Allowed

T. Prameela W/o T. Ram Sudhir, v. The Governmnet of a.P., rep by

Telangana HC5 Sept 2013WP/3561/2004

Case brief

AI extract

What is this about?

The court set aside a distraint order demanding recovery of property tax arrears, holding that summary proceedings were barred by limitation. The judgment distinguished distraint from the substantive suit remedy under Section 278 of the relevant Act, allowing recovery only after initiating fresh proceedings within the limitation period.

What did the court decide?

Impugned distress order set aside; Writ Petition disposed of with liberty to respondent to initiate fresh proceedings as per Act.

T. Prameela W/o T. Ram Sudhir, Vs The Governmnet of… — Property and Title | Telangana HC (2013)

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HON’BLE Ms. JUSTICE G. ROHINI AND

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HON’BLE SRI JUSTICE CHALLA KODANDA RAM

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WRIT PETITION No.3561 of 2004

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ORDER:- (per Hon’ble Ms. Justice G. Rohini)

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This Writ Petition is filed aggrieved by the action of the 2^nd respondent-Nuzivedu Municipality, in passing a distraint order for recovery of the alleged arrears of property tax pertaining to the years 1984-1985 to 1993-1994, 1999-2000, 2002-2003 and 2003-2004 in respect of the theatre by name M/s. Uma Maheswar Theatre, 9-124, Gandhinagar, Nuzivedu.

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The impugned order is questioned primarily on the ground that the same is barred by limitation in view of the provisions of Section 365 of the A.P. Municipalities Act, 1965.

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A Division Bench of this Court had an occasion to consider an identical issue arising under the Hyderabad Municipal Corporation Act, 1950, and it was held in V.K.Roy V. Commissioner, Municipal

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Corporation of Hyd. ,^[1] as under:

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“17. Applying the above test, if we look at the provisions of the Hyderabad Municipal Corporation Act, the Corporation has to fall back on the procedure contemplated under Section 278 of the Act by filing a suit in a competent Court. When no time limit is prescribed by the Legislature for filing a suit, for recovery of amounts due which is a substantive remedy, Article 113 of the Limitation Act, 1963 governs the field providing three years limitation period for initiating proceedings to recover the amount due from the date when the right to sue accrues. If the contention of the Municipal Corporation, that by legal fiction, the Corporation, in the light of the amended provision to Section 238 is entitled to recover the property tax as arrears of land revenue under the Revenue Recovery Act, within 30 years in terms of Article 112 of the Limitation Act is accepted, it would be like placing the summary remedy on a higher pedestal than the substantive remedy, which is not the intention of the Legislature. Needless to mention, as held by a Division Bench of this Court in the decision cited (1) supra, taking recourse to distraint

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proceedings is only a summary remedy to recover the arrears of tax and it cannot take precedence over substantive remedy. As held by the Supreme Court in STATE OF KERALA'S CASE (3 supra), there is no enlargement of time for recovery of certain dues beyond the time stipulated under Article 113 of the Limitation Act, unless the Act expressly provide for enlargement of time to recover claims which are legally recoverable. Therefore, the theory of legal fiction propounded by the learned Additional Advocate General appearing on behalf of the respondents cannot be accepted. The decisions cited by the learned Additional Advocate General have no bearing on the facts of the case in the light of the decision of the Supreme Court cited (3) supra.

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18. Having regard to our discussion in the foregoing paragraphs and in the light of the ratio laid down by the Supreme Court in the decision cited (3) supra, we hold that the respondents are not entitled to recover arrears of property tax by way of distraint after the expiry of three years from the date when the tax becomes due. If the respondents so choose to recover such tax, it is open to them to take recourse to the provisions contemplated under Section 278 of the Hyderabad Municipal Corporation Act.”

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In the light of the ratio laid down in V.K.Roy case (1^st Supra) and having regard to the provisions of Section 365(1) of the A.P. Municipalities Act, 1965, we are of the opinion that the impugned demand made by the 2^nd respondent is liable to be set aside.

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Accordingly, the impugned order is set aside and the Writ Petition is disposed of leaving it open to the 2^nd respondent to take fresh proceedings strictly in terms of the provisions of the A.P. Municipalities Act, 1965. No order as to costs. Miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.

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G. ROHINI, J

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____________________________ CHALLA KODANDA RAM, J

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Date:05.09.2013. Ssv

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HON’BLE Ms. JUSTICE G. ROHINI AND

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HON’BLE SRI JUSTICE CHALLA KODANDA RAM

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WRIT PETITION No.3561 OF 2004

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Date: 5 th September, 2013.

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Ssv

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[1] 2002 (4) ALD 711

T. Prameela W/o T. Ram Sudhir, v. The Governmnet of a.P., rep by

Case brief

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T. Prameela W/o T. Ram Sudhir, v. The Governmnet of a.P., rep by

Case brief

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