The Madras High Court dismissed a writ appeal challenging an amendment to Tamil Nadu Village Panchayats Rules regarding house tax on unaided educational institutions. The court held the issue was no longer res integra due to a prior Division Bench decision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.08.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
W.A.No.1746 of 2011
AND
M.P.Nos.1 and 2 of 2011
Tamil Nadu Nursery, Primary
Matriculation and Higher Secondary
Schools Managements Association
rep. by its General Secretary
Mr.D.Christdass,
Old No.64, New No.122,
T.P.Koil Street, Triplicane,
Chennai-600 005.
...Appellant / Petitioner
vs
1.The State of Tamil Nadu
rep. by its Secretary to Government,
Rural Development and Panchayat Raj
(PR-1) Department,
Fort St. George, Chennai-600 009.
2.The Director of Rural Development, Government of Tamil Nadu, Chennai. ...Respondents / RespondentsPrayer : Writ Appeal filed under Clause 15 of the Letters Patent
against the order of the learned Single Judge made in
W.P.No.5757 of 2009 dated 30.07.2010.
Prayer in W.P.No.5757 of 2009 : Writ Petition filed under
Section 226 of Constitution of India in the nature of a Writ of
Declaration declaring the provision of Rule 15(c) of the
Tamilnadu Village Panchayats (Assessment and Collection of
Taxes) Rules 1999 as amended by G.O.Ms.No.38 Rural Development
and Panchayat Raj (PR1) Department dated 05.03.2008 published in
the Tamil Nadu Government Gazette Issue No.69 dated 05.03.2008
as void, unlawful, ultra virus and unconstitutional in respect
of the buildings used for educational purposes by the member
educational institutions of the Petitioner Association is
concerned.
For Appellant : Mr.Isaac Mohanlal,
Senior Counsel
for M/s.Rameshkumar
For Respondents : Mr.R.Shanmugasundaram,
1 and 2Advocate General
assisted by
Mr.T.Arun Kumar,
Government Advocate
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA.J)
This Writ Appeal has been filed against the Common Order
of the learned Single Judge made in W.P.No.5757 of 2009 dated
30.07.2010 in and by which the prayer of the appellant to issue
a Writ of Declaration, declaring the provision of Rule 15(c) of
the Tamil Nadu Village Panchayats (Assessment and Collection of
Taxes) Rules, 1999 as amended by G.O.Ms.38, Rural Development
and Panchayat Raj (PR-1) Department dated 5.3.2008, published in
the Tamil Nadu Government Gazette Issue No.69, dated 5.3.2008 as
void, unlawful, ultra vires and unconstitutional in respect of
the buildings used for educational purposes by the member
educational institutions of the writ petitioner Association, was
refused.
2. Learned Senior Counsel appearing for the appellant
explaining the need for challenging the above mentioned amended
provision stated that originally, the Rule 15(3) of the Tamil
Nadu Village Panchayats (Assessment and Collection of Taxes)
Rules, 1999, stated that the buildings used for educational
purposes including hostels and libraries which are open to the
public and public buildings used for charitable purpose of
sheltering the destitutes or animals, if they fall within the
meaning of house as defined in the Act, shall be exempted from
paying the house tax. When the above provision was governing the
subject-in-question, the State Government has introduced G.O.
Ms.No.38, Rural Development and Panchayat Raj (PR-1) Department
dated 5.3.2008, carrying out certain amendments, amending the
column ''buildings used for educational purposes including
hostels and libraries which are open to the public and public
buildings used for charitable purpose of sheltering the
destitutes or animals'' to the effect that buildings used for
educational purposes by the Government aided institutions for
conducting self-financing unaided courses, shall be subject to
levy of house tax, as a result, the impugned Government Order in
G.O.Ms.No.38 has come forward to grant exemption only to the
buildings owned by the local bodies and private institutions
aided by the Government.
3. Learned Senior Counsel for the appellant further
stated that since the appellant, namely, the Tamil Nadu Nursery,
Primary Matriculation and Higher Secondary Schools Managements
Association are running only matriculation unaided schools, they
are kept away from the exemption provision, as a result, they
are all liable to pay the taxes. Therefore, the appellant is
constrained to approach this Court by filing a Writ Petition
raising various grounds inter alia the impugned amendment made
to Rule 15(c) of the Tamil Nadu Village Panchayats (Assessment
and Collection of Taxes) Rules, 1999, has to be declared as
void, unlawful, ultra vires and unconstitutional in respect of
the buildings used for educational purposes by the member
educational institutions of the writ petitioner Association. It
is also stated that the State Government has attempted to
distinguish the educational institutions on the basis of the aid
to be provided to them and by view of the amendment, the unaided
educational institutions which are already over burdened are
further put to face extra financial burden to pay the
house/property tax whereas the institutions which are getting
aid are in a comfortable position as they did not need to pay
any salary for teaching and non-teaching staff, because they are
given exemption from paying house tax. As a result, the State
Government is discriminating the private institutions which come
under self-financing basis against Act 14 of the Constitution of
India. Therefore, the appellant challenged the impugned
amendment on the ground that the same cannot have a nexus to the
object and constitutional mandate sought to be achieved in this
regard.
4. Learned Senior Counsel for the appellant also stated
that however, when similar provisions in the Chennai City
Municipal Corporation Act, 1919, Madurai City Municipal
Corporation Act, 1971, Coimbatore City Municipal Corporation
Act, 1981 and Tamil Nadu District Municipalities Act, 1920, were
put to challenge on the similar line, a Division Bench of this
Court in a batch of Writ Petitions in W.P.Nos.18008/2019 etc.
batch by its judgment dated 13.09.2019, considering the similar
and identical issue raised therein upholding the challenge to
Act 6 of 2018 i.e. Tamil Nadu Municipality Laws (Second
Amendment) Act, 2018, rejected all the Writ Petitions. However,
the Division Bench has left open the question demanding the
quantum of tax, as and when any need arises. Therefore,
Mr.Isaac Mohanlal, learned Senior Counsel for the appellant
fairly stated that nothing survives in this Writ Appeal.
5. Learned Advocate General assisted by the learned
Government Advocate appearing for the respondents in support of
the amendment submitted that although the learned Senior Counsel
for the appellant fairly conceded the dismissal of the Writ
Petition, so far as the challenge made by them to the amendment
relating to taxation provision is concerned, there are plenty of
judgments by this Court as well as the Apex Court holding
consistently that it must be left open to the appropriate and
competent authority, namely, the legislature. In support of
his submission, soliciting our attention to a judgment of the
Apex Court in the case of Commissioner of Customs (Import),
Mumbai vs. Dilip Kumar and Company and others reported in (2018)
9 SCC 1 submitted that every taxing statute including charging,
computation and exemption clauses at the threshold stage should
be interpreted strictly.
6. Learned Advocate General further drawing our attention
to yet another judgment of the Apex Court in Sri Krishna Das vs.
Town Area Committee, Chirgaon, reported in 1990 (3) SCC 645
submitted that taxing policy to be determined by the competent
legislature or competent taxing authority and it is not open for
the Court to question the same, unless there is a abusive of its
powers and transgression of the legislative function in levying
a tax. It is also further held that taxes may be and often are
oppressive, unjust and even unnecessary, but, this can
constitute no reason for judicial reference.
7. Interestingly enough, the Hon'ble Full Bench of our
High Court in The President, K.Vellakulam Panchayat, Kallikudi
Chatram, Madurai District vs. Kamaraj College of Engineering and
Technology, Virudhunagar [2009-5-L.W.193] has already answered
the issue against the appellant that the exemption prescribed
under Rule 15 is not mandatory and it is an enabling provision
empowering the Village Panchayat or Panchayat Union to grant
exemption to class of buildings as specified therein. The
corollary is that it is open for the Village Panchayat or
Panchayat Union not to grant such exemption in favour of one or
other class of such buildings and the Court cannot force the
Panchayat to exercise its discretionary power to grant exemption
to one or other class of buildings in the absence of any
decision taken by the Village Panchayat or Panchayat Union to
grant such exemption. The above said decision in Kamaraj
College of Engineering and Technology, Virudhunagar (cited
supra) has been followed by another Division Bench of this Court
in Periyapattinam Panchayat President, Thiruppullani Union,
Ramanathapuram District Vs. the Correspondent, St.Joseph's
Higher Secondary School, Periyapattinam, Ramanatha puram
District [W.A.(MD) Nos.1384 and 1385 of 2013, dated 08.09.2017].
8. In view of all the above reasons, since the issue
raised in this Writ Appeal is no longer res integra and the
learned Senior Counsel for the appellant also fairly conceded
that the Division Bench of Our High Court, while considering the
similar and identical issue in W.P.No.18008/2019 etc. batch, has
rejected all the writ petitions by a Common Order dated
13.09.2019, we do not find any issue for adjudication.
9. In the result, the Writ Appeal fails and the same is
accordingly dismissed. No costs. Consequently, connected
Miscellaneous Petitions are also closed.
Sd/-
Assistant Registrar (CS-VI)
// True Copy //
Sub Assistant Registrar
tsi
To
1.The Secretary to Government,
State of Tamil Nadu,
Rural Development and Panchayat Raj
(PR-1) Department,
Fort St. George, Chennai-600 009.
2.The Director of Rural Development,
Government of Tamil Nadu,
Chennai.
+1cc to Mr.Ramesh Kumar, Advocate SR.No.42776
+1cc to the Government Pleader SR.No.42300
W.A.No.1746 of 2011
MG(CO)
RVM(24/09/2021)
1 issue framed by the court
Whether the appellant is entitled to a writ of declaration that the amended provision levying house tax on self-financing unaided educational institutions is void, unlawful, ultra vires, and unconstit
Colour shows how this judgement treated each authority
W.P.Nos.18008/2019 etc. batch, dated 13.09.2019Referred¶22
Commissioner of Customs (Import), Mumbai vs. Dilip Kumar and CompanyReferred¶25
Commissioner of Customs (Import), Mumbai vs. Dilip Kumar and Company, (2018) 9 SCC 1 · Who else cites this
Sri Krishna Das vs. Town Area Committee, ChirgaonReferred¶26
Sri Krishna Das vs. Town Area Committee, Chirgaon, 1990 (3) SCC 645 · Who else cites this
The President, K.Vellakulam Panchayat vs. Kamaraj College of Engineering and TechnologyApplied¶27
The President, K.Vellakulam Panchayat, Kallikudi Chatram, Madurai District vs. Kamaraj College of Engineering and Technology, Virudhunagar [2009-5-L.W.193]
Periyapattinam Panchayat President vs. the Correspondent, St.Joseph's Higher Secondary SchoolDistinguished¶27
Periyapattinam Panchayat President, Thiruppullani Union vs. the Correspondent, St.Joseph's Higher Secondary School, Periyapattinam, [W.A.(MD) Nos.1384 and 1385
2 provisions across 2 enactments
Tamil Nadu Nursery, Primary Matriculation and Higher Secondary Schools Managements Association
State of Tamil Nadu
Director of Rural Development, Government of Tamil Nadu
T.Raja
T.V.Thamilselvi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court