1. 5 rate payers of Sattenapalli Gram Panchayat have filed a suit in a representative capacity on behalf of all the rate payers of the said panchayat questioning the revision of house taxes in the Panchayat in the year 1962, on the ground that it is illegal, arbitrary, capricious and unenforceable and have sought for a permanent injunction restraining the defendant-Gram Panchayat from giving effect to the said general revision.
2. It is the case of the plaintiff that the Panchayat adopted the annual rental value as its basis for the fixation of houses taxes in which rental value itself is being calculated on the basis of the actual rents realised during the year. This basis was adopted both for the owner occupied houses as well as the tenant occupied houses. It is their contention that Sattenapalli is a town to which the Madras Buildings ( Lease and Rent ) Control Act as modified by the Andhra Pradesh Buildings ( Lease, Rent and Eviction ) Control Act, 1960 ( herein after referred to compendiously as the Rent Control Act ) applies and therefore the fair rent realised for the houses alone could be taken as the annual rental value of the building both for the owner occupied and the tenant occupied houses. The Revision Officer ignoring the provisions of the Rent Control Act enhanced the house taxes by more than 300 per cent over the 1957-58 taxes. While the income from house taxes was Rs. 29076.24 during the year 1957-58, as a result of the impugned revision the house tax has been increased to Rupees 69424.32. In paragraph 9 of the plaint instances of enhancement in 11 different wards of the Gram Panchayat were given which show an increase ranging from 300 % to 1000 %. They have also alleged various other irregularities and failure to comply with the provisions of law in making the present revision. It is not necessary to note these facts in detail having regard to the submissions made by the learned counsel for both the parties in this appeal.
3. The Gram Panchayat contended that all the provisions of law and the rules regulating the revision of taxes have been complied with and that the revision of taxes itself is on a correct assessment of the rental value of the houses and as such it does not call for interference by a Civil Court. The other plea as to want of valid notice as required under Section 107 of the village Panchayat Act was also taken but was not pressed at the hearing of the second appeal before me.
4. The learned District Munsif framed the following issues :
1. Whether the general revision made in 1962 is not in compliance with the procedure prescribed ?
2. Whether the plaintiffs are entitled to the declarations prayed for ?
3. Whether the suit is bad for want of valid notice under Section 107 of the Village Panchayat Act?
4. Whether assessment should be made with reference to Act 25 of 1949 ?
5. Whether the plaintiff is entitled to the injunction prayed for ?
6. To what relief are plaintiffs entitled
The trial Court held that the general revision made in 1962 is not shown to be ' not in compliance with the prescribed procedure or with the Act ' and in that view held that the plaintiffs are neither entitled to the declaration nor to the injunction prayed for. It was conceded before the learned District Munsif that the suit was not bad for want of notice under Sec. 107 of the Village Panchayat Act as the provisions of that section are attracted only in cases of claims for damages and not to a case of declaration and injunction. In the result the suit was dismissed.
5. On appeal the learned Additional Subordinate Judge framed the following points as arising for disposal of appeal.
'1. Whether the suit is maintainable by the Civil Court ?
2. Whether the revision of taxes in 1962 made by the defendant Panchayat is illegal, arbitrary, capricious and exhorbitant ?'
Having refused to the judgments of this Court reported in Manikyam v. Commr. Kakinada Municipality, 1959-2 Andh WR 492 and Municipal Council, Tenali v. Sri Ram Talkies, Tenali. 1960-2 Andh WR 45. as also the judgment of the Bench of this Court in Guntur Municipality v. G. Subbarao. 1968-2 Andh WR 94. the learned Subordinate Judge held that the Civil Court has jurisdiction. On the second point the learned Judge considered the case separately as regards the owner occupied houses and tenant occupied houses. In regard to the owner occupied houses he held that the procedure adopted by the Valuation Officer had no relation to the fair rent that could be fixed under the Rent Control Act and therefore it was illegal. With regard to the tenant occupied houses, however, he found that there was no material to hold that the assessment made by the Valuation Officer is arbitrary and against the spirit and letter of the Panchayat Act and the rules. In the result he answered point No. 2 in the affirmative in respect of the owner occupied houses and in the negative in respect of the tenant occupied houses and accordingly decreed the plaintiff's suit to the extent of the owner occupied houses and dismissed it in respect of the tenant occupied houses.
6. The Gram Panchayat has preferred the second appeal while the tenants have filed the cross-objections.
While the appeal has been numbered without any objection, as regards the cross-objections the cross-objectors on the amount of difference between the revised taxes and the previously existing house taxes which comes to Rs. 40348.08 paise. This objection is raised on the basis of the judgment of this Court reported in Jabbar v. State of Andhra Pradesh. ( 1969 ) 1 Andh WR 411. That was a case in which the plaintiff filed a suit for declaration that the auction of a particular property held for the recovery of certain excise arrears, was void and of no effect and that the demand made by the defendant for the payment of a sum of Rs. 60500 /- alleged to be due by the plaintiff is illegal, and for an injunction restraining the defendant from attempting to enforce the said demand as a Government demand. The Bench held that in such a case ' the relief sought by the plaintiff has to be valued on the basis of the advantage he would gain or the injury or loss he would avoid. Applying the test, from the plaint it is clear that the plaintiff had sought for a declaration that the demand of Rs. 60,5000 /- made against him by the Government is illegal. In case the demand made by the Government is allowed to stand, he will suffer an injury or loss to the extent of Rs. 60,5000 /-. The valuation put by the plaintiff is grossly in-adequate and the plaintiff will have to value the reliefs prayed for by him at Rs. 60,5000 /-.
7. Thus the Bench directed that the value for the purpose of payment of Court-fee in a suit of declaration covered by Section 24 (d) of the Act is the basis of the advantage that the plaintiff would gain or the injury or loss that he would suffer. The present suit out of which this second appeal arises is not a suit to avoid any particular demand made against the plaintiffs. It is a suit for a declaration that the general revision of house taxes made by the Gram Panchayat is illegal and void for failure to comply with the statutory requirements. It is not intended to restrain the defendant from demanding and collecting a particular sum, but it is for a general declaration. Therefore there is no particular advantage the plaintiffs would gain or particular injury or loss they would be avoiding under the decree itself. Even after the plaintiffs succeed the defendant may still, revised the taxes in accordance with law and thereafter make a demand. At the stage at which the suit was filed there was no demand made against any of the plaintiffs. The principle of the above decision therefore does not apply to this case. I therefore hold that the plaintiffs are not therefore liable to pay court-fee valuing the appeal at the difference in the revised taxes and the existing taxes i.e., on Rs. 40,348.08 paise.
8. There is also another reason why the plaintiffs cannot be made liable to value the cross-objections on the basis of the difference in taxes. The declaration is not sought in respect of the amount as such. The suit is filed by 5 of the rate payers in a representative capacity. In Turlapati Venkateswara Rao v. The Municipal Council, : AIR1954Mad284 . Rajamannar, Chief Justice, dealing with somewhat a similar case wherein a rate payer filed a suit in representative capacity held that ' a suit filed in a representative capacity for a declaration that a resolution passed by the Municipal Council relating to a market was illegal, ultra vires and void clearly falls under Article 17-B of Schedule II of the Court-fees Act. It cannot be said in such a suit that the subject-matter of the suit is the market value and the court-fee should be paid under Article 17-A (1) of Schedule II of the Act . ' Though ultimately the declaration obtained may benefit the rate payers in general and the Gram Panchayat may not be able to collect the revised taxes on the basis of the existing revision all the same the amount of tax that the Gram Panchayat would have realised if that revision was not questioned is itself not the subject-matter of the suit. That being so, the plaintiffs cannot be called upon to value the suit on the basis of the amount.
The Court-fee now paid by the cross-objectors is therefore sufficient. The cross-objections will be numbered accordingly.
9. It was urged by the learned counsel appearing for the Gram Panchayat that the Civil Court has no jurisdiction to go into the question whether the particular tax assessed by way of revision is excessive or otherwise. So as the procedure laid down for the revision of taxes has been followed by the Gram Panchayat, the Civil Court has jurisdiction. This question is no longer res integra. I need only refer I this context to a judgment of the Division Bench of this Court in Padmaraju v. Panchayat Board, Samalkot. ( 1960 ) 1 Andh WR 63 in which the Bench held that ' Civil Courts would derive jurisdiction to interfere in matters of assessment only when the provisions of the Act were in substance and in effect not complied with. If a person seeks to have the proceedings of the assessing authority quashed in Civil Court, he must establish non-compliance with the essentials of the procedure. Before he could succeed in getting such relief, he has to show that fundamental irregularities were committed by the assessing authority. The burden of establishing it rests upon the person alleging it. If the assessee fails to make out any infringement of any of the essential statutory requirements, no relief could be granted to him since he has got the appropriate forum contemplated by the relevant rules. Whether the assessment was adequate or not, it is for the tribunals set up by he rules to decide.'
10. In Firm Radha Krishna v. Ludhina Municipality, : 2SCR273 their Lordships of the Supreme Court laid down that ' under S. 9 of the Code of Civil Procedure the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of Civil Courts in respect of particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil Courts even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. ' Applying that test, their Lordships examined the provisions of the Punjab Municipal Act, 1911, and observed that ' the liability to pay terminal tax is created by the Punjab Municipal Act, 1911 and a remedy is given to a party aggrieved in the enforcement of that liability. Against the order of the Municipal Commissioner levying terminal tax an appeal lies under Section 84 to the Deputy Commissioner and a reference under Section 84 (2) to the High Court. Applying the principle stated supra, the party aggrieved can only pursue the remedy provided by the Act and he cannot file a suit in a civil court in that regard. Provisions of Section 84 and 86 of the Act exclude the jurisdiction of the Civil Court in respect of the tax levied or the assessment made under the Act ................ a mistake if any committed in imposing the terminal tax can only be corrected in the manner prescribed by the Act, and hence a suit for the refund of the terminal tax collected by the Municipality will not lie when the remedy provided by the Act is not pursued by the claimant '. But in that very judgment it was stated that ' there is also an equally well settled principle governing the scope of the Civil Court's jurisdiction in a case where a statute created a liability and provided a remedy. Even in such cases, the Civil Court's jurisdiction is not completely ousted. A suit in a Civil Court will always lie to question the order of a tribunal created by the statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its powers or does not act under the Act but in violation of its provisions . '
Having regard to the above pronouncements I am clearly of the view that this court can go into the question whether in revising the taxes, the Valuation Officer and the Gram Panchayat acted in accordance with the provisions of law.
11. The next point that falls for consideration in this appeal and cross-objections is whether the Valuation Officer and the Gram Panchayat followed the provisions of the Act and the rules that govern the revision of taxes. The main attack on the revision of taxes is on the ground that the Valuation Officer did not keep in view the provisions of the Rent Control Act in assessing the rental value of the owner-occupied and tenant-occupied houses in the Gram Panchayat. It is not disputed that the Madras Buildings ( Lease, Rent and Eviction ) Control Act, 1949, and thereafter the Andhra Pradesh Buildings ( Lease, Rent and Eviction ) Control Act, 1960, were applicable to the Gram Panchayat in question. The provisions as to the fixation of the fair rent would apply to the houses within Gram Panchayat. Section 63 of the Madras Village Panchayats Act, 1950 ( Act 10 of 1950 ) authorises the levy of house taxes. Sec. 64 (1) prescribes the basis on which such house taxes may be levied in the following words :
'64 (1) The house-tax referred to in Section 63 sub-section (1), shall be levied on all houses ( other than huts ) in the village on any one of the following basis, namely.
(a) annual value.
(b) capital value, or
(c) such other basis as may be prescribed.
(2) xx xx xx xx xx (3) xx xx xx xx xx (4) The Government may make rules providing for -
(i) xx xx xx xx xx (ii) the manner of ascertaining the annual or capital value of house or the categories into which they fall for the purposes of taxation ;
xx xx xx xx xx xx xx. ' In exercise of this rule-making power read with Section 12 of the Village Panchayat Act the Government has framed rules for the assessment of the house tax by its notification 80 dated 24-3-1951. Clause (2) of Rule 2 of the said rules reads as follows :
'The annual value of a house shall be deemed to be the gross annual rent at which the house may reasonably be expected to let from month to month, or from year to year less a deduction of 10 per cent of such annual rent and the said deductions shall be in lieu of all allowances for repairs or any other account whatsoever. ' While the Gram Panchayat Act vests the power to assess the annual value of a house, on the basis of the gross annual rent at which the house may' reasonably be expected to let from month to month or from year to year ', the provisions of the Andhra Pradesh Buildings ( Lease, Rent and Eviction ) Control Act, 1960 subject all these houses to the fixation of fair rent. Under Section 4 of the Rent Control Act the controller is empowered to fix the fair rent for such buildings after holding such enquiry as the controller thinks fit. Sub-section (2) of Section 4 of the Rent Control Act lays down that in fixing the fair rent under this Section, the Controller shall have due regard -
(a) to the prevailing rates of rent in the locality for the same or similar accommodation in similar circumstances during the twelve months prior to the 5th April, 1944 ;
(b) to the rental value as entered in the property tax assessment book of the concerned local authority relating to the period mentioned in clause (a);
(c) to the circumstances of the case, including any amount paid by the tenant by way of premium or any other like sum in addition to rent after the 5th April, 1944 ;
(3) In fixing the fair rent of residential buildings, the Controller may allow-
(i) if the rate of rent or rental value referred to in sub-section (2) does not exceed twenty-five rupees per mensem, an increase not exceeding 12 1/2 per cent on such rate or rental value;
(ii) if the rate of rent or rental value exceeds twenty five rupees per mensem but does not exceed fifty rupees per mensem, an increase not exceeding 18 3/4 per cent on such rate or rental value ;
(iii) if the rate of rent or rental value exceeds fifty rupees per mensem, an increase not exceeding 37 1/2 per cent on such rate or rental value ;
Provided that in the case of the residential building which has been constructed after the 5th April, 1944, the percentage of increase shall not exceed 37 1/2 per cent, 56 1/4 and 75 respectively.
(4) In fixing the fair rent of non-residential building, the Controller may allow
(i) if the rate of rent or rental value referred to in sub-section (2) does not exceed fifty rupees per mensem, an increase not exceeding 56 1/4 per cent on such rate or rental value ;
(ii) if the rate of rent or rental value exceeds fifty rupees per mensem an increase not exceeding 75 per cent on such rate or rental value ;
Provided that in the case of non-residential building which has been constructed after the 5th April, 1944 the percentage of increase shall not exceeds 75 and 150 respectively.
(5) In the case of a building for which the fair rent has been fixed before the commencement of this Act, the Controller shall, on the application of the landlord allow such increase in the fair rent as in the opinion of the Controller the landlord is entitled to under this section. '
Thus whatever rent may be actually realised by the owner of a house or whatever rent the owner of a house could expect to realise from the house occupied by him if it were to be let out, if the house is situate in a place to which the provisions of the Rent Control Act are applicable, the basis for determining the annual rental value would be the fair rent that may be fixed under the provisions of the Rent Control Act. As held by the Bench of this Court in ( 1960 ) 1 Andh WR 63 ; it is not the notional or hypothetical rent that should from the basis of the annual value but the rent which a landlord could obtain from a tenant in ordinary circumstances in the light of the law laid down by the Rent Control Act that should from the basis for determination of the annual rental value and the assessment of the house tax thereon. Dealing with a similar provision contained in Section 82 (2) of the Madras District Municipalities Act which makes provisions for the fixation of annual value according to the rent at which lands and buildings may reasonably be expected to be let out from month to month or from year to year, less the specified deduction, the Supreme Court in the Guntur Municipal Council v. The Guntur Town Rate-payers' Association etc., : 2SCR423 held that the test essentially is what rent the premises can lawfully fetch if let out to a hypothetical tenant. The Municipality is thus not free to assess any arbitrary annual value but has to look to and is bound by the fair or the standard rent which would be payable for a particular premises under the Rent Control Act in force. In as much as the Rent Control Act applies to Sattenapalli Gram Panchayat these principles must be kept in view by any authority vested with the jurisdiction to revise the house taxes under the Gram Panchayat Act as admittedly the provisions of the Rent Control apply to this Gram Panchayat.
12. In the present case the Revision Officer appointed by the Commissioner of Panchayat Raj as Special Officer to revise the taxes in Sattenapalli Gram Panchayat Raj during the general revision of 1962 has been examined as D. W. 1. He has admitted in unequivocal terms in this cross-examination that ' this was the first time I worked as special Officer ............. I do not know about the Rent Control Act. ' He further states that he was instructed how to assess the annual values and admits ' we were not instructed to follow the fair rent method fixed under the Rent Control Act. I made a study of the rules prescribed. There is no rule to my knowledge to accept the fair rent fixed by the rent controller as the basis for arriving at the annual value. ' He further admits that no one told me that fair rent was fixed for these houses by the rent controller................. In most cases I increased the annual value, as rents were on the increase.' The admissions made by the witness clearly establish that the provisions of Rent Control Act which applied to the Gram Panchayat in question were wholly ignored in arriving at the annual value of the houses which is required to be determined having regard to the gross annual rent at which the house may reasonably be expected to be let from month to month, or from year to year. In other words, the very fundamental requirement of the assessing the annual rent on the basis of the amount on which a house may reasonably be expected to be let out has been ignored. When this fundamental mistake has been committed by the valuation officer in determining the annual value and consequently in assessing the house tax the general revision cannot but be held to be illegal and arbitrary. Hence it must be declared to be unenforceable.
13. It was next contended by the learned counsel for the Gram Panchayat that from the fact that the Valuation Officer ignored this aspect in determining the annual value and the house tax of the owner occupied houses, the Gram Panchayat cannot be said to have acted illegally in revising the house taxes in respect of the tenant occupied houses when it was not established by any evidence that any forum was fixed under the provision of the Rent Control Act. The fact that for the tenant occupied houses which were subject to the provisions of the Act no fair rent was fixed not give an absolute discretion to the Valuation Officer or for the Gram Panchayat to take the existing rent as the basis for fixing the annual rental value. In ( 1960 ) 1 Andh WR 63 it was held that;
'There cannot be any distinction between owner-occupied houses and houses occupied by tenants. It is not of such consequence, whether the owner occupies the property himself or has it let out to a tenant as the basis of the computation of annual value for both would be the same. In the case of the owner-occupied houses, the annual rental value has to be arrived at by taking into consideration the rents fetched by similar buildings in the neighbourhood occupied tenants. There is no difficulty in extending the provision of Section 4 of the Madras Buildings ( Lease and Rent Control ) Act to owner-occupied houses also for the reason that the test in regard thereto also is the rent that the premises is likely to fetch or reasonably expected to fetch. That should be judged with reference to the rents paid for houses similarly situated with similar advantage and in the same locality.'
The Supreme Court also laid down that in this respect no distinction can be made between the building the fair rent of which has been fixed under the Rent Control Act and those in respect of which no such rent has been fixed. In other words irrespective of the facts whether the fair rent is fixed or not the fair rent alone could from the basis for determining the annual value and for that purpose the Gram Panchayat has to keep in view the provisions of the Rent Control Act. That has been admittedly ignored by the defendant and its valuation officer in determining the annual value of the tenant occupied houses as well. Therefore the general revision of house taxes in respect of the tenant-occupied houses also cannot be sustained.
14. It was next urged on the strength of a decision of this Court in Adoni Municipal Council v. G. Ahmed Hussain Saheb, ( 1969 ) 2 Andh WR ( SN ) 13 wherein my learned brother Gopal Rao Ekbote, J., observed as follows :
'If the plaintiff wanted to attack the valuation made by the Valuation Officer, it was not enough for him to show that the Valuation Officer did not keep in view the relevant provisions of the Rent Control Act, but he must go a little ahead and say that the result of such disregard was that he took into account rents which were unreasonable and was contrary to Section 82 of the Act. '
I am however of the view that having regard to the judgment of the Supreme Court and that of the Bench of this Court referred to above the fact that the provisions of the Act have been ignored in making the general revision itself is sufficient to grant the declaration prayed for. But that apart, in the instant case, the plaintiff gave specific instances in paragraph 9 of their plaint that the existing tax as fixed in 1957 which was Rs. 1.50 was now revised under the general revision of 1962 to Rs. 11.20 and in another case from 15 /- to Rs. 53-54 and yet in another case from Rs. 1.50 to 28.08. Under the Rent Control Act in fixing the fair rent regard must be had to prevailing rates of rent in the locality during the 12 months prior to 5th April, 1944 and only raised at the percentage mentioned therein. That being so it cannot be said that the present enhancement over the 1957 annual value is in accordance with law. If the rent prevailing in the 12 months prior to 5th April 1944 were to be kept in view what would be the annual rent of a particular house having regard to the provisions of the Act, is a matter on which the Civil Court can express no opinion but is one which the authorities themselves must determine having regard to those provisions. When D.W.1 admits that he was not aware of these provisions and that he did not revise the annual value and the tax on the basis of those provisions, it cannot be said that the revision has been done in accordance with law. That is sufficient to declare that the general revision is illegal and void.
15. Lastly it was contended that the Rent Control Act does not itself apply to buildings or houses constructed on or after 26th August, 1957. If that be so, obviously the question of keeping the provisions of the Rent Control Act in view in determining what would be the annual or monthly rent at which a house could reasonably be expected to be let under the provisions of the Rent Control Act does not fall for consideration of the Valuation Officer and the Gram Panchayat in revising the taxes. They can have application only such of the houses which come within the purview of the Rent Control Act.
16. For all the above reasons the second appeal is allowed in part only in so far as the houses constructed after 26.8.1957 are concerned; but there will be no order as to costs. The cross-objections are allowed with costs. The general revision of house taxes of 1962 is declared to be illegal, void and unenforceable, in so far it related to the houses within the Sattenapalli Gram Panchayat constructed prior to 26 the August, 1957 are concerned and the defendant respondent is restrained from proceeding to collect any tax based on such revision. This will not however preclude the defendant Gram Panchayat from realising the house taxes prevailing prior to this revision or from revising the house tax in accordance with law. This will not also preclude such of the individual rate prayers whose houses have been constructed after 26.8.1957 to question their respective assessments if it is otherwise arbitrary and illegal. No leave.
17. Appeal allowed in part:
Cross objections allowed.