Kumbakonam Municipality vs Shanmugam
2022 Latest Caselaw 9594 Mad

                                                                            S.A.No.104 of 2005



                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 08.06.2022
                                                    CORAM
                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                               S.A.No.104 of 2005
                                                      and
                                            C.M.P(MD)No.971 of 2005

                     Kumbakonam Municipality
                     represented by its Commissioner,
                     Kumbakonam.                                        .. Appellant
                                                        Vs.
                     1.Shanmugam
                     2.Kumaravadivel
                     3.Muthuramalingham
                     4.Selvamani
                     5.Prapavathi
                     6.Thamilarasi                                      .. Respondents
                     Prayer: Second Appeal filed under Section 100 CPC, 1908, against the
                     decree and judgment dated 13.01.2004 passed in A.S.No.140 of 2003, on
                     the file of the learned Principal Subordinate Judge, Kumbakonam,
                     upholding the decree and judgment dated 29.11.2002 passed in O.S.No.
                     130 of 2002, on the file of the learned Additional District Munsif,
                     Valangaiman at Kumbakonam.


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                                                                                   S.A.No.104 of 2005




                                  For Appellant       : Mr.D.Malaichamy
                                  For R1 to R5        : No appearance
                                  For R6              : Dismissed vide order dated 22.01.2019


                                                     JUDGMENT

The Commissioner, Kumbakonam Municipality, the first

defendant in O.S.No.130 of 2002 on the file of the Additional District

Munsif Court, Valangaiman, (the appellant in A.S.No.140 of 2003 on the

file of the Principal Subordinate Court, Kumbakonam), has filed the

present second appeal.

2. The respondents 1 to 4 herein filed the suit in O.S.No.130 of

2002 for a declaration that the Special Notice (Ex.A2) dated 19.02.2001

issued by the first defendant, Kumbakonam Municipality is null and void

and for a consequential relief of permanent injunction restraining the

latter from collecting the amount mentioned in the said notice.

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3. For the sake of convenience, the parties are referred to as per

their ranking in the trial court and at appropriate places, their rank in the

present appeal would also be indicated.

4. The case of the plaintiffs in nutshell is as follows :

The suit property is a thatched house in Othai Street,

Kumbakonam. The suit property originally belonged to one Pushpavalli,

mother of the plaintiffs. It was in dilapidated condition and therefore

was demolished during the year 1998. However, Pushpavalli, the original

owner of the suit property paid the house tax till the first half of

1998-1999. Thereafter she did not pay any amount towards house tax and

the first defendant, Kumbakonam Municipality also did not demand any

amount from her. The said Pushpavalli died in the year 1999. All of a

sudden on 19.02.2001, a special notice (Ex.A2) was issued by the

Kumbakonam Municipality directing Pushpavalli to pay a sum of

Rs.18,889/- towards property tax for the period commencing the second

half of 1998-1999 to the second half of 2000-2001. According to the

plaintiffs, since there is no house in the suit property, the Municipality

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cannot levy any house tax. It is also their contention that the property tax

was also not enhanced prior to the issuance of special notice (Ex.A2).

(4.1). The first defendant in the written statement had

contended that the property tax was enhanced for the suit property after

following due process of law and after giving sufficient opportunity to

the plaintiffs and hence, the plaintiffs are not entitled to get any relief.

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

the following issues :

1) Whether the plaintiffs are entitled for a declaration as prayed for

by them?

2) Whether the plaintiffs are entitled for a permanent injunction as

prayed for by them?

3) To what other reliefs the plaintiffs are entitled?

6.Before the trial Court, the first plaintiff examined himself

and marked Ex.A1 and Ex.A2. One witness was examined on the side of

the first defendant. However, no documentary evidence was marked.

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7. After full contest, the learned Additional District Munsif,

Valangaiman at Kumbakonam decreed the suit in O.S.No.130 of 2005 in

favour of the plaintiffs vide his decree and judgment dated 29.11.2002.

The appeal filed by the Kumbakonam Municipailty in A.S.No.140 of

2003 was also dismissed vide decree and judgment dated 13.01.2004 by

the learned Principal Subordinate Judge, Kumbakonam.

8. Both the Courts concurrently held that,

1) when the plaintiffs had contended that the suit property was

demolished during the year 1999 and that property tax was not paid from

the second half of 1998-1999, the first defendant, Kumbakonam

Municipality had not adduced any documentary evidence to show that

they assessed tax for the suit property after conducting proper inspection

of the suit property.

2) The person, who inspected the suit property has not been

examined on the side of the Municipality.

3) Though it is contended by the first defendant that they have

files/documents in their office to show that the property tax was

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enhanced to Rs.275/- from Rs.183/- from the first half of 1998-1999 and

that there are 22 houses in the suit property, they have not adduced any

documentary evidence to show as to how the property tax was calculated

for each house.

4) Ex.A2- notice was issued to Pushpavalli, the original owner

of the suit property for all the alleged 22 houses.

5) The Municipality did not adduce any records to show that

prior to issuance of Ex.A2(Special Notice), the property tax was

enhanced in accordance with the Tamilnadu Act XVIII of 1960, the

Tamilnadu Buildings (Lease and Rent Control) Act, 1960 and the

Tamilnadu District Municipalities Act, 1920. In such circumstances, the

civil suit filed by the plaintiffs is maintainable.

9. Now the present second appeal is filed by the first defendant.

10.At the time of admission of this second appeal, the

following substantial questions of law were framed.

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1)whether the Courts below are correct in

deciding that the appellant Municipality has not followed

correct procedure as per law in making the assessment?

2) whether the trial Court is justified in granting

a prayer which is not sought for in the plaint?

3)whether the suit itself is maintainable in law

since the plaintiff has not availed the statutory remedy by

filing appeal under the Tamil Nadu District Municipality

Act?

11. Though notices were served on the respondents, they did

not appear before this Court and their names are printed in the cause list.

12. Mr.D.Malaichamy, learned counsel for the appellant/first

defendant contended that Rule 10 and 23 of Schedule IV (Taxation and

Finance Rules) under the Tamil Nadu District Municipalities Act, 1920

provide an appeal remedy to a party aggrieved by the assessment and

levy of tax. He also relied on the decision of this Court in the case of

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Chidambaram Co-operative Urban Bank Ltd., vs. Chidambaram

Municipality reported in (2020) 2 CTC 69 and contended that there is an

implied bar for a civil Court to entertain the suit when the statute

provides a special remedy to an aggrieved party to file an appeal. He

therefore contended that the civil Court's jurisdiction is ousted.

13.The present suit has been instituted mainly on the ground

that the first defendant had erroneously issued a special notice(Ex.A2)

when the houses in the suit property were demolished even prior to 1999.

According to the plaintiffs, no notice was issued on them by the

Municipality before enhancing the property tax. On the other hand, the

contention of the learned counsel for the appellant is that the property tax

was enhanced during the first half of 1998-1999 after following due

process of law and that the enhancement of property tax was in

consonance with the Tamilnadu District Municipalities Act (Tamilnadu

Act V of 1920) and also in consonance with Section 4 of the Tamilnadu

Buildings (Lease and Rent Control) Act, 1960.

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14. At this juncture, it is appropriate to look into the evidence

adduced by DW1, Clament Anthonyraj, who was then working as a clerk

in Kumbakonam Municipality. DW1 during the course of cross-

examination had deposed that the property tax assessment Nos.20950 to

20972 stand in the name of one Pushpavalli and that as per Circular, the

property tax was enhanced from Rs.183/- to Rs.275/-. He further deposed

that the property tax was enhanced as per the Tamilnadu Buildings

(Lease and Rent Control) Act and the Tamilnadu District Municipalities

Act. Pertinent, it is to point out, that there is no pleading in the written

statement that the property tax was enhanced from Rs.183/- to Rs.275/-

during 1999. The appellant did not examine the person, who inspected

the suit property at the time of enhancing the tax though it is contended

that there are 22 houses in the suit property. The defendants also did not

adduce any documentary evidence in respect of the property tax

assessment to the suit property.

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15.The main contention of the appellant is that the jurisdiction

of the civil Court is ousted since the plaintiffs have not exhausted the

appeal remedy available under the Tamilnadu District Municipalities

Act (Tamilnadu Act V of 1920).

16. In Dhulabhai v. State of Madhya Pradesh reported in

(1969)AIR(SC)78, the Hon'ble Apex Court has culled out the following

principles regarding the exclusion of jurisdiction of civil Court;

1) Where the statute gives a finality to the orders of the special Tribunals, the civil Courts' jurisdiction must be held to be excluded if there is adequate remedy available. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with.

2) When there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant, but is not decisive to sustain the jurisdiction of the civil Court.

Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may

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be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined

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because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

17. In K.R.Abirami v. The Kumbakonam Municipality,

represented by its Executive Authorities, Commissioner, Kumbakonam

Town reported in 2008 (3) MLJ 649, this Court has held that non-

compliance in substance and in effect with the Tamilnadu District

Municipalities Act and the Tamilnadu Buildings (Lease and Rent

Control) Act, a suit challenging assessment is maintainable in a civil

forum.

18.In R.Govindarajan v. The Madurai Corporation reported in

AIR 1984 Madras 90, this Court has held that the annual value for levy of

tax ought to be fixed with reference to fair rent under the Rent Control

Act.

19.In Koothanallur Town Panchayat v. Mariam Beevi Ammal

reported in AIR 1985 Madras 50, it was held by this Court that where

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the basis of the levy itself is wrong or there is no basis at all for the levy

in the sense that there was no substantial compliance with the provisions

of the Act, it is open to the civil Court to declare the levy illegal and in

fact it is the duty of the Court to do so.

20. From the cumulative reading of the decisions referred to

above it can be seen that,

a) assessment of house tax should be made in accordance with

the provisions of Tamilnadu District Municipalities Act (Tamilnadu Act

V of 1920).

b) annual rental value of the building in question should be

fixed on the basis of the provisions of the Tamilnadu Buildings (Lease

and Rent Control) Act, 1960.

c) if the assessment in question has been fixed in consonance

or in substantial consonance with the provisions of the Tamilnadu

District Municipalities Act, no civil Court has jurisdiction to entertain the

suit.

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d) if assessment in question has not been made in accordance

with the provisions of the Tamilnadu District Municipalities Act

(Tamilnadu Act V of 1920) or the same has not been made in substantial

compliance with the said Act, the civil Court certainly has jurisdiction so

as to declare that the assessment in question is illegal.

21.In the instant case, absolutely there is no evidence to show

that the concerned authorities of the Kumbakonam Municipality

inspected the suit property before enhancing the property tax from Rs.

183/- to Rs.275/-. Though DW1 contended that the property tax was

enhanced after giving sufficient opportunity to the original owner

Pushpavalli and as per the provisions of the Tamilnadu District

Municipalities Act (Tamilnadu Act V of 1920) and Tamilnadu Buildings

(Lease and Rent Control) Act, he did not adduce any documentary

evidence to substantiate his contention. Absolutely there is no pleadings

in this regard in the written statement. Even without serving any notice of

enhancement of property tax to the plaintiffs, the Kumbakonam

Municipality had issued a special notice (Ex.A2) directing Pushpavalli,

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the original owner of the suit property to pay a sum of Rs.18,889/-within

the period stipulated in the notice. DW1 himself admitted that he could

not state as to how each and every house in the suit property was

assessed to tax separately. In the circumstances, the civil Court has got

jurisdiction to entertain the suit.

22.In the decision of Chidambaram Co-operative Urban Bank

Ltd., vs. Chidambaram Municipality (cited supra), relied on by the

learned counsel for the appellant, there was no pleading in the plaint that

the defendant had violated the statutory provisions and it was also found

that the property tax was enhanced after following due process of law. In

such circumstances, it was held that the civil Court's jurisdiction is

ousted. Hence, the above ruling may not be applicable to the facts of the

present case.

22. In view of the reasons stated above, the substantial

questions of law 1 to 3 are answered against the appellant.

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23. In the result,

1) The second appeal is dismissed. No costs.

Consequently connected miscellaneous petition is

dismissed.

2) The decree and judgment dated 13.01.2004 passed in

A.S.No.140 of 2003, on the file of the Principal

Subordinate Judge, Kumbakonam, and the decree

and judgment dated 29.11.2002 passed in O.S.No.130

of 2002, on the file of the Additional District Munsif,

Valangaiman at Kumbakonam, are upheld.

08.06.2022

Index : Yes/No Internet : Yes/No

PJL

To

1.The Principal Subordinate Judge, Kumbakonam.

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2.The Additional District Munsif, Valangaiman at Kumbakonam.

3. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

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R. HEMALATHA, J.

PJL

S.A(MD)No.104 of 2005

08.06.2022

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