MAJETI VEERABHADRARAO Vs. PITHAPURAM MUNICIPALITY

JUDGEMENT

(1.) THE appellants are the plaintiffs in O. S. No. 148 of 1990 on the file of the Court of the Junior Civil Judge, pithapuram. They filed the suit for declaration that the special notice dated 29. 9. 1988 issued by the respondents/ defendants Municipality levying half-yearly tax on their properties at Rs. 4,052. 70 and rs. 2,392. 10 is illegal, capricious and arbitrary. They also sought consequential injunction restraining the defendants from collecting the same. By judgment dated 29. 6. 1998, the suit was dismissed, which was confirmed in A. S. No. 10 of 1998 on the file of the court of the Senior Civil Judge, Pithapuram. Aggrieved by the same, the present second appeal is filed.

(2.) THE plaintiffs are owners of huge extent of urban property admeasuring acs. 0. 99'/2 in survey No. 245 in Pithapuram, which is allegedly a garden land with two properties assessed to property tax with assessment Nos. 475 and 476 respectively. They alleged that the property was divided among four groups of the plaintiffs and they were assessed to property tax separately. The assessment in respect of assessment no. 465/476 was challenged on the ground that the assessment of property tax based on the principle of capital value is not correct, as it is a garden land and that it should be assessed based on the land revenue. The suit was opposed by the municipality inter alia on the ground that without availing the remedy of revision under rule 12 of Taxation and Financial Rules (hereafter called, Taxation Rules) in schedule-II of Andhra Pradesh Municipalities act, 1965 (the Act, for brevity) is not maintainable and that the assessments made are correct. First plaintiff examined himself as P. W. I besides examining P. W. 2. Documentary evidence by way of Exs. A. 1 to A. 37 were also marked including Ex. A. 2 and A. 3 special notices. After considering the oral and documentary evidence, the trial court dismissed the suit, which was confirmed by the appellate Court.

(3.) LEARNED Counsel for the appellants submits that when assessment of tax was not done in accordance with the provisions of the Act, a suit would lie and that the plaintiffs filed Exs. A. 5 and A. 6 endorsements to show that they filed revision petitions before the Commissioner but they were returned. Secondly he relies on subsection (4) of Section 85 of the Act, in support of the contention that the garden land should be assessed based on the land revenue as fixed by the Government. Opposing the contentions learned Standing counsel relies on the decision of Division bench of this Court in M/s. Parvathi combines v Visakhapatnam Municipal council, Visakhapatnam, 1996 (3) ALD 540 (DB) and Srikant Kashinath Jituri v. Corporation of the City of Belgaum, (1994)6 SCC 572 and contends that when the assessee failed to avail the remedy of revision under Rule 12 of Taxation Rules and appeal therefrom under Rule 22 thereof, suit would not lie as it is specifically barred under Section 376 (2) of the Act.