CoramThe Honourable Mr v. The Executive officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 16-2-2007CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.P.No.15454 of 1998W.M.P.No.23302 of 1998Concord Industries,251 (Old 98) Old Mahabalipuram Road,Sozhanganallur,Chennai - 600 119.rep.by its partner,Sanjay Ramaswami...PetitionerVs.1.The Executive officer,Sozhanganallur Panchayat Town,Chennai - 600 119.2.President,Town Panchayat,Town of Sozhanganallur,Chennai - 600 119....RespondentsPrayer:Writ petition filed under Article 226 of Constitution of India,praying this Court to issue a writ of Certiorarified Mandamus calling forthe records of the first respondent relating to the assessment No.278dated 23.9.1998 towards the property tax of the factory premises ofConcord Industries, situate at No.251 (Old 98), Old Mahabalipuram Road,Sozhanganallur, Chennai - 600 119, quash the same and issue a writ ofmandamus forbearing the respondents from proceeding further with theassessment until the Panchayat Town is duly constituted a fresh tax islevied and a fresh assessment is made in accordance with law after issuingdue and proper notice to the petitioner.For Petititioner:Mr.UmashankarFor Respondent:Mr.G.SankaranGovernment AdvocateO R D E RBy consent of the learned counsel appearing for the petitioner aswell as the learned Government Advocte appearing for the respondents, thewrit petition is taken up for final disposal. https://hcservices.ecourts.gov.in/hcservices/

2.Prayer in the writ petition is to quash the the assessmentNo.278 dated 23.9.1998 towards the property tax of the factory premises ofConcord Industries, situate at No.251 (Old 98), Old Mahabalipuram Road,Sozhanganallur, Chennai - 600 119, and to forbear the respondents fromproceeding further with the assessment until the Town Panchayat is dulyconstituted and a fresh tax is levied and fresh assessment is made inaccordance with law after issuing due and proper notice to the petitioner.3.The brief facts necessary for disposal of the writ petition areas follows.(a)Petitioner is a partnership firm carrying on business ofpulverising and manufacturing pesticide formulations and grinding otherminerals. The registered Office of the partnership firm is at 54-A,Justice V.Ramasamy Road, Kamaraj Avenue, Adyar, Chennai-20, and itsfactory is located at No.251 (Old No.98) Old Mahabalipuram Road,Sozhanganallur, Chennai -119.(b)The revenue village of Sozhanganallur was classified andconstituted as Town Panchayat under the provisions of the Tamil NaduPanchayat Act, 1958. The Town Panchayat levied house tax in respect offactory building at Rs.1,890/- per year and the petitioner was paying thesame. (c)In April, 1994, petitioner received a notice dated 21.4.1994issued under section 161 of the Tamil Nadu Panchayat Act, 1958, statingthat the property had been assessed from 1987-88 onwards at Rs.7,560/- peryear and from the year 1992-93 onwards the tax payable was Rs.7,920/- peryear. Petitioner protested the said demand stating that no notice of anyrevision was given to the petitioner and the increase was illegal andcontrary to the provisions of the Tamil Nadu Panchayat Act, 1958.(d)Petitioner received another notice dated 23.3.1995 issued underRule 36 of Schedule IV of the Tamil Nadu District Municipalities Act,1920, as amended, for which the petitioner sent a reply. Respondentthereafter issued lawyer's notice on 24.8.1995, wherein it was stated thatthe tax was revised under the quinquinnial revision at Rs.7,560/- per yearand a revision notice was served on the staff/employee of the petitionerfirm on 19.4.1998. The name of the staff on whom the notice was servedand later on demand notices were served on 8.12.1998 and 2.3.1989 to oneM.Muthiah.(e)It is the case of the petitioner that the said Muthiah was nevera member of the staff of the firm and he was only a temporary menial dailyworker in the factory and he was not employed subsequent to 1986.Petitioner sent a reply in September, 1995, to the lawyer's notice,refuting all the allegations. No reply was received thereafter, however adistraint notice dated 29.6.1998 was received, for which the petitionersubmitted reply on 29.6.1998 and 3.7.1998, for which no reply is received.The respondents again issued a distraint warrant dated 23.9.1998 and https://hcservices.ecourts.gov.in/hcservices/ stated that unless the tax is paid by 29.9.1998, the articles at theresidents of the Managing Partner will be distrained after 11.00 a.m. on5.10.1998.(f)The said distrained order dated 23.9.1998 is challenged in thiswrit petition on the ground that the provisions of the Tamil NaduPanchayat Act, 1958, and the rules relating to assessment and collectionof tax applicable to the Town Panchayat were not followed and the rulesprovide for general revision once in five years and also certainprocedures to be followed were not followed. It is also the case of thepetitioner that the respondents shall publish a notice in at least oneTamil newspaper, on the notice board of the Panchayat office and in suchother places within the Panchayat limits as may be specified by thePanchayat and by beat of drums of its intention, to fix reasonable periodnot less than one month for submission of objections and only afterconsidering the objections, revision can be made.(g)It is also the case of the petitioner that if there isenhancement in the assessment of tax, the Executive Authority shall causeintimation by a special notice to be served on the owner or occupier ofthe house concerned and for submitting objections 60 days time shall begiven from the date of service of such notice.(h)'Owner' is defined under Section 2(a) of the Act. 'Occupier' isnot defined in the Tamil Nadu Panchayat Act, 1958, but is defined undersection 3 of the Tamil Nadu District Municipalities Act, 1920, wherein itis stated that 'any person for the time being paying or liable to pay tothe owner, the rent or any portion of the rent of the land or building orpart of the same in respect of which the word is used.' On the basis ofthe said definition it is contended that the alleged service of notice onone Muthirah is not service either to the owner or occupier.(i)It is also contended that there is steep increase in the tax,that is, from Rs.1,890 per year prior to 1987-1988 to Rs.7,560/- per yearfrom 1987-1988 onwards, which is equal to 400 percentage of increase andthere is no rhyme or reason and the mandatory procedures for increase ofthe tax is not followed. In the year 1994, the Town Panchayats werebrought under the District Municipalities Act and therefore the impugnednotice issued under the Tamil Nadu Panchayat Act, 1958, is unsustainableand the respondents can issue notice only under the Tamil Nadu DistrictMunicipalities Act, 1920.4.The respondents have filed counter affidavit wherein it isstated that as per the provisions of the rules, resolutions were passed bythe Town Panchayat for reviewing the property tax and the same waspublished in the newspaper. The notice of the proposed revision wasserved to one of the staff of the petitioner firm viz., Thiru M.Muthiahand necessary signatures were also obtained from him for having receivedthe special notice and the petitioner having not filed anyobjection/revision seeking reduction of property tax, a demand notice was https://hcservices.ecourts.gov.in/hcservices/ served on the said Muthiah, who is a staff of the petitioner firm and eventhereafter petitioner failed to remit the property tax. Since thepetitioner has not made any representation against the revision ofproperty tax within the stipulated time, he lost the chance for gettingreduction in property tax. It is further stated that notice was served onthe petitioner pertaining to the year 1987-88 (second half year), forwhich also no response was shown by the petitioner. Therefore attachementnotice was served on the petitioner on 23.9.1999. Despite the same,petitioner did not pay the property tax. It is also stated in para 9 ofthe counter affidavit that had the petitioner felt that the levy ofproperty tax is in excess, he could have conveyed the same through hisrepresentation within a period of sixty days from the date of levying taxand a special notice having been served on the petitioner and thepetitioner having failed to make any representation, the revision ofproperty tax was confirmed.5.Since the controversy is in respect of service of notice and thenon-receipt of revision/objection, the learned counsel for the petitioneras well as the learned Government Advocate addressed their argument onthat aspect alone, without going into the merits of the matter.6.As the notice was served to one Muthiah, who according to therespondent is one of the staff of the petitioner firm, which is denied bythe petitioner, there is a real controversy with regard to service ofnotice on the owner or occupier of the premises. Even assuming that thesaid Muthiah was in employment of the petitioner firm, he cannot betreated as an 'occupier' of the building as he was only an employee.Since it is specifically pleaded and argued that no notice is served tothe petitioner, I am of the view that the respondents have not servednotice as contemplated under the provisions of the Act either under theTamil Nadu Panchayat Act, 1958, or under the Tamil Nadu DistrictMunicipalities Act, 1920. Therefore, the impugned order is liable to beset aside and accordingly set aside, without expressing any opinion on themerits of the contentions of either party.7.The learned counsel appearing for the petitioner during hisarguments submitted that the present Managing Partner of the petitionerpartnership firm is Mrs.Sarojini Ramasamy. The respondents are directedto issue notice to the petitioner firm with regard to revision of propertytax for the periods in question within two weeks from the date of receiptof copy of this order in the name of the present Managing partner of thePetitioner partnership firm to the residential address viz., Mrs.SarojiniRamasamy, No.54-A, Justice V.Ramasamy Road, Kamaraj Avenue, Adyar,Chennai-20. It is open to the petitioner firm to submit its objections, ifany, within two months and on receipt of such objection/representation,the respondents are directed to consider the same and pass orders thereonon merits and in accordance with law, in any event within three monthsfrom the date of receipt of such representation/objection. https://hcservices.ecourts.gov.in/hcservices/ The writ petition is disposed of in the above terms. No costs.Connected miscellaneous petition is closed.vr/Sd/-Assistant Registrar,/ture copy/Sub Assistant Registrar.To1.The Executive officer, Sozhanganallur Panchayat Town,Chennai - 600 119.+ One cc to Mr. M. Umashankar, Advocate SR 9292AVA (co)sg 22/2/07 Order in W.P.No.15454 of 199816-2-2007