Kasi theatre by Its Proprietor M.K.M. Madivadan Vs. Chairman, M.M.W.S.S.B., Chennai, - Court Judgment

Excerpt:
- - as the petitioner has failed to comply with the said demand within the stipulated period he is liable to pay the sur charge.order1. this writ petition has been filed praying for a writ of certiorari to call for the records of the respondents pertaining to the cut off notice dated 20.2.98 and to quash the order therein.2. heard both sides.3. the short facts involved in this writ petition are: the petitioner was served with notice dated 20.2.98 to pay tax at the rate of rs.7431.85 for every half year with effect from i-1992-1993 . the original tax to the said property was rs.2448/- per half year. prior to the said notice no demand notice was served by the respondents. hence prayed for the quashing of the impugned notice.4. learned counsel appearing for the petitioner argued that prior to the impugned order no notice was issued by the respondent, that under sec. 34(1) of the act the respondent board shall levy both water and sewerage taxes, that under sec.34(2) the water tax shall not be more than 20% of the assessed annual value of the property and the sewerage tax shall not be more than 10% of the annual value of the property and that undersec.34(5) of the act, the board may exempt any local area from whole or portion of the aforesaid taxes on the ground that such area is not deriving any or the full benefit if the water supply or sewerage system. learned counsel further argued that the petitioner's building was not brought under any facility of water or sewerage connection as such they are not liable to pay any tax for water or sewerage connection.5. learned counsel for the petitioner also argued that the impugned notice referred to non payment of bills, but no notices in respect of the alleged arrears were issued ever before. he also argued that there was no levy nor a demand but the impugned cut off notice alone was served on the petitioner. 6. learned counsel for the respondents denied that the petitioner theatre is not availing the facility of water supply and drainage, that the property owners are liable to pay tax in respect of water and sewerage connection whether they avail it or not and that the petitioner has not placed any record to show that they have constructed septic tank for the disposal of the sullage and sewerage water without availing the service of the board. being a component of property tax, water and sewerage tax is not related and referable to any particular service rendered to a particular individual but it is a general levy collected from the public for providing and implementing welfare measures. whenever the annual value of the property is revised by the chennai corporation , the same is being automatically adopted by and reflected in the revenue records of the board. learned counsel further argued that the water and sewerage tax is levied at 3.5% per half year based on the annual value fixed by the chennai corporation. the said annual value of the petitioner premises was enhanced by chennai corporation from rs.69,943/- to 2,12,339/- for the period commencing from i/92-93 , consequently the water and sewerage tax was fixed at rs.7,431.85 per half year. the petitioner is liable to pay the revised rate of rs.7,431.85 per half year. the demand card no.16001 in respect of the said tax was issued by the petitioner on 30.05.1996 by registered post acknowledgment due. on 17.2.1997 the petitioner was further informed to pay the arrears amounting to rs.14,504.40 for the period from i/94-95 to ii/96-97. again, the petitioner was called upon to pay the arrears amount of rs.72,343.90 based on the enhanced annual value on 16.10.1997. the final reminder was issued on 20.2.1998 which is challenged in the present writ petition. as the petitioner has failed to comply with the said demand within the stipulated period he is liable to pay the sur charge.7. learned counsel appearing for the petitioner relied upon the decision reported in m/s. kutty flush doors and furniture co., pvt. ltd., v. madras metropolitan water supply and sewerage board and others. 1995 ii mlj 467 wherein it is held that the board has to fix the annual value of the building before levying water tax and without levy, notice calling on property owner to pay arrears of water tax, was without jurisdiction.8. learned counsel for the respondents relied upon the unreported decision made in w.p.no.14392 of 2000 dated 11.10.2001 wherein it has been held that the board is entitled to levy tax based on the revision made in the property tax and no such notice is required.9. sec.34 of the act provides for the levy of water tax and sewerage tax, sec.35 provides for the method of assessment of annual value . the annual value of the premises for the purposes of levy of taxes mentioned in section 34 shall be assessed by such authority as may be prescribed. till such time as the annual valuation of land and buildings is determined under this act, the annual value of the land and buildings for the purposes of this act, shall be the annual value as assessed by the local bodies. it is evident that under sec.35, the respondents have to determine the annual value and assess the tax. though the board is making the assessment adopting the annual value made by the local bodies, the board has a duty under sec.34 of the act to levy tax. the respondents have not produced any evidence to show that they have levied tax. i concur with the view taken by the learned judge in the decision relied on by the petitioner viz., 1995 ii mlj 467 and i dissent the view taken by the learned judge in the decision relied on by the respondents viz., w.p.no.14392/2000 dated 11.10.2001. hence i come to the conclusion that the impugned notice is unsustainable in law and liable to be quashed. 10. the petitioner has not produced any iota of evidence to show that they have not availed the facility provided by the respondents. on the other hand the petitioner had been paying taxes and charges yesteryears which prove that they have been enjoying the facilities rendered by the board. as rightly pointed out by the learned counsel for the respondent, water and sewerage taxes are not related or referable to any particular service rendered to a particular individual but it is a general levy collected from the public for providing and implementing the welfare measures. as such the petitioners are liable to pay taxes. hence, it is open to the respondents to proceed in accordance with law and demand the tax.in the result, the writ petition is allowed with the above observation. no costs. consequently wmp no.7140/98 is closed.

Judgment:
ORDER

1. This writ petition has been filed praying for a Writ of Certiorari to call for the records of the respondents pertaining to the cut off notice dated 20.2.98 and to quash the order therein.

2. Heard both sides.

3. The short facts involved in this writ petition are: The petitioner was served with notice dated 20.2.98 to pay tax at the rate of Rs.7431.85 for every half year with effect from I-1992-1993 . The original tax to the said property was Rs.2448/- per half year. Prior to the said notice no demand notice was served by the respondents. Hence prayed for the quashing of the impugned notice.

4. Learned counsel appearing for the petitioner argued that prior to the impugned order no notice was issued by the respondent, that under Sec. 34(1) of the Act the respondent Board shall levy both Water and Sewerage taxes, that under Sec.34(2) the water tax shall not be more than 20% of the assessed annual value of the property and the sewerage tax shall not be more than 10% of the annual value of the property and that underSec.34(5) of the Act, the Board may exempt any local area from whole or portion of the aforesaid taxes on the ground that such area is not deriving any or the full benefit if the water supply or sewerage system. Learned counsel further argued that the petitioner's building was not brought under any facility of water or sewerage connection as such they are not liable to pay any tax for water or sewerage connection.

5. Learned counsel for the petitioner also argued that the impugned notice referred to non payment of bills, but no notices in respect of the alleged arrears were issued ever before. He also argued that there was no levy nor a demand but the impugned cut off notice alone was served on the petitioner.

6. Learned counsel for the respondents denied that the petitioner theatre is not availing the facility of water supply and drainage, that the property owners are liable to pay tax in respect of water and sewerage connection whether they avail it or not and that the petitioner has not placed any record to show that they have constructed septic tank for the disposal of the sullage and sewerage water without availing the service of the board. Being a component of property tax, Water and sewerage tax is not related and referable to any particular service rendered to a particular individual but it is a general levy collected from the public for providing and implementing welfare measures. Whenever the annual value of the property is revised by the Chennai Corporation , the same is being automatically adopted by and reflected in the revenue records of the Board. Learned counsel further argued that the water and sewerage tax is levied at 3.5% per half year based on the annual value fixed by the Chennai Corporation. The said annual value of the petitioner premises was enhanced by Chennai Corporation from Rs.69,943/- to 2,12,339/- for the period commencing from I/92-93 , consequently the water and sewerage tax was fixed at Rs.7,431.85 per half year. The petitioner is liable to pay the revised rate of Rs.7,431.85 per half year. The demand card No.16001 in respect of the said tax was issued by the petitioner on 30.05.1996 by Registered Post Acknowledgment Due. On 17.2.1997 the petitioner was further informed to pay the arrears amounting to Rs.14,504.40 for the period from I/94-95 to II/96-97. Again, the petitioner was called upon to pay the arrears amount of Rs.72,343.90 based on the enhanced annual value on 16.10.1997. The final reminder was issued on 20.2.1998 which is challenged in the present writ petition. As the petitioner has failed to comply with the said demand within the stipulated period he is liable to pay the sur charge.

7. Learned counsel appearing for the petitioner relied upon the decision reported in M/S. Kutty Flush Doors and Furniture Co., Pvt. Ltd., v. Madras Metropolitan Water Supply and Sewerage Board and Others. 1995 II MLJ 467 wherein it is held that the Board has to fix the annual value of the building before levying water tax and without levy, notice calling on property owner to pay arrears of water tax, was without jurisdiction.

8. Learned counsel for the respondents relied upon the unreported decision made in W.P.No.14392 of 2000 dated 11.10.2001 wherein it has been held that the Board is entitled to levy tax based on the revision made in the property tax and no such notice is required.

9. Sec.34 of the Act provides for the levy of water tax and sewerage tax, Sec.35 provides for the method of assessment of annual value . The annual value of the premises for the purposes of levy of taxes mentioned in Section 34 shall be assessed by such authority as may be prescribed. Till such time as the annual valuation of land and buildings is determined under this Act, the annual value of the land and buildings for the purposes of this Act, shall be the annual value as assessed by the local bodies. It is evident that under Sec.35, the respondents have to determine the annual value and assess the tax. Though the Board is making the assessment adopting the annual value made by the local bodies, the board has a duty under Sec.34 of the Act to levy tax. The respondents have not produced any evidence to show that they have levied tax.

I concur with the view taken by the learned Judge in the decision relied on by the petitioner viz., 1995 II MLJ 467 and I dissent the view taken by the learned Judge in the decision relied on by the respondents viz., W.P.No.14392/2000 dated 11.10.2001. Hence I come to the conclusion that the impugned notice is unsustainable in law and liable to be quashed.

10. The petitioner has not produced any iota of evidence to show that they have not availed the facility provided by the respondents. On the other hand the petitioner had been paying taxes and charges yesteryears which prove that they have been enjoying the facilities rendered by the board. As rightly pointed out by the learned counsel for the respondent, water and sewerage taxes are not related or referable to any particular service rendered to a particular individual but it is a general levy collected from the public for providing and implementing the welfare measures. As such the petitioners are liable to pay taxes. Hence, it is open to the respondents to proceed in accordance with law and demand the tax.

In the result, the writ petition is allowed with the above observation. No costs. Consequently WMP No.7140/98 is closed.