BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/03/2008 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR C.R.P.NPD(MD) No.97 to 116 of 2008 C.R.P.NPD(MD) No.160 to 168, 219 to 222 and 340 to 359 and 413 of 2008 The Kuzhithurai Municipality, Represented by its Commissioner, Vettuvanni, Marthandam Post, Nalloor Village, Vilavancode Taluk, Kanyakumari District. ... Petitioner Vs. The Secretary of Kanyakumari Diocese (CSI), Nagercoil, Represented by the Present Secretary, 71-A, Dennis Street, Nagercoil, Kanyakumari District. ... Respondent (Cause title amended vide order of Court dated 22.02.2008 made in M.P.(MD) Nos.1 of 2008 in CRP(NPD) Nos.97 of 116 of 2008 by RSJ) Prayer Petition filed under Article 227 of the constitution of India, to set aside the judgment and decree passed C.M.A.Nos.15 to 36, 38 to 61 of 2005 and 5 to 12 of 2006 dated 31.07.2007 on the file of the District Judge, Kanyakumari District at Nagercoil. !For Petitioner ... Mr.C.Raja Kumar ^For Respondent ... Mr.K.N.Thambi and Mr.Sreekumaran Nair :ORDER
The above Civil Revision Petitions have been filed by the Kuzhithurai
Municipality to set aside the judgment and decree passed in various Civil
Miscellaneous Appeals dated C.M.A.Nos.15 to 36, 38 to 61 of 2005 and 5 to 12 of
2006 dated 31.07.2007 on the file of the District Judge, Kanyakumari District at
Nagercoil.
2. When these Civil Revision Petitions came up for admission, the learned
counsel for the revision petitioner/Municipality referred to the provisions of
the Tamil Nadu District Municipalities Act, particularly to the provisions of
the Amending Acts 65 of 1997 and 34 of 1998. It was stated that the said notice
was issued under Rule 9 of Schedule IV of Tamil Nadu District Municipality Act,
1920 and confirmed by the Municipality. The matter was taken on appeal to the
Taxation Appeal Committee in terms of Section 89 of the Amending Acts 65 of 1997
and 34 of 1998 and further appeal has been preferred to the District Court,
Nagercoil in terms of Section 89(3) of the Amending Acts 65 of 1997 and 34 of
1998.
3. In one of the edition of the Madras Law Journal publication relating to
the Tamil Nadu District Municipalities Act, it is published as hereunder:
” ‘To be read after the existing foot note 1 to Section 81 of the Act’
Government have not notified the date of coming into force of the Amending Acts
65 of 1997 and 34 of 1998. Till the amendment Acts are notified, by the
Government, the erstwhile provisions relating to property tax in Section 81 to
91 would be in force.”
A doubt arose as to whether the filing of appeal before the Taxation Appeals
Committee and further appeal to the District Judge under Section 89(3) of the
Amending Acts 65 of 1997 as amended by Act 34 of 1998 is valid as the said
amending Act 65 of 1997 and 34 of 1998 were not notified. Therefore, while
issuing notice of admission to the respondent, this Court requested the
Additional Advocate General Mr.T.Raja, to assist the Court and clarify the
position with regard to the two Tamil Nadu Municipal Laws (Second Amendment) Act
65 of 1997 and Act 34 of 1998 and the consequence thereof.
4. Shri.T.Raja, the learned Additional Advocate General, the counsel for
the Municipality Shri. Raja Kumar and the two of the counsel appearing for the
respondent viz. Shri.K.N.Thambi and Shri.Sreekumaran Nair, submitted their
arguments. Based on the arguments made by the respective counsel it become
clear that the order under challenge passed by the District Judge in Civil
Miscellaneous Appeals in terms of Section 89 of the Amending Act was one without
jurisdiction. The issue in all the Civil Revision Petitions narrowed down to the
question of law, as to whether the order under challenge is passed by a Court
having jurisdiction and hence they are taken up for final disposal as the merits
of the case will be of no relevance at the point of time.
5. The brief facts of the case of the revision petitioner:
The respondent is the owner of several shops in Nagercoil, Kanyakumari
District. They were assessed to property tax by the Municipality. A circular
for general revision was issued by the Commissioner for Municipal Administration
on 09.01.1993, which document was marked as Ex.R1, before the lower authority.
As per Ex.R1 a direction to Municipal Councils and Township Committees was
issued to take up quinquennial revision of property tax from 01.04.1993. As per
the guidelines given under the Circular, in the year 1993 Special Notices were
issued under Rule 9 of Schedule IV of Tamil Nadu District Municipality Act,
1920. On that earlier occasion the respondents herein filed Writ Petition
No.19491 of 1994, challenging the notice issued by the Municipality seeking to
enhance the tax in general revision. This Hon’ble Court in the year 2001 set
aside the individual notices issued by the municipality and remanded the matter
to the Municipal authority on the ground that no reason has been given in the
notice for general revision of tax. The Municipality was directed to issue
fresh notice under Rule 9 of the said Act. Accordingly, 54 fresh notices were
issued on 09.03.2002 by the Municipality calling upon the respondent to file
objection, if any. It appears that the respondent did not given any reply.
Therefore, the enhanced revision as per notice were confirmed on 10.06.2002.
Thereafter a series of communication ensued between the municipality and the
respondent. The respondent requested the municipality to give them further time
to give their objection and also sought for the copy of the notice issued under
Rule 9. It was indicated that substantial amounts have been paid towards the tax
pursuant to orders of Court. This was stated in respondent’s letter dated
16.02.2002. On 19.03.2003, the Municipality finally informed the respondent
that if there is no proper reply from the respondent, they will treat the matter
as final and closed. On 08.05.2003, after sufficient time and proper
intimation, the municipality confirmed the notice issued as per rule 9 of
Schedule IV of Tamil Nadu District Municipality Act, 1920. This was
communicated in e.f.vz;.1619/94/m1 dated 08.05.2003, indicating that the
respondent has a right to file appeal. On 27.06.2003, the respondent was
directed to pay the arrears of tax. Once again, the respondent by letter dated
24.07.2003 requested the municipality to issue a fresh Rule 9 notice and for
sufficient opportunity to file revision or appeal against the assessment of tax.
It was suitably replied by the municipality on 09.08.2003 stating that notice
under Section 9 was properly served and all the objections raised were rejected.
On 29.12.2003, a duplicate copy of the notice issued under Section 9 Schedule IV
of the Tamil Nadu District Municipality Act was given to the respondent. The
Municipality also demanded the payment of tax as determined by them.
7. Aggrieved by the enhancement of tax, the respondent filed appeals
before the Taxation Appeals Committee. The Taxation Appeals Committee reduced
the amount of tax marginally by various orders dated 16.07.2004 and the
Municipality gave effect to such order. As against the order of the Taxation
Appeals Committee dated 16.07.2004, signed by the Commissioner on 19.07.2004 and
duly served, the respondent filed appeals before the District Court, Nagercoil
as provided under Section 89(3) of the District Municipality Act, 1920, amending
Act 65 of 1997, which were taken on file by the District Court, Nagercoil as
Civil Miscellaneous Appeals. After a full fledged enquiry, taking into
consideration all aspects of the claim of the respondent passed the impugned
judgment and decree further reducing the tax. The Municipality aggrieved by the
Judgment and Decree passed by the District Judge are before this Court in
revision.
8. At the outset, without going into the merits as regards the quantum of
tax as ordered by the Taxation Appeals Committee and modified by the District
Court in appeal, the first issue that has to be considered by this Court is on
the very nature of the proceedings before the Taxation Appeals Committee and the
jurisdiction of the District Judge, to entertain the appeal under Amending Acts
65 of 1997 as amended by Act 34 of 1998, which were not notified. A circular
is placed before this Court by Mr.T.Raja, Additional Advocate General, which
reads as follows:
“In Amending Acts 65 of 97 and 34 of 98, certain sections of Tamil Nadu
District Municipalities Act and other Corporation Acts, were amended. The
amendments mainly relate to property tax management in Municipalities &
Corporations. In Section-2 of Act No.65 of 97, it is specifically indicated
that the amendments would come into effect from the date on which the effective
date is notified by the Government. In Act no No-34 of 98, which is an amending
Act for 65 of 97, eventhough it has been mentioned that it would come into
immediate effect, since the main Act of 65 of 97 itself is yet to be made
effective, Act No.34 of 98 also not come into effect.
In the situation, the 2002 & 2003 editions of Tamil Nadu District
Municipalities Act published by the Madras Law Journal office, Chennai, contain
the amendments have been given effect by Government, these amendments should not
be implemented. Till the amendments are notified by Government, to come into
effect, the erstwhile provisions relating to property tax viz. Section 81 to 91
in respect of Municipalities and similar erstwhile section of Corporations would
be deemed to be in force.
The above position is to be borne in mind while handling property tax
items.”
9. While it is true that the Taxation Appeals Committee in terms of
Section 89 of Amending Act 65 of 1997, does not have the force in the eye of
law. The Taxation Appeals Committee does exists as provided under Section 23-A
of Tamil Nadu District Municipalities Act, 1920, which was inserted by Tamil
Nadu Act, 16 of 1989, which reads as follows:
“23-A. Taxation Appeals Committee. – Notwithstanding anything contained in
this Act.
(1) For every Municipality, there shall be a Taxation Appeals Committee
which shall consist of the chairman of the municipal council who shall also be
the chairman of the Taxation Appeals Committee. (and four councillors selected
by the council)
(2) the business of the Taxation Appeals Committee shall be transacted in
accordance with the rules made by the State Government in the behalf.”
Since the amending Act 65 of 1997 and 34 of 1998 are not in force, the
consequence thereof will be the provisions of the Tamil Nadu District
Municipality Act, 1920, de hors the amending Act will be applicable. Therefore
in so far as the property tax is concerned Section 81(2) and 91 will be
applicable. Schedule IV of the Tamil Nadu District Muncipality Act, 1920,
provides the manner in which the appeals are to be dealt with. The relevant
Sections are 23, 23-A, 24, 25, 26, 26-A. Section 23-A of Schedule IV was omitted
by Act XXX of 1970 and inserted as Section 23-A by Act 16 of 1989 as stated
above. Therefore, even though amending Act 65 of 1997 was not notified, the
Taxation Appeals Committee remains in the statue by virtue by Section 23-A of
the Tamil Nadu District Municipality Act, 1920. The Schedule IV provides for
payment of certain amounts of property tax as determined by the appropriate
authority. The only difficulty that arises now is with regard to the remedy to
the aggrieved owner of the property against the order passed by the Taxation
Appeals Committee.
10. It was submitted by the Additional Advocate General as well as the
learned counsel appearing for the Municipality, the order passed in Taxation
Appeals Committee is proper and in terms of Section 23-A of the Act. However,
the further appeal to the District Judge, under Section 89(3) of the Amending
Act, filed by the respondent herein is without jurisdiction and the judgment and
the decree is a nullity as it has been passed by a forum which lacks
jurisdiction. It was therefore contended that the judgment and decree passed in
all the C.M.A.s challenged in these revision petitions should be set aside.
11. In the light of the circular issued stating that the two amending Acts
have not been notified, it is apparent that the provisions of Section 81(2) and
89 of Amending Acts 65 of 97 and 34 of 98 does not have force in the eye of law.
Therefore, the question will be whether the order passed by the District Court
can be saved even though such proceedings were not supported by the statutory
prescription. The immediate answer to the above issue falls from the decision
of the Honourable Supreme in the case of Kiran Singh and others v. Chaman Paswan
and others reported in AIR 1954 SUPREME COURT 340. In the said decision an
issue arose as to whether an appeal from the decree of subordinate Judge will
lie to the District court or to the High Court based on the valuation in the
plaint, which was subsequently amended. Further question that arose was if as
per the original valuation, the District Court having entertained the appeal and
passed a decree and judgment, if found to be later not competent to hear the
appeal on the ground of lack of jurisdiction, whether the decree and judgment
can be saved or is it a nullity. In paragraph 6 of the above said decision the
Honourable apex Court held as follows:
“6. The answer to these contentions must depend on what the position in
law is when a Court entertain a suit or an appeal over which it has not
jurisdiction and what the effect of Section 11 of the Suit Valuation Act is on
that position. It is a fundamental principle well-established that a decree
passed by a Court without jurisdiction is a nullity and that its invalidity
could be set up whenever and wherever it is sought to be enforced or relied
upon, even at the stage of execution and even in collateral proceedings. A
defeat of jurisdiction, whether it is pecuniary or territorial or whether, it is
in respect of the subject-matter of the action, strikes at the very authority of
the Court to pose any decree, and such a defect cannot be cured even by consent
of parties. If the question now under consideration fell to be determined only
on the application of general principles governing the matter, there can be no
doubt that the District, Court of Monghyr was coram non judice, and that its
judgment and decree would be nullities. The question is what is the effect of
Section 11 of the Suits Valuation Act on this position.”
In view of the decision of the Honourable Supreme Court as above and the fact
that the amending Act 65 of 1997 as amended by Act 34 of 1998 has not been
notified, the judgment and decree passed by the District Court in terms of
Section 89 of Amending Act 65 of 1997 will be without any jurisdiction and
therefore such an invalid order cannot be sustained.
12. If the remedy pursued by the respondent before the District Court is
not available under the statute then what is the remedy available. There are
various decisions of this Court for over two decades which answers the point as
well when the owner of the property is aggrieved by the determination of the
amount of property tax, they have resorted to file the civil suit. A number of
decisions have been reported, which is as hereunder:
1. 1953(1) MLJ 128
2. 1978(1) MLJ 121
3. 1980(1) MLJ 140
4. 1992(1) LW 110
5. 1993(2) MLJ 262
6. 2001(3) MLJ 815
7. 2002(1) MLJ 391
13. Therefore the order passed by the Taxation Appeals Committee in terms
of Section 23-A is within jurisdiction. A contention was made by Mr.K.N.Thambi,
learned counsel appearing for the respondent that the order was not passed by
the Appellate Committee, but by the Commissioner. Therefore, there is an
infirmity in the order and it is without reason. That can be challenged before
the Civil Court or appropriate forum as may be advised. It is only the appeal
before the District Judge filed pursuant to Section 89 of the Amending Act 65 of
1997 and Act 34 of 1998, and the judgment and decree passed that will be without
jurisdiction and nullity. The respondent have challenged the order passed by
the Taxation Appeals Committee and seriously pursued the same before the
District Court but under provisions of law which is not notified. If the
revision petitioner challenges the same before a proper forum, the question of
limitation has to be gone into by the said forum, keeping in mind the provisions
of Section 14 of the Limitation Act, 1963.
14. In the result, all the revision petitions are allowed and the judgment
and decree dated 31.07.2007, passed in C.M.A.Nos.15 to 36, 38 to 61 of 2005
and 5 to 12 of 2006, on the file of the District Judge, Kanyakumari District at
Nagercoil are set aside. Considering the fact that both the petitioner as well as
the respondent have been pursuing the matter under the misconception of law,
there will be no order as to the costs.
sj
To
The District Judge,
Kanyakumari District
At Nagercoil.