C.J.R. Paul, J.
1. The appellant is the owner of D or Nos. 58, 16 and 16-A-J, situate in Vijayapuram within the Municipal limits of Tiruvarur. The appellant is living in Door No. 58 and he has rented out Door Nos. 16 and 16-A-1. Till 1st April, 1965, the assessment for Door No. 58 was Rs. 144 and the property tax payable is Rs. 14-89 while the assessment for Door No. 16 was Rs. 840 and the property tax payable for it was Rs. 87-04 and the assessment for Door No. 16-A/l was Rs. 192, and the property tax payable for it is Rs. 19-89. In the month of March 1969 however, the respondent Municipality, issued special notices proposing to increase the assessments, in respect of these three buildings to Rs. 360, Rs. 1,200 and Rs. 840 respectively and to increase the property tax to Rs. 37-30, Rs. 124-34 and Rs. 87-04, respectively. The appellant filed revision petition obejcting to the proposed enhancements but these revisions petitions were dismissed whereupon the appellant filed appeals to the Municipal Council but they were also dismissed. In these circumstances, the appellant filed a suit O.S. No. 81 of 1966 before the learned District Munsif, Tiruvarur, for a declaration that the increase in the assessment was illegal and for a permanent injunction restraining the Municipality from taking coercive steps against the appellant contending that the notice served under Rule 6 did not conform to the provisions, of the Madras District Municipalites Act (here in after called the Act) either in substance or in effect and the increase in the assessment was arbitrary, excessive, unreasonable, oppressive and discriminatory and that therefore there should be a declaration that the increase in assessment was void and unenforceable and permanent injunction restraining the Municipality for enforcing the payment of the tax by the appellant in accordance with the revised assessment for the half yearly ending in October, 1965 and March, 1976.
2. The respondent-Municipality resisted the suit contending that on inspection of these buildings it was found that they were under the assessee and consequenly the annual rental value of the buildings was refixed having regard to the letting value of the buildings and special notices Were duly issued and the objections of the appellant were considered by the Commissioner and only thereafter the revised assessment was made and the appellant who should have remitted the tax assessed and preferred the appeals to the council filed appealstrtbe council without remitting the tax assessed and consequently the appeals were dismissed and the assessment has become final and it is not open to the appellant to re-agitate the matter in a civil Court action and the suit was bound to be dismissed as barred under the provisions of the District Municipalities Act.
3. The learned District Munsif found that the increase of assessment in respect of Door No. 58 was not valid but so far as the assessment in respect of Door Nos. 16, 16-1 were concerned they were quite valid. He further found that the suit in respect of Door No. 16 and 16-A-1 was barred while the suit in respect of Door No. 58 was not barred under Section 354 of the Act. On these findings the learned District Munsif passed a decree declaring that the increase of assessment for Door No. 58 and the tax demands in pursuance of it was illegal and granting permanent injunction restraining the respondent from taking coercive steps against the appellant from enforcing the increased assessment in respect of Door No. 58.
4. The respondent-Municipality thereupon preferred appeal Suit N . 43 of 1971 while the appellant filed A.S. No. 44 of 1971 in the Court of the Subordinate Judge, Nagapattinam, against the judgment and decree of the learned District Munsif. The learned Subordinate Judge however, found that revised assessments of the three buildings were valid and the suit was barred under Section 354 of the Act and he allowed A.S. No. 43 of 1971 preferred by the Municipality, in regard to the validity of the assessment in respect of Door No. 58 and dismissed A.S. No. 44 of 1971 which related to the validity of the assessment on Door No. 16 and 16-A-1. Hence the appellant has preferred this second appeal contending that the respondent Municipality has failed to follow the procedure according to law, for arriving at the annual rental value of the several buildings as laid down by the Supreme Court in the Guntur Municipal Council v. The Guntur Town Ratepayers Association etc. (1971) 2 M.L.J. 7, and as such both the Courts should have held that the increase in the assessment and the levy of increased tax in pursuance of that assessment were illegal and opposed to law.
5. Section 82(2) of the Act which relates to the method of assessment of property provides that the annual value of the lands and buildings shall be deemed to be the gross annual rent at which they may reasonably be expected to let out from month to month or year to year less a deduction in the case of buildings of ten percent of that portion of such annual rent which is attributable to the lands occupied as an appurtenant thereto. Section 354(1) of the Act provides that no assessment or demand made and no charge imposed under the authority of this Act shall be impeached or affected by reason of any clerical error or by reason of any mistake: (a) in respect of the name, residence place of business or occupation of any person or (b) in the description, of any property or thing or (c) in respect of the amount assessed, demanded or provided, that the provisions of this Act had been in substance and effect complied with. The rules which have relevance to this case are Rules 6 to 10 of the Taxaticr Rules in Part I of Schedule IV. Rule 6 provides that the value of any land or building for purpose of the property tax shall be determined by the executive authority. Rule 7 provides that the executive authority shall enter the annual or capital value of all lands and buildings determined by him and the tax payable thereon in assessment books to be kept for the purpose at the Municipal office. Rule 8(1) stipulates that the assessments books shall be completely revised by the executive authority once in every five years. Sub-rule(2) of the Rule 8 provides that the executive authority may amend the assessment books at any time between one general revision and another. Rule 9 lays down that when assessment books have been prepared for the first time and whenever a general revision of such books has been completed, the executive authority shall give public notice stating that the revision petitions will be considered if they reach the Municipal office within a period of thirty days. The first proviso to that Rule reads that every case where there is an enhancement in the assessment the executive authority shall also cause intimation thereof to be given by a special notice to be served on the owner or occupier of the property concerned. Rule 10 provides that in every case in which between one general revision and another the executive authority assess any property for the first time or increase the assessment on any property otherwise than in consequence of a general enhancement of the rate at which the property tax is leviable the executive authority shall intimate by a special notices to the Owner or occupier of the property concerned. Rule 10 provides that in every case in which tax is leviable the executive authority shall intimate by a special notice to the owner or occupier of such property that a petition for revising the assessment Will be considered if it reaches the municipal office within thirty days. Rule 11 lays down that any person may at any time not being less than thirty days before the end of the half year move the executive authority by revision petition to reduce the tax which he is liable to pay for the fourth coming half year on this ground that the annual or capital value of the property in respect of which the tax is payable and impossd has decreased since the assessment of the property was last made or reduced. Rule 23 provides for appeal to the council against the order of the executive authority under Rule 13 by a revision petition. Rule 26(B) stipulates that no appeal to the council shall be heard unless, except when the executive authority otherwise directs on the ground of poverty, the tax in respect of which the appeal is presented has been deposited at the Municipal office within the time stipulated in Clause (a).
6. Section 354 of the Act reads as follows:
No assessment or demand made and no charge imposed under the authority of this Act shall be impeached or affected by reason of any clerical error by reason of any mistake (c) in respect of the amount assessed, demanded or charged provided that no provisions of this Act have been in substance or effect complied with.
Now in the present case the respondent Municipality took the quinquenrial revision under Rule 2. It accordingly issued a public notice Exhibit P-26 under Rule 9. The commissioner made a personal inspection of the premises and made enquiries and made assessment of the property for the purpose of annual rental valuation. The Commissioner found on inspection of the buildings that the existing assessment in respect of the three buildings, concerned in this case and belonging to the appellant were low and consequently the respondent-Municipality issued the special notice Exhibits A-1 to A-3, under Rule 10, revising the existing assessment and the amounts of the property tax payable. The appellant filed revision petitions under Rule 12 contending that the revised assessment was without any basis. Those revision petitions were dismissed. The next remedy open to the appellant was therefore the remedy of appeal as provided under Rule 26. He accordingly preferred appeals to the Municipal Council, but even though Rule 20(B) provides that no appeal to the Council shall be heard except when the executive authority otherwise directs on the ground of poverty the tax in respect of which the appeal is presented has been deposited at the municipal office within the time specified in Clause (a), the appellant did not deposit the tax before filing the appeal. He filed the appeals without depositing the tax at all. Consequently the appeals were rightly dismissed by the Municipal Council. Hence the appellant then came forward with the suit in question.
7. The only contention now raised in this second appeal is that the executive authority of the respondent-Municipality had not properly arrived at the annual rental value or the principles laid down by the Supreme Court in the Guntur Municipal Council v. The Guntur Town Ratepayers Association (1971) 2 M.L.J 7, but had arbitrarily arrived at the rental value. The Supreme Court has observed on that section as follows:
Section 82(2) of the Madras District Municipalities Act makes provision for the fixation of annual value according to the rent at which lands and buildings may reasonably be expected to be let from month to month or from year to year less the specified deduction. The test essentially is what rent the premises can lawfully fetch if left out to a hypothetical tenant. The Municipality is thus not free to assess any arbitrary annual value and has to took 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 this respect no distinction can be made between buildings the fair rent of which has been actually fixed under the Rent Control Act and those in respect of which no such rent has been fixed.
In these case before me the Commissioner along with the Revenue Inspector who was examined as D.W. 1 visited the spot and found that Door No. 58 was a country-tiled electrified house occupied by Ramaswami brothers. Though the occupiers stated that the rent was Rs. 60 the Commissioner found that the premises Would fetch an annual rent of Rs. 1,200. The Commissioner found that Door No. 16-A-1 was a country-tiled masonry structure which was electrified and he disbelieved the contentions of the appellant that it was let out at Rs. 15 and held that it would reasonably fetch an annual rent of Rs. 240. P.W. 1 during his cross-examination admitted that Ramaswami Mudaliar, to whom Door No. 16 had been let out in March, 1965 at a rent of Rs. 50 per month had sublet it to Rajavelu Brothers, who paid to him. Rs. 125 per month towards rent. Further in. Exhibit B-18, the copy of the plaint in O.S. No. 60 of 1967 filed by P.W. 1 against Rajavelu, P.W. 1 had alleged that the rent for Door No. 16 is Rs. 125. per month. Again the receipt Exhibit P-19 dated 24th September, 1962, given by P.W. 1 to one Thayyanayagi says that the rent for that premises was Rs. 95 per month and then Rs. 110 per month. In the case of Door No. 16-A-1. D.W.2 Ramalingam who is running a hotel there stated that be was paying a rent of Rs. 60 per month. P.W. 1 however refuted that. This was all the material that was made available with regard to reasonable. rent that the properties would fetch. Under those circumstances the Municipality should have arrived at the annual rental value in accordance with the principles laid down by the Supreme Court in the aforesaid case. On the other hand the Commissioner has arbitrarily fixed though in a bona fide manner the reasonable rent that the properties would fetch. Hence this appeal has to be allowed and the judgment of both the Courts below are set aside and the suit is decreed with costs. The appellant will be entitled to costs throughout.