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1975 Supreme(Mad) 116
Madras High Court
RAMAPRASADA RAO,RATNAVEL PANDIAN
C.Ramakrishnan - Appellant
Versus
Corporation of Madras - Respondent
Decided On : 02/27/1975
Chellaswamy for Raj and Raj, for Appellant; Thillai Villalan, for Respondent.
The court held that a substantial compliance of the provisions which would form the basis for a claim for vacancy remission under Section 105 of the Madras City Municipal Corporation Act, 1919, would be sufficient and that accent on the form ought to be avoided.
Headnote:
PROPERTY TAX - VACANCY REMISSION - NOTICE - CLAIM - CONSOLIDATED NOTICE - ORDER 2, RULE 2, CIVIL P. C. - BAR - MADRAS CITY MUNICIPAL CORPORATION ACT, 1919 - SECTIONS 105, 108-A.
Fact of the Case:
The appellants, owners of the suit property, claimed vacancy remission for the property tax levied by the Corporation of Madras for the first half year 1965-66. The Corporation rejected the claim, and the appellants filed two suits, one for recovery of the tax and the other for a charge on the property. The appellants contended that they had given due notice of the vacancy and that they were entitled to vacancy remission under Section 105 of the Madras City Municipal Corporation Act, 1919. The Corporation contended that the notices given by the appellants did not comply with the requirements of Section 105 and that the second suit was barred under Order 2, Rule 2, Civil P. C.
Finding of the Court:
The court held that the notices given by the appellants were sufficient to comply with the requirements of Section 105 and that the appellants were entitled to vacancy remission. The court also held that the second suit was not barred under Order 2, Rule 2, Civil P. C., as the cause of action in the second suit was different from the cause of action in the first suit.
Issues: 1. Whether the notices given by the appellants complied with the requirements of Section 105 of the Madras City Municipal Corporation Act, 1919? 2. Whether the appellants were entitled to vacancy remission? 3. Whether the second suit was barred under Order 2, Rule 2, Civil P. C.?
Ratio Decidendi: 1. The court held that the notices given by the appellants were sufficient to comply with the requirements of Section 105 of the Madras City Municipal Corporation Act, 1919. The court held that the requirement of a prior intimation or notice informing the Corporation of Madras not only as to the date when the premises had fallen vacant, but also during the period during which such vacancy and unletting subsisted, was not mandatory. The court held that a substantial compliance of the provisions which would form the basis for such a claim would be sufficient and that accent on the form ought to be avoided. 2. The court held that the appellants were entitled to vacancy remission. The court held that the appellants had given due notice of the vacancy and that they had met the other requirements of Section 105. 3. The court held that the second suit was not barred under Order 2, Rule 2, Civil P. C. The court held that the cause of action in the second suit was different from the cause of action in the first suit. The court held that the levy of property tax gives rise to a distinct cause of action in each half year in which it is levied and that there are provisions in the Madras City Municipal Corporation Act itself which enable the Corporation to recover the sum in the manner stated therein.
Final Decision: The appeals were partly allowed with proportionate costs. The court directed the Corporation to refund a sum of Rs. 970.36 to the appellants in O. S. No. 6659 of 1958 and the appellants to pay a sum of Rs. 1,328.47 to the Corporation in O. S. No. 3273 of 1968. The net result was that in both the suits there would be a common decree whereunder the appellants would be liable to pay a sum of Rs. 358.11 with proportionate costs throughout.
RAMAPRASADA RAO, J.:- These two appeals are connected. A. S. No. 122 of 1971 is against the judgment and decree of the learned VIIth Assistant Judge, City Civil Court, Madras in O. S No. 6659 of 1968 on his file and A. S. No. 123 of 1971 is against the judgment and decree of the same learned Judge in O. S. No. 3273 of 1968, which was for the recovery of property tax under the Madras City Municipal Corporation Act for the first half year 1965-66 and in which the Corporation of Madras as plaintiff seeks for a charge on the property which has to bear the said property tax. It is common ground that the defendants paid some amounts towards the property tax, but failed to pay the arrears as claimed for the said half year. O. S. No. 6659 of 1968, which we shall call the second suit, is again a suit for recovery of a sum of Rs. 8,725.34 being the arrears of property tax after giving credit to the amounts paid by the owners for the second half year 1965-66, first half year 1966-67 and the first half year 1967-68. Here also, the Corporation of Madras, as plaintiff, seeks for a charge on the property which is liable to pay the property tax. In the first suit as well as in the second, the important facet of the defence of the defendants as owners and who are the appellants in both the appeals, is that the suit property was vacated by Messrs. George Oakes Limited, who were the prior occupants and tenants thereof, on April 30, 1965, and that the premises were thereafter vacant. This was intimated to the plaintiff under Ex. B-5 dated 7th May, 1965. According to the defendants, the property so remained vacant and unlet till 31-8-1966, when Messrs. National Grindlays Bank occupied a portion of the premises and till November 1966 when the other portion of the developed premises was occupied by a hotelier who began to run his hoteliering business under the name and style of Gaylord Restaurant. Consequent upon such vacancy and unletting of which the defendants claim that they have given due notice, the defendants would say that, having regard to their statutory entitlement as to vacancy remission and taking into consideration the various payments made by them from time to time towards property tax due and payable by them in respect of the suit premises, there would not be any amount due by them to the plaintiff. A special defence was raised in O. S. No. 6659 of 1968. According to the defendants, the first suit which was filed on 9-7-1968 should have included the claim made under the second suit as well which was filed on 12-12-68 and the cause of action in both the suits being the same property, the second suit was barred under Order 2, Rule 2, Civil P. C.
2. The learned trial Judge framed the material issue, whether the defendants are liable to pay the tax as claimed in the suit and the general issues as to what reliefs are the parties entitled to. The suits were tried together. The plaintiff did not let in any oral evidence. The defendants examined three witnesses, D.W. 1 being the lessee of the hotel portion of the building. D.W. 2 an engineer who looked after the improvements done to the quondam premises then occupied by Messrs. George Oakes Limited and D.W. 3 being one of the defendants and the owners of the suit premises. The learned Judge mainly rested his case on Exs. A-1 and A-2. In the said letters written by D.W. 1 as the prospective tenant of the premises, he expressed that he has taken on lease the suit property from December 1965 and therefore, it cannot be said that during the relevant period with which the suits are concerned, there was vacancy and much less unletting of the premises within the meaning of the provisions of the Madras City Municipal Corporation Act, hereinafter referred to as the Act. He would of course discountenance the sworn testimony of both D.Ws. 1 and 3 who asserted that the former did not pay and the latter did not receive any rent towards the occupation of one of the other portions referred to above
