JUDGMENT: This second appeal has arisen from the judgment and decree of the learned Principal District Judge, Ramanathapuram at Madurai made in A.S.No.54 if 1989, dated 24.1.1990 reversing the judgment and decree of the learned Subordinate Judge at Srivilliputtur in O.S. No.83 of 1986, dated 30.6.1988. 2. The appellant, R.C. Diocese of Madurai, through Procurator Rev. Fr.A.Vedamanickam, K.Pudur, Madurai has filed a suit to declare that the assessment No.35/85-86 issued by the defendant Municipality fixing the half yearly tax Rs.8,660 was arbitrary and illegal and consequential permanent injunction with the following averments. The property bearing D.No.115-A, Rajaji Road, Srivilliputtur belonged to the R.C. Diocese of Madurai. The said property was recently constructed in the church compound and it was leased to the Canara Bank, Srivilliputtur and the said Bank was paying a rent of Rs.3,400 per month. The property was assessed by assessment No.35. The defendant Municipality without making any inspection of the building and without any basis fixed the rent at Rs.4,600 per month and had levied a half yearly tax of Rs.8,660. The special notice issued was produced along with the plaint. The plaintiff had to pay the tax for the purpose of appeal and filed an appeal against the said decision. The appeal filed was dismissed by the Municipality. Under threat and coercion the Municipality had collected three half yearly tax amounting to Rs.25,780. The plaintiff submitted that the assessment order was illegal and arbitrary. The plaintiff was always ready and willing to pay to the defendant Municipality the lawful tax due. It has been held by the Supreme Court the basis of the Tax should be assessed according to the provisions in Rent Control Act. Admittedly, the defendant Municipality had not followed the procedure. Hence the assessment was illegal and has to be quashed. Hence, there arose a necessity for the plaintiff to file a suit for declaration tat the assess made by Municipality was illegal and for consequential relief. The plaintiff was always ready to pay the lawful tax due to the Municipality. 3. The said suit was resisted by the defendant Municipality with the following averments. The allegation in the plaint that Canara Bank, Srivilliputtur was paying a rent of Rs.3,400 was false. The plaintiff was always ready to pay the lawful tax due to the Municipality. 3. The said suit was resisted by the defendant Municipality with the following averments. The allegation in the plaint that Canara Bank, Srivilliputtur was paying a rent of Rs.3,400 was false. The allegation in the plaint that the defendant without making any inspection of the building and without any basis fixed the rent at Rs.4,600 per month and had levied half yearly tax of Rs.8,600 were also false. Under threat and coercion the Municipality had collected three half yearly tax amounting to Rs.25,980, the assessment order was illegal and arbitrary which were all false. The defendant received written information dated 30.4.1985 from M/s.Canara Bank, Srivilliputtur that the said bank was paying a sum of Rs.4,600 towards rent for their office premises from the date of occupation. The property tax for the building was assessed legally on the rental basis. The suit filed by the plaintiff questioning the lawful assessment was not maintainable. The plaintiff paid the property tax lawfully due to the defendant. The defendant was entitled to receive the same. As per the provisions of the District Municipalities Act, the plaintiff filed special revision petitioner before the Commissioner, Srivilliputtur Municipality. Since the assessment was lawful, the same was confirmed. The appeal filed by the plaintiff before the Special Officer, Srivilliputtur Municipality was dismissed, as it was belated. The plaintiff cannot question the assessment in the civil Court and the jurisdiction of the civil Court was ousted. The plaintiff can invoke the jurisdiction of the civil Court only when there was no basis at all for the levy of tax. The levy of tax was based on the letter of the tenant. The civil Court was not a Court of appeal against the property tax assessment when it was made lawfully. There was no cause of action for the suit and hence the suit has got to be dismissed. 4. The learned Subordinate Judge on the above pleadings framed the necessary issues, tried the suit and decreed the same as asked for. On appeal by the defendant Municipality, the learned District Judge in the aforestated appeal reversed the judgment of the trial Court and dismissed the suit. Aggrieved over the same, the plaintiff has brought forth this second appeal. 5. The learned Subordinate Judge on the above pleadings framed the necessary issues, tried the suit and decreed the same as asked for. On appeal by the defendant Municipality, the learned District Judge in the aforestated appeal reversed the judgment of the trial Court and dismissed the suit. Aggrieved over the same, the plaintiff has brought forth this second appeal. 5. At the time of admission, the following substantial questions of law were formulated by this Court for consideration: (1) Whether the Court below had applied the correct principles of law while deciding the case? (2) Whether the Court below had overlooked the procedure for fixation of fair rent under the Rent Control Act, for assessment of annual value of the building under Sec.82 of the District Municipality Act? (3) Whether the Court below had considered the correct distinction between the words “rental income derived from the property” and “the annual letting value of the building” for due consideration of an assessment order? 6. What is challenged herein is the judgment of the lower appellate Court setting aside the judgment of the trial Court wherein a decree was granted in favour of the appellant herein in a suit challenging the assessment made by the respondent Municipality in respect of a building of the appellant. The learned counsel appearing for the appellant inter alia would submit that the lower appellate Court should have held that Srivilliputtur Municipality the respondent herein had not proved that it followed the Rent Control Act or the annual rental value as prescribed in the District Municipalities Act; and hence ought to have dismissed the appeal confirming the considered judgment of the trial Court; that the annual rental value of the building was to be decided independently by the Municipality before levy of tax according to the judgment of the Hon’ble Supreme Court of India, in The Guntur Municipal Council v. Guntur Town Rate Payers’ Association, (1971)2 M.L.J. (S.C.) 7: (1971)2 An. W.R. (S.C.) 7: (1971)2 S.C.J. 142: A.I.R. 1971 S.C. 353 and followed by number of judgments of our Hon’ble High Court; that the assessment prepared by D.W.1 on the basis of Ex.B-3 dated 21.6.1985 was unsustainable in law and the same was arbitrary, illegal and without jurisdiction; that there was no provision for D.W.1 to assess and levy tax on the rental income derived from the building and the illegal assessment made by D.W.1 on the basis of rental income alone taking it as the annual letting value of the building was not sustainable under law and was without jurisdiction; that D.W.1 has not deducted the expenditure incurred by the appellant herein for providing amenities and maintenance charges and was therefore not maintainable; that Ex.B-3 which includes charges for amenities provided could not be the sole basis for determining the annual letting value of the building; that the Municipality, the respondent herein having assessed the building without making any inspection of the building has fixed the annual rental value of the building ought not to have allowed the appeal; that there was no legal basis for the annual assessment made by the defendant viz. Srivilliputtur Municipality and ought to have confirmed the decree of the trial Court; that the lower appellate Court has not considered the distinction between the words “rental income derived from property” and “the annual letting value of the building” before reversing the well considered judgment of the trial Court and under such circumstances, the judgment of the first appellate Court has got to be set aside and the judgment of the trial Court has got to be restored. 7. 7. Vehemently opposing all the above contentions, the learned counsel for the respondent would submit that the judgment of the lower appellate Court has got to be confirmed in view of the sound reasoning adduced therefor to sustain the assessment made by the respondent Municipality; that it is pertinent to note that the building belonged to the appellant was occupied by the Branch of the Canara Bank at Srivilliputtur and the communication received from the tenant wherein it was found that the monthly rent was Rs.4,600 was also formed basis for making the assessment therein and apart from that it is not correct on the part of the appellant to state that the building was not inspected; that the witness examined by the respondent Municipality had spoken to the fact that the inspection was made before fixing the annual rental value and making the assessment and the revision and appeal filed before the Municipality and the Special Officer were dismissed only after full consideration; that the respondent Municipality has followed strictly the provisions, rules and regulations provided under the Tamil Nadu District Municipalities Act in fixing the tax; that the trial Court without proper consideration of the evidence adduced by the parties granted the relief which was rightly set aside by the first appellate Court and hence the judgment of the first appellate Court has got to be sustained. 8. Admittedly the immovable property situated in door No.115-A, Rajaji Road, Srivilliputtur belonged to the plaintiff Diocese and it was also a newly constructed one. The respondent Municipality made a fresh assessment in respect of the said building and fixed the half yearly tax at Rs.8,660 on the basis of the annual rental value of the building viz., Rs.55,200. What was contended by the appellant before the Courts below and equally here also is that the said assessment made by the respondent Municipality in respect of the said building was arbitrary and illegal, in view of the fact that without making any inspection whatsoever and without following the provisions of the Rent Control Act the said annual rental value was fixed. Disputing the same, it was contended by the respondent Municipality that a proper inspection of the building was made and only on the written information received from M/s.Canara Bank, Srivilliputtur Branch that the said Bank was paying a sum of Rs.4,600 towards rent for their office premises situated in the said building, the assessment of the property tax was made and thus it was valid, legal and in accordance with the provisions of the District Municipalities Act 1920. In order to prove the case, the plaintiff examined one Susai as PW1 and marked Exs.A-1 to A-4. The respondent Municipality examined the Revenue Inspector as D.W.1 and marked two documents as Exs.D-1 and D-2. 9. It was specifically pleaded in the plaint and stated by the witness on the appellant’s side that there was no inspection of the property in question before fixing the annual rental value and thus it was arbitrary. It would be quite evident from the testimony of D.W.1 the Revenue Inspector that no inspection of the building could have taken place at all. The witness was unable to say what was actually the plinth area or any other particulars regarding the construction of the building either, or he did not know that was the value per square feet also. Ex.A-1, dated 4.7.1988 was a notice served on the plaintiff as to the tax assessment in question. It did not contain any particulars how the annual rental value was arrived at and thus the Court has to necessarily agree with the appellant that without making any inspection of the building, the annual rental value has been fixed at Rs.55,200 and on that basis the tax was arrived at Rs.8,660. 10. The second contention that was put forth by the appellant’s side was that the annual rental value was fixed by the respondent Municipality without strictly following the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act in fixing the annual rental value. It is pertinent to point out that it is not pleaded by the respondent Municipality that the annual rental value was fixed in accordance with the Tamil Nadu Buildings (Lease and Rent Control) Act. But without making an inspection, the respondent Municipality has simply acted on Ex.B-1 communication alleged to have been received from the Canara Bank, wherein it was stated that the monthly rental was Rs.4,600. But without making an inspection, the respondent Municipality has simply acted on Ex.B-1 communication alleged to have been received from the Canara Bank, wherein it was stated that the monthly rental was Rs.4,600. It is not a case where the plaintiffs has rushed to Court without existing the procedural formalities or the remedies available under the Act, because admittedly the appellant has filed an appeal and following the same, a revision also, as seen from Exs.B-2 and B-3. Nowhere it is stated that any opportunity of being heard was given to the appellant to put forth his case at any point of time, after the objection has been raised by him. Even at those stages also, despite the appeal and revision made by the appellant questioning the assessment as arbitrary and illegal, the respondent Municipality did not care to consider the same or to follow the provisions of the Rent Control Act to fix the annual rental value, but has dismissed the same. 11. As rightly pointed out by the learned counsel for the appellant, the respondent Municipality has fixed the annual rental value without adhering to the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act to arrive at the annual rental value of the building in question. A reading of the written statement would clearly indicate that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act were not followed while valuing the building in question. Following the decision of the Hon’ble Apex Court reported in The Guntur Municipal Council v. Guntur Town Rate Payers’ Association, (1971)2 M.L.J. (S.C.) 7: (1971)2 An. W.R. (S.C.) 7: (1971)2 S.C.J. 142: A.I.R. 1971 S.C. 353,this Court in a case reported in K.Govindarajan v. Madurai Corporation, (1984)1 M.L.J. 15 has held thus: "In fixing the annual rental value of the building situated within Municipality the provisions of the Rent Control Act must be followed." This Court in a decision reported in Chellammal v. Alandur Municipality, (1992)2 M.L.J. 299 has held thus; "A reading of the decision of the Supreme Court in The Guntur Municipal Council v. Guntur Town Rate Payers’ Association, (1971)2 M.L.J. (S.C.) 7: (1971)2 An. W.R. (S.C.) 7: (1971)2 S.C.J. 142: A.I.R. 1971 S.C. 353, would make it clear that the basis of assessment should only be fair rent worked out as provided in Sec.4 of the Tamil Nadu Buildings (Lease and Rent Control) Act. W.R. (S.C.) 7: (1971)2 S.C.J. 142: A.I.R. 1971 S.C. 353, would make it clear that the basis of assessment should only be fair rent worked out as provided in Sec.4 of the Tamil Nadu Buildings (Lease and Rent Control) Act. The mere fact that the Commissioner also took into consideration the provisions of the Rent Control Act while arriving at the annual value on the basis of actual rent received by the landlord from the tenant would not suffice. In the absence of evidence to indicate that the Municipality assessed the properties on the basis of fair rent worked out under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act the assessment cannot stand and it will be contrary to the dicta laid down by the Supreme Court in the decision referred to above. When the basis of the levy itself is wrong or that there is no basis at all for the levy and in that sense there is no substantial compliance with the provisions of the Municipalities Act, it is open to the Civil Court to declare the levy as illegal and in fact it is its duty to do so." 12. In view of the aforestated decisions without any hesitation it can be held that the assessment made by the respondent Municipality in respect of the building of the appellant in question was not in accordance with the procedures contemplated in law to arrive at the annual rental value. On the contrary, the available evidence would be indicative of the fact that the fixation of the annual rental value by the respondent Municipality was only arbitrary and it has got to be necessarily set aside. The lower appellate Court without proper appreciation of the evidence adduced and without following the correct settled proposition of law in that regard has set aside the judgment of the trial Court. Therefore, for the reasons stated and discussions made above, the Court is of the view that the judgment of the lower appellate Court has got to be set aside. 13. In the result, this second appeal is allowed and the judgment and decree of the lower appellate Court are set aside. Suit is decreed declaring that the assessment in respect of the suit property, as found in the plaint is arbitrary and not in accordance with law. Parties shall bear their costs.