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2015 DIGILAW 1530 (MAD)

Commissioner, Avadi v. S. Palanichamy

2015-03-19

T.S.SIVAGNANAM

body2015
Judgment :- 1. Both these review applications are directed against the order passed in W.P.No.22541 of 2009 dated 14.11.2011. 2. Review Application No.206 of 2012 has been filed by the Commissioner, Avadi Municipality, who is the 1st respondent in the writ petition. 3. Review Application No.207 of 2012 has been filed by the writ petitioner himself. 4. The prayer in the writ petition was for issuance of a writ of certiorarified mandamus to quash the demand letter dated 01.09.2008 issued by the Commissioner, Avadi Municipality and to direct him to refund the excess amount of Rs.1 36 876/- collected from the writ petitioner as property tax. 5. The contention raised by the writ petitioner was that in terms of sub section 4 of Section 84 of the Tamil Nadu District Municipalities Act, 1920,(hereinafter referred to as "the Act"), a property which is less than 2400 sq.ft. cannot be assessed to property tax and by relying upon a circular, the writ petitioner filed the writ petition. Neither the Commissioner nor the CMDA appeared before the Court. Recording the same, this Court, taking note of the circular and upon perusing proviso to Section 84 of the Act, observed that no property tax can be levied if the extent of area is less than 2400 sq.ft. and since as per the sale deed produced by the petitioner the extent is only 2164 sq.ft., held that there can be no levy of property tax and accordingly, allowed the writ petition. 6. It is true that the Municipality did not appear before the Court. However, it is brought to the notice of this Court that the Municipality had filed a counter affidavit in the writ petition and the principal objection was that the writ petitioner cannot place reliance on Section 84(4)(b) of the Act for the reason that the said proviso was never notified and it did not come into force. Therefore, it is submitted that no order could have been passed by relying on the said proviso. 7. In the light of the stand taken in counter affidavit, which appears to have not placed before the Court for consideration, question of quashing the impugned order may not arise, since the Municipality has to be heard in the matter. Therefore, it is submitted that no order could have been passed by relying on the said proviso. 7. In the light of the stand taken in counter affidavit, which appears to have not placed before the Court for consideration, question of quashing the impugned order may not arise, since the Municipality has to be heard in the matter. Further, it is seen that this issue was taken note of by this Court in Second Appeal (MD) No.37 of 2007 dated 05.09.2007 (K.R.Abirami vs. The Kumbakonam Muncipality) and also in S.A.(MD)NO.1039 of 2009 dated 22.01.2010 (K.R.Gowri Sedhuraman vs. The Kumbakonam Municipality). 8. In the light of the above, this Court is of the view that the order passed in the writ petition is required to be set aside and the matter has to be heard on merits afresh, after hearing all the parties. 9. Sofar as review application filed by the writ petitioner himself, the review is with regard to the measurements. In the light of the fact that this Court is of the considered view that the order requires to be recalled, the matter has to be re-heard, no separate orders are required to be passed in Review Application No.207 of 2012. 10. In the light of the above, Review Application No.206 of 2012 is allowed and the order dated 14.11.2011 passed in W.P.No.22541 of 2009 is set aside and the writ petition is restored to the file of this Court to be heard and decided afresh on merits. In the light of the order passed in Review Application No.206/12, since no orders are required in Review Application No.207/12, the same is closed. No costs. Post the writ petition for final hearing during the second week of April 2015.