Madras High Court

Belukurichi Kongu Community ... vs The Special Officer on 12 January, 2022

                                                                                   S.A.No.1016 of 2021

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 12.01.2022

                                                     CORAM

                              THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN

                                               S.A.No.1016 of 2021

                     Belukurichi Kongu Community Welfare Trust,
                     Represented by its President, Mr.Arulprakasam,
                     Son of Rathnasababhathi,
                     4/95 Senthamangalam Taluk,
                     Namakkal District.                                       ...Appellant

                                                         Vs.

                     The Special Officer,
                     Belukurichi Panchayat,
                     Belukurichi,
                     Senthamangalam Taluk,
                     Namakkal District.                                       ...Respondent

                     PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
                     Procedure, to allow the above second appeal by setting aside the
                     judgement and decree dated 27.01.2021 made in A.S.No. 08 of 2017 on
                     the file of the Additional Subordinate Court, Namakkal, confirming the
                     Judgement and decree dated 28.09.2016 made in O.S.No. 68 of 2014 on
                     the file of the Additional District Munisf Court, Namakkal.
                                        For Appellant      :   Mr.Gokul
                                                               for Mr.S.Senthil

                                        For Respondent     : Mrs.R.Sripriya
                                                           for Mr.V.Raghavachari Associates

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                                                                                   S.A.No.1016 of 2021



                                                      JUDGMENT

This Second Appeal is filed against the Judgment and Decree

dated 27.01.2021 made in A.S.No.08 of 2017, on the file of the

Additional Subordinate Court, Namakkal, confirming the judgment and

decree dated 28.09.2016 made in O.S.No.68 of 2014, on the file of the

Additional District Munisf Court, Namakkal.

2. The appellant filed the suit seeking relief for mandatory

injunction, directing the respondent to receive house tax for the house

bearing No.4/95 in assessment No.2202, for the Assessment Years 2012-

2013, 2013-2014; for the house bearing No.4/95-1, in assessment

No.2203, for the Assessment Years 2012-2013, 2013-2014; to the house

bearing No.4/95-2 in assessment No.2204, for the Assessment Years

2012-2013, 2013-2014.

3. The case of the appellant is that

(i) the suit property in Door Nos.4/95, 4/95-1, 4/95-2 at Grama

Natham of Belukuruchi Village, in S.No.390/1, comes under jurisdiction

of Namakkal Taluk. The appellant has been given authorization to file a

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S.A.No.1016 of 2021

suit in the trust deed dated 15.12.2004. The suit property, originally

belong to the family of Belukurichi Mittadarar. Prior to abolition of

jameen, the suit property was given to Kongunattu Gounders for

constructing temple and for other use. After abolition of jameen, the suit

property was classified as Grama Natham village in 1960. The suit

property was enjoyed by the Kongunattu Gounders for long and they

constructed a building in the suit property with two floors. The building

was assessed to tax in assessment Nos.2202, 2203 and 2204. The door

number for the assessment No.2202 is 4/95, the door number for

assessment No.2203 is 4/95-1 and door number for assessment No.2204

is 4/95-2.

(ii) The appellant has been paying the house tax from 2011-2012.

When they tried to pay tax for the assessment years 2012-2013 and

2013-2014, the present President of Belukurichi Panchayat has not come

forward to receive the house tax. Therefore, a petition was given for

receiving the house tax. On 07.02.2013, the Block Development Officer

of Sendamangalam directed the authorities to receive the tax for the suit

property. When the appellant attempted to pay the tax, the respondent

has not come forward to receive the tax. Then the appellant took a

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S.A.No.1016 of 2021

demand draft for Rs.363/- representing the tax for the period 2012-2013

and 2013-2014 and sent to the respondent through registered post and

the same was refused by the respondent. When the suit property was

assessed for tax for 2011-2012, it was not open to the respondent to

refuse to receive the tax amount, for the subsequent period. Therefore, the

suit for the aforesaid reliefs.

4. The case of the respondent is that it is admitted that the suit

property is situated in S.No.390/1. It is the claim of the respondent that,

the suit property is neither Natham nor Gramanatham but it is a

Government Poramboke. The claim of the appellant is that the suit

property was enjoyed and given to Kongunattu Gounders and they

constructed the building and enjoying the property is not correct. The

real facts are that the suit property is a Government poramboke land. It

belongs to the entire public of the Belukurichi Village. The former

President of Belukurichi Panchayat belongs to Goundar community. With

an ulterior motive, he regularised the illegal construction made by the

Gounder community people and assessed the building for the tax, that is

illegal. The suit property, belong to the public of the Belukurichi village.

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S.A.No.1016 of 2021

After the present President of panchayat took charge, he found this

illegality and therefore, refused to receive the tax. The building in the suit

property was illegally constructed and the appellant cannot pray for

receiving tax for the building. Suit is bad for non-joinder of Government

authorities. The suit is legally not maintainable and therefore, the suit is

liable to be dismissed.

5. On the basis of the pleadings, the trial Court framed the

following issues:

1. Whether the suit is bad for non-joinder of necessary parties?

2. Whether the suit can be maintained?

3. Whether the plaintiff is entitled for the relief for mandatory

injunction prayed for?

4. Who is entitled to costs of the suit?

6. During the course of trial, P.W.1 to P.W.3 were examined

and Exs.A1 to A10 were marked on the side of the appellant/plaintiff.

D.W.1 was examined and Exs.B1 and B2 were marked on the side of the

respondent/defendant. That apart, Exs.X1 to X4, were marked.

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7. On considering the rival submissions, the learned trial Judge

found that when the suit property is classified as Gramanatham, the

appellant should have impleaded necessary Government officials as

proper and necessary parties. Since necessary Government officials were

not impleaded as parties, the suit is bad for non-joinder of necessary

parties. It is also found that the suit is barred by Section 198G of Tamil

Nadu Panchayats Act, 1994. In this view of the matter, the learned trial

judge found that the appellant is not entitled for the mandatory injunction

and dismissed the suit. The appellant filed the appeal against the

judgment in A.S.No.8 of 2017. The learned first appellate Judge,

concurred with the finding of the trial Court and dismissed the appeal.

Challenging the said finding of the first appellate Court, the appellant has

filed this second appeal.

8. Learned counsel for the appellant submitted that the suit

property is a Gramanatham property, in which the appellant has

constructed the building and enjoying the building. The property was

also assessed for tax. Tax amount was received for the assessment year

2011-2012. Therefore, it is not open to the respondent to refuse to

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S.A.No.1016 of 2021

receive the tax amount, for the assessment year from 2012-2013. The

dismissal of the suit, on the basis that the Government Officials were not

impleaded as parties to the suit and the suit is barred under Section 198

G of Tamil Nadu Panchayats Act, 1994 is not legally correct. Therefore,

the learned counsel for the appellant prayed for setting aside the

judgment of the Courts below by allowing the second appeal.

9. In response, the learned counsel for the caveator/respondent

submitted that when it is claimed that the suit property is a Gramanatam

property/Government Poramboke land, it is necessary to implead District

Collector and other Government Officials concerned, as proper and

necessary parties for adjudicating the issue. That was not done in this

case. Therefore, the suit is bad for non-joinder of necessary parties. That

apart, in case of any dispute with regard to assessment of tax, civil case

cannot be filed.

10. Considered the rival submissions and perused the records.

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11. It is seen from the pleadings and the submissions of the

parties that the appellant claimed the suit property as the land handed

over to Kongunattu Gounders, prior to the abolition of jameen and

Konbunattu Gounders are in possession and enjoyment of the suit

property. Subsequently, they formed trust on 15.12.2004 and

constructed the building in the suit property. However, perusal of the

documents filed by the appellant shows that they produced receipts only

from 2011, in respect of the payment of tax and documents related to the

efforts taken for payment of tax. It is claimed in the plaint that after the

abolition of jameen, the land was declared as Village Natham in the year

1960. As per the appellant's claim, the appellant is in possession and

enjoyment of the suit land, even prior to 1960. However, the appellant

has not produced any material to show that it is in possession and

enjoyment of the suit land from the year 1960 or prior to the year 1960.

11(i) The case of the respondent is that the previous President of

respondent panchayat belong to the same community of Kongu Gounder.

He illegally permitted the appellant to construct the building in the suit

property and assessed for tax. Then, the present President found

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illegality and refused to receive the tax. Ofcourse, these aspects have not

been considered by the Courts below. However, it is the relevant factor.

The fact that appellant has not produced any materials to show the

enjoyment of land prior to 1960 till the building was constructed, shows

that the claim of title and possession in respect of the suit property by the

appellant is not correct.

12. That apart, be it is Village Natam and Government

poramboke, the Government is proper and necessary party to have a say

as to the claim of the rival parties. As rightly pointed out by the learned

counsel for the respondent and found by the Courts below, the suit was

found not maintainable for the reason that necessary Government officials

concerned were not impleaded as party for effective and binding

adjudication.

Section 198 G of Tamilnadu Panchayat Act, reads as follows:

"198-G. Appeal.-(1) Any person or employer aggrieved by any order or decision of the Executive Authority in relation to the payment of tax (including penalty, fee and interest) may, within such time as may be prescribed, appeal to the authority prescribed under Section 174.

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(2) The decision of the authority referred to in sub-Section (1) shall be final and shall not be questioned in any Court of law:

Provided that no such decision shall be made except after giving the person affected a reasonable opportunity of being heard."

13. This Section makes it clear that any person aggrieved by an

order or decision of executive authority in relation to the payment of the

tax, may have to appeal to the authority prescribed under Section 174.

The decision of the authority shall be final and shall not be questioned in

any Court of law. In the case before hand, appellants have not resorted to

this redressal mechanism and straight away filed the suit. Therefore, this

suit is not maintainable.

14. Both the Courts below have also taken this view and this