Madras High Court
The Kumbakonam Municipality vs R.Rengamani on 14 June, 2022
S.A.(MD)No.471 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.06.2022
CORAM
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
S.A.(MD)No.471 of 2005
The Kumbakonam Municipality,
Represented by its Commissioner,
Kumbakonam.. ... Appellant
Vs.
R.Rengamani ... Respondent
PRAYER : Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Decree and Judgment dated 29.04.2004 passed in
A.S.No.146 of 2003, on the file of the Additional Subordinate Court,
Kumbakonam upholding the Decree and Judgment, dated 27.12.2002
passed in O.S.No.441 of 2000, on the file of the II Additional District
Munsif Court, Kumbakonam.
For Appellant : Mr.D.Malaichamy
For Respondent : No appearance
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S.A.(MD)No.471 of 2005
JUDGMENT
The Commissioner, Kumbakonam Municipality, the defendant in
O.S.No.441 of 2000 on the file of the II Additional District Munsif Court,
Kumbakonam, (the appellant in A.S.No.146 of 2003 on the file of the
Additional Subordinate Court, Kumbakonam), has filed the present second
appeal.
2. The respondent herein filed the suit in O.S.No.441 of 2000 for
the following reliefs:
(i) for a declaration that the communication dated 06.03.1998
(Ex.A2) is null and void.
(ii) for a consequential relief of permanent injunction restraining
the appellant / Kumbakonam Municipality from giving effect to the said
notice.
(iii) for a declaration that the claim made by the Kumbakonam
Municipality on the enhanced rate of tax for the year 1993-1994 and
2000-2001 are null and void.
(iv) for a consequential relief of permanent injunction restraining
the Municipality from giving effect to those notices.
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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, if necessary.
4. The case of the respondent / plaintiff in nutshell:
The suit property bearing Door No.34, Survey No.349/1
absolutely belonged to the plaintiff. It was assessed to tax by the
Kumbakonam Municipality in Assessment No.12437. There were two shops
in the suit property. One shop was let out by the plaintiff and the plaintiff
was in possession of another shop. While so, the Municipality, all of a
sudden, enhanced the property tax from Rs.56/- to Rs.356/- and thereafter,
Rs.348/- to Rs.2400/-. Hence, the plaintiff filed the suit in O.S.No.365 of
1991 before the learned District Munsif, Kumbakonam. The said suit was
decreed in favour of the plaintiff. However, on 06.03.1998, the
Kumbakonam Municipality sent another communication to the plaintiff
enhancing the property tax from Rs.4,867/- to Rs.9,734/- and also wrongly
asserted that working sheet was enclosed with the said communication. The
Municipality before enhancing the property tax did not follow the
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S.A.(MD)No.471 of 2005
prescribed procedure. Hence, the enhancement of property tax made by the
defendant is illegal and null and void and they must be injuncted from
claiming any amount in pursuance of the notice issued by them.
5. The suit was resisted by the Kumbakonam Municipality on the
following grounds:
(i) The suit building is a new construction and the plaintiff is
getting huge amount of income by way of rent.
(ii) It is false to contend that the Municipality before fixing the
property tax for the suit property did not follow the procedure laid down
under the Tamil Nadu Buildings (Lease and Rent Control) Act and the Tamil
Nadu District Municipalities Act.
(iii) The suit building was assessed to property tax long back and
it was also very low.
(iv) Taking into account the rental income and also following
proper procedure, the property tax for the building (2 shops) was enhanced.
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S.A.(MD)No.471 of 2005
6. On the basis of the above pleadings, the trial Court framed
appropriate issues and after full contest, decreed the suit in favour of the
plaintiff vide his Decree and Judgment dated 27.12.2002. Aggrieved over
the same, the Kumbakonam Municipality filed an appeal in A.S.No.146 of
2003 before the Additional Subordinate Court, Kumbakonam. The learned
Additional Subordinate Judge, after analyzing the oral and documentary
evidence adduced on both sides, dismissed the appeal filed by the
Kumbakonam Municipality vide his Decree and Judgment dated
29.04.2004.
7. Both the Courts below concurrently held that:
(i) The plaintiff did not make any renovation / addition in the suit
property.
(ii) The earlier enhancement made by the Kumbakonam
Municipality was held to be null and void.
(iii) The person, who took measurement of the suit property, has
not been examined on the side of the plaintiff.
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S.A.(MD)No.471 of 2005
(iv) The plaintiff had specifically contended that one shop alone is
let out and another shop is in his possession and the same has not been
taken into consideration by the Kumbakonam Municipality.
(v) The Kumbakonam Municipality had not explained as to how
they determined tax for the suit property as Rs.812/- for the year
commencing from 2000-02.
(vi) Merely because the plaintiff did not file any appeal against
the order passed by the Kumbakonam Municipality, the suit filed by the
plaintiff cannot be said to be without jurisdiction.
(vii) In the notice dated 06.03.1998 (Ex.A2), the reason for
enhancing the property tax has not been given by the Municipality. The
defendant has also not proved the written statement by adducing acceptable
evidence and in fact, no witness was examined on the side of the defendant.
8. At the time of admission, the following substantial questions of
law were framed by this Court:
(a) Whether the suit filed by the respondent is
maintainable in law as there is alternative remedy
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S.A.(MD)No.471 of 2005
available under the Tamil Nadu District Municipalities
Act?
(b) Whether the Courts below are justified in
not considering that there is no proper and valid cause
of action to file the present suit?
(c) Whether the Courts below have correctly
and properly applied the decision of this Hon'ble Court
reported in 1994(2)L.W.page 715 to the facts of the
present case?
(d) Whether the Courts below are justified in
not rejecting the evidence of PW1 who himself had
admitted that he did not know what was the defect in
Ex.A2 and also whether provisions of the Act were
followed or not?
9. Though notice was served on the respondent, he did not appear
before this Court and his name was printed in the cause list.
10. Mr.D.Malaichamy, learned counsel for the appellant /
defendant contended that Rule 10 and 23 of Schedule IV (Taxation and
Finance Rules) under the Tamil Nadu District Municipalities Act, 1920
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S.A.(MD)No.471 of 2005
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
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.
11. The present suit has been instituted mainly on the ground that
the defendant, Kumbakonam Municipality, even without proper inspection
of the suit property and without following the rules laid down under the
Tamil Nadu District Municipalities Act and the Tamil Nadu Buildings
(Lease and Rent Control) Act, had enhanced the property tax arbitrarily. It
is pertinent to point out that no witness was examined on the side of the
Kumbakonam Municipality. Though it is contended in the written statement
that the tax for the suit property was enhanced after following due process
of law, the same has not been substantiated by the defendant.
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12. The main contention of the appellant is that the jurisdiction of
the civil Court is ousted since the plaintiff has not exhausted the appeal
remedy available under the Tamilnadu District Municipalities Act (Tamil
Nadu Act V of 1920).
13. 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 be
decisive. In the latter case it is necessary to see if the statute creates
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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 because it is a
relevant enquiry.
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(7) An exclusion of the jurisdiction of the Civil Court is not readily to
be inferred unless the conditions above set down apply.
14. 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 Tamil Nadu Buildings (Lease and Rent Control)
Act, a suit challenging assessment is maintainable in a civil forum.
15. 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.
16. In Koothanallur Town Panchayat v. Mariam Beevi Ammal
reported in AIR 1985 Madras 50, it was held by this Court that where 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
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S.A.(MD)No.471 of 2005
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.
17. 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 Tamil Nadu District Municipalities Act (Tamil Nadu Act V of
1920).
b) annual rental value of the building in question should be fixed
on the basis of the provisions of the Tamil Nadu 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 Tamil Nadu District
Municipalities Act, no civil Court has jurisdiction to entertain the suit.
d) if assessment in question has not been made in accordance with
the provisions of the Tamil Nadu District Municipalities Act (Tamil Nadu
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.
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S.A.(MD)No.471 of 2005
18. 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. In fact, the defendant
did not explain as to how the property tax was enhanced. As already
observed no witness was examined on the side of the defendant. Though in
the written statement, it is contended that the property tax was enhanced by
following the provisions of the Tamil Nadu District Municipalities Act and
the Tamil Nadu Buildings (Lease and Rent Control) Act and the same has
not been proved by adducing acceptable evidence.
19. 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.
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S.A.(MD)No.471 of 2005
20. In view of the reasons stated above, the substantial questions
of law are answered against the appellant.
21. In the result,
(i) The second appeal is dismissed. No costs.
(ii) The decree and judgment dated 29.04.2004 passed in A.S.No.
146 of 2003, on the file of the Additional Subordinate Judge, Kumbakonam,
and the decree and judgment dated 27.12.2002 passed in O.S.No.441 of
2000, on the file of the II Additional District Munsif, Kumbakonam, are
upheld.
(iii) The appellant / Kumbakonam Municipality is at liberty to
enhance the tax for the suit property after giving due notice to the
respondent and after following necessary rules and regulations.
14.06.2022
Index : Yes / No
Speaking Order : Yes / No
vji
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S.A.(MD)No.471 of 2005
To
1. The Additional Subordinate Court,
Kumbakonam.
2. The II Additional District Munsif,
Kumbakonam.
3. The Commissioner,
The Kumbakonam Municipality,
Kumbakonam.
4. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.471 of 2005
R. HEMALATHA, J.
vji
S.A.(MD)No.471 of 2005
14.06.2022
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