{"id":188662,"date":"2008-03-06T00:00:00","date_gmt":"2008-03-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-kuzhithurai-municipality-vs-the-secretary-of-kanyakumari-on-6-march-2008"},"modified":"2014-02-17T03:22:25","modified_gmt":"2014-02-16T21:52:25","slug":"the-kuzhithurai-municipality-vs-the-secretary-of-kanyakumari-on-6-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-kuzhithurai-municipality-vs-the-secretary-of-kanyakumari-on-6-march-2008","title":{"rendered":"The Kuzhithurai Municipality vs The Secretary Of Kanyakumari … on 6 March, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
The Kuzhithurai Municipality vs The Secretary Of Kanyakumari … on 6 March, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED:  06\/03\/2008\n\nCORAM\nTHE HONOURABLE MR. JUSTICE R.SUDHAKAR\n\nC.R.P.NPD(MD) No.97 to 116 of 2008\nC.R.P.NPD(MD) No.160 to 168, 219 to 222 and 340 to 359\nand 413 of 2008\n\n\nThe Kuzhithurai Municipality,\nRepresented by its Commissioner,\nVettuvanni,\nMarthandam Post,\nNalloor Village, Vilavancode Taluk,\nKanyakumari District.\t\t\t\t... Petitioner\n\nVs.\n\nThe Secretary of Kanyakumari Diocese\n(CSI), Nagercoil, Represented by the\nPresent Secretary,\n71-A, Dennis Street, Nagercoil,\nKanyakumari District.\t  \t\t\t... Respondent\n\n(Cause title amended vide order of\n Court dated 22.02.2008 made in\n M.P.(MD) Nos.1 of 2008 in\n CRP(NPD) Nos.97 of 116 of 2008 by\n RSJ)\n\nPrayer\n\nPetition filed under Article 227 of the constitution of India, to set\naside the judgment and decree passed C.M.A.Nos.15 to 36, 38 to 61 of 2005 and 5\nto 12 of 2006 dated 31.07.2007 on the file of the District Judge, Kanyakumari\nDistrict at Nagercoil.\n\n!For Petitioner  ... Mr.C.Raja Kumar\n^For Respondent  ... Mr.K.N.Thambi and\n\t\t     Mr.Sreekumaran Nair\n\t\t\t\t\t\t\t\n:ORDER\n<\/pre>\n
\tThe above Civil Revision Petitions have been filed by the Kuzhithurai
\nMunicipality to set aside the judgment and decree passed in various Civil
\nMiscellaneous Appeals dated C.M.A.Nos.15 to 36, 38 to 61 of 2005 and 5 to 12 of
\n2006 dated 31.07.2007 on the file of the District Judge, Kanyakumari District at
\nNagercoil.\n<\/p>\n
\t2. When these Civil Revision Petitions came up for admission, the learned
\ncounsel for the revision petitioner\/Municipality referred to the provisions of
\nthe Tamil Nadu District Municipalities Act, particularly to the provisions of
\nthe Amending Acts 65 of 1997 and 34 of 1998.  It was stated that the said notice
\nwas issued under Rule 9 of Schedule IV of Tamil Nadu District Municipality Act,
\n1920 and confirmed by the Municipality.  The matter was taken on appeal to the
\nTaxation Appeal Committee in terms of Section 89 of the Amending Acts 65 of 1997
\nand 34 of 1998 and further appeal has been preferred to the District Court,
\nNagercoil in terms of Section  89(3) of the Amending Acts 65 of 1997 and 34 of
\n1998.\n<\/p>\n
\t3. In one of the edition of the Madras Law Journal publication relating to
\nthe Tamil Nadu District Municipalities Act, it is published as hereunder:
\n\t” ‘To be read after the existing foot note 1 to Section 81 of the Act’
\nGovernment have not notified the date of coming into force of the Amending Acts
\n65 of 1997 and 34 of 1998.  Till the amendment Acts are notified, by the
\nGovernment, the erstwhile provisions relating to property tax in Section 81 to
\n91 would be in force.”\n<\/p>\n
A doubt arose  as to whether the filing of appeal before the Taxation Appeals
\nCommittee and further appeal to the District Judge under Section 89(3) of the
\nAmending Acts 65 of 1997 as amended by Act 34 of 1998 is valid as the said
\namending Act 65 of 1997 and 34 of 1998 were not notified.  Therefore, while
\nissuing notice of admission to the respondent, this Court requested the
\nAdditional Advocate General Mr.T.Raja, to assist the Court and clarify the
\nposition with regard to the two Tamil Nadu Municipal Laws (Second Amendment) Act
\n65 of 1997 and Act 34 of 1998 and the consequence thereof.\n<\/p>\n
\t4. Shri.T.Raja, the learned Additional Advocate General, the counsel for
\nthe Municipality Shri. Raja Kumar and the two of the counsel appearing for the
\nrespondent viz. Shri.K.N.Thambi and Shri.Sreekumaran Nair, submitted their
\narguments.  Based on the arguments made by the respective counsel it become
\nclear that the order under challenge passed by the District Judge in Civil
\nMiscellaneous Appeals in terms of Section 89 of the Amending Act was one without
\njurisdiction. The issue in all the Civil Revision Petitions narrowed down to the
\nquestion of law, as to whether the order under challenge is passed by a Court
\nhaving jurisdiction and hence they are taken up for final disposal as the merits
\nof the case will be of no relevance at the point of time.\n<\/p>\n
\t5. The brief facts of the case of the revision petitioner:
\n\tThe respondent is the owner of several shops  in Nagercoil, Kanyakumari
\nDistrict.  They were assessed to property tax by the Municipality.  A circular
\nfor general revision was issued by the Commissioner for Municipal Administration
\non 09.01.1993, which document was marked as Ex.R1, before the lower authority.
\nAs per Ex.R1 a direction to Municipal Councils and Township Committees was
\nissued to take up quinquennial revision of property tax from 01.04.1993.  As per
\nthe guidelines given under the Circular, in the year 1993 Special Notices were
\nissued under Rule 9 of Schedule IV of Tamil Nadu District Municipality Act,
\n1920.   On that earlier occasion the respondents herein filed Writ Petition
\nNo.19491 of 1994, challenging the notice issued by the Municipality seeking to
\nenhance  the tax in general revision.  This Hon’ble Court in the year 2001 set
\naside the individual notices issued by the municipality and remanded the matter
\nto the Municipal authority on the ground that no reason has been given in the
\nnotice for general revision of tax.  The Municipality was directed to issue
\nfresh notice under Rule 9 of the said Act.  Accordingly, 54 fresh notices were
\nissued on 09.03.2002 by the Municipality calling upon the respondent to file
\nobjection, if any.  It appears that the respondent did not given any reply.
\nTherefore, the enhanced revision as per notice were confirmed on 10.06.2002.
\nThereafter a series of communication ensued between the municipality and the
\nrespondent.  The respondent requested the municipality to give them further time
\nto give their objection and also sought for the copy of the notice issued under
\nRule 9. It was indicated that substantial amounts have been paid towards the tax
\npursuant to orders of Court.  This was stated in  respondent’s letter dated
\n16.02.2002.  On 19.03.2003, the Municipality finally informed the respondent
\nthat if there is no proper reply from the respondent, they will treat the matter
\nas final and closed.  On 08.05.2003, after sufficient time and proper
\nintimation, the municipality confirmed the notice issued as per rule 9 of
\nSchedule IV of Tamil Nadu District Municipality Act, 1920.  This was
\ncommunicated in e.f.vz;.1619\/94\/m1 dated 08.05.2003, indicating that the
\nrespondent has a right to file appeal.  On 27.06.2003, the respondent was
\ndirected to pay the arrears of tax.  Once again, the respondent by letter dated
\n24.07.2003  requested the municipality to issue a fresh Rule 9 notice and for
\nsufficient opportunity to file revision or appeal against the assessment of tax.
\nIt was suitably replied by the municipality on 09.08.2003 stating that notice
\nunder Section 9 was properly served and all the objections raised were rejected.
\nOn 29.12.2003, a duplicate copy of the notice issued under Section 9 Schedule IV
\nof the Tamil Nadu District Municipality Act was given to the respondent. The
\nMunicipality also demanded the payment of tax as determined by them.\n<\/p>\n
\t7. Aggrieved by the enhancement of tax, the respondent filed appeals
\nbefore the Taxation Appeals Committee. The Taxation Appeals Committee reduced
\nthe amount of tax marginally by various orders dated 16.07.2004 and the
\nMunicipality gave effect to such order.  As against the order of the Taxation
\nAppeals Committee dated 16.07.2004, signed by the Commissioner on 19.07.2004 and
\nduly served, the respondent filed appeals before the District Court, Nagercoil
\nas provided under Section 89(3) of the District Municipality Act, 1920, amending
\nAct 65 of 1997, which were taken on file by the District Court, Nagercoil as
\nCivil Miscellaneous Appeals.  After a full fledged enquiry, taking into
\nconsideration all aspects of the claim of the respondent passed the impugned
\njudgment and decree further reducing the tax. The Municipality aggrieved  by the
\nJudgment and Decree passed by the District Judge  are before this Court in
\nrevision.\n<\/p>\n
\t8. At the outset, without going into the merits as regards the quantum of
\ntax as ordered by the Taxation Appeals Committee and modified by the District
\nCourt in appeal, the first issue that has to be considered by this Court is on
\nthe very nature of the proceedings before the Taxation Appeals Committee and the
\njurisdiction of the District Judge, to entertain the appeal under Amending Acts
\n65 of 1997  as amended by Act 34 of 1998, which were not notified.  A circular
\nis placed before this Court by Mr.T.Raja, Additional Advocate General, which
\nreads as follows:\n<\/p>\n
\t“In Amending Acts 65 of 97 and 34 of 98, certain sections of Tamil Nadu
\nDistrict Municipalities Act and other Corporation Acts, were amended.  The
\namendments mainly relate to property tax management in Municipalities &
\nCorporations.  In Section-2 of Act No.65 of 97, it is specifically indicated
\nthat the amendments would come into effect from the date on which the effective
\ndate is notified by the Government.  In Act no No-34 of 98, which is an amending
\nAct for 65 of 97, eventhough it has been mentioned that it would come into
\nimmediate effect, since the main Act of 65 of 97 itself is yet to be made
\neffective, Act No.34 of 98 also not come into effect.\n<\/p>\n
\tIn the situation, the 2002 & 2003 editions of Tamil Nadu District
\nMunicipalities Act published by the Madras Law Journal office, Chennai, contain
\nthe amendments have been given effect by Government, these amendments should not
\nbe implemented.  Till the amendments are notified by Government, to come into
\neffect, the erstwhile provisions relating to property tax viz. Section 81 to 91
\nin respect of Municipalities and similar erstwhile section of Corporations would
\nbe deemed to be in force.\n<\/p>\n
\tThe above position is to be borne in mind while handling property tax
\nitems.”\n<\/p>\n
\t9. While it is true that the Taxation Appeals Committee in terms of
\nSection 89 of Amending Act 65 of 1997, does not have the force in the eye of
\nlaw.  The Taxation Appeals Committee does exists as provided under Section 23-A
\nof Tamil Nadu District Municipalities Act, 1920, which was inserted by Tamil
\nNadu Act, 16 of 1989, which reads as follows:\n<\/p>\n
\t“23-A. Taxation Appeals Committee. – Notwithstanding anything contained in
\nthis Act.\n<\/p>\n
\t(1) For every Municipality, there shall be a Taxation Appeals Committee
\nwhich shall consist of the chairman of the municipal council who shall also be
\nthe chairman of the Taxation Appeals Committee. (and four councillors selected
\nby the council)
\n\t(2) the business of the Taxation Appeals Committee shall be transacted in
\naccordance with the rules made by the State Government in the behalf.”
\nSince the amending Act 65 of 1997 and 34 of 1998 are not in force, the
\nconsequence thereof will be the provisions of the Tamil Nadu District
\nMunicipality Act, 1920, de hors the amending Act will be applicable.  Therefore
\nin so far as the property tax is concerned Section 81(2) and 91 will be
\napplicable.  Schedule IV of the Tamil Nadu District Muncipality Act, 1920,
\nprovides the manner in which the appeals are to be dealt with.  The relevant
\nSections are 23, 23-A, 24, 25, 26, 26-A. Section 23-A of Schedule IV was omitted
\nby Act XXX of 1970 and inserted as Section 23-A by Act 16 of 1989 as stated
\nabove.  Therefore, even though amending Act 65 of 1997 was not notified, the
\nTaxation Appeals Committee remains in the statue by virtue by Section 23-A of
\nthe Tamil Nadu District Municipality Act, 1920.  The Schedule IV provides for
\npayment of certain amounts of property tax as determined by the appropriate
\nauthority.  The only difficulty that arises now is with regard to the remedy to
\nthe aggrieved owner of the property against the order passed by the Taxation
\nAppeals Committee.\n<\/p>\n
\t10.  It was submitted by the Additional Advocate General as well as the
\nlearned counsel appearing for the Municipality, the order passed in Taxation
\nAppeals Committee is proper and in terms of Section 23-A of the Act. However,
\nthe further appeal to the District Judge, under Section 89(3) of the Amending
\nAct, filed by the respondent herein is without jurisdiction and the judgment and
\nthe decree is a nullity as it has been passed by a forum which lacks
\njurisdiction.  It was therefore contended that the judgment and decree passed in
\nall the C.M.A.s challenged in these revision petitions should be set aside.\n<\/p>\n
\t11. In the light of the circular issued stating that the two amending Acts
\nhave not been notified, it is apparent that the provisions of Section 81(2) and
\n89 of Amending Acts 65 of 97 and 34 of 98 does not have force in the eye of law.
\nTherefore, the question will be whether the order passed by the  District Court
\ncan be saved even though such proceedings were not supported by the statutory
\nprescription.  The immediate answer to the above issue falls from the decision
\nof the Honourable Supreme in the case of Kiran Singh and others v. Chaman Paswan
\nand others<\/a> reported in AIR 1954 SUPREME COURT 340.  In the said decision an
\nissue arose as to whether an appeal from the decree of subordinate Judge will
\nlie to the District court or to the High Court based on the valuation in the
\nplaint, which was subsequently amended.  Further question that arose was if as
\nper the original valuation, the District Court having entertained the appeal and
\npassed a decree and judgment, if found to be later not competent to hear the
\nappeal on the ground of lack of jurisdiction, whether the decree and judgment
\ncan be saved or is it a nullity.  In paragraph 6 of the above said decision the
\nHonourable apex Court held as follows:\n<\/p>\n
\t“6. The answer to these contentions must depend on what the position in
\nlaw is when a Court entertain a suit or an appeal over which it has not
\njurisdiction and what the effect of Section 11 of the Suit Valuation Act is on
\nthat position.  It is a fundamental principle well-established that a decree
\npassed by a Court without jurisdiction is a nullity and that its invalidity
\ncould be set up whenever and wherever it is sought to be enforced or relied
\nupon, even at the stage of execution and even in collateral proceedings.  A
\ndefeat of jurisdiction, whether it is pecuniary or territorial or whether, it is
\nin respect of the subject-matter of the action, strikes at the very authority of
\nthe Court to pose any decree, and such a defect cannot be cured even by consent
\nof parties. If the question now under consideration fell to be determined only
\non the application of general principles governing the matter, there can be no
\ndoubt that the District, Court of Monghyr was coram non judice, and that its
\njudgment and decree would be nullities.  The question is what is the effect of
\nSection 11 of the Suits Valuation Act on this position.”\n<\/p>\n
In view of the decision of the Honourable Supreme Court as above and the fact
\nthat the amending Act 65 of 1997 as amended by Act 34 of 1998 has not been
\nnotified, the judgment and decree passed by the District Court in terms of
\nSection 89 of Amending Act 65 of 1997 will be without any jurisdiction and
\ntherefore such an invalid order cannot be sustained.\n<\/p>\n
\t12. If the remedy pursued by the respondent before the District Court is
\nnot available under the statute then what is the remedy available.  There are
\nvarious decisions of this Court for over two decades which answers the point as
\nwell when the owner of the property is aggrieved by the determination of the
\namount of property tax, they have resorted to file the civil suit.  A number of
\ndecisions have been reported, which is as hereunder:\n<\/p>\n
\t\t\t1. 1953(1) MLJ 128\n<\/p><\/blockquote>\n
\t\t\t2. 1978(1) MLJ 121\n<\/p><\/blockquote>\n
\t\t\t3. 1980(1) MLJ 140\n<\/p><\/blockquote>\n
\t\t\t4. 1992(1) LW 110\n<\/p><\/blockquote>\n
\t\t\t5. 1993(2) MLJ 262\n<\/p><\/blockquote>\n
\t\t\t6. 2001(3) MLJ 815\n<\/p><\/blockquote>\n
\t\t\t7. 2002(1) MLJ 391<\/p>\n<\/blockquote>\n
\t13. Therefore the order passed by the Taxation Appeals Committee in terms
\nof Section 23-A is within jurisdiction. A contention was made by Mr.K.N.Thambi,
\nlearned counsel appearing for the respondent that the order was not passed by
\nthe Appellate Committee, but by the Commissioner.  Therefore, there is an
\ninfirmity in the order and it is without reason.  That can be challenged before
\nthe Civil Court or appropriate forum as may be advised.  It is only the appeal
\nbefore the District Judge filed pursuant to Section 89 of the Amending Act 65 of
\n1997 and Act 34 of 1998, and the judgment and decree passed that will be without
\njurisdiction and nullity.  The respondent have challenged the order passed by
\nthe Taxation Appeals Committee and seriously pursued  the same before the
\nDistrict Court but under provisions of law which is not notified.   If the
\nrevision petitioner challenges the same before a proper forum, the question of
\nlimitation has to be gone into by the said forum, keeping in mind the provisions
\nof Section 14 of the Limitation Act, 1963.\n<\/p>\n
\t14. In the result, all the revision petitions are allowed and the judgment
\nand decree dated 31.07.2007, passed in C.M.A.Nos.15 to 36, 38 to 61 of 2005
\nand 5 to 12 of 2006, on the file of the District Judge, Kanyakumari District at
\nNagercoil are set aside.  Considering the fact that both the petitioner as well as
\nthe respondent have been pursuing the matter under the misconception of law,
\nthere will be no order as to the costs.\n<\/p>\n
sj<\/p>\n
To
\n  The District Judge,
\n  Kanyakumari District
\n  At Nagercoil.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Kuzhithurai Municipality vs The Secretary Of Kanyakumari … on 6 March, 2008 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 […]<\/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-188662","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Kuzhithurai Municipality vs The Secretary Of Kanyakumari ... on 6 March, 2008 - 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\/the-kuzhithurai-municipality-vs-the-secretary-of-kanyakumari-on-6-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Kuzhithurai Municipality vs The Secretary Of Kanyakumari ... on 6 March, 2008 - 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