THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO APPEAL SUIT No.298 of 1996 Date: 14-07-2014 Between :-
1. Santilal Bajaj (Died) and others.
… Appellants.
And Visakhapatnam Municipal Corporation … Respondent.
Counsel for the appellants : Sri T.S.Anand Counsel for respondent : Sri T.S.Venkataramana This Court delivered the following :-
THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO APPEAL SUIT No.298 of 1996 JUDGMENT:
This appeal is filed challenging the judgment and decree dt.31-08-1994 in O.S.No.212 of 1988 of the Principal Subordinate Judge, Visakhapatnam.
2. The appellants are plaintiffs in the above suit. The suit was filed for a declaration that the assessment of vacant land tax under Asst. No.1010 as per special notice dt.30-09-1986 for Rs.52,771-64 Ps. per half year issued by the respondent Municipal Corporation is illegal, capricious and contrary to law and for consequential permanent injunction restraining the defendant from collecting the said tax and for costs.
3. According to the plaintiffs, they are proprietors of the building and the site appurtenant thereto in Beach road, Visakhapatnam; they had leased it out to Palm Beach Hotel under a registered lease deed, where under Rs.9,000/- p.a. rent is to be paid to them; the building and the appurtenant site were assessed to tax by the earlier Municipality and later by the Municipal Corporation which came into existence subsequently; the defendant had assessed the vacant land to vacant land tax on the basis that it is exigible to tax; that this is not proper since the appurtenant land was being used for amenities like swimming pool, open lawns, playgrounds for the guests staying in the hotel; and it cannot be termed as vacant land as per Section 202 of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’). They contended that Ex.A-3 notice dt.30-09-1986 was served on them, that this was questioned under Ex.A-4 Revision filed by plaintiffs; that the said Revision was not disposed of and in the meantime, Ex.A-6 demand notice was issued demanding payment of vacant land tax; and hence, they filed the suit.
4. The respondent/defendant filed a written statement contending that as per the sale deed under which the property was purchased, the area was Ac.3.50 cents in which the building occupied has only 545 sq. yds in area; the permissible appurtenant land for any building is 2 times of the plinth area of building and the rest is to be treated as vacant land; therefore land occupied by the building and the appurtenant land comes to 1635 sq. yds while the rest of the area of 15305 sq. yds is liable to levy of vacant land tax. It is also contended that the suit is not maintainable as notice under Section 685 of the Act has not been issued.
5. By judgment and decree dt.31-08-1994, the trial Court dismissed the suit. It held that the assessment of vacant land tax is appealable under Section 282 of the Act before the Subordinate Judge, and when such a remedy is available, a civil suit is barred. It held that a separate mechanism is provided to question the validity of assessment of tax and the plaintiffs have to exhaust the said remedy and cannot invoke the civil Court’s jurisdiction. It however observed that it is open to the respondent/defendant to pass final orders on the Revision filed by plaintiffs.
6. Challenging the same, this appeal is filed by plaintiffs.
7. Pending appeal, the 1st appellant died and 3rd appellant was brought on record as his legal representative. She also subsequently died and 4th appellant was brought on record as her legal representative.
8. Heard Sri T.S.Anand, learned counsel for appellants. None appears for respondent even though name of Sri T.S.Venkataramana, advocate is printed in the cause list.
9. The contention of the learned counsel for appellants is that the trial Court ought not to have dismissed the suit as not maintainable on the ground that the appellants have not preferred an appeal under Section 282 of the Act.
10. I am unable to agree with the said submission. Section 282 of the Act states as under:
“282. Appeals when and to whom to lie:- (1) Subject to the provisions hereinafter contained, appeals against any reteable value or tax fixed or charged under this Act shall be heard and determined by the Judge.
(2) But no such appeal shall be heard by the said judge, unless:-
(a) it is brought within fifteen days after the accrual of the cause of complaint;
(b) a complaint has previously been made to the Commissioner under Section 221 and such complaint has been disposed of;
(c) a complaint has been made, by the person aggrieved within fifteen days after the first received notice of any amendment made in the assessment book under Section 225 and his complaint has been disposed of;
(d) in the case of an appeal against tax, the amount claimed from the appellant has been deposited by him with the Commissioner.”
11. Thus, it is clear that the statute provides a forum to challenge the assessment of tax including vacant land tax. Admittedly, the remedy of appeal has not been availed of by plaintiffs although such appeal could have been filed before the Subordinate Judge’s Court in Visakhapatnam. In Munshi Ram and others Vs. Municipal Committee, Chheharta
[1]
, the Hon’ble Supreme Court has held that a civil suit to challenge the assessment of taxes is not maintainable when there is a remedy provided under the Act to question the same. Similar view was also expressed in G. Muralimohan Vs. Vijayawada Municipal Corporation
[2]
. In view of the said legal position, I am of the opinion that the trial Court had rightly dismissed the suit as not maintainable. I see no reason to disagree with the said finding.
12. Therefore, the appeal fails and the same is accordingly dismissed. No costs.
13. As a sequel, miscellaneous applications, if any pending, shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 14-07-2014
Vsv
[1] AIR 1979 SC 1250
[2] 1987(2) ALT 25 (NRC)