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Avinashi Town People Welfare Development Association, Rep. by its President P. Vijay Anand v/s The Secretary to Government, Municipal Administration and Water Supply Department, Chennai & Others

Company & Directors' Information:- ANAND PRIVATE LIMITED [Strike Off] CIN = U00000DL2001PTC109063

Company & Directors' Information:- ANAND PRIVATE LIMITED [Strike Off] CIN = U99999MH1975PTC018274

Company & Directors' Information:- ANAND AND ANAND PVT. LTD. [Amalgamated] CIN = U99999DL1983PTC016655

Company & Directors' Information:- L N DEVELOPMENT LIMITED [Active] CIN = U70102ML1986PLC002590

Company & Directors' Information:- K K R DEVELOPMENT PVT LTD [Active] CIN = U70101WB1981PTC034258

Company & Directors' Information:- VIJAY INDIA PRIVATE LIMITED [Active] CIN = U25199DL1998PTC096860

Company & Directors' Information:- ANAND AND CO. P. LTD. [Active] CIN = U74899DL1988PTC031346

Company & Directors' Information:- D P S DEVELOPMENT PVT LTD [Active] CIN = U45202WB1988PTC044797

Company & Directors' Information:- DEVELOPMENT CORPN PVT LTD [Active] CIN = U13209WB1939PTC009750

Company & Directors' Information:- ANAND LIMITED [Active] CIN = U51101WB2010PLC148865

Company & Directors' Information:- ANAND (INDIA) PRIVATE LIMITED [Amalgamated] CIN = U74591DL1998PTC095751

Company & Directors' Information:- VIJAY J AND K PRIVATE LIMITED [Strike Off] CIN = U52100GJ1974PTC002504

Company & Directors' Information:- WELFARE PVT LTD [Active] CIN = U74999WB1946PTC014414

Company & Directors' Information:- K K S WATER PRIVATE LIMITED [Active] CIN = U52100WB2014PTC199844

Company & Directors' Information:- OF WATER PRIVATE LIMITED [Active] CIN = U51909MH2018PTC317142

Company & Directors' Information:- B-ANAND AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U45203DL1988PTC032328

Company & Directors' Information:- S. D. TOWN DEVELOPMENT PRIVATE LIMITED [Active] CIN = U70109MH2010PTC200797

Company & Directors' Information:- F & G SUPPLY PRIVATE LIMITED [Active] CIN = U51900DL2012PTC239188

Company & Directors' Information:- T. G. S. WATER PRIVATE LIMITED [Strike Off] CIN = U51109DL2010PTC205948

Company & Directors' Information:- WATER INDIA PRIVATE LIMITED [Active] CIN = U74990DL2016PTC298912

Company & Directors' Information:- K 4 P ASSOCIATION [Active] CIN = U01407KL2014NPL037090

Company & Directors' Information:- THE WELFARE COMPANY LIMITED [Dissolved] CIN = U99999MH1929PTC001527

Company & Directors' Information:- D VIJAY AND COMPANY LIMITED [Dissolved] CIN = U99999MH1933PTC002056

Company & Directors' Information:- A D V DEVELOPMENT ASSOCIATION [Active] CIN = U01407DL1980NPL010291

    W.A.No. 747 of 2020

    Decided On, 14 September 2020

    At, High Court of Judicature at Madras


    For the Appellant: K. Balakrishnan, Advocate. For the Respondents: V. Jayaprakash Narayanan, State Government Pleader.

Judgment Text

(Prayer: Appeal filed under Clause 15 of the Letters Patent against the order dated 08.07.2019 passed in W.P.No.25977 of 2011 on the file of this Court.)A.P. Sahi, CJ.Heard learned counsel for the appellant and learned State Government Pleader for the respondents.2. We had posted the matter today for certain clarification from the learned State Government Pleader vide our order dated 11.09.2020, which is extracted hereinunder:-“Heard learned counsel for the appellant and learned Government Pleader for State.2. The contention raised in this appeal is that the learned Single Judge has proceeded to dismiss the writ petition without taking into account the issue raised on behalf of the Association, which, in effect, was a collective action keeping in view the nature of the impugned order dated 19.08.2011. It is urged that the appellant's association had every locus- standi to maintain the petition inasmuch as, it was a general rise in the Municipal Taxes of the Town Panchayat, the concern whereof, was taken up by the association, which is an association of the citizens of the same Town panchayat.3. In such circumstances, the order that was passed by the State Government in exercise of the power under Section 36 of the The Tamil Nadu District Municipalities Act, 1920 could have been challenged by the Association.4. Prima facie, this contention appears to be correct, but, nonetheless, the main issue as to whether the writ petition ought to have been entertained or could have been proceeded with for examining the issue raised is yet another question as we find that paragraph – 3 of the counter affidavit filed by the respondent State, it has been stated that the writ petitioner has an efficacious alternative remedy for moving the Government under Section 36 of The Tamil Nadu District Municipalities Act, 1920.5. Apart from this, in paragraph – 8 of the counter affidavit, the State has come up with a case that it was on account of financial position and debt burdens of the Town Panchayat that the State Government had to invoke its power under Section 36 of the Tamil Nadu District Municipalities Act, 1920 in order to restore the rise of tax that was already protected under the relevant Government Orders issued by the State Government, which the State Government is empowered to issue, keeping in view the provision of 1920 Act.6. Learned counsel for the appellant has urged that this issue as to whether the rise of the tax occasioned by the cancellation order could be assessed by this court in exercise of its jurisdiction under Article 226 of the Constitution of India or not has not been taken into account by the learned Single Judge and the observation that every individual should come forward in his individual case to contest the general enhancement of rates of tax, could not have been a ground to dismiss the writ petition.7. In this regard, we further find from paragraph – 8 of the counter affidavit that pursuant to the orders passed by the State Government, the collection of taxes has been to the tune of Rs.84.63% and therefore majority of the citizen appear to have abided by the said enhancement.8. However, there was an interim injunction dated 22.12.2011 which was operating in the writ petition and that stands dissolved with the dismissal of the writ petition.9. In the wake of the above said circumstances, the learned Government Pleader may clarify about the statement made in paragraph 3 of the counter affidavit and also if possible, make available the Report of the Director on the basis whereof, the order dated 19.08.2011 impugned in the writ petition came to be passed.List on 14.09.2020.”3. The dispute relates to the order passed by the State Government whereby Resolution No.63 dated 06.07.2009 passed by the Municipal Council of Avinashi regarding rates of property tax has been cancelled. The learned single Judge dismissed the writ petition on the ground of the locus of the appellant to challenge the impugned order and has recorded a finding that the Association cannot possibly represent all individual causes of property tax of the citizens of the Town Panchayat.4. We have considered the submissions raised and we find force in the argument of the learned counsel for the appellant that the writ petition was maintainable inasmuch as the Association was representing the general cause of the locality of Avinashi Town and had questioned the order passed by the State Government in exercise of the powers conferred on it under Section 36 read with the second proviso to Section 78 (3) of the Tamil Nadu District Municipalities Act, 1920, which was not about any individual assessment.5. The short dispute, therefore, is as to whether the Council was empowered to define the rates of tax or not. There is no dispute on this score that the State Government issued a Government Order in exercise of its powers under Section 78 of the 1920 Act, whereby a maximum limit of increase in taxation was prescribed namely, 25% increase for residential houses, 100% increase for industries and 150% increase for commercial buildings. It is correct that the said limits prescribed the outer limits and therefore, the Municipal Council was well within its powers to prescribe the limits of taxation.6. Under the impugned resolution dated 06.07.2009, the Council resolved that it was decided not to exceed 25% increase for the residential buildings, 40% for the factory buildings and 65% for the business buildings. This Resolution with an objection on a review by the Collector reached the State Government along with a report of the Director of Panchayats dated 14.11.2009. The Director, in his report, indicated that the Municipal Council was under heavy debts of more than Rs.1.67 crores and even otherwise, there were other liabilities that had been taken into account including financial losses that are likely to occur in case such reduced rates as resolved by the Council are given effect to. Taking into consideration the said factors, the impugned order dated 19.08.2011 came to be passed whereby the State Government annulled the Resolution No.63 dated 06.07.2009. It is aggrieved by the said Resolution that the writ petition giving rise to the present appeal was instituted and an interim order was passed by the Court.7. Learned State Government Pleader has obtained his instructions as we had found that in paragraph 3 of the counter-affidavit before the learned single Judge, a categorical averment had been made that the writ petitioner had an alternative remedy of approaching the Government under Section 36 of the 1920 Act. The learned State Government Pleader today, on instructions, has stated that the aforesaid averment in the counter-affidavit does not appear to be in tune with Section 36 and any such concession in law deserves to be ignored.8. What we find on facts is that while exercising the powers under the second proviso to Section 78(3) of the Act, the State Government had heard the President of the Panchayat and thereafter passed the order. The said proviso nowhere indicates giving of any individual opportunity of hearing or even to the Association for the purpose of taking such a decision while exercising such powers under Section 78(3) aforesaid. In the above background, we find that the observation made in paragraph 3 of the counter-affidavit is not in consonance with the provisions of the Act and therefore, there is no alternative remedy to the appellant as suggested in the counter-affidavit, that too even after the final order dated 19.08.2011 had been passed by the State Government that was under challenge in the writ petition itself.9. Coming to the question of the power of the Municipal Council, it is no doubt true, as observed above, that the Council had the power to pass a Resolution keeping in view the maximum limits prescribed by the State Government. But, the said Resolution is not binding on the State Government and the Powers can be exercised under Section 78 to modify or annul the same. Accordingly, the State Government has proceeded to take into consideration the report of the Director referred to above, the other factors relating to the depleted financial status of the Panchayat and the future financial burdens that are likely to have an impact and has then arrived at the conclusion that the Resolution of the Panc

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hayat cannot be given effect to.10. Apart from this, we find in the counter-affidavit that the said enhancement has already been implemented and more than 84% of the citizens who were liable to pay tax have complied with the enhancement already made and had paid their taxes. In such circumstances, we have not been able to gather any material whereby the Resolution of the Panchayat dated 06.07.2009 fixing the reduced rates can be supported on such facts that may be justified.11. Accordingly, the order dated 19.08.2011 of the State Government impugned in the writ petition cannot be said to be suffering from any perversity or lack of jurisdiction and therefore, the conclusion of the learned single Judge does not deserve to be reversed even though we do not agree with the issue regarding maintainability of the writ petition as opinionated by the learned single Judge.The Writ Appeal is, accordingly, dismissed. No costs.