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S.V. Athimoola Mudaliar Vs. the Commissioner, Corporation of Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1968)2MLJ299
AppellantS.V. Athimoola Mudaliar
RespondentThe Commissioner, Corporation of Madras and anr.
Cases ReferredCorporation of Madras v. Balakrishna Mehta
Excerpt:
- - the minimum right which is clearly a valuable right thus conferred by the act on the assessees to betterment contribution, is to receive a notice of a proposed assessment :to betterment contribution before there is-an actual assessment and with liberty for them to object to the proposed assessment and to appeal in respect thereof......and collection of the property tax; (ii) persons affected shall have the same right to receive notice of assessment and to object to the assessment and to appeal in respect thereof as they have in respect of the property tax, and (iii). decisions on appeal shall to the same extent be final and conclusive ; and (6) lands and buildings exempt from the property tax shall also be exempt from any betterment contribution.the minimum right which is clearly a valuable right thus conferred by the act on the assessees to betterment contribution, is to receive a notice of a proposed assessment : to betterment contribution before there is-an actual assessment and with liberty for them to object to the proposed assessment and to appeal in respect thereof. these rights are the same which an.....
Judgment:
ORDER

P. Ramakrishnan, J.

1. This writ petition under Article 226 of the Constitution for the issue of a writ of certiorari is directed against a notice dated 25th November, 1964 of demand for. payment of betterment contribution under the provisions of the Madras Town Planning Act (VII of 1920), issued to the petitioner by the second respondent, the Assistant Engineer, Town Planning, Works Department, Corporation of Madras. The first respondent in the writ petition is the Commissioner, Corporation of Madras, Ripon Buildings, Madras.

The impugned notice is a brief one and reads thus:

It is noticed that you are the owner of a piece of land bearing R.S. No. 3754/ 38 pt. of Mylapore included in the Western Section Area Town Planning Scheme sanctioned by the Government. This is to bring to your notice that the foregoing property is liable to ' Betterment Contribution ' under the provisions of the Town Planning Act and the Rules framed thereunder. The liability for betterment contribution decided by the Arbitrator ' is final and binding on all persons ' at this stage. Under Section 25 expounded in the Town Planning Act, betterment contribution comes in as a first charge on the property on which it is due and the owner for the time being, who is entitled to receive the benefits of the property is liable to discharge this 'liability. As such you 'being, the present owner are liable to pay the amount of betterment contribution due in respect of the plot owned by you.

As per the resolution of the Council, Corporation of Madras, dated 3rd August' z954 the owners of properties which abut on private scheme roads in Mylapore Western Section Area Town Planning Scheme have to pay at a rate of Rs. 96 per ground as betterment contribution and in the case of other owners of properties abutting on scheme roads formed by the Corporation in the area have to pay at a rate of Rs. 940 per ground for their respective extents held liable to , betterment contribution.

The total amount payable by you at the rate of Rs. 940 per ground for an extent of 1 ground 1915 sq.ft. possessed by you works out to Rs. 1,689-90.

You are therefore requested to arrange for the payment of the said amount and get your property discharged from this liability.

The grounds of the petitioner's objections, to the notice are catalogued under five heads in paragraph 17 of the affidavit. I do not propose to repeat all those grounds in this writ petition because of my conclusion that the form of the notice itself is hot in compliance with the requirements of the Act and the Rules made thereunder and that it is necessary for the second respondent to issue a proper notice, in which event, the petitioner would have an opportunity to urge before the appropriate authorities the grounds of objection to the Validity of the notice which he has set out in paragraph 17 of his affidavit.

2. The crucial provision of the Act which the impugned notice seems to offend is Section 25 (2) of the Act, which is in the following terms:

(a) The State Government may make rules for the assessment and collection of the betterment contribution, and subject to such rules, (i) the chairman shall have the same powers and shall adopt the same procedure for the assessment and collection of the betterment contribution as he has for the assessment and collection of the property tax; (ii) persons affected shall have the same right to receive notice of assessment and to object to the assessment and to appeal in respect thereof as they have in respect of the property tax, and (iii). decisions on appeal shall to the same extent be final and conclusive ; and (6) lands and buildings exempt from the property tax shall also be exempt from any betterment contribution.

The minimum right which is clearly a valuable right thus conferred by the Act on the assessees to betterment contribution, is to receive a notice of a proposed assessment : to betterment contribution before there is-an actual assessment and with liberty for them to object to the proposed assessment and to appeal in respect thereof. These rights are the same which an assessee to property tax is conferred under the Madras City Municipal Act. That such a right has to be given to the assessees under the Town Planning Act is also the view which has been expressed by a Bench of this Court in Corporation of Madras v. Balakrishna Mehta (1953) 1 M.L.J. 403, where an exhaustive discussion of the provisions of the Madras Town Planning Act is found. At page 405 of the report, the Bench has observed that the persons affected shall have the same right to receive notice of assessment and to object to the assessment and to appeal in respect thereof as they have in respect of assessees in the case of property tax. Reference is made by the learned Counsel for the petitioner to the Rules which the State Government have framed under Section 25, and in particular to Rule 59, which says that the notice given to the owners of the properties shall be in Form 22-A. Form 22-A appended to the Rules gives the assessee a right to file a revision petition to the Commissioner of the Corporation of Madras within 60 days from the date of service of notice. But, unfortunately, in the present case, the assessee has not been given any pre-assessment notice as required under the Rules and his complaint is that for the first time he has been required to meet a demand for payment of the betterment contribution assessed on him as per the impugned demand notice dated 25th November, 1964. That is the main reason why he prays in the writ petition for the striking down of the notice as ultra vires and illegal under Article 226 of the Constitution.

3. In the counter-affidavit filed by the Corporation, there is a reference to the prior history of the betterment levy in this particular area of the Madras City. What I am able to gather from this counter-affidavit is that when the scheme was first promulgated for levying betterment contribution from house owners a writ petition Was filed by an owner whose property abutted a private scheme road W.P. No. 195 of 1953, and the decision in that writ petition had been followed for the purpose of claiming the betterment levy in the present case. A reference to the judgment in the writ petition shows that it is a decision on the basis of a compromise, stating that property owners whose property abuts a private scheme road will pay Rs. 90 as betterment contribution to the Corporation. That decision did not deal with owners of property abutting Corporation scheme roads. The petitioner falls in this latter category. In this case the counter-affidavit states that the Corporation had Worked out the total for the cost of acquiring the Corporation scheme roads and amenities and, added there to the value of lands required for private scheme roads and the cost of providing amenities thereon, and the total cost thus arrived at has been rateably distributed over the entire area and in this manner a figure of Rs. 940 per ground has been arrived at as the amount of betterment contribution to be collected ' from the owners of lands abutting the scheme roads formed by the Corporation of Madras. The only exception to this proposal is that persons whose property abuts the private scheme roads need pay only Rs. 90 as decided in the W. P. No. '195 of 1953. I do not wish to say anything in this writ petition about the method of calculation that has been adopted above by the Corporation, Which may anticipate or affect any decision which the Corporation may give if the petitioner or any other party, make representations against the demand for betterment levy on property abutting Corporation scheme roads. Any representation in this respect will have to be dealt with by the appropriate authorities of the Corporation, as and when objections are filed by the aggrieved parties. But it will suffice to say for the disposal of the present writ petition, that prima facie, the requirements of the statute, and in particular, Section 25 read with Rule 59 of the Rules made thereunder, have not been complied with, when the respondents proceeded to issue a final demand notice for the payment of betterment levy against the petitioner, without a prior show cause notice and without giving an opportunity to make representations contra' and also to file an appeal or file a revision as the case may be against any adverse decision.

4. I, therefore, quash the impugned notice by a writ of certiorari. It will be open to the respondents to give prior notice under the Rules to the petitioner of the imposition, of the betterment contribution, and an opportunity for making representation contra. This writ Petition is allowed with the above observations; No order as to costs.


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