1 MA No.38/2020
IN THE COURT OF THE CHIEF JUDGE: CITY SMALL CAUSES COURT:
AT HYDERABAD.
Dated this the 31 st Day of August, 2021.
Present: Sri G.V.SUBRAHMANYAM,
CHIEF JUDGE
M.A. No. 38 OF 2020
Between
Abdul Hussain, S/o. Mazhar Hussain, aged about 74 years, Occ:Business, R/o.H.No.11-5-302, situated at Mehdipatnam, Hyderabad. .… Appellant
AND
Greater Hyderabad Municipal Corporation, represented by its Commissioner,
Tank Bund, Hyderabad. ... Respondent
This appeal having listed before this court on 23.08.2021 for final hearing in the presence of Sri Gaurav Kwatra, Advocate for the appellant and Sri P.H. Pannaga Sai, Standing counsel for the respondent and having stood over the matter for consideration till this day, this Court delivered the following:-
J U D G M E N T
This is an appeal filed by the appellant under Section 282 of the GHMC Act, aggrieved by the property tax demand notice vide PTIN
No.1071103640 dated 7.2.2020 allegedly received by the appellant on 8.2.2020 in respect of property bearing H.No.11-5-300 & 301, claiming a sum of Rs.2,09,663/- towards property tax dues.
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2.It is contended by the appellant that he is the owner and possessor of premises bearing H.No.11-5-300 & 301, situated at
Mehidipatnam, Hyderabad, admeasuring 149 sq.yards. The petitioner got the said property under oral gift from his mother. After getting the gift, the appellant undertook some construction. Originally the property was assessed vide PTIN No.1071103640 for an amount of Rs.4030/-.
3.The respondent-corporation without issuing any notice and without conducting any enquiry issued a computer generated demand notice dated 7.2.2020 which was received by the appellant on 8.2.2020, demanding the appellant to pay the property tax of Rs.12,556/- towards current demand and Rs.94,170/- towards arrears, Rs.1,01,803/- towards arrears nterest and Rs.1,134/- towards current interest. Thus, the total amount of Rs.2,09,663/- is demanded by respondent-corporation. It is further submitted that the escalation of the property tax is made without taking into consideration the property value, the locality where the property is situated, market value of the property etc. The respondent- corporation has not taken into consideration the principles of fair rent in determining the annual ratable value. Hence the assessment of property tax is grossly illegal, unjust and against the principles of natural justice.
Therefore, the appellant prays that the demand notice dated 7.2.2020 may be set aside and to pass any other order or orders as deemed fit in the circumstances of the case.
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4.The respondent submitted the para-wise remarks contending that fixation of the property tax is as per the procedure after conducting enquiry the respondent has arrived the annual tax of Rs.12,556/-. The assessment is not excessive or arbitrary. The assessment was made by taking into consideration the plinth area, locality, usage, rate of tax and area based at unit rates fixed by the Government. The respondent has fixed the rental value based on principles of fair rent and finally the property tax is based on the documentary evidence and it is not unilateral.
Hence, the appeal may be dismissed.
5.Heard the counsel for the appellant and the standing counsel
for the respondent.
6.Now the points for consideration are:
Whether the property tax demand notice dated 7.2.2020 vide PTIN.No. 1071103640 is liable to be set aside ?
POINT:
7. The appellant has submitted the attested xerox copy of the gift deed which was executed by Smt. Sheeren Begum Saheba W/o. Mazhar
Hussain Saheb in favour of the appellant-Abdul Hussain. In the said document, it is mentioned that two months before 7th April 1969 itself the possession of the property was handed over to Abudul Hussain. The attested xerox copy of the gift deed in urdu is marked as document No.1 and true translation of the same is marked as document No.2. As a matter of fact, there is no dispute with regard to the possession of the property.
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During the course of arguments also, the respondent did not raise a little finger towards the ownership and occupation of the appellant and service of demand notice to the appellant. Therefore, much importance is not given to the aspect of ownership and possession of schedule property.
8.The demand notice dated 7.2.2020 (impugned notice) is marked as document No.3. It can be seen from the contents of the said notice that the tax is demanded right from the year 2011-2012 to 2019- 2020. In the case law reported in 2002(4) ALD 711 (D.B) (V.K.Roy Vs.
Commissioner, Municipal Corporation of Hyderabad) it is laid down by the Division Bench of Hon’ble High Court as follows:
“Having regard to the discussion in the foregoing paragraphs we hold that the Municipal Corporation is not entitled to recover arrears of property tax by way of destraint after the expiry of three years from the date when the tax becomes due. If the Corporation so chose to recover such tax, it is open to them to take recourse to the provisions contemplated under Section 278 of HMC Act.”
So, the law laid down by the Hon’ble High Court is very clear that the
Municipality is not entitled to claim arrears for more than three years. In the present case, the demand notice clearly speaks that the arrears have been demanded right from 2011-2012 to 2019-2020 i.e. for a period of 10 years. Therefore, on the face of the demand notice, it is not tenable.
9.While assessing the tax it is mandatory for the Municipal
Corporation to issue notice to the owner of the property and cause an 5 MA No.38/2020 enquiry by giving reasonable opportunity. In the present case, even though the respondent has contended that proper enquiry has been caused by the
Corporation, no documentary proof is submitted to substantiate their contention. If notice would have been served before assessing the property tax certainly the assessee would have appeared before the authorities concerned and could have submittedhis case. Non-issuance of notice
before enhancement of the property tax is certainly against the principles
of natural justice.
10.The respondent has contended that fair rent, accessibility of amenities, importance of locality etc., were taking into consideration while assessing the property tax. For the said exercise allegedly done by the
Corporation also there is no documentary proof. There should be some representations submitted by competent officer who has caused inquiries of these aspects. Non-submission of such report lends strengthto the contention of the appellant that the enquiry is not done on proper lines
before enhancing the tax.
11.It is borne out from the record that earlier tax was Rs.4,030/- .
The amenities to the schedule property did not undergo any drastic change.
There is no much development of the locality. In such circumstances what is the basis for enhancing the tax three times is not explained by the respondent with convincing documentary evidence. For all these reasons the appellate court is of the opinion that the demand notice is arbitrary and 6 MA No.38/2020 it is issued without following the principle of natural justice. Hence, the demand notice is deserves to be set aside.
12.In the result, the appeal is allowed as follows:
(i) The impugned demand notice dated 7.2.2020 vide PTIN No.
1071103640 is hereby set aside.
(ii) The Respondent-Corporation is directed to re-assess the appeal schedule property for revision of property tax after serving proper notice and causing the enquiry as contemplated under the
GHMC Act.
(iii) Meanwhile, the appellant shall continue to pay the existing tax at
Rs.4,030/- regularly without fail.
(iv) No order as to costs.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in the open Court on this them 31st day of August, 2021.
CHIEF JUDGE ,
CITY SMALL CAUSES COURT,
HYDERABAD.