DAMODARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE two petitioners have been called upon to pay property tax by the second respondent Municipality as per the bills Exts. P1 and P2 series. THE bills relate to the year 1985-86. THE quinquennial revision of property tax in the Municipality took place in the year 1982-83. THE demands made as per Exts. P1 and P2 are higher than those which had been fixed under that quinquennial revision and which had been demanded of the petitioners for the preceding periods, that is for the year 1984-85 and earlier. Petitioners challenge Exts. P1 and P2 series on the ground that the demand is in violation of S. 104 of the Kerala Municipalities Act.

(2.) THE respondents have filed counter affidavits. THE first respondent State has filed a counter affidavit justifying the demand on the ground that the Municipal Council had passed resolution deciding to enhance the property tax from 15% which was in force up to 1984-85 to 171/2% with effect from 1-4-1985. This resolution had been passed after complying with the formalities prescribed by S. 97 and 98 of the Municipalities Act. It was in accordance with this enhancement that larger amounts were demanded under exts. P1 and P2 from the petitioners.

(3.) THIS submission of the petitioners however, is without taking note of the other provisions of the Kerala Municipalities Act, particularly R. 9 of Schedule II. S. 104 is specific that the provisions thereof are subject to the provisions of schedule II. In fact the opening words of s. 104 are "same as otherwise provided for in schedule II". If there is any specific provision in schedule II enabling the second respondent or its commissioner to amend the assessment books or the amount of tax payable during the period of quinquennial revision that must govern and not the provisions of s. 104. Such a provision is to be seen in R. 9 (2) of schedule II. The said rule states that the Commissioner may amend the assessment book at any time between one general revision and another inter alia by altering the valuation of any property or the amount of tax. In other words the Commissioner is entitled in between two quinquennial revisions to alter the amount of tax. That such alteration in the amount of tax could be by reason of an enhancement in the rate of tax is implicit in the provisions of R. 11. R. 11 provides for a case where an amendment in the books is brought about otherwise than in consequence of a. general enhancement in the rate at which property tax is payable. In such cases the commissioner is obliged to intimate the owner or the occupier that a petition for revising the assessment would be considered within the time specified. In other words R. 11 indicates that in cases where the tax is enhanced consequent on a general enhancement in the rate of tax, individual notice is not called for. In other cases individual notice is necessary. Such cases of increase in tax by reason of a general enhancement fall under R. 9 (2) The Commissioner is thus empowered to amend the assessment books by altering the amount of tax payable. THIS rule must override the provisions of S. 104 having regard to the opening words of that section. If so the Commissioner's power to amend the books consequent on the general hike in the rate of tax is unquestionable.