A. Valliammal v. Urban Land Tax Appellate Tribunal (Principal Sub Judge), Tiruchirapalli.2. The Assistant Commissioner

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.07.2007CORAMTHE HONOURABLE Mr. JUSTICE P.D.DINAKARANandTHE HONOURABLE MR. JUSTICE P.P.S. JANARTHANA RAJAWrit Appeal Nos.192 & 193 of 2003A. Valliammal.. Appellant in both the appealsVs1. Urban Land Tax Appellate Tribunal (Principal Sub Judge), Tiruchirapalli.2. The Assistant Commissioner, Urban Land Tax, Trichy. .. Respondents in both the appealsWrit Appeals under Clause 15 of Letters Patent against the commonorder dated 25.10.2002 made in Writ Petition Nos.13848 and 13849 of 1996. Prayer in WP.13848 and 13849 of 1996 writ petition filed underArticle 226 of constitution of India praying for issuance of certiorari tocall for records pertaining to the order made in ULT CMA.70/91 and 71/91dated 7.6.1996 by the Tamilnadu Urban Land Tax Appellate Tribunal,Trichy(Principal Subordinate Judge Court), Trichy viz the 1st respondent hereinconfirming the order made in ULTC.No.22/1391/Sengulam/ 1 and 2 dated15.7.1991 by the Asst.Commissioner of ULT Trichirapalli, the 2ndrespondent herein.For Appellant .. Mr.K.ChandrasekaranFor Respondents .. Mr.Haja Nazrudeen Spl. Govt. Pleader (T) https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T(Delivered by P.D.DINAKARAN, J.)The correctness of the order passed by the Assistant Commissioner ofUrban Land Tax, Trichirapalli, dated 15.7.1991 made under Section 11(2)/11(3) read with Section 5-C and 40-A of the Tamil Nadu Urban Land Tax Act,is the issue that arises for our consideration in the above writ appeals.2.1. The Tamil Nadu Urban Land Tax Act, 1966 (hereinafter referred toas "the Act") is intended to provide for the levy of tax on urban land inthe State of Tamil Nadu. Section 2(13) of the Act defines the urban landand the same reads as hereunder:"Urban land" means any land which is used or is capableof being used as a building-site and includes garden orgrounds, if any, appurtenant to a building but does notinclude any land which is registered as wet in the revenueaccounts of the Government and used for the cultivation ofwet crops.Explanation: For the purposes of this clause, any site onwhich any building has been constructed shall be deemed tobe urban land.2.2. Section 2(13) of the Act together with the explanationthereunder, brings within the ambit of taxation, the land occupied by abuilding also, because when a building is put up, the land as such ceasesto exist, as the building cannot stand in vacuo and the land and buildingbecome inseparable so long as the building stands. The value of thebuilding includes the value of the land normally. When the building issubjected to tax in various forms, the tax falls on the land also.Consequently, the question arises as in the instant case whether merely byexistence of a building in an agricultural land, the land ceased to be theagricultural land. 3. According to the appellant/writ petitioner, she owns an extent of4.36 and 2.54 acres of land in Survey Nos.7/2 and 8, Sengulam village,Trichy circle; a building thereon viz., Alamelu Thuvari Mill, field,tanks, cattle fields and three residential buildings; and an extent of1.50 acres of agricultural land and 1280 sq.meter of vacant land. 4.1. Concededly, in the instant case, even though Section 7 of theAct contemplates that the owner of the urban land is liable to submit areturn, the land owner had not filed any return as contemplated. However,if the owner of the urban land fails to furnish the return, Section 9 ofthe Act, empowers the Assistant Commissioner to obtain necessaryinformation with regard to the land in question and Section 9 reads ashereunder:"9. Collection of information:- If any owner of urban https://hcservices.ecourts.gov.in/hcservices/ land fails to furnish the return under section 7, theAssistant Commissioner may obtain the necessary informationin respect of the particulars specified in section 7, eitherby himself or through such agency as he thinks fit." 4.2. Where no return is filed by the owner of the urban land as perSection 7 of the Act, Section 11 of the Act prescribes the procedure andempowers the Assistant Commissioner to pass necessary orders of assessmentin writing, determining the market value of the urban land and the amountof urban land tax in respect of the land. Section 11 reads as follows:Procedure in case where no return is filed:-(1) Where the owner of urban land has failed to furnishthe return under Section 7, and the Assistant Commissionerhas obtained the necessary information under Section 9 heshall serve a notice on the owner in respect of each urbanland specifying therein:-(a) the extent of the urban land;(b) the amount which, in the opinion of the AssistantCommissioner, is the correct market value of the urban land;and direct him either to attend in person at his office on adate to be specified in the notice or to produce or cause tobe produced on that date any evidence on which the owner mayrely.(2) After hearing such evidence, as the owner mayproduce and such other evidence as the Assistant Commissionershall, by order in writing, determine the market value of theurban land and the amount of urban land tax payable inrespect of such urban land.(3) Where the owner has failed to attend or to produceevidence in pursuance of the notice under sub-section (1),the Assistant Commissioner shall, on the basis of theinformation obtained by him under section 9, by order inwriting, determine the market value of the urban land and theamount of the urban land tax payable in respect of such urbanland.4.3. A harmonious reading of Sections 2(13), 7, 9 and 11 of the Actcontemplates that a notice in writing must be given to the land ownerbefore passing any order under Section 11 of the Act as referred to above.A careful reading of Section 11 of the Act further makes it clear that incase the owner of urban land fails to furnish a return under Section 7 andthe Assistant Commissioner has obtained necessary information as perSection 9 of the Act, he shall serve notice in respect of each urban land,hold an enquiry and record the evidence. 4.4. It is evident from the impugned assessment order dated 15.7.1991that a notice in Form 4-B was served on the appellant/writ petitioner on4.6.1991, fixing the date of hearing on 20.6.1991 and thereafter, an orderwas passed, as against the column 'result of enquiry', as hereunder:"No. The urban land holder neither appeared for enquiry https://hcservices.ecourts.gov.in/hcservices/ nor filed any objections. Based on the Special DeputyTahsildar's report and after inspecting the land in question,tax is levied." 4.5. Of course, it is clear that the land owner neither appeared forthe enquiry nor filed any objection or details of record. But, theAssistant Commissioner had chosen to pass an order based on theinformation gathered by the Special Deputy Tahsildar, acting as an agentof the Assistant Commissioner. That apart, it is also evident from theimpugned order that the Assistant Commissioner himself had made aninspection of the land in question. But, unfortunately, neither the dateof report of the Special Deputy Tahsildar nor the date of inspection bythe Assistant Commissioner is mentioned in the assessment order. 4.6. It is evident from the impugned order that Form-4B was served onthe land owner on 4.6.1991 and the date of hearing was fixed on 20.6.1991,presumably satisfying 15 clear days as contemplated under Form-4B.Therefore, had any inspection been held, it should have been either after20.6.1991 or before 15.7.1991 viz.,. the date of the impugned order of theAssistant Commissioner. 4.7. If that be so, after treating the land owner as ex parte,whether the Assistant Commissioner is right enough to place reliance onthe information collected through the Special Deputy Tahsildar underSection 9 of the Act or inspection conducted on the land in question,without a further notice to the appellant, is the issue that arises forconsideration, for testing the validity of the impugned order dated15.7.1991. The only answer could be, had the information been obtained bythe Special Deputy Tahsildar or by himself, in either case, a noticeshould have been given to the appellant/land owner, or otherwise suchreport or the information obtained, cannot be relied upon against the landowner. 4.8. Even though Section 9 of the Act does not statutorilycontemplate a notice, there is an inbuilt requirement to satisfy theprinciples of natural justice that a notice should be given to the landowner by the original authority or the appellate authority by himself orbefore obtaining any information about the land for collecting particularsunder Section 7 of the Act, otherwise it would not only violate theprinciples of natural justice, but also attracts Article 14 of theConstitution of India on the ground of arbitrariness and unreasonablenessexercise of power.4.9. It is apparent on the face of the records that the AssistantCommissioner himself had conducted inspection on the impugned land andcollected information through his agency viz., Special Deputy Tahsildar ascontemplated under Section 9 of the Act, without giving a notice to theappellant/writ petitioner. If that be so, neither the report of theSpecial Deputy Tahsildar nor the inspection report of the AssistantCommissioner form the basis for rendering a finding against the land https://hcservices.ecourts.gov.in/hcservices/ owner, for passing the order under Section 11(3) of the Act.4.10. This aspect of the case was unfortunately neither raised beforethe first appellate authority nor before the learned single Judge andtherefore, neither the first appellate authority nor the learned singleJudge was in a position to appreciate the grievance of the appellant inthis regard. Hence, it may not be proper for this Court to nonsuit thelegitimate right of the appellant/writ petitioner to challenge thecorrectness of the order passed by the Assistant Commissioner underSection 11(3) of the Act since the learned Special Government Pleaderappearing for the Revenue is not in a position to report as to thecompliance of the procedure under Sections 9 and 11 of the Act referred toabove. 4.11. As apparent on the face of the impugned order dated 15.7.1991passed by the original authority, we have no other option except tointerfere with the same and accordingly the same is quashed, leaving thematter for the authorities concerned to proceed further, if they desire todo so.With the above observation, these writ appeals are disposed of. Nocosts.ATRSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. Urban Land Tax Appellate Tribunal (Principal Sub Judge), Tiruchirapalli.2. The Assistant Commissioner, Urban Land Tax, Trichy.+1 cc to Mr.K.Chandrasekaran, Advocate Sr.No.40513.+1 cc to Spl.Government Pleader Sr.No.40841.MJ(CO)dcp/30.7.07W.A.Nos.192 & 193 of 2003