P.Senthilkumar v. The Principal Secretary

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE: 18.06.2019

CORAM

THE HONOURABLE MR.JUSTICE M.SUNDAR W.P.Nos.13673 and 13679 of 2019 W.P.No.13673 of 2019 P.Senthilkumar .. Petitioner Vs.

1.The Principal Secretary Municipal Administration and Water Supply Department Secretariat Chennai - 600 009 2.The Commissioner of Municipal Administration Chepauk Chennai- 600 005 3.The District Collector Thirupur 4.The Commissioner Dharapuram Municipality Dharapuram Tiruppur District .. Respondents Writ Petition is filed under Article 226 of the Constitution of India, seeking for a Writ of Certiorari calling for the entire records relating to online order dated nil, relating to D.No.25/6, for which Old/New Assessment number is 154/026/02736 on the file of 4th respondent and quash the same. W.P.No.13679 of 2019 P.Senthilkumar .. Petitioner Vs.

The Commissioner Dharapuram Municipality Dharapuram Tiruppur District .. Respondents

Writ Petition is filed under Article 226 of the Constitution of India, seeking for a Writ of Certiorari calling for the entire records relating to online order dated nil, relating to D.No.96/74, for whichi Old/New Assessment number is 154/027/00362 on the file of respondent and quash the same. For Petitioner : Mr.K.Sudhakar in both WP's For Respondents : Mr.R.P.Pratap Singh Government Advocate for R1 to R3 in WP No.13673/2019 Mr.N.K.Ponraj for Mr.P.Srinivas Standing Counsel for R4 in WP No.13673/19 & sole respondent in WP No.13679/19

O R D E R

This common order will dispose of both these writ petitions.

2.Writ petitioner is same in both these writ petitions and Mr.K.Sudhakar, counsel on record for writ petitioner in both these writ petitions is before this Court. In W.P.No.13673 of 2019 Mr.R.P.Pratap Singh, learned Government Advocate is before this Court on behalf of Respondents 1 to 3. On behalf of fourth respondent i.e., Commissioner of Dharapuram Municipality, Mr.N.K.Ponraj, learned counsel representing Mr.P.Srinivas, learned standing counsel for Dharapuram Municipality is before this Court. In W.P.No.13679 of 2019, there is only one respondent and the sole respondent is Commissioner of Dharapuram Municipality. On behalf of sole respondent in W.P.No.13679 of 2019, Mr.N.K.Ponraj, learned counsel representing Mr.P.Srinivas, learned standing counsel for Dharapuram Municipality is before this Court.

3. With the consent of aforesaid counsel, the main writ petitions itself are taken up and are being disposed of.

4. Subject matter of these writ petitions is, enhancement of half yearly property tax for two different properties owned by the writ petitioner.

5. Short facts shorn of elaboration, particulars and details or in other words factual matrix imperative for disposal of instant writ petitions are as follows:

a) Writ petitioner owns an immovable property at Door No.25-6, Nachimuthu Puthur Cross Street, N.P.Nagar, Dharapuram, Tiruppur District, Pin-638 656. This shall be referred to as 'said property - I' for the sake of convenience and clarity. The other immovable property owned by the writ petitioner is at Door No.96/74, Gandhipuram, Dharapuram, Tiruppur District, Pin-638 656 (hereinafter 'said property -II' for the sake of convenience and clarity).

b) It is the case of the writ petitioner that when the writ petitioner checked the official website of Dharapuram Municipality (hereinafter 'said Municipality' for brevity), it came to light that half-yearly property tax for said property-I and said property-II has been shown at a much higher rate i.e., higher than the obtaining rate at which the writ petitioner is now paying and consequently shows that writ petitioner is in arrears though property tax at existing rate has been paid.

.

c) To be noted, writ petitioner has annexed property tax receipts to show that he has paid property tax upto the current half year i.e., 1/18-19 at the prevailing rate. It is the specific case of writ petitioner that the aforementioned enhancement has been made without any notice i.e., pre-assessment notice / provisional assessment and without giving opportunity to the writ petitioner to object to the same.

d) In the aforesaid circumstances, instant writ petitions have been filed assailing hard copies of purported outstanding property tax downloaded from the official website of said municipality.

6. From the narrative of factual matrix supra, it would be clear that the case of the writ petitioner is that there has been upward revision / enhancement of property tax.

7. To be noted, it is submitted that with regard to said property -I, property tax has been enhanced from Rs.28,911/- per half year to Rs.44,764/-. With regard to said property-II, the enhancement is from Rs.5,285/- to Rs.10,570/-.

8. To be noted, with regard to said property-I, though the tax receipt showing payment at the existing rate of Rs.28,911/- for I/18-19 has been paid, with regard to said property-II, tax receipt shows payment only upto I/17-18. Writ petitioner submits that payment upto current half year will be made within a fortnight from the date of receipt of a copy of this order, if not already made.

9. Be that as it may, learned Government Advocate on behalf of Respondents 1 to 3 in W.P.No.13673 of 2019 submits that there are Government Orders pertaining to general revision and that the said municipality has embarked upon the exercise of enhancement of property tax only pursuant to such Government Orders as part of general revision.

10.Mr.N.K.Ponraj, learned counsel representing Mr.P.Srinivas, learned standing counsel for said Municipality makes a submission in tandem i.e., that the enhancement of property tax is pursuant to Government Orders.

11. The issue in the instant writ petitions is not whether the said Municipality is entitled to enhance the property tax or not. The issue is, procedure for enhancement of Property tax has not been followed.

12. In this regard, there is no dispute or disagreement that this matter is governed by 'District Municipalities Act, 1920 (Tamil Nadu Act V of 1920)' ('said Act' for brevity) as obtaining today. It is also not dispute that the Commissioner of said Municipality will be the authority vested with powers for enhancement of property tax under said Act.

13. A perusal of structure and scheme of said Act reveals that a procedure and a methodology has been prescribed for assessment/enhancement of property tax. In the instant case, there is nothing on record to show that procedure has been followed.

14. In this regard, dealing with enhancement of Property Tax by Chennai Corporation, a Hon'ble single judge of this Court vide order dated 04.02.2019 made in W.P.No.3231 of 2019 following the principle laid down by a Hon'ble Division Bench in Sanjai Gupta Vs. The Commissioner, Corporation of Chennai reported in 2009 (2) CTC 465 has held that with regard to enhancement of property tax, there has to be a provisional assessment, an opportunity has to be given to the assessee to object to the same and a final Assessment Order can be passed only after considering the objections of the assessee. It has been held as a sequitur that demand for property tax can be made only after final assessment.

15. In the light of the aforesaid narrative, this Court passes the following order:

a) impugned hard copies of downloads from official website of Dharapuram Municipality showing arrears / balance of property tax qua writ petitioner with regard to said property-I and said property-II are set aside. To be noted, these are set aside solely on the ground that existing property tax has

been enhanced without making a provisional assessment and without giving an opportunity to the assessee to object to the same and no opinion is expressed on merits of the matter;

b) Writ petitioner undertakes to pay halfyearly property tax at the existing rate of Rs.28,911/- for said property-I and Rs.5,285/- for said property - II within the time frame prescribed under the rules in this regard under the said Act. If there is delay or default on the part of the writ petitioner in paying the property tax at the existing rate, it will be open to the said Municipality to proceed against the writ petitioner for recovery of the same.

c) With regard to enhancement, said Municipality shall issue a fresh provisional assessment to the writ petitioner within a fortnight from the date of receipt of a copy of this order copy, call for objections from the writ petitioner within another fortnight therefrom and pass final assessment orders in accordance with law, more particularly in accordance with said Act and applicable Rules thereunder within four weeks there from.

d) The final assessment of property tax made in the aforesaid manner shall be communicated to the writ petitioner under due acknowledgement within seven working days from the date of final assessment being made.

e) Though obvious, it is made clear that it is open to the writ petitioner to seek statutory appellate remedy available under the statutes against the final assessment and this order will not impede this process, if the writ petitioner chooses to adopt such a course.

These writ petitions are disposed of with the above directions. No costs. Consequently, connected miscellaneous petitions are closed.

Sd/- Assistant Registrar(CCC) //True copy// Sub Assistant Registrar gpa

To 1.The Principal Secretary Municipal Administration and Water Supply Department Secretariat Chennai - 600 009 2.The Commissioner of Municipal Administration Chepauk Chennai- 600 005 3.The District Collector Thirupur 4.The Commissioner Dharapuram Municipality Dharapuram Tiruppur District +2cc to Mr.K.Sudhakar, Advocate SR.No.49391 +1cc to Mr.P.Srinivas, Standing Counsel, Advocate SR.No.49764 +1cc to Government Pleader, High Court, Madras SR.No.50153 W.P.Nos.13673 and 13679 of 2019 & W.M.P.Nos.13728 and 13730 of 2019 RSK(CO) GMY(10/07/2019)