G. Ramanujam, J.
1. The petitioner prays for a writ of mandamus from this Court to restrain the respondents herein from levying, revising or collecting the property tax on the land and buildings belonging to the petitioners at No. 83, Big Street, Madras-5 on the basis of its plinth area, contrary to the provisions of the Madras City Municipal Corporation Act, 1919.
2. The first respondent is the State of Tamil Nadu and the second respondent is the Corporation of Madras. According to the petitioner as soon as he came to know that the Corporation of Madras had proposed to revise the property tax leviable on the properties in the City of Madras adopting the plinth area as the basis, he wrote to respondents 1 and 2, as a rate-payer, as the representative of the City Cleaning Campaign, and as the Secretary of the Native Residents Association of the Madras City, pointing out that the Corporation has no jurisdiction to assess levy or collect property tax on the basis of the plinth area as it would tantamount to levying a tax on the property and not its rental value. The second respondent, however, without giving any reply to the said letter, proceeded to issue a circular purporting to be the guidelines for its executive staff directing that tax should be reckoned at 30 paise per sq. ft. of plinth area for owner occupied buildings and 45 to 50 paise for tenanted buildings. Apprehending that his property also will be assessed to property tax on plinth area basis as per the said guidelines issued by the Corporation he has approached this Court for the relief aforesaid.
3. A preliminary objection was taken by the respondents to the maintainability of the writ petition on the ground that the petitioner has got alternative remedy to challenge any assessment that may be made on his property. This preliminary objection has been considered and rejected in my order dated 23rd August, 1977. The only question now to be considered is whether the Corporation is adopting plinth area basis for assessment of property tax in the City of Madras as alleged by the petitioner.
4. The petitioner's first contention is that the Corporation has issued guidelines to its executive staff, i.e., the Subordinate Revenue Officers and assessors directing them to reckon the property tax at 30 paise per sq. ft. of plinth area for owner occupied building and 45 to 50 paise for tenanted buildings, that such a mode of assessment is illegal as it is contrary to Section 100 of the Madras City Municipal Corporation Act, and that such assessments based on the plinth area have been consistently held to be bad by the Supreme Court and other High Courts. Secondly, it is contended that in any event the rate per sq. ft. suggested in the guidelines is also highly arbitrary, irrational and economically burdensome that the revision of property tax assessment on the above basis has in fact resulted in the half-yearly tax going up by three to five times the existing tax without any justification, that such oppressive assessments will ultimately result in the total annihilation of all property owners in the course of next five years and that therefore, the annual value should be fixed only with reference to the fair rent formula contemplated by the Madras Buildings (Lease and Rent Control) Act, 1960, as has been held in a series of cases by the Supreme Court. Thirdly, it is contended that the proposed revision of property tax being quinquennial, any revision in the annual value can only be for specific grounds such as increase in the area of the building, increase in rent, additions or alterations in the building etc., that the annual value of the building cannot suddenly increase four to five times merely because the assessing authority wants to increase the tax and that in most of the assessments so far made in relation to some properties, the annual value has been increased without giving any specific ground which has occasioned the enhancement of the annual value.
5. The second respondent filed an elaborate counter affidavit and the first respondent has adopted the same. In the counter affidavit filed by the second respondent, it has been specifically stated that it is not levying tax on the basis of the plinth area of the building, that the provisions of Section 100 of the Madras City Municipal Corporation Act, 1919, dealing with the method and levy of property tax are being followed strictly and that the procedure followed for the determination of the annual letting value is legal. As regards the petitioner's complaint that the plinth area basis is being or proposed to be adopted, the second respondent states that they have adopted only the annual rental value as the basis, that for determining the annual value, it is true, certain guidelines had been issued but there is no thing repugnant in those guidelines to the provisions of Section 100 of the Act or the rules framed thereunder, that such guidelines are necessary as the Act and the Rules are silent as to the manner of arriving at the reasonable letting value, that there was no uniformity of approach in the assessment of similar buildings located in one and the same area, and that the issue of guidelines has facilitated the adoption of a uniform procedure for arriving at the annual letting value. It is said that the buildings are grouped generally into the following four categories and the tax levied at the rate prescribed by the council with reference to Section 99 of the Act.
1. Annual value Rs. 500/-and below.
2. Annual value above Rs. 500/- but below Rs. 1.000-
3. Annual value above Rs. 1,000/- but below Rs. 5,000/-
4. Annual value above Rs. 5,000-
I Grade 18% of the annual value per year. 25 of the annual
II Grade value per year. 27% of the annual
III Grade value per year. 30% of the annual
IV Grade value per year.
As regards the land which is not appurtenant to any building or which is occu pied by or appurtenant to huts, the tax is said to have been fixed at Rs. 8 per ground in pursuance of Section 102 of the Act. Where the land is capable of fetching rental income, the annual value is based on the actual rental income from the land without allowing any deduction as the land does not require any maintenance or has no depreciation value.
6. As regards the petitioner's allegation that the quinquennial revision is proceeding on the basis of the guidelines, the respondents state that the quinquennial revision takes place once in five years during January and February of every year, that a special notice is published in the Newspaper after a general revision is done as per Rule 2 of the Taxation Rules in Schedule IV of the Madras City Municipal Corporation Act, 1919, that apart from the said special notice published in the Newspaper, individual notices are also served on the owner or occupier of the property, that in respect of other revisions between one revision and another which may arise as a result of the increase in rent, additions and alterations of the building, construction of new buildings, notice under Rule 3 in Schedule IV is issued in the first instance to the parties and that after consideration of their objections, if any, another notice called '3-A notice' is issued and served on the individual property owners and their objections considered. It is said that oral hearing also is given. The owners were also given opportunities to go on appeal to the Taxation Appeals Committee against the orders of the Commissioner and to the Court of Small Causes against the decisions of the Taxation Appeals Committee. It is, therefore, contended by the respondents that in cases where revision of assessment is not in accordance with the provisions of the Act, the same could be rectified by invoking the remedies provided in the Act. The respondents also point out that in practice it was considered expedient to guide the assessors in estimating rental values as it was thought that leaving the discretion unfettered would leave it open to abuses or malpractice in which both the Corporation's interest as well as that of the house owners may suffer, that therefore guidelines were issued with the directions that the assessors had to bear in mind the situational advantages, the nature of the area of location of the building like residential areas or commercial areas and other variable factors, that the guidelines were not binding or meant to fetter the assessor's discretion, that they were only intended to achieve a beneficial purpose, namely, to reduce the scope for arbitrariness or capriciousness leading to discrimination and disparity in estimating the rental values, that the guidelines only indicate the result of a study-a broad range of possibilities, that the assessors have discretion to go beyond the range either way, if an enquiry indicates the basis for doing so and that there is nothing repugnant to the Act or rules in the guidelines.
7. Dealing with the petitioner's contention that the annual value of a building can only be arrived at with reference to the provisions of the Rent Control Act dealing with the fixation of fair rent of buildings, the respondents State that these provisions are not mandatory, that every owner or tenant occupying a building is not under any legal obligation to have the rent of that building fixed under the provisions of that Act, that the fair rent is fixed either at the instance of the tenant or the owner on a specific application being made for the purpose to the appropriate authority, that residential buildings whose rent is more than Rs. 400 do not also come within the scope of the Act at all, that buildings, whether residential or non-residential constructed within five years do not also attract the provisions of the Act, that therefore, it is not possible to uniformly apply the provisions of the Rent Control Act relating to fixation of fair rent in respect of all buildings, that it is also not the intention of the Legislature to apply the fair rent formula to the levy of property tax, that the Madras City Municipal Corporation Act speaks of only expected rent and not actual rent for the purpose of arriving at the annual rental value and that the purposes of the City Municipal Corporation Act and the Rent Control Act being different, the fractional application of the provisions of the Act to another field would create unnecessary complications and will lead to unintended results. It is said that to pick out a particular section or sections of the Act and to apply it to a field different from its own, will disturb the internal consistency, harmony and the scheme of the latter Act, that therefore the Rent Control Act can not be applied to the levy of property tax and that the levy of property tax has to be done only in accordance with the provisions of the Madras City Municipal Corporation Act, 1919 and not with reference to the Rent Control Act.
8. The respondents state that, in any event on actual practice the Corporation found that the rents fixed with reference to the fair rent formula are always very much higher than those assessed by the Corporation under the Madras City Municipal Corporation Act and that the fair rent formula leads to the tax structure being regressive in incidence as it does not take into account the nature of the structure or the building and the situation and the area in which it is located. As regards the petitioner's complaint that the property owners to whom notices under Rules 3 and 3-A are issued are not put on notice of the reasons for revision or enhancement of the tax and that they are completely in the dark as to why and how the revision of assessment is made, the respondents state that forms prescribed under Rules 2-B, 3 and 3-A have been in vogue for several years in the past, that forms prescribed that grounds for revision should be mentioned, that the owners are given reasons as to why and how the revision of assessment come to be made at the time of the oral hearing and that they are also allowed to peruse the assessment records to find out the basis for revision. Thus the respondents' stand is that the reason as to why and how the revision of assessment is made need not be stated in the notice issued under Rules 2-B, 3 and 3-A.
9. On these pleadings, the following questions arise for consideration:
1. Whether the plinth area basis could be adopted for determining the annual value of buildings?
2. Whether the second respondent has adopted the plinth area basis in making the general revision of assessments?
3. Whether the fair rent formula is to be uniformly applied by the second respondent in determining the annual value of all buildings in the City as urged by the petitioner?
4. Whether the reason as to why and how the revision of assessment has taken place in a particular case should be set out in the notices issued under Rules 2-B, 3 and 3-A of Schedule IV to the Madras City Municipal Corporation Act, 1919?
The first question is no longer res Integra. It has been held consistently by the Supreme Court that the determination of the annual valuation of the property with reference to the floor area cannot be justified under law of rating. In Lokmanya Mills Barsi Ltd. v. Barsi Borough Municipality, Barsi : 1SCR306 , the validity of Rule 20 framed under Section 58(j) of the Bombay Municipal Boroughs Act, 1925, was challenged. In that case the Municipality had resolved to enhance the assessment of lands and buildings within its area by fixing the annual rental value at Rs. 40 for every 100 square feet and gave effect to the said resolution by framing the following rule:
Rule 20: As regards mills, factories and buildings relating thereto, the annual letting value shall be fixed at Rs. 40 per 100 square feet or part thereof for every floor, groundfloor or cellar and the tax shall be assessed on the said annual letting value, at the ordinary rate.
The Municipality prepared an assessment list under the new scheme of taxation and issued notices of demand calling upon the appellants to pay house-tax and water-tax newly assessed thereon. The assessees filed suits challenging the demand towards property tax. The trial Court held that Rule 20 was valid and within the competence of the Municipality and dismissed the suits. The District Court, on appeal, however, declared the said rule as illegal and ultra vires. The High Court, disagreed with the District Court and held the rule to be valid. When the matter was taken to the Supreme Court on special leave, the Supreme Court held that the rate to be levied on lands and buildings may be assessed on the valuation of the lands and buildings based on capital or the annual letting value and that the Municipality is enacting Rule 20 ignored both the above methods of valuation and had adopted a method not sanctioned by the Act by prescribing valuation computed on the area of the building. In Patel Gordhandas Hargovindas v. The Municipal Commissioner, Ahmedabad : 2SCR608 , the validity of a rate at a percentage of the capital value of open lands was challenged on the ground that it was contrary to Section 73 of the Bombay Municipal Boroughs Act, 1925. This challenge was upheld by the Supreme Court. The Supreme Court has taken the view that though the word 'rate' has not been defined anywhere in the Bombay Municipal Boroughs Act, 1925, it was clear that the word has been used to mean a tax on the annual value of lands and buildings, that under the provisions of the said Act the basis of the valuation may either be capital or annual letting value and that there is no basis for adopting the third method of valuation of adopting the percentage of the capital value itself. Referring to the contention advanced by the Municipality that it would make no difference whether the rate is levied at a percentage of the capital value or at a percentage of the annual value arrived at on the basis of capital value by fixing a certain percentage of the capital value as the yield for the year, the Supreme Court expressed that though it is possible to arrive at the same figure for the rate by either of these methods, so long as the law enjoins that the rate should be fixed on the annual value of lands and building, the Municipality cannot fix it on the capital value and then justify it on the ground that the same result could be arrived at by fixing a higher percentage as the rate in case it was fixed in the right way on the annual value. According to the Supreme Court by fixing the rate as a percentage of the capital value directly, the real incidence of the levy is camouflaged, and the vice in the camouflage resulting from imposing the rate at a percentage of the capital value lay in that, the levy may become extortionate or confiscatory, and therefore, fixing of the rate at a percentage of the capital value is not permitted by the Act. In view of the above pronouncements of the Supreme Court, the property tax cannot be levied under Section 100 of the Madras City Municipal Corporation Act on the plinth area basis.
10. The next question is whether the second respondent has adopted the plinth area basis in making the general revision of assessments. In the counter-affidavit filed by the second respondent, it has been specifically stated that it is not levying tax on the basis of the plinth area of the building in respect of any of the premises in the city and that the revision of property tax is not being carried out on the basis of any national rent per square foot. The petitioner would, however, refer to the guidelines for the General Survey of the year 1976-77 as indicating an attempt by the Corporation to adopt the plinth area basis. Paragraph 7 of the said guidelines is as follows:
Wherever the actual rental value is not forthcoming, the rental value should be calculated at Rs. 0-30P. in respect of owner occupied premises and Re. 0-45 to Re. 0-50P. in respect of tenant occupied portions, to be reckoned as tax. In other cases, the actual rental value should be adopted. Where the rental value is suspected or where the rental value given is below the value to be reckoned on the basis of sq. ft. method, the latter should be adopted.
This paragraph in the said guidelines proceeds on the basis that wherever the actual rental value is not forthcoming or the rental value reported is suspected to be low, the rental value should be calculated at 0.30P. in respect of owner occupied premises and 0.45 to 0.50P. in respect of tenant occupied portions. It is also pointed out by the petitioner that as no reason for enhancement of the valuation is given in the special notices served on the owners under Rules 2-B, 3 and 3-A, it is not possible for the owners to know whether the Municipality has adopted the plinth area basis or not in pursuance of the said guidelines. As against this, the learned Advocate-General appearing for the respondent takes me through the guidelines issued for the year 1977-78 and submits that the plinth area basis has not been adopted and that the officials are merely asked to bear in mind the rental value of the buildings obtained in the city and that it is only for that purpose the rate per square foot has been given. The later portion of paragraph 7 in the guidelines for the year 1977-78 is referred to as indicating that the assessment of any property should be made strictly with reference to Section 100 of the Madras City Municipal Corporation Act, and, therefore, it cannot be assumed that the second respondent is making an attempt to make the assessment in contravention of Section 100 of the Act. Having regard to the definite stand taken by the respondents that the assessment of property-tax has not been done in any case on the basis of the plinth area and that they have no intention to adopt that method, it is not possible for this Court at this stage to issue any direction in that regard. The learned Advocate-General fairly concedes that if it is shown in a given case that the plinth area basis has been adopted, that assessment will have to be quashed as and when challenged.
11. In this case, the petitioner has not been able to produce any assessment made by the officers of the second respondent adopting the plinth area basis. But the petitioner would say that all the assessment orders so far made enhancing the property-tax have been camouflaged in such a way that the reason for enhancement cannot be known by the assessees, that it is not possible for any one to say whether the second respondent has actually adopted the plinth area basis or not, that unless the reasons for enhancement are given in the special notices contemplated by the Rules, the actual basis adopted by the Corporation cannot be known and, that therefore, the assessing officers should be directed to give reasons for enhancement so that the assessee may know the basis for enhancement. In this connection, the petitioner refers to Volume I of Halsbury's Laws of England (Administrative Law) IV Edition, page 92, paragraph 75 which states that 'the particulars set out in the notice should be sufficiently explicit to enable the interested parties to understand the case they have to meet and to prepare their answer and their own cases.'
12. This leads us to the fourth contention set out above. It has been pointed out that before finalising the assessment list an opportunity must be given to the assessees to object to the enhanced valuation. The petitioner's complaint is that in all the special notices issued before finalising the assessment list, how the annual value has been ascertained has not been stated and that therefore, the assessees are handicapped in putting forward their objections to the basis and the mode of fixing the annual value. I am inclined to agree with the contention of the petitioner that the mere mention of the annual value, as determined by the assessor in the special notice, is not sufficient and that the details as to how that valuation was arrived at are necessary to put the assessee on notice of the basis and the mode of fixing the annual value so as to enable him to file his objections to the proposed increase. Section 100 of the Madras City Municipal Corporation Act, 1919, enables the property tax being levied on the gross annual rent at which they may reasonably be expected to let at the time of assessment less a deduction, in the case of buildings of ten per cent, of such annual rent which is attributable to the buildings alone, in lieu of all allowance for repairs etc. Schedule IV of the Act sets out the Rules governing the levy and assessment of property tax. Rule 1-C directs the Commissioner to enter the annual value of all lands and buildings and the tax payable thereon in the assessment books. Rule 1-D enables a general revision of the assessment books by the Commissioner once in every five years. Rule 1-E says that an assessment once made shall continue in force until it is revised and until the revised assessment takes effect. Rule 2 says that when assessment books have been prepared for the first time and whenever a general revision of such books has been completed the Commissioner shall give public notice specifying the time when and the place where the books may be inspected and stating that revision petitions will be considered if they are preferred within fifteen days from the date of such notice. The proviso to Rule 2' specifically says that in every case where there is an enhancement in the assessment the Commissioner 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 3 says that the Commissioner may after giving notice to the parties concerned and after hearing their objections, if any, amend the property tax assessment books at any time between one general revision and another by altering the valuation of any property or the amount of tax. The provision to Rule 2 clearly indicates that wherever there is an enhancement in the assessment, a special notice is to be served on the owner or occupier of the property concerned. The special notice contemplated by the proviso is intended to give an opportunity to the owner or occupier of the property to put forward his objections to the enhancement in the assessment. The owner or occupier can put forward his objections only if he knows why there has been enhancement in the assessment. Therefore, the special notice should necessarily contain the basis for enhancement of the assessment go that the assessee may be able to object to the enhancement of the assessment. Thus there is considerable force in the contention of the petitioner that the special notices issued by the second respondent should contain the reasons for the enhancement of the assessment and unless the reasons are given the assessees may not be able to put forward any effective objections to the said enhancement.
13. The petitioner has produced a bundle of photostat copies of the special notices served on some of the assessees in some of the Corporation Divisions. In all these special notices, the old annual value after the revision have alone been mentioned and the reason for enhancement has not been given. The assessee on receipt of such special notice cannot be expected to know as to why the enhancement may be due to: (1) rental difference noticed during the course of the inspection of the property by the assessing officers, (2) due to additions or alterations in the existing building, and (3) construction of a new building. Unless the assessee is told as to what is the reason for the enhancement in the assessment, he may not know on what ground the enhancement has been made. In such cases, he may not be able to put forward his objections specifically and effectively. It is, therefore, clear that the special notices should give reasons for enhancement.
14. Coming to the third contention that the annual value of the buildings has to be determined only with reference to the fair rent formula provided for in the Madras Buildings (Lease and Rent Control) Act, the petitioner has referred to a series of decisions of the Supreme Court which seems to lay down that the fair rent formula provided for in the Rent Control Act should normally be followed in the determination of the annual value of buildings. In Corporation of Calcutta v. Smt. Padma Debi : 3SCR49 , it was held that the annual rent could not be fixed higher than the standard rent fixed under the relevant Rent Control Act. In Guntur Municipal Council v. Ratepayers' Association : 2SCR423 ., the Supreme Court again pointed out that for determining the annual value of the buildings under Section 82(2) of the Madras District Municipalities Act, the test essentially to be applied is what rent the premises can lawfully fetch if let out to a hypothetical tenant and that the Municipality is bound by the fair rent which would be payable for a particular premises under the Rent Control Act in force during the year of assessment and is not free to assess the tax on any arbitrary annual value. It was also pointed out in that case that there can be no distinction between buildings for which fair rent has been fixed by the Rent Controller and those in respect of which no such fair rent has been fixed and that when the Rent Controller has not fixed the fair rent, the municipal authorities will have to arrive on their own figure of fair rent in accordance with the principles laid down in the Rent Control Act. Dealing with the plea of inconvenience and procedural difficulties in the application of the principles laid down in the Rent Control Act for fixing fair rent for buildings by the assessing authorities constituted under the District Municipalities Act, the Court said:
We are not concerned with the procedural difficulties which may be experienced ; we have to declare what the law is and as appears to be well settled the assessment of valuation for the purpose of tax must be made in accordance with and in the light of the provisions of the Rent Control Act which would be in force during the period of assessment.
In Delhi Municipality v. M.N. Soi : 1SCR731 , the Supreme Court again pointed out that the municipal authorities are obliged not to assess at a higher rental value than the standard rent fixed under the Rent Control legislation. In that case, the landlord was receiving a sum of Rs. 1,500 per month as rent in respect of a building and that the said actual rent received was taken as the basis for fixing the annual value of the building ignoring the fair rent of Rs. 170 per month fixed for that building under the Delhi Rent Control Act in 1941. The Court pointed out that the municipal authorities cannot take advantage of the defiance of the law relating to Rent Control Act and treat the rent received by him in defiance of the law as a reasonable rent and that, therefore, the assessing authorities are obliged not to assess at the actual rent received but on the standard rent fixed under the Rent Control Act. In a recent decision in S. Ramaswamy v. The Commissioner, Corporation of Madras 2. C.R.P. Nos. 3275 and 3276 of 1975, this Court after considering the above decisions of the Supreme Court, had observed:
Thus the Supreme Court has taken consistently the view that the standard of reasonableness has to be judged not from the expectation of a landlord who takes the risk of prosecution and punishment which the violation of the law involves, but the expectation of the landlord who is prudent enough to abide by the law, and that, therefore, even in cases where the rents actually collected by the landlords are higher than the standard rent the assessment could not be made on the basis of the actual rents received by the landlord but by the fair rent which alone the landlord is entitled to collect legally from the tenants.
15. In Indore Municipality v. Ratnaprabha : 1SCR1017 , it was, however, held that where the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permissible to the municipal authorities to fix its reasonable rent without regard to the provisions of the Rent Control Act. But that decision is based on the non-obstante clause contained in Clause (b) of Section 138 of the M.P. Municipal Corporation Act, 1956. Since Section 100 of the Madras City Municipal Corporation Act does not contain such a non-obstante clause, the earlier decisions of the Supreme Court referred to above will have to apply. However, in cases where the buildings are not governed by the provisions of the Rent Control Act, there is no question of infringement of the provisions of the Rent Control Act by the owners receiving whatever rent is paid by the tenants and, therefore, the actual rent collected by the assessees can be taken as the reasonable rent which the building is likely to fetch. Under the provisions of the Madras Buildings (Lease and Rent Control) Act, 1960, certain buildings fetching rent above a particular limit are not governed by the provisions of the Act and in those cases there cannot be any restriction as to the rents that can be received in respect of the buildings. Similarly there are certain buildings which have been exempted from the provisions of the said Act. Therefore, the fair rent formula contemplated by the Rent Control Act need not strictly be followed by the assessing authorities in respect of such of those buildings which do not come under or are exempted from the purview of the Rent Control Act.
16. In this case the petitioner, has prayed for a mandamus restraining the respondents from levying or revising or collecting the property tax on the land and buildings belonging to the petitioner at No. 83, Big Street, Madras-5 adopting the plinth area basis. It has already been pointed out that the consistent view taken by the Supreme Court is that plinth area basis cannot be adopted for rating purposes. The respondents, in their counter-affidavit, have also categorically stated that the plinth area basis is not being or going to be adopted for assessment of property tax. The learned. Advocate-General has also represented to the Court that the second respondent is not going to adopt the plinth area basis for the purpose of assessing the property tax. The petitioner has also not given any specific instance where the plinth area basis has been adopted. In these circumstances it is not possible to issue a writ of mandamus as prayed for by the petitioner. However, there will be a direction to the second respondent to set out the reasons for enhancement of property tax wherever there is an enhancement so that the assessees may know the basis adopted in determining the annual value and put forward their effective objections to the proposed enhancement. In determining the annual value, the second respondent will also follow the fair rent formula provided for in the Rent Control Act in respect of buildings which are governed by the provisions of the Rent Control Act. Accordingly, there will be a limited direction in this writ petition as set out above. The writ petition is ordered accordingly. The petitioner will be entitled to the costs of the petitioner which I fix at Rs. 150 from the second respondent.