IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 05.02.2010 Coram The Honourable Mr. Justice K.CHANDRU Writ Petition No.23596 of 2008 and M.P.Nos.1 and 2 of 2008 --- A.S.T.C. TOWN TRANSPORT CORPORATION EMPLOYEES RESIDENTS WELFARE ASSN REP. BY ITS PRESIDENT MR.P. ARUMUGAM (REGD. NO. 35/2000) KUMARASAMYPETTI POST DHARMAPURI .. PETITIONER Vs 1 THE GOVT. OF TAMILNADU REP. BY ITS SECRETARY MUNICIPAL ADMINISTRATION & WATER SUPPLY FORT ST. GEORGE CHENNAI - 9 2 THE COMMISSIONER OF MUNICIPAL ADMINISTRATION EZHILAGAM ANNEX CHEPAUK CHENNAI - 5 3 DHARMAPURI MUNICIPALITY REP. BY ITS COMMISSIONER DHARMAPURI .. RESPONDENTS ------ Prayer Prayer:-Writ Petition under Article 226 of the Constitution of India, praying for the issuance of a writ of Certiorarified Mandamus calling for the records of the 1st respondent in G.O.Ms.No. 18 Municipal Administration and Water Supply (S.S. 4) Department dated 13.2.2008 quash the same in so far as it relates to the members of the petitioner association for levy of property Tax treating the A.S.T.C. Nagar as "A" zone and direct the respondents to levy and collect the property tax from the members of the petitioner association treating the area of A.S.T.C. Nagar as "C" Zone. For petitioner : Mr.K.Muthukumarasamy For respondents : for R1 and R2 : Mrs.C.K.Vishnupriya, AGP for R3 : Mr.K.Elango https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard Both sides 2. The petitioner is a registered society (registration No.35/2000) under the Tamil Nadu Societies Regisration Act. The petitioner association comprised of House owners, who are working under the Government owned transport corporation at Salem. The members of the registered association numbering about 130 is furnished in the typed set. It is a welfare association of such owners of the houses situated in the Annai Sathya Transport Corporation Nagar (For short ASTC Nagar) 3. The said association made a representation to the State Government stating the ASTC Nagar coming under the Dharmapuri Municipality is situated in the periphery of the Municipality and it is in an isolated place. Therefore, they requested the State Government to direct the Commissioner for Municipal Administration to inspect the place and find out whether the ASTC Nagar can be covered under 'A' Zone, if not, it should be declared as 'C' Zone and appropriate direction should be given to the Municipality to levy property tax in respect of the houses in ASTC Nagar considering it as one following under 'C' Zone. 4. When the State Government did not pass any orders, they filed a writ petition before this court being W.P.No.25856 of 2003. This court by an order dated 17.09.2003 passed the following order:- "3. Taking into consideration the facts and circumstances of the case, the first respondent is directed to consider the petitioner's representation dated 08.08.2001 on the basis of the resolution of the Municipality dated 04.02.2000 and 31.12.2000 and pass orders within a period of two months from the date of receipt of a copy of this order." 5. It is pursuant to the direction given by this court, the State Government passed an order in G.O.Ms.No.18, Municipal Administration and Water Supply Department dated. 13.02.2008. 6. A perusal of the Government Order shows that it is not necessary to transfer the petitioner's colony from 'A' Zone to 'C' Zone. But the property tax in respect of each zone can be reduced. Therefore, in the impugned order, it was stated that in respect of https://hcservices.ecourts.gov.in/hcservices/ houses in the 'A' Zone, instead of Rs.2.20 per sq.ft., Rs.1.50 can be charged. In respect of 'B' Zone, instead of Rs.1.90, Rs.1.25 can be charged. And in respect of 'C' Zone, instead of Re.1.00, 0.80 paise can be charged. It is also stated in the same order that the Dharmapuri Municipality must pass an appropriate resolution on the basis of the suggestions made by the Government order. Even before the Municipality could take any decision, the petitioner had rushed to this court with the present writ petition challenging the G.O., as being contrary to the demand made in the representation sent by the petitioner association. 7. The grievance of the petitioner was that the order of the Government was erroneous and it had not addressed the petitioner's request properly. Their demand was not for reduction of tax in respect of each zone. Their demand was that inasmuch as that ASTC Nagar is located in an isolated place, it should be declared as coming under 'C' zone and not as 'A' Zone. 8.Mr.K.Muthukumarasamy, learned counsel for the petitioner submitted that the impugned order did not take into account the objections made by the petitioner association and therefore, it is liable to be interfered with. He also stated that the parameters in deciding a particular zone was not understood by the Government and hence, the impugned order is liable to be set aside. 9. Notice of motion was ordered by this court on 26.09.2008. However, no interim order was granted. When the matter came up on 16.03.2009, this court directed the petitioner association to produce copies of the individual notices of demand for Tax issued by the municipality in respect of each member. But the same was not forthcoming till this date. This court wanted to find out the actual tax paid by each member. It must also be noted sine the formation of the association and the initial demand made by them 10 years have elapsed. The owners of the houses who are Transport Corporation employees have had three times their pay revised upwardly during this period. 10. On notice from this court, the third respondent municipality has filed a counter affidavit dated 05.11.2009. In the counter affidavit apart from rejecting the contention raised by the petitioner, it was specifically stated that the housing colony occupied by the members of the petitioner association is located in Ward Nos.8 and 10, Pennagaram Road, which is connected to the Salem Bangalore Road. The Municipality has provided well laid streets as well as street lights in the area. Therefore, the allegation that the area is an isolated area is denied. It is also stated that the Municipality considered the representation made by the petitioner association sympathetically and the second respondent, Commissioner for Municipal Administration had https://hcservices.ecourts.gov.in/hcservices/ constituted a High Level Committee. The High Level Committee inspected the Municipal area on 25.08.2007 and had forwarded a recommendation to the first respondent. 11. Considering the levy of property tax in respect of the new classification, in para 7, it was averred as follows:- "Considering the location of the petitioner housing colony and their representation the 3rd respondent has passed the resolution No.95 dated 30.06.2008 reclassifying the petitioner area into 'B' Zone. Therefore, the petitioner has to pay Rs.1.25 per sq.ft., only. The foregoing facts and circumstances will clearly shows that the above writ petition is devoid of merits and want of legal contention." 12. Inspite of the stand taken by the third respondent, the petitioner had not chosen to challenge the resolution No.95 dated 30.06.2008. By the said resolution, the Municipality had not only accepted the recommendation made by the State Government for reducing the rate of tax in respect of each zone, but also classified ASTC Nagar as 'B' Zone. The petitioner association, should have accepted this gesture made by the third respondent, by which ASTC Nagar was made as Zone'B' and the tax as per the advise given by the State Government by the impugned G.O., in respect of 'B' Zone, was reduced from Rs.1.90 to Rs.1.25 per square feet. The petitioner didi not challenge the resolution adopted by the third respondent municipality in reclassifying the zone and the reduction of rate of tax. Hence, the writ petition is liable to be dismissed on this short ground. 13. However, the learned counsel for petitioner contended that inasmuch as this court had directed the Government, and the Government had not considered the plea of the petitioner association the writ petition is maintainable. 14. The learned counsel for the petitioner is unable to state under which specific provisions of the Tamilnadu District Municipalities Act, 1920 the impugned order came to be passed. On the other hand, the provision of tax leviable by the municipality is provided under Part II of the District Municipalities Act, 1920. Section 78 provides power of the Municipal council to levy various tax including property tax. Section 78 itself gives the conditions under a tax can be levied. 15. In so far as the present case, in Resolution No.95 dated 30.06.2008, the Municipality had passed a resolution to levy tax at https://hcservices.ecourts.gov.in/hcservices/ a particular rate in respect of a particular zone. It is not open to this court to go into the legality of such taxation of the municipality. On the contrary, the Municipal Council is perfectly justified in levying the property tax on the rates prescribed by it in the said area. On the other hand, the attack made by the petitioner based upon the Government Order cannot be appreciated since there is no fundamental right to question it. 16. The Supreme Court considered a reverse proposition vide its decision in State of Karnataka & another Vs. Mangalore University Non-Teaching Employees Association & Other reported in 2002 (3) SCC 302. In that case the employees wanted to cover Mangalore Corporation to extend the HRA benefits within 8 Km radius as similar benefit was given for employees residing in Bangalore City. In effect the employees who are living in villages granted the benefit of an higher HRA. Repelling that content in the Supreme Court in para 10 observed as follows: A) The contention that the criterion of 8 Km limit from the periphery of municipal limits should be uniformly applied in the case of all urban area irrespective of their categorization, fails to take note of ground realities. Such extension up to 8 km, be it noted, is peculiar to Bangalore city only. Bangalore which is the capital of the State of Karnataka is classified as 'A' class city. It cannot stand in comparison with Mangalore city. The manner of spread-over of offices, the pattern of development and the problems relating to housing and habitation will not be the same. If 8 km yardstick is prescribed in the case of Bangalore city, it does not mean that the same criterion should be applied for all other cities in the State of Karnataka. The complaint based on Article 14 of the Constitution cannot be judged by adopting a doctrinaire approach or by having regard to individual cases. It is not prudent or pragmatic to insist on a mathematically accurate classification covering diverse situations and all possible contingencies in view of the inherent complexities involved in fixing the scales of allowances based on the places of work. B) While formulating such rules it is difficult to envisage all situations and facts peculiar to a few places here and there. A legislative provision or an executive order of general application does not become unconstitutional https://hcservices.ecourts.gov.in/hcservices/ merely because, in its actual application, it turns out to be disadvantageous or inequitable to certain individuals or a small section of people. C) The rule or the provision does not become bad or obnoxious to Article 14 for the reason that the criterion adopted in the case of 'A' Class city is not extended to 'B' or 'C' Class city. " 17. Further in the same judgment the contention principles of natural justice was also rejected by the supreme court in para 11 which is as follows:- "11. The only other question to be considered is whether the government orders impugned in the writ petitions are liable to be quashed on account of infraction of the principles of natural justice. It is true, in a case of this nature where the payment already made is sought to be recovered, thereby visiting the employees with adverse monetary consequences, the affected employees should have been put on notice and their objections called for. But, it is by now well settled that in all cases of violation of the principles of natural justice, the court exercising jurisdiction under Article 226 of the Constitution need not necessarily interfere and set at naught the action taken. The genesis of the action contemplated, the reasons thereof and the reasonable possibility of prejudice are some of the factors which weigh with the court in considering the effect of violation of the principles of natural justice. When undisputably the action taken is within the parameters of the rules governing the payment of HRA and CCA and moreover the university authorities themselves espoused the cause of employees while corresponding with the Government, it is difficult to visualize any real prejudice to the respondents on account of not affording the opportunity to make representation. " 18. In the absence of their being legally enforceable right, the petitioner has come forward with the present writ petition. The petitioner's right cannot flow from the earlier orders passed by this court in W.P.No.25856 of 2003 dated 17.9.2003. While giving direction in that case, this court did not go into either the rights of the petitioner nor the obligations of the State Government to pass such orders. In the absence of any right being https://hcservices.ecourts.gov.in/hcservices/ determined in the earlier writ petition and when merely a direction to dispose of representation issued to the State Government. On the contrary, neither the petitioner association, nor its members can seek for a direction to the municipality on the basis of such order issued by this court. 19. On the scope of judicial review in the matter of housing accommodation, the Supreme Court in State of Orissa V. Gopinath Dash, (2005) 13 SCC 495 laid down the parameters in paragraphs 5 to 8 held as follows:- "5. While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority and the Constitution does not permit the Court to direct or advise the executive in the matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Asif Hameed V. State of J &K and Shri Sitaram Sugar Co. Ltd V. Union of India) The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court, it cannot interfere. 6. The correctness of the reasons which prompted the Government in decision-making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation. 7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown the courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the property of a decision of the Government the court cannot interfere even https://hcservices.ecourts.gov.in/hcservices/ if a second view is possible from that of the Government. 8. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theater Co. V. City of Chicago. "The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review." 20. In the light of the above, the writ petition stands dismissed. Connected M.Ps closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nvsri To 1 THE SECRETARY, MUNICIPAL ADMINISTRATION & WATER SUPPLY DEPARTMENT FORT ST. GEORGE CHENNAI - 9 2 THE COMMISSIONER OF MUNICIPAL ADMINISTRATION EZHILAGAM ANNEX CHEPAUK CHENNAI - 5 3 THE COMMISSIONER,DHARMAPURI MUNICIPALITY DHARMAPURI +1CC to M/s.V.Sanjeevi, Advocate Sr 7293 +1cc to Govt. Pleader Sr 7794 RS(CO) km/26 .2. W.P.23596 of 2008 and M.P.Nos.1 and 2 of 2008 https://hcservices.ecourts.gov.in/hcservices/