T PADMAVATAMMA Vs. SRIKAKULAM MUNICIPALITY

JUDGEMENT

(1.) Turamalla Padmavatamma, the unsuccessful plaintiff in O.S.No.77 of 1984 on the file of Principal District Munsif, Srikakulam and the appellant in A.S.No.35 of 1986 on the file of District Judge, Srikakulam which was renumbered as A.S.No.61 of 1986 on the file of Principal Subordinate Judge, Srikakulam, had preferred the present second appeal. Sri.K.S.Murthy, the learned Counsel for the appellant had raised the following substantial question of law: Whether the enhancement of half yearly tax in respect of the appellant building by the respondent Municipality from Rs.84/- to Rs.350/- per half year is capricious, arbitrary and not in accordance with the settled principles of law. The learned counsel had pointed out that no enhancement was made in relation to the other half portion of building and hence enhancement in relation to the subject matter in controversy definitely cannot be sustained. The learned Counsel had pointed out to the findings recorded in this regard by the court of first instance and also by the appellate court as well in detail. The learned counsel also contended that the suit as filed is maintainable in the light of the ratio laid down by the Division Bench of this court in Shantilal Bazaz Vs. Municipal Council, Visakhapatnam AIR 1983 AP 199.

(2.) Sri.D.Srinivas, the learned Counsel representing Srikakulam Municipality-the successful defendant in both the courts below, had pointed out to special notice Ex.A1 and the reasons recorded thetrin. Ex.A2 is the revision copy and Ex.A3 is the notice for hearing in relation to the revision petition. Ex.A4 is the endorsement made by the respondent municipality reducing the tax from Rs.350/- to Rs.336/-. The counsel also pointed out to Ex.B1 the assessment order prepared by the Commissioner at the time of inspection and the reasons mentioned therein. The learned counsel would maintain that the entire procedure had been complied with and also in the light of the guidelines in this regard the assessment was made in accordance with law. The learned counsel also would maintain that at any rate this is a question of fact and in view of the concurrent findings recorded by both the courts below, such findings deserve no disturbance in the second appeal. The learned counsel also submitted that only under certain specified circumstances as laid down by the Division Bench in Shantilal Bazaz Vs. Visakhapatnam Municipality, a civil suit is maintainable and not otherwise.

(3.) Heard both the counsel and perused the findings recorded by the court of first instance as well as by the appellate court. The appellant/plaintiff filed O.S.No.77 of 1984 on the file of Principal District Munsif, Srikakulam for a declaration that the special notice No.15/83-84 in respect of the property covered by assessment No.3932, revising the tax from Rs.84/- to Rs.336/- is arbitrary and illegal and for a consequential relief of permanent injunction restraining the defendant/municipality from collecting tax at the enhanced rate together with the costs of the suit. The Plaintiff pleaded in the plaint as hereunder: The plaintiff is the owner of the property covered by assessment No.3932, situated in 7th ward in Srikakulam Municipality and the tax per half year for the property is Rs.84/- and that the plaintiff has put in an application to raise a stair-case to the existing terrace and the defendant accorded permission for additional construction of a small dining hall cum stair case and before the dining hall is put under use, the defendant has issued a special notice 15/83-84 enhancing the tax from Rs.84/- to Rs.350/- per half year and that no portion of building is let out to any body nor received any rents and that the plaintiff has submitted a revision petition on which the tax was reduced to Rs.236/- per half year and that the defendant is bound to take into consideration the fair rent fixed by the Rent Controller and that the action of the defendant is arbitrary, capricious and illegal and the fixation of the tax is liable to be set aside.