Research › Browse › Judgment

Kerala High Court · body

1971 DIGILAW 49 (KER)

Sherthallai Municipality v. St Marys Church

1971-02-24

POKYARATHU UNNIKRISHNA KURUP, T.S.KRISHNAMOORTHY IYER

body1971
JUDGMENT T.S. Krishnamoorthy Iyer, J. 1. The appeal is by the plaintiff-Municipal Commissioner who is the executive authority of the Sherthallai Municipal Council in O.S. 4.30 of 1957 on the file of the additional Munsiff's Court, Sherthallai. 2. The suit is for recovery of Rs. 1263.75 being the property tax due from the defendants for the second half of 1954-55 and the first half of 1955-56. Though the suit was decreed by the Trial Court and the lower appellate court this court in second appeal dismissed the same reversing the decisions of the courts below. The appeal is filed against the judgment and decree in the second appeal after obtaining leave. 3. The learned single judge dismissed the suit on the grounds that the Commissioner has not obtained the approval of the Municipal Council as required by S.372 (g) of the Travancore District Municipalities Act XXIII of 1116 to institute the suit and that the suit is not maintainable as there was no demand made in time in accordance with R.30 (3) of the Taxation and Finance Rules. S.372 (g) of the Travancore District Municipalities Act, 1116 (Act XXIII of 1116) reads :- "The executive authority may- (g) with the approval of the council, institute and prosecute any suit or withdraw from or compromise any suit 01 claim which has been instituted or made in the name of the municipal council or of the executive authority." Learned Counsel for the plaintiff has filed C.M.P. 1467 of 1971 producing the resolution passed by the Municipal Council, Sherthallai on 31-8-1957 directing the Municipal Commissioner to file the suit for the recovery of the property tax due from the defendants. It was contended on behalf of the plaintiff that the issue framed in the suit viz, "is the plaintiff not competent to sue for the Municipal Council has placed the burden on the defendants and therefore the plaintiff was misled into thinking that the burden is on the defendants. The submission cannot be ruled out as Without any basis. In view of the circumstances we are of the view that for a proper disposal of the suit it is not necessary to admit the fresh document as additional evidence in the appeal. We therefore mark the resolution as Ex. P-8. The original minutes book also was produced before us and there is absolutely nothing to discredit the veracity of the resolution. We therefore mark the resolution as Ex. P-8. The original minutes book also was produced before us and there is absolutely nothing to discredit the veracity of the resolution. In view of this resolution we have to hold that there has been approval by the Municipal Council as contemplated by S.372 (g) of the District Municipalities Act (Act XXIII of 1116). 4. The next question to be considered is whether the suit is maintainable. The learned Judge was of the view to sustain the suit it is necessary that the plaintiff should have served a notice or direction on the defendants within the half years in question when the tax is said to have become due or in the succeeding half years as required by R.30 (3) of the Taxation and Finance Rules. It is therefore necessary to examine the relevant provisions of the Travancore District Municipalities Act (Act XXIII of 1116). Section 85 of the Act reads: "The property tax shall be levied every half-year and shall, save as otherwise expressly provided in Schedule II, be paid by the owner of the assessed premises within thirty days after the commencement of the half-year." Section 133 of the Act provides that the Rules and tables embodied in Schedule II shall be read as part of Chapter VI of the Act dealing with Taxation and Finance. Schedule II of the Act contains the Taxation and Finance Rules. R.9. "When assessment books have been prepared for the first time and whenever a general revision of such books has been completed, the executive authority shall give public notice stating that revision petitions will be considered if they reach the municipal office within a period of sixty days from the date of such notice in the case of the Government or a company, and of thirty days from the said date in other cases. The notice shall be affixed to the notice board of the municipal office and on the same day be published in the Municipality by beat of drum". The notice shall be affixed to the notice board of the municipal office and on the same day be published in the Municipality by beat of drum". Rule 13 reads :- "Immediately after the disposal of a revision petition the executive authority shall inform the petitioner or his authorised agent, either orally or in writing, of the orders passed thereon, shall direct him to pay the amount fixed on revision within fifteen days after the date of receipt of such intimation or, if the amount is not due, within fifteen days from the date on which it becomes due, and shall, if necessary, cause the assessment books to be corrected." R.12 provides for a reasonable opportunity to be given to the assessee to represent his case before the authorities either in person or by authorised agent. R.30 reads: "30 (1) Where any tax not being a tax in respect of which a notice has to be served under S.94 or 102 or in respect of which a direction has to be given under R.13 is due from any person, the executive authority shall serve upon such person a bill for the sum due before he proceeds to enforce the provisions of R.31. (2) A notice under S.94 or 102 and a bill under Sub-Rule (1) shall be signed by the executive authority and shall contain (a) a statement of the period and a description of the occupation, property or thing for which the tax is charged; and (b) a notice of the liability incurred in default of payment. (3) Where a notice, bill or direction referred to in sub-rule (1) has not been served or given either in the half year in which the tax became due or in the succeeding half-year the tax for the half year first mentioned in this sub-rule shall not be demanded: Provided that where the assessment books have been amended under R.4, the notice, bill or direction, as the case may be, given either in the half-year in which the amendment was made or in the succeeding half-year". The view taken by the learned Judge is based on R.30, Sub-rule (3) quoted above. The property tax due in this case is as a result of the assessment books prepared for the first time. The defendants filed a revision under R.13 of the Taxation and Finance Rules. The revision was dismissed. The view taken by the learned Judge is based on R.30, Sub-rule (3) quoted above. The property tax due in this case is as a result of the assessment books prepared for the first time. The defendants filed a revision under R.13 of the Taxation and Finance Rules. The revision was dismissed. The defendants therefore filed O. P. 245 / 1955 before the Travancore Cochin High Court to quash the order of dismissal. The said order was set aside and the revisional authority was directed to dispose of the revision petition afresh. It was observed in the decision in the O.P.: "The Church (1st defendant) filed a revision petition which it is admitted has been disposed of without due compliance with the provisions of R.12 of Schedule II to the Travancore District Municipalities Act, 1116. In view of this 1 must hold that the disposal of the revision petition was not propel, that it should be heard and disposed of strictly in accordance with the provisions of R.12, and that no action should be taken against the petitioner except in pursuance of the fresh disposal" The decision of the original petition was on the 13th September, 1956. Thereafter the revision petition was again dismissed on 11-10-1956. The defendants again sought to quash the order in O.P. 329 of 1956. In view of the submission on behalf of the executive authority that a suit would be filed for the recovery of the amounts due towards property tax from the defendants the petition was dismissed on the 18th July, 1957. Counsel for the plaintiff contended that since the revision petition was finally disposed of only on 11-10-1956 the bill or direction to be served under R.30(3) has to be issued only in that half-year or in the next half-year, in which case, the suit is maintainable. This contention does not appear to have been raised in this form before the learned single Judge. 5. Ex. P-1 is the assessment register for Ward No. 17 of the Sherthallai Municipality. The tax sought to be recovered in the suit is based on Ex. P-1. It is not disputed that the defendants have filed revision petition under R.9 of the Taxation and Finance Rules and it was disposed of only in October 1956. 5. Ex. P-1 is the assessment register for Ward No. 17 of the Sherthallai Municipality. The tax sought to be recovered in the suit is based on Ex. P-1. It is not disputed that the defendants have filed revision petition under R.9 of the Taxation and Finance Rules and it was disposed of only in October 1956. When assessment books are prepared for the first time R.9 gives the assessee the right of filing a revision and R.12 obliges the authority to give reasonable opportunity to the assessee to represent his case either in person or through an agent. The direction to be issued under R.13 is only after the disposal of the revision petition. The tax will become due only thereafter. It is not possible to make any demand or the property tax in cases covered by R.9 before the disposal of the revision petition. The property tax Will thus become due within the meaning of R.30(1) of the Taxation and Finance Rules only alter the disposal of the revision petition and the notice, bill or direction under R.30(3) has to be served either in the half-year in which the revision petition is disposed of or in the succeeding half-year. The words "in the half-year in which the tax become due" in R.30 (3) of the Taxation and Finance Rules have to be interpreted in that context. Our view gains support from the observations in Rangayya Appa Rao v. Boobba Sriramulu (ILR 27 Madras 143 (P.C.) We are therefore satisfied that the suit is sustainable. 6. There was faint submission by counsel for the respondents that the procedure prescribed for the levy of property tax under the Act was not followed by the Municipal Council. After hearing counsel on both sides we do not find any substance in this contention. We therefore, set aside the decision of the learned single Judge and restore the decision of the Trial Court. The appeal is allowed but the parties will bear their costs in all the courts.