IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.07.2008 CORAM THE HON'BLE MR.JUSTICE S.NAGAMUTHU W.P.No.1547 of 2008 & M.P.Nos.1 and 2 of 2008 Chennai Petroleum Corporation Limited, 536, Anna Salai, Teynampet, Chennai-600 018 Rep by Company Secretary. .. Petitioner Vs 1.The Secretary, Department of Municipal Administration, and Water Supply, Government of Tamil Nadu Fort St. George, Secretariat, Chennai-600 009. 2.The Accountant General, Government of Tamil Nadu 361, Anna Salai, Teynampet, Chennai-600 018. 3.The Executive Officer, Manali Municipality, Chennai-600 068. .. Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a writ of Certiorari call for the records from the third respondent culminating in order bearing reference ROC No.15/2007/A1 dated 16.11.2007, quash the same. For Petitioner : Mr.R.Muthukumarasamy Senior Counsel Mr.R.Senthil kumar For Respondents : Mr.V.Arun for R1 Additional Government Pleader Mr.Vijayakumar for R2 Mr.P.S.Jayakumar for R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R Though the miscellaneous petitions are listed today, by consent of both sides, the writ petition itself is taken up for final disposal. 2. Challenging a demand notice issued under Section 84 of the Tamil Nadu District Municipalities Act, 1920 making a demand for payment of vacant land tax from the petitioner, has come forward with this petition. 3. The petitioner-company has its petroleum refinery in about 700 acres of land in Manali and Thiruvottiyur Municipalities. The refinery, including plants and administrative buildings are situated on the said land. It is stated that there are pipelines running underground and overground in the areas between plants/buildings. It is further submitted that in addition, storm water drains have also been provided. According to the petitioner, the entire land has been utilised for the purpose of refinery and administrative buildings. 4. While so, proposing to levy vacant land tax under Section 81 (3) of the Tamil Nadu District Municipalities Act, 1920 to the tune of Rs.1,40,27,013/-, the third respondent issued notice to the petitioner by his proceedings ROC.No.15/2007/A, dated 09.03.2007 calling upon the petitioner to depute a responsible person to attend the discussion on 13.07.2007 in respect of the said proposal. Accordingly, the petitioner's representative participated in the discussion and submitted a detailed report along with the records thereby contending that the petitioner company is not liable to pay any vacant land tax under the Tamil Nadu Municipalities Act since there is no vacant land in the possession of the company. But, according to the petitioner, without considering the said explanation offered by the petitioner, and without passing any detailed order determining the issues involved, the third respondent has simply made a demand from the petitioner demanding him to pay the above said amount for the assessment year 1998-1999 to 2003-2004. The said demand notice in Roc.No.15/2007/A1, dated 16.11.2007 is under challenge in this writ petition. 5. Heard Mr.R.Muthukumarasamy the learned Senior Counsel appearing for the petitioner, Mr.V.Arun, the learned Additional Government Pleader appearing for the first respondent, Mr.Vijayakumar, the learned counsel appearing for the second respondent and Mr.P.S.Jayakumar the learned counsel appearing for the third respondent. 6. The first and foremost contention of the learned Senior Counsel appearing for the petitioner is that the impugned demand https://hcservices.ecourts.gov.in/hcservices/ notice is without jurisdiction and the same is liable to be quashed since it is not preceded by any assessment order. The next contention is that when there are buildings on the property, the area which is equivalent twice the plinth area of the buildings should be excluded from vacant tax as provided under Section 84(4)(b) of the Act. But the demand notice shows that for the entire vacant land stated to be in the possession of the petitioner, vacant land tax has been imposed, which according to the learned Senior Counsel is in gross violation of Section 84(4)(b) of the Act. The third contention is that the impugned order has been made without affording sufficient opportunity to the petitioner and without following the principles of natural justice. 7. The third respondent has filed a detailed counter. According to the learned counsel for the third respondent, vacant land tax has been imposed on the petitioner only on the escaped assessment. He would further submit that such demand is well within the period of limitation prescribed under law. He would further submit that proper assessment of the tax has been made and so the demand notice is perfectly valid under law. Lastly he would contend that sufficient opportunity was, in fact, given to the petitioner before passing the impugned order. 8. The learned Additional Government Pleader would adopt the arguments of the learned counsel for the third respondent. 9. I have considered the rival submissions and also perused the records available carefully. A plain reading of Section 84(4)(a)of the Act would go to show that the executive authority, at first, shall determine the property tax and convey the same to the party/assessee. Before determining the said property tax, it is the bounden duty of the executive authority to afford an opportunity to the party to submit his explanation. If only such an order of determination of the property tax is made, it gives further jurisdiction to the executive authority to make a demand from the assessee. In the absence of any such determination order, any demand for payment of tax shall be void as the same is without jurisdiction. In the case on hand, admittedly after his discussion with the petitioner on 16.11.2007 the executive authority has not chosen to pass any order determining the tax after considering the objections raised by the petitioner. Therefore, in the absence of any such order, in my considered opinion, the impugned demand notice is without jurisdiction and So, the same is liable to be quashed. 10. The learned counsel for the third respondent would submit that the writ petition is not maintainable as the petitioner has got alternative remedy of appeal. In my considered opinion, the said argument is only to be rejected for the simple reason that any order https://hcservices.ecourts.gov.in/hcservices/ determining the property tax alone is appealable. In this case since there is no order determining the property tax, there is no occasion for the petitioner to prefer any appeal. Since impugned demand notice is wholly without jurisdiction, it would be very appropriate for this Court to exercise the power of judicial review under Article 226 of the Constitution of India. 11. Further a close reading of Section 84(4)(b) of the Act would go to show that an area which is equivalent twice the plinth area of the building should be excluded. But in this case, the executive authority has imposed the tax for the entire so called vacant land without making any such exclusion. On this ground also the impugned notice suffers from legal infirmity. 12. As pointed out by the learned Senior Counsel for the petitioner, there is a serious disputed question of fact involved. According to the Executive Authority the entire area for which vacant land tax has been imposed remains vacant, whereas according to the petitioner, there are pipelines running underground and overground in the areas between the plants and the building and there are also storm water drains prevailing and thus there is no vacant land at all available so as to impose vacant land tax. The executive authority has not decided this disputed question of fact by holding proper enquiry and passing any determination order. Thus the impugned order is grossly in violation of the principles of natural justice. 13. For all the above reasons, the impugned demand notice is liable to be quashed. In the result, the writ petition is allowed; the impugned demand notice is quashed and the matter is remanded back to the second respondent for fresh disposal in accordance with law. The second respondent is, more particularly, directed to adhere to Section 84 of the Act scrupulously and to pass appropriate determination order after affording sufficient opportunity to the petitioner and then to proceed in accordance with law. It is further directed that the second respondent shall pass final orders within a period of four months from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. kpr/jikr https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary, Department of Municipal Administration, and Water Supply, Government of Tamil Nadu Fort St. George, Secretariat, Chennai-600 009. 2.The Accountant General, Government of Tamil Nadu 361, Anna Salai, Teynampet, Chennai-600 018. 3.The Executive Officer, Manali Municipality, Chennai-600 068. + 1 CC to the Government Pleader SR NO.37369 + 1 CC To Mr.R.Senthilkumar, Advocate SR NO.37311 + 1 CC To Mr.P.S.Jayakumar, Advocate SR NO.37003 W.P.No.1547 OF 2008 MRD {CO} TP/1.8.08 https://hcservices.ecourts.gov.in/hcservices/