M.N. Chandurkar, C.J.
1. The only question which arises in this appeal is whether when admittedly urban land is owned by two co-owners and has been partitioned between them, a joint assessment in respect of the entire land is permissible under the provisions of Section 5 of the Tamil Nadu Urban Land Tax Act, 1986.
2. The total area of the urban land in question is 6 grounds and 1851 sq.ft. On the finding recorded by the Assistant Commissioner of Urban Land Tax in assessment proceedings, he came to the conclusion that local enquiries disclosed that two families, namely, Thiru T.R. Karunakaran and Brothers and Thiru T.G. Srinivasan and brothers were separately enjoying the properties in question and the rent from the properties was also shared by the two families as also the municipal assessment stands jointly in the names of the two families. However, the assessing authority held that there was no separate enjoyment by the members of the two families and he, therefore, proceeded to assess the properties in question jointly in favour of the two families. He then proceeded to assess the tax which was fixed at Rs. 1617/- for fasli year payable from 1.7.1971.
3. An appeal came to be filed by both the branches of the families before the Land Tax Tribunal, Tiruchirapalli. A specific ground was taken in the appeal memo that the Assistant Commissioner ought to have suggested the two sets of owners individually having regard to the partition deed and the joint purchase. It is not in dispute that S.No. 2079 having an area of 1 ground and 1333 sq.ft. was the subject of a joint purchase by both the families (together by a sale deed dated 24.8.1952. The other S.No. 329 which was already owned by the two families has been partitioned by metes and bounds. The area of S.No. 329 is 5 ground and 518 sq.ft.
4. The Appellate Authority, however, does not seem to have gone into the question as to whether a joint assessment could be made or not but allowed the appeal partly in so far as the quantum of assessment is concerned. This order of the Appellate Authority was challenged by the appellants herein in a writ petition filed in this Court which, however, came to be dismissed summarily with the observation that the dismissal of the writ petition does not prevent the question of partition being gone into for the subsequent assessments. This order is challenged in this appeal by the appellants.
5. The learned Counsel appearing on behalf of the appellants has argued that in respect of the property which is already partitioned, the two sets of owners were holding the properties independently in their own right and the Urban Land Tax Authority did not have any jurisdiction to assess tax on land which is not owned by either of the two families. In our view, so far as the property which is already partitioned is concerned, this contention has to be accepted. The charging provision in the Act is Section 5 which reads as follows:
Subject to the other provisions contained in this Act, there shall be levied and collected for every fasli year commencing from the date of commencement of this Act, a tax on each urban land (hereinafter referred to as the urban land tax) from the owner of such urban land at the rate specified in the Schedule.
6. The provisions in Section 5 will show that the tax is to be levied on each urban land and is to be collected from the owner of such urban land. The phrase 'each urban land' has been defined in Section 2(6) as follows:
'each urban land' means the urban land comprised in a survey number or a sub-division number.
7. Admittedly, notwithstanding the fact that the two separated portions of S.No. 329 are not separately recorded in the names of the two independent owners, the fact remains that the area which has fallen to the share of each of the two families in question in the partition dated 8.7.1939 in S.No. 329 will be the land which is comprised in S.No. 329. There is however, no jurisdiction in the assessing authorities to levy tax on urban land which is not owned by any person. In other words, only such urban land as is owned by each family will alone be liable to tax under Section 5. A composite valuation and taxation for the purpose of Section 5 in respect of S.No. 329 is, therefore, clearly bad. A view similar to the one which we have taken above has found favour with the Division Bench of this Court in Messrs, Sarada Binding Works, Madras v. Assistant Commissioner of Urban Land Tax, Madras (1979) 92 L.W.7I8. In paragraph 9 of this decision the Division Bench observed as follows: A conjoint reading of Section 5 and the definition of 'each Urban Land merely indicates that the land held by a person in a particular survey number should be taken as a unit of charge and the entire holding of the person cannot be treated as a unit of charge except when his entire holding is in one survey number. Thus, the levy under the Act is in respect of that urban land which is owned by an individual in a particular survey number. Take a case where a land comprised in a particular survey number is owned separately by ten individuals. As per the charging section tax has to be levied separately on the ten holdings by estimating the market value of the land in each holding, if the owner has more than one item of urban land situate in more than one survey number, the entire holding of the owner is not taken as a unit, but the land owned by him in each survey number is taken as unit for purposes of valuation. Thus if urban lands in a survey number are owned by various individuals each portion of the survey number owned by different individuals is to be separately valued.
These observations have our respectful concurrence.
8. However, so far as S.No. 8078 having an area of I ground and 1333 sq.ft. is concerned, we are unable to find any error in the levy of the tax. Admittedly, this is the joint property pf both the families. It has not been partitioned. The members of both the families have, therefore, to be treated as joint owners and as such, the entire area of S.No. 2079 will have to be assessed to tax in the hands of all the owners.
9. Accordingly, this appeal is partly allowed. The order of the learned Judge dismissing the petition is set aside. The assessment made by the Assistant Commissioner and confirmed by the Appellate Authority is set aside. The Assistant Commissioner is now directed to make a fresh assessment separately in respect of S.No. 329 and jointly in respect of S.No. 2079.
10. We may make it clear that the market value as fixed by the appellate authority has not been challenged before us. The assessing authority is entitled to take that market value into consideration while making the assessment. There will be no order as to costs.