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2004 DIGILAW 17 (AP)

T. Padmavatamma v. Srikakulam Municipality

2004-01-06

P.S.NARAYANA

body2004
( 1 ) TURAMALLA Padmavatamma, the unsuccessful plaintiff in O. S. No. 77 of 1984 on the file of Principal District Munsif, Srikakulam and the appellant in A. S. No. 35 of 1986 on the file of District Judge, Srikakulam which was renumbered as A. S. No. 61 of 1986 on the file of Principal Subordinate Judge, Srikakulam, had preferred the present second appeal. Sri. K. S. Murthy, the learned Counsel for the appellant had raised the following substantial question of law: whether the enhancement of half yearly tax in respect of the appellant building by the respondent Municipality from Rs. 84/- to Rs. 350/- per half year is capricious, arbitrary and not in accordance with the settled principles of law. The learned counsel had pointed out that no enhancement was made in relation to the other half portion of building and hence enhancement in relation to the subject matter in controversy definitely cannot be sustained. The learned Counsel had pointed out to the findings recorded in this regard by the court of first instance and also by the appellate court as well in detail. The learned counsel also contended that the suit as filed is maintainable in the light of the ratio laid down by the Division Bench of this court in Shantilal Bazaz Vs. Municipal Council, Visakhapatnam AIR 1983 AP 199 . ( 2 ) SRI. D. SRINIVAS, the learned Counsel representing Srikakulam Municipality-the successful defendant in both the courts below, had pointed out to special notice Ex. A1 and the reasons recorded thetrin. Ex. A2 is the revision copy and Ex. A3 is the notice for hearing in relation to the revision petition. Ex. A4 is the endorsement made by the respondent municipality reducing the tax from Rs. 350/- to Rs. 336/ -. The counsel also pointed out to Ex. B1 the assessment order prepared by the Commissioner at the time of inspection and the reasons mentioned therein. The learned counsel would maintain that the entire procedure had been complied with and also in the light of the guidelines in this regard the assessment was made in accordance with law. The learned counsel also would maintain that at any rate this is a question of fact and in view of the concurrent findings recorded by both the courts below, such findings deserve no disturbance in the second appeal. The learned counsel also would maintain that at any rate this is a question of fact and in view of the concurrent findings recorded by both the courts below, such findings deserve no disturbance in the second appeal. The learned counsel also submitted that only under certain specified circumstances as laid down by the Division Bench in Shantilal Bazaz Vs. Visakhapatnam Municipality, a civil suit is maintainable and not otherwise. ( 3 ) HEARD both the counsel and perused the findings recorded by the court of first instance as well as by the appellate court. The appellant/plaintiff filed O. S. No. 77 of 1984 on the file of Principal District Munsif, Srikakulam for a declaration that the special notice No. 15/83-84 in respect of the property covered by assessment No. 3932, revising the tax from Rs. 84/- to Rs. 336/- is arbitrary and illegal and for a consequential relief of permanent injunction restraining the defendant/municipality from collecting tax at the enhanced rate together with the costs of the suit. The Plaintiff pleaded in the plaint as hereunder: the plaintiff is the owner of the property covered by assessment No. 3932, situated in 7th ward in Srikakulam Municipality and the tax per half year for the property is Rs. 84/- and that the plaintiff has put in an application to raise a stair-case to the existing terrace and the defendant accorded permission for additional construction of a small dining hall cum stair case and before the dining hall is put under use, the defendant has issued a special notice 15/83-84 enhancing the tax from Rs. 84/- to Rs. 350/- per half year and that no portion of building is let out to any body nor received any rents and that the plaintiff has submitted a revision petition on which the tax was reduced to Rs. 236/- per half year and that the defendant is bound to take into consideration the fair rent fixed by the Rent Controller and that the action of the defendant is arbitrary, capricious and illegal and the fixation of the tax is liable to be set aside. ( 4 ) THE respondent-defendant Srikakulam Municipality filed a written statement denying all the allegations. It was further pleaded that it is false to allege that no inspection is made before the enhancement of tax. ( 4 ) THE respondent-defendant Srikakulam Municipality filed a written statement denying all the allegations. It was further pleaded that it is false to allege that no inspection is made before the enhancement of tax. It was also pleaded that the inspection was done on 25-03-1983 and thereafter a special notice was issued. As an additional construction was made the tax was reassessed by taking into consideration the type of construction, accommodation, rents prevailing in the locality. The house fetches a monthly rental of Rs. 250/ -. The plaintiff rushed to the court without exhausting the statutory remedies. Hence, the suit is premature and liable to be dismissed in limine. ( 5 ) ON the strength of the respective pleadings of the parties, the following issues were settled by the court of first instance; 1 ). Whether the plaintiff is entitled for a declaration that the special notice 15/83-84 of the Assessment No. 3232 is arbitrary as pleaded by the plaintiff? 2 ). Whether the plaintiff is entitled for a consequential permanent injunction as mentioned in the plaint? 3 ). Whether this court has no jurisdiction to try this suit? 4 ). To what relief? ( 6 ) DURING the trial, P. W-1, the son of the plaintiff was examined and Exs. A1 to A4 were marked and likewise the evidence of D. W-1 was recorded and Ex. B1 assessment order prepared by the Commissioner dated 27-09-1983 was marked. On appreciation of the oral and documentary evidence, the court of first instance, holding that Ex. B1 order by itself is self-explanatory giving the data to show how the rental value was arrived at, dismissed the suit. Aggrieved by the same, A. S. No. 35 of 1986 on the file of District Judge, Srikakulam was preferred which was transferred and renumbered as A. S. No. 61 of 1986 on the file of Principal Subordinate Judge Srikakulam and the appellate court after framing a relevant point for consideration at para-8 and recording findings at para 9 and 10 in detail, had confirmed the judgment and decree made by the court of first instance. Aggrieved by the same, the present second appeal is filed. ( 7 ) IN Shantilal Bazaz Vs. Aggrieved by the same, the present second appeal is filed. ( 7 ) IN Shantilal Bazaz Vs. Municipal Council, Viskhapatnam a Division Bench of this court at paras 19 and 22 held as hereunder: section 376 of the Municipalities Act, to the extent relevant is as follows: no assessment or demand made, and no charge imposed under the authority of this Act shall be questioned or affected by reason of any clerical error or by reason of any mistake (a) in respect of the name, residence, place of business or occupation of any person or (b) in the description of any property or thing, or (c) in respect of the amount assessed, demanded or charged, provided that the provisions of this Act have been, in substance and effect, complied with; and no proceedings under this Act shall, merely for defect in form, be quashed, or set aside by any Court; section 376 bars the filing of the suit in respect of the procedure adopted and also any defect in form and mistakes with respect to the amount assessed, demanded or charged; but however, saves the disputes regarding the non-compliance or deviation of the provisions of the Act. In a situation where there is an infraction of the provisions of the Act, it cannot be said that the suit is not maintainable. Further in a suit for recovery of tax, it is open to the defendant to plead that both the levy and collection of tax are illegal. The plea of the defendants in this case is that the levy of assessment of tax deviates from the provisions of Section 87 of the Act. The essence of the plea is that the assessment is not in conformity with Section 87 (2) (b) which says that the rent received is the basis for assessing the rental value. The estimate of value or the assessment on the basis of rent by the lessee or the tenant is far remote from the intention of Section 87 (2) (b) and as such, the plea in defence is maintainable. ( 8 ) IT is also contended that the remedy is open to the defendants by way of an appeal under R. 22 of Sch. 1 of the Municipalities Act; and as such this plea is not maintainable. ( 8 ) IT is also contended that the remedy is open to the defendants by way of an appeal under R. 22 of Sch. 1 of the Municipalities Act; and as such this plea is not maintainable. It must be borne in mind that the defendants have not initiated action and they are defending themselves against the onslaught of the illegal and invalid assessment and collection pursuant to the same. They are not questioning the quantum of assessment as such; but the basis of assessment. In the circumstances, the suit is not barred; much less the plea in defence against the suit filed by the Municipality. ( 9 ) THERE is no serious controversy between the parities relating to the maintainability of the suit provided the conditions specified in the ratio laid down by the Division Bench are satisfied. This question need not detain this court any longer especially in the light of the concurrent findings recorded by both the courts below on the basis of the reasons given in Ex. A1 and also Ex. B1. Srikakulam Municipality, in fact had arrived at the correct conclusion while making the assessment, since the reasons recorded in Ex. B1 are self-explanatory, they need not be further supplemented in any way. It is needless to say that it is predominantly a question of fact. Except this question, no other question had been canvassed. Hence, I do not see any substantial question of law involved in the second appeal warranting interference under Section 100 of the Code of Civil Procedure. Consequently, the second appeal shall stand dismissed. No costs.