{"id":178846,"date":"2010-02-10T00:00:00","date_gmt":"2010-02-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/johnson-fernando-vs-the-commissioner-on-10-february-2010"},"modified":"2014-09-28T13:13:06","modified_gmt":"2014-09-28T07:43:06","slug":"johnson-fernando-vs-the-commissioner-on-10-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/johnson-fernando-vs-the-commissioner-on-10-february-2010","title":{"rendered":"Johnson Fernando vs The Commissioner on 10 February, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Johnson Fernando vs The Commissioner on 10 February, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS \n\nDate:  10.02.2010\n\nCoram\n\nTTHE HONOURABLE Mr. JUSTICE M.VENUGOPAL\n\t\t\t\t\t\t\t\nW.P.Nos.8669 & 8670 of 2003\nand\nW.P.M.P.Nos.11111 & 11113 of 2003\n\n\t\n1. Johnson Fernando\n2. Jonison Fernando\n3. Santhanapitchai Fernando\n4. Jackson Fernando\t\t\t\t        \t .. Petitioners in\n\t\t\t\t\t\t\t\t    both petitions\t\t\t     \n           vs. \n1. The Commissioner\n    Tuticorin Municipality\n    Tuticorin-628 001\t\t\t\t\t... Respondent<\/pre>\n
\t\t\t\t\t\t                      in W.P.No.8669\/2003
\n\t\t\t\t\t\t\t             and 1st respondent
\n\t\t\t\t\t\t\t\t    in W.P.No.8670\/2003\n<\/p>\n
2. The  Chairman
\n    Taxation Appeals Committee
\n    Tuticorin Municipality
\n    Tuticorin-628 001 \t\t\t\t         .. 2nd Respondent
\n\t\t\t\t\t\t\t\t  in W.P.No.8670\/2003<\/p>\n
\t Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari as stated therein.<\/p>\n
\n\n\t\tFor petitioners\t  : Ms.Elizabeth Ravi\n\t\t\t\t             for Mr.S.Subbiah\n\n\t\tFor Respondents \t  : Mr.V.Venkatesan\n\t\t\t\t\t    for V.Raghupathi\n\n\n\n\n\t\t\t\tC O M M O N   O R D E R\n\n<\/pre>\n
\t In W.P.No.8669 of 2003, the petitioners have  prayed  for issuance of a writ of certiorari, in calling for the records  relating to the proceedings in RC.No.25125\/98-A2 dated 22.5.2002 as confirmed by the order in Cur.No.A2\/17815\/02 (R.P.No.1\/02) dated 22.7.2002 both on the file of the Commissioner, Tuticorin Municipality, Tuticorin(The respondents herein) and to quash the same.\n<\/p>\n
\tIn W.P.No.8670 of 2003, the petitioners have prayed for issuance of writ of certiorarified mandamus, in calling for the records relating to the notice in A2.22273\/02 dated 12.9.2002 passed by the Commissioner, Tuticorin Municipality, Tuticorin (the first respondent herein) and to quash the same and direct the Chairman, Taxation Appeal Committee, Tuticorin Municipality,Tuticorin (the Second respondent herein) to entertain the memorandum of appeal dated 13.8.2002 preferred by the petitioner to the second respondent against the proceedings in Cur.No.A2\/17815\/02 (R.P.No.1\/02) dated 22.7.2002 on the file of the Commissioner,Tuticorin Municipality,Tuticorin (the first respondent herein) and dispose of the appeal in accordance with law.\n<\/p>\n
\t2.The petitioners\/Directors of Hotel Johney International Private Limited  are the joint owners of the land and buildings bearing Door Nos.259-B,260\/260-A and 261\/261-A, V.E.Road, Tuticorin-628 003 and the said properties were assessed by the respondent in the  names of the petitioners  jointly.  The petitioners constructed the lodging complex and commissioned the same in the year 1997 and the same was assessed to the properties tax bearing assessment Nos.321011, 321287 and 321288 with effect from 1.4.1997,1.10.1997 and 1.10.1997 respectively by specifying separate door Nos. As 259-B for the basement, 260 for ground floor and 261 for the other floors.\n<\/p>\n
\t3. It is the contention of the learned counsel for the petitioners that the respondent\/Municipality revised the orders of the property tax assessment by means of a fresh proceedings dated 30.6.1999 and the said order of assessment is an illegal and enforceable one in the eye of law for the simple reason that the petitioners 1 and 2 have also filed a suit in O.S.No.414 of 1999 on the file of the District Munsif, Tuticorin for a declaration that the enhancement of tax with respect to the schedule buildings with effect from  1998-99 -II as per their demand received on 30.6.1999 and demand notice dated 10.9.1999 and distraint notice dated 14.10.1999 were illegal and void and also praying for the relief of permanent injunction restraining the respondent\/Municipality from demanding and collecting the said payment etc and on 9.4.2002, the learned District Munsif, Tuticorin passed a Judgment in holding that the orders of assessment of property tax were illegal and contrary to law and the respondent\/Municipality had not preferred any appeal against the said Judgment and Decree passed in O.S.No.414 of 1999 dated 9.4.2002 and the same has become final between the parties and the same is also binding and to get over the said Judgment and decree passed in the suit, the respondent by making an endeavour, as if, the original orders of assessment itself were wrongly assessed and in fact the respondent\/Municipality has taken  a vindictive action against the petitioners and indeed the Municipality issued a notice dated 22.5.2002 mentioning, as if, there was an audit objections in regard to the assessment order to take effect from 1.4.1997 ,1.10.1997 and 1.10.1997 respectively, the assessment order to the buildings in issue, to show cause as to why the property could not be revised and the petitioners have presented their objections on 20.6.2002 opposing the revision of the property tax. But the respondent\/Municipality had not taken into account the objections raised by the petitioners and passed a mechanical and laconic orders on 22.7.2002 in Cur.A2\/17815\/02 (R.P.No.1\/02) in confirming the proposed revision of the tax as per notice dated 22.5.2002.\n<\/p>\n
\t4. Expatiating the submissions, the learned counsel for the petitioners contends that as per Section 89 of Tamil Nadu District Municipalities Act, an appeal could be preferred before the Taxation Appeals Committee established under Section 23(A) of the said  Act and the method of the disposal of the appeals had been provided under Section 89 of the said Act and therefore, the petitioners projected the appeal to the Taxation Appeal Committee but the respondent against whose order the appeal was preferred, rejected the appeal filed by the petitioners in proceedings dated 12.9.2002 assigning the reason that along with the memorandum of appeal, the petitioners had not remitted the property tax arrived at as per the said notice and resultantly dismissed the appeal and challenging the same, the writ petitioners have filed these writ petitions before this Court.\n<\/p>\n
\t5. Also, on the side of the petitioners, a plea is put forward to the effect that to employ Section 117(A) of the said Act, there ought to have been escaped assessment to any of the year or the case of the property tax, has not been duly assessed in any half year or year consequent on the building or land concerned having escaped proper determination of its annual value, then the Commissioner may, at any time within six years from the date on which such person should have been assessed serve on such person a notice assessing him to the tax or fee due and demanding payment there of within fifteen days from the date of such service etc and Section 117(A) of the Act cannot be applied to the property owned by the petitioners in any manner and even in the impugned order dated 22.7.2002, the respondent had not pointed out any of the suppression or errors or escaped materials while assessing the original orders of assessment and except appending a working sheet to the order dated 22.5.2002 being attached, the respondents had not stated anything in the said order and therefore, the said order is not valid one in the eye of law.\n<\/p>\n
\t6. That apart, it is the stand of the petitioners that if really the audit objections on the method of assessment made by the respondent\/Municipality, in the instant case, the respondent\/Municipality had not furnished the copy of the said audit objections to the petitioners and the non supply of audit objections or report at the threshold,  vitiates the impugned order.\n<\/p>\n
\t7. At this stage, it is useful for this Court to refer to Section 83 of Tamil Nadu District Municipalities Act (V of 1920),  which deals with determination of basic property tax, additional basic property tax,etc by Municipal Council:\n<\/p>\n
“1) The basic property tax, the additional basic property tax and  the concession, if any, with regard to the age, for every building or land shall be determined by the municipal council subject to the minimum and maximum rates prescribed by the State Government under Section 82.\n<\/p>\n
(2) The Municipal Council shall notify the rates determined under sub-section (1) and  such other particulars in such manner as may be prescribed.\n<\/p>\n
(3) (i)(a) The basic property tax for every building shall relate to the carpet area of the building and its usage.\n<\/p>\n
Provided that the carpet area of any building shall not include the open verandah, open court-yard or any other open space which is not enclosed.\n<\/p>\n
\t(b) The classification of the building  for the purpose of deciding the usage of any building shall be residential, commercial, industrial or any other classification as may be prescribed.\n<\/p>\n
\t(ii)(a) The additional basic property tax for every building shall relate to location and type of construction of the building.\n<\/p>\n
\tb) For the purpose of this clause, the location of the building shall be classified as follows:\n<\/p>\n
\tA) Arterial roads, bus-route roads leading to arterial roads and man roads
\n\tB) Bus -route roads other than those specified in item(A)
\n\t(C) roads and streets in primarily residential colonies.\n<\/p>\n
(c) The type  of construction of the building shall be classified into different groups as follows,namely:-\n<\/p>\n
\t(A) thatched and tiled roof,
\n         (B) reinforced concrete cement roof;\n<\/p>\n
       (C) reinforced concrete cement roof with mosaic flooring partly or fully.\n<\/p>\n
\t(D) granite, ceramic tiles and marble flooring and walls partly or fully\n<\/p>\n
        (iii) A concession on the basic property tax shall be allowed in calculating the property tax having regard to the age of the building in such manner as may be prescribed:”\n<\/p>\n
\t8. Significantly, Section 87 of the Act speaks of  the power of the executive authority to rectify error apparent on the face of the record either on his own motion or on an application made at any time within six months from the date of any order passed by him etc., <\/p>\n
\t9. A reading of Section 87  of the Act shows that no such rectification made by the executive authority,which has the effect of enhancing  an assessment and the same must be made by means of issuance of notice to the assessee viz., the petitioners and to hear them by providing a reasonable opportunity.\n<\/p>\n
\t10.As far as the present case is concerned, the respondent\/ Municipality had issued the proceeding dated 22.5.2002 by rectifying the defects in the calculation and issued amended notice in and  by which, for the tax assessment No. 321011, in Door No.259-B,V.E.Road, Tuticorin with effect from 1.4.1997,  the tax was  fixed at Rs.78,436\/- and in respect of Assessment No. 321287 in  260 ,V.E.Road, Tuticorin with effect from 1.10.1997, the tax was fixed at Rs.34,309 and in respect of Assessment No.321288 in Door No.261, the tax was determined at Rs.5,65,788\/- and the special notice for determining the property tax and the calculations were enclosed and if there was any objection, the  same could be raised by the petitioners in written, within thirty days from the date of receipt of a notice.\n<\/p>\n
\t11. The petitioners, for the above notice dated 22.5.2002, had submitted their written objections on 20.6.2002 by referring their brief objections dated 15.6.2002 and had also stated that the notice issued by the Municipality dated 22.5.2002 is an illegal and enforceable one because of the simple fact that the proposed enhancement of tax made in the notice of the Municipality dated 22.5.2002 was nothing, but a clear case of victimisation.\n<\/p>\n
\t12. The respondent\/Municipality had passed the impugned notice dated 22.7.2002 by confirming the property tax determined in the notice dated 22.5.2002 and therefore, directed the petitioners to pay the outstanding amount of property tax and to prefer an appeal within 15 days  from the date of receipt of the notice.  The petitioners  projected an appeal before the  Taxation Appeals Authority viz., The Chairman of the Municipal Council dated 13.8.2002 and the same  was dismissed by the respondent as per the notice dated 12.9.2002 mentioning that the petitioners along with their appeal had not paid  the said property tax and therefore their appeal was found to be not maintainable and dismissed the same.\n<\/p>\n
\t13. At this stage, this Court pertinently points out that Section 89 of the Tamil Nadu District Municipalities Act 1920 provides for an alternative remedy for filing of an appeal to the Taxation Appeals Committee and further the appeal is available to the District Judge and the assessment made can be effectively, agitated in an appeal as per decision M.L.Krishnamurthy-v- Government of Tamil Nadu and another(2007(5)CTC  465(DB). Further, this Court also points out that when a person is aggrieved by the assessment, he can prefer an appeal before the Taxation Appeals Committee and when no supporting documents produced disputing the correctness of the assessment of tax, it is not open to the assessee to agitate the assessment as per decision D.Ramani Mohan (decd) -vs- Commissioner , Krishnagiri Municipality(2008 (4) MLJ 1308)(Mad-NOC).\n<\/p>\n
\t14. The learned counsel for the petitioners submits that as per  Section 89 of the Tamil Nadu District Municipalities Act, Taxation Appeals Committee is to hear and dispose of the appeals preferred by the authorities etc and as per Section 89(4) of the Act ‘no appeal shall be entertained by the District Judge, unless the appellant deposits with the town panchayat or municipality, the entire amount of tax  as decided by the Taxation Appeals Committee and the appellant shall continue to deposit the property tax with the town panchayat, or, municipality as decided by the Taxation Appeals Committee till the disposal of the appeal by the District Judge and this provision cannot be made applicable to the petitioners in lieu of the patent and latent fact that the petitioners had projected the appeal to the Taxation Appeals Committee only and for preferring the appeal to the said Committee, no amounts much less amount of tax will have to be deposited as a condition precedent  and in fact under Section 89(4) of the Act will not apply to the petitioners’ case and only when the Taxation Appeals Committee decides an appeal against which further appeal is projected in that event only the petitioners will be perforced  to pay the entire amount of tax decided by the Taxation Appeals Committee. But in the instant case on hand, such situation  had not arisen and therefore the rejection of the appeal preferred by the respondent\/Municipality in its proceedings dated 12.9.2002 is perse   illegal in the eye of law.\n<\/p>\n
\t15. A reading of Section 89(4) of the Act shows that the payment of entire amount of tax determined by the Municipality is not a condition precedent for preferring an appeal before the Taxation Appeals Committee and the said entire amount of tax to be paid as envisaged by Section 89(4) of the Act  refers only to an appeal preferred as against the Taxation Appeals Committee’s order to the District Judge and therefore, this Court is in complete agreement with the contentions raised by the learned counsel for the petitioners to the effect that Section 89(4) of the Act is not applicable to the petitioners.\n<\/p>\n
\t16. That apart, it is relevant for this Court to point out that the term’ Natural Justice’ means justice according to conscience. Further the concept of Natural Justice is an integral part of Article 14 of the Constitution of India. In modern parlance , the term ‘Natural Justice’ means reasonableness or fairness.  The principles of Natural Justice are not embodied in a set of Rules or a codified Law. However, the same cannot be put into a straight jacket cast iron formula. It is needless to sate that the opportunity of providing reasonable  and fair hearing is made applicable to the Judicial orders , Administrative orders and even the Quasi-judicial orders to be passed by the appropriate authorities concerned. When a particular authority has not provided a reasonable opportunity of hearing to a  particular party in a given matter then, it is a clear case of negation  of principles of Natural Justice. In the instant case, it is quite evident that the impugned order of the respondent\/Municipality dated 22.7.2002 does not take into account either expressly or impliedly, the objections raised by the petitioners in their objections dated 20.6.2002 and the said order dated 22.7.2002 also suffers from lack of qualitative and quantitative particulars in not analysing  or discussing the objections raised and the authority concerned had not assessed the objections raised by the petitioners in their objections by applying their forensic skill in the manner known to law and therefore, it is suffice for this Court to point out that the order dated 22.7.2002  is devoid of reasoning and bereft of material particulars  and on this count, the same is vitiated in the eye of law.\n<\/p>\n
\t17. In the light of the above detailed discussions in qualitative and quantitative fashion and conspicuous of over all assessment of the facts and circumstances of the case, in an integral manner which float on the surface,  this Court comes to an inevitable conclusion that W.P.No.8669 of 2003 filed by the petitioners is to be allowed and accordingly the same is  allowed by setting aside the order dated 22.5.2002 in Rc.No.25125\/98-A2 as confirmed by the order in Cur.No.A2\/17815\/02 (R.P.No.1\/02)dated 22.7.2002 on the file of the Commissioner, Tuticorin Municipality Tuticorin.\n<\/p>\n
\t18. In the result, W.P.No.8669 of 2003 is allowed setting aside the
\nthe order dated 22.5.2002 in RC.No.25125\/98-A2 as confirmed by the order in Cur.No.A2\/17815\/02 (R.P.No.1\/02)dated 22.7.2002 on the file of the Commissioner, Tuticorin Municipality, Tuticorin leaving the parties to bear their own costs. The matter is remanded back to the respondent, who is directed to pass fresh orders on merits in the matter in issue, after providing due opportunity to the petitioners and further the respondent is directed to pass a reasoned and speaking order by thrashing out  all the contentions raised by the parties in the manner known to law. Equally liberty is granted by this Court to the petitioners to raise all factual and legal pleas before the respondent in the manner known to law and in this \t\t\t\t\t\t\t\tM.VENUGOPAL,J
\n\t\t\t\t\t\t\t\t\t\tsg
\nregard the respondent is directed to provide an ample opportunity to the petitioners and in any event, is further directed to dispose of the matter afresh within a period of eight weeks from the date of receipt of a copy of this order.\n<\/p>\n
\t20. W.P.NO.8670 of 2003:\n<\/p>\n
\t In view of the order passed by this Court in allowing W.P.No.8669 of 2003  nothing survives for adjudication in W.P.No.8670 of 2003 and further the learned counsel for the petitioners has also made an endorsement to that effect that the said writ petition may be dismissed as
\ninfructuous one and  accordingly the said writ petition is dismissed as an infructuous one. No costs. Consequently, connected W.P.M.Ps are closed.\n<\/p>\n
\t\t\t\t\t\t\t\t\t10.02.2010
\nIndex:Yes
\nInternet:Yes
\nsg
\nTo\n<\/p>\n
1. The Commissioner
\n    Tuticorin Municipality
\n    Tuticorin-628 001\n<\/p>\n
2. The  Chairman
\n    Taxation Appeals Committee
\n    Tuticorin Municipality
\n     Tuticorin\t\t\t\t\t\t     W.P.NOS.8669
\n\t\t\t \t\t\t\t\t\t& 8670 \/2003<\/p>\n
\t\t\t\t\t\t\t\tM.VENUGOPAL,J
\n\t\t\t\t\t\t\t\t\t\tsg<\/p>\n
\t\t\t\t\t\t\t\tW.P.NO.1176\/2003<\/p>\n
\t\t\t\t\t\t\t\t\t09.02.2010<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Johnson Fernando vs The Commissioner on 10 February, 2010 IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 10.02.2010 Coram TTHE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.Nos.8669 & 8670 of 2003 and W.P.M.P.Nos.11111 & 11113 of 2003 1. Johnson Fernando 2. Jonison Fernando 3. Santhanapitchai Fernando 4. Jackson Fernando .. Petitioners in both […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-178846","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nJohnson Fernando vs The Commissioner on 10 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/johnson-fernando-vs-the-commissioner-on-10-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Johnson Fernando vs The Commissioner on 10 February, 2010 - 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