years 1381-85, they ceased to be agricultural lands. For
such a proposition, there does not seem to be any support in
any statutory provisions. The lands are registered as
agricultural lands in the revenue records. There are adangal
records which undoubtedly show that the lands were
uncultivated. They also show that they are dry lands. Whether
it is agricultural land or not will depend on the nature of the
lands and the purpose to which the lands are normally put.
Merely because an agricultural land is not cultivated for some
time, the land does not cease to be agricultural land especially
when it is not put to any other use. It is difficult to appreciate
the reasoning of the Tribunal that since the Petitioner has
merely stated that the lands in question are dry lands and that
they have been reserved for formation of horticultural garden,
the lands could be said to have ceased to be agricultural
lands.”
Following the above judgment, the Hon'ble Division Bench of this Court in
the case of State of Tamil Nadu -vs- S.L.Chitale reported in [2002(1) CTC
18] interpreted the definition of 'Urban Land' under Section 2(13) of the
Urban Land Tax Act and held that if the land is not being used as a building
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W.P. No. 26271 of 2016
site, it will not fall under the definition of 'Urban Land' and therefore, the
exemption is to be granted and paragraph 10 of the order is usefully
extracted hereunder:-
“10. In our anxious consideration, we are of the view that the
definition of urban land will not include any vacant land which
is capable of use as house site irrespective of the extent. When
admittedly the area is larger one, there is more than one acre,
then the entire land cannot be treated as house site. Major
portion of the land may be kept vacant and only in a small
portion the house can be constructed. That is why the
explanation to the said Section clearly refers that any site on
which any building has been constructed shall be deemed to be
urban land. If any larger area of more than one acre lies
vacant, either for want of water facility for irrigation or
otherwise, then it cannot be said that the whole area has to be
treated as urban land.”
8. Learned Government Advocate appearing for the Respondents
disputed the contentions raised on behalf of the Petitioner by stating that the
petitioner purchased the subject land in the year 2004. The erstwhile owner
of the subject property has paid the urban land tax pursuant to the
assessment made on 05.03.1994 which was 10 years prior to the purchase of
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W.P. No. 26271 of 2016
the subject land, by the Petitioner. As per the Enumeration Register
maintained in the office of the Third Respondent, Thiru.Venkatesa Reddy
was the owner of the land measuring 34 grounds 2035 square feet in Survey
No. 118/1 of Kannapalayam Village and it was recorded as “Nagara
Tharisu”. As per the above records, a notice was issued to the land owner on
07.06.1993 and the land owner was enquired on 13.07.1993, and an
assessment order was passed by the Third Respondent on 05.03.1994
levying tax of Rs.1401/- per Fasali with effect from Fasali 1401. The land
owner had not taken any plea of the land being put to agricultural use during
the enquiry or thereafter also. The erstwhile owner had paid the urban land
tax till the sale i.e., 2004. The Petitioner had purchased the above land on
14.07.2004 and filed this revision petition on 27.11.2012. The said Revision
was filed after a lapse of eight years from the date of purchase and eighteen
years after levy of the Urban Land Tax on the erstwhile owner and after
issuing the assessment order on 05.03.1994.
9. Under Section 30 of the Act, the revisionary power of Appellate
Authority has a limitation period, i.e., 30 days from the date of receipt of
that order. The limitation period was over long back in the case of the
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W.P. No. 26271 of 2016
petitioner herein. However, in view of the direction issued by this Court in
W.P. No. 13105 of 2016 dated 07.04.2016 filed by the Petitioner, the
Revision Petition was considered on merits and an order was passed.
10. It is contended that even though the Petitioner has taken efforts to
cultivate the land in some parts of Faslies, it cannot prevent the continuous
levy of urban land tax. There is no provision that subsequent bringing to
agricultural use of the dry lands to be excluded.
11. Learned Government Counsel appearing for the Respondents
reiterated that as per the Enumeration Register maintained in the office of
the Third Respondent the land in Survey No. 118 has been recorded as
“Nagara Tharisu”.
12. It is submitted that the Petitioner's plea of the sale deed being
registered an agricultural land does not provide for exclusion under the
provisions of the Act, since all the lands are generally classified as
agricultural 'dry' or 'wet' and later converted as 'natham' or recorded as other
use at relevant time or conversion.
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W.P. No. 26271 of 2016
13. The contention of the Petitioner is that the urban land tax was paid by
the erstwhile owner of the subject property in the year 2004 pursuant to the
assessment made on 05.03.1994 which was 10 years prior to the Petitioner's
purchase of the subject land. With reference to the contention regarding the
classification of the adjacent land, it is contended that it is a separate
assessment and the law is clear with regard to the reason that the subject
land is to be assessed. The Enumeration Register shows the Survey No. 119,
the adjoining land being recorded as 'Vivasayatharisu + Uzhavu' whereas
Survey No. 119/1 is recorded as 'Nagaratharisu'. Hence the two were found
different when taking up for levy of tax. The Enumeration Register is the
basic record for assessment of tax. Based on that, notice was issued to the
previous urban land owner and assessment order was passed in the year
1994 and the tax was also levied till the sale of the property in the year
2004..
14. In the present case, pursuant to the orders passed by this Court, the
Third Respondent filed a status report on 17.12.2020 along with inspection
report dated 06.11.2020 in Na.Ka.E./52/2013, which reads as follows:-
“ g[yj;jzpf;if Fwpg;g[
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W.P. No. 26271 of 2016
jpUts;S:h; khtl;lk;. g{e;jky;yp tl;lk;. fz;zg;ghisak; fpuhkk;. rh;nt
vz;/ 118/1?y; cs;s 0.77.5 Vh;!; my;yJ 34 fp/2035 rJuo epyk;
jpUkjp/gpughtjp Kj;Juhk bul;o vd;gth; brd;id cah;ePjpkd;wj;jpy; jhf;fy;
bra;j ePjpg;nguhiz kD vz;/26271/2016?d; nghpy; khz;gk[ pF ePjpaurh;
jpUgp/o/MjpnfrtY kDjhuhpd; epyj;jpid g[yj;jzpf;if bra;J jw;nghJ
epiyapid bjhptpf;f nfhhpajd;nghpy; jpU/vk;/jpf; tp$a ghz;oad; Tljy;
muR tHf;Fiu"hpd; foj ehs; 02/11/2020?d; nghpy; ,t;tYtyf rhh;
Ma;thsh; mstPL bra;a cjtpahsh; epiy tUtha; Ma;thsUld; vd;dhy;
04/11/2020 md;W g[yj;jzpf;if bra;ag;gl;lJ/ nkYk; epyk; g[y vz;/119 cld;
nrh;j;J xU';fpizj;J Rw;wpYk; Ks;fk;gp ntyp nghlg;gl;L gaph; vJt[k;
bra;ag;glhky; fhypahf cs;sJ/ tlnkw;F gFjpapy; gk;g[brl; xd;W cs;sJ/
,jw;F ,d;Wk; kpd;rhu ,izg;g[ bgwg;gltpy;iy/”
As far as the classification is concerned, the Respondent in their counter
categorically stated that the subject land is classified as 'Nagara Tharisu' and
the adjacent land was classified as Vivasayatharisu+ Uzhavu. Thus by
comparing the adjacent land, the Petitioner cannot seek exemption from
payment of arrear of urban land tax. This apart, the assessment itself was
made on 05.03.1994, more so, 10 years prior to the purchase of the subject
land by the petitioner, it is admitted that the urban land tax was paid by the
erstwhile owner from 1994 onwards and the Petitioner has not paid after the
purchase of the subject land in the year 2004. The original assessment order
dated 05.03.1994 was not challenged by the previous owner of the property
and more over the urban land tax assessed were also paid by the previous
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W.P. No. 26271 of 2016
owner till the date of purchase by the Petitioner in the year 2004. Even after
the purchase of the subject property, the Petitioner has not filed any
objection before the competent authority or before this Court.
15. Learned Counsel for the Petitioner states that the Petitioner submitted
a representation on 27.11.2012 and the said representation was not pursued
vigilantly and in the year 2016 the Writ Petitioner has filed a Writ Petition
in W.P. No. 13105 of 2016 with a simple prayer to direct the Respondents to
dispose of her representations dated 27.11.2012, 28.12.2012 and
01.12.2015. This Court passed an order on 07.04.2016 directing the First
Respondent to consider the Petitioner's representations dated 27.11.2012,
28.12.2012 and 01.12.2015 and pass orders on merits and in accordance
with law within a period of six weeks from the date of receipt of a copy of
that order.
16. This exactly is the modus operandi of the litigant for restoring the
cause of action which was otherwise lapsed. It is one method of developing
the cause of action which is lapsed by virtue of efflux of time or on account
of inaction of the person for a long period. In such circumstances, no such
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W.P. No. 26271 of 2016
practice could be encouraged by the High Courts. Several writ petitions are
filed before the High Court with a simple prayer that the representation be
disposed of on merits. The High Court also without adjudication on merits
directed the authorities to decide the matter on merits and in accordance
with law.
17. In the present case, the period of limitation for filing an appeal is 30
days and the said period of 30 days had lapsed after one month from
05.03.1994. Admittedly no appeal or revision was filed by the previous
owner of the property. The Petitioner purchased the property in the year
2004. Thereafter, no actions were taken. However, the Petitioner filed the
Writ Petition in the year 2016 and restored the cause of action which was
otherwise lapsed. Lapsed causes cannot be restored after prolonged period
by filing a Writ Petition to consider the representation.
18. In view of the fact that the High Court has directed the authorities to
decide the matter on merits, the First Respondent has considered the matter
on merits, and then the subsequent writ petitions were filed contesting the
matter on merits. The way in which the issues are adjudicated in this manner
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W.P. No. 26271 of 2016
are to be depricated and declared as not in consonance with the established
principles of law. If a writ petition is filed, at the first instance, the Court
would normally consider the point with reference to the delay. That is the
reason that such Writ Petitions are filed to consider the representation on
merits and after obtaining such an order, they restore the cause of action and
thereafter made an attempt to get the relief and such procedure being
adopted in the large manner is to be deprecated.
19. Though there is a reference regarding the High Court order dated
07.04.2016 in W.P. No. 13105 of 2016 in the impugned order dated
23.05.2016, the Petitioner has not even enclosed a copy of the order in the
typed set of papers filed along with the writ petition. Even in the affidavit
filed in support of the writ petition in para no.7, the Petitioner has stated that
she filed a writ petition seeking disposal of the aforesaid representations
which the Hon'ble High Court allowed. The Writ Petition number is not
even furnished. However, the Writ Petition number could be traced out from
the impugned order.
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W.P. No. 26271 of 2016
20. Further, the inspection report states that there is no agricultural
activities. Even the subject property in the present writ petition is classified
as 'Nagara Tharisu'. Thus, the objections filed by the Petitioner that he is
carrying on the agricultural activities in the subject property may not be a
relevant factor for invoking provisions under the Tamil Nadu Urban Land
Tax Act. This apart, the classification as well as the assessment order passed
in the year 1994 are 10 years prior to the purchase of the subject land by the
petitioner. It is admitted that the urban land tax was paid by the erstwhile
owner from 1994 onwards and the Petitioner has not paid tax after the
purchase of the subject land in the year 2004. The original assessment order
dated 05.03.1994 was not challenged by the previous owner of the property
and more over, the urban land tax assessed were also paid by the previous
owner till the date of purchase by the Petitioner in the year 2004. Even after
the purchase of the subject property, the Petitioner has not filed any
objection before the competent authority or before this Court.
21. The First Respondent passed the impugned order on merits. Now
attempt is made to adjudicate the issue on merits. Even on merits, the land
belongs to the Petitioner is classified as 'Nagara Tharisu' and the said
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W.P. No. 26271 of 2016
classification remains unchallenged. The First Respondent in the impugned
order in clear terms held that the revision Petition was filed far beyond the
period of limitation and pursuant to the orders passed in W.P. No. 13105 of
2015, the First Respondent considered the merits of the case. Though it is
recorded that the case file is not available with the Assistant Commissioner,
Urban Land Tax, Poonamallee, the present Assistant Commissioner has
sent the extract of Enumeration Register and Book of Assessment. As per
the Enumeration Register in the Fasli 1401, i.e., 1991, Thiru. Venkatesa
Reddy was the owner of the land measuring 34 ground 2035 square feet in
Survey No. 118/1 of Kannapalayam Village and it has been recorded as
'Nagara Tharisu”. A perusal of copy of Book of Assessment reveals that a
notice has been issued to the previous land owner on 07.06.1993 and the
land owner has been enquired on 13.07.1993 and assessment order has been
passed on 05.03.1994 levying tax of Rs.1401 /- per Fasli with effect from
Fasli 1401 i.e. 1991 itself.
22. These being the facts, which are not disputed, this Court is of the
opinion that the Petitioner has no right to claim exemption at this length of
time by way of restoring the cause of action through back door methods by
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W.P. No. 26271 of 2016
filing the Writ Petition after a lapse of many years and by getting an order of
direction to consider the representations of the Petitioner by the First
Respondent on merits.
23. Thus the cause had lapsed and further even on merits the
classification was made in the year 1991 and the previous owner also paid
the urban land tax for more than 10 years. This being the factum established,
the order impugned is in consonance with the provisions of the Act.
24. Thus, there is no infirmity or illegality in the order impugned in this
Writ Petition. Accordingly, this Writ Petition is dismissed. No costs.
02.09.2021
Maya
Index : Yes/No
Internet : Yes/No
Speaking order /Non-speaking order
To
1. The Principal Secretary
Commissioner of Land Reforms
Ezhilagam
Chepauk, Chennai – 600 005.
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W.P. No. 26271 of 2016
2. The Director
Urban Land Tax
Ezhilagam
Chepauk, Chennai – 600 005.
3. The Assistant Commissioner
Urban Land Tax
Poonamallee Zone @ Poonamallee
Chennai – 56.
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W.P. No. 26271 of 2016
S.M.SUBRAMANIAM, J.
Maya
W.P. No. 26271 of 2016
Dated : 02.09.2021
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