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Judgment
Raju, J.—The above four writ petitions may be dealt with together, since they involve for consideration identical issues, and the Learned
Counsel on either side, also have made submissions in common.
W.P. No. 8756/84 has been filed for the issue of a Writ of certiorari to call for and quash the proceedings dt.3.6.78 of the 1st Respondent in
Case No. 72/1385, Injambakkam Village, Saidapet Taluk, Chengleput District in Form V-F, in respect of 31 grounds and 88 Sq.ft. in S. No.
15/7, determining the market value of the land and tax due under the provisions of the Tamil Nadu Urban Land Tax Act, 1966 and the Rules made
thereunder.
W.P. No. 8757/84 has been filed for the issue of a Writ of certiorari to call for and quash the proceedings of the 1st Respondent dt. 3.6.78 in
Case No. 84/1385, Injambakkam Village, Saidapet Taluk, Chengleput District, in respect of 31 grounds and 523 sq.ft. comprised in S. No.
15/11.
W.P. No. 9136/84 has been filed for the issue of a writ of certiorari to call for and quash the proceedings of the 1st Respondent dt. 28.2.78 in
Case No. 59/1385, Injambakkam, Saidapet Taluk, Chengleput District in respect of 31 grounds and 523 Sq.ft., comprised in S. No. 15/15.
W.P. No. 9137/84 has been filed for the issue of a writ certiorari to call for and quash the proceedings of the 1st Respondent dt. 28.2.78 in
case No. 100/1385 in Injambakkam Village, Saidapet Taluk, Chengleput District in respect of 31 grounds and 523 sq.ft. in C.S. No. 15/13.
The Petitioner in W.P. No. 9137/84 claims that he has purchased the lands in question under a registered sale deed dated 24.4.1981 from Smt.
Kusuma Bai Jaganathan Rao.
In. the affidavit filed in support of these writ petitions, it is alleged that the lands in question are located abutting East Coastal Road, leading from
Madras to Mahabalipuram and that the Madras Metropolitan Development Authority has acquired portions of lands for housing schemes in the
localities, and the balance of lands have been shown in the Master Plan No. 4/75 of the Madras Metropolitan area for recreational use, and in the
said zones, the construction of residences are prohibited as per item III, Section 14 page 159 of the said scheme. It is further alleged that in the
Master plan, it is stated that the vacant lands have been permitted to be used for agricultural activities for planting casuarina trees, etc. The lands in
question, are said to be registered as dry lands, and they are also covered by sand. Some of the Petitioners appear to have also raised casuarina
plantations in portions of the lands. On the view, that the lands are all agricultural lands not fit for construction purposes, the Petitioners claim that
they have not filed any returns and that notwithstanding the above claim, the authorities have chosen to bring to assessment the lands in question
treating them as ''urban lands'' within the meaning of the Act.
A perusal of the orders of assessment discloses that the parties were aware of the prohibition contained, in respect of putting up private
construction, by virtue of the Notification dt. 3.12.1977 and that the lands in this Village, abutting the East Coastal Road are reserved for
recreational purposes, and the entire stretch of eastern side of the village is sea-shore and that some of the real estate owners have plotted out the
lands in the village and sold them for good price.
The assessing authority has held that just because there are certain scattered casuarina plantations in the lands in question, it cannot be taken on
par with the cultivable lands, and therefore, the lands in question have to be treated as residential area only.
Mr. C. Govindan, learned Government Advocate (Taxes) produced some of the files, in which it is shown that in respect of Case No.
84/1385, the assessing authority has also made an observation that the inspection of the land had revealed that though the Assessee has raised
casuarina plantation in the lands yet has left them without watering, etc., and that there is no systematic cultivation in the lands and the lands in
question could not be treated as under the continuous cultivation, since fasli 1380, so as to render them allowable for exemption, pursuant to G.O.
Ms. No. 3526 Revenue dt. 15.6.1973.
Learned Government Advocate (Taxes) for the Respondents also invited my attention to the Notices of inspection, particularly with reference
to S. No. 15/11 and the Note dt. 27.5.1978 available at page 11 of the File R. Dis. Case 84/1385, which discloses that the lands in S. No. 15/11
measuring 1.72 acres stand registered as dry lands in the name of the Petitioner therein; that the land is sandy and it lies adjoining the Madras-
Kovalong Road on the east and there are scattered casuarina cultivation. It is also further stated that there is no systematic cultivation and the
casuarina plantation is in withering stage and that in the nearby lands, construction of buildings are in progress.
The Learned Counsel for the Petitioner mainly reiterated the contention that the lands belonging to the Petitioners cannot be treated as ''Urban
land'' within the meaning of Section 2(13) of the Act, and that the lands have to be treated as agricultural lands, by virtue of the prohibition in the
Master plan restraining any private construction, and therefore, there is no scope of levying tax in respect of the lands in question under the Act.
The learned Government Advocate (Taxes) for the Respondents, while reiterating the stand taken in the counter filed by the Respondent,
contends that the lands in question were not used for cultivation from fasli 1381 to 1385 and they were classified as ''dry land'', and therefore, they
are to be treated as ''urban land''. It is stated that the classification of the land as ""recreational zones"" by the M.M.D.A. has no relevance for the
purpose of taxation under the Act, and the lands in question, are located in the Madras urban area, for the purpose of taxation under the provisions
of the Tamil Nadu Urban Land Tax Act, 1966. The fact that there is no continuous cultivation, is relied upon as a ground to deny the claim of the
Petitioners, that the lands are agricultural lands and an objection has also been taken that the Petitioners have not availed of the alternate remedy
available under the Act, before having recourse to the extraordinary jurisdiction under Article 226 of the Constitution of India.
After considering the respective submissions and decisions placed before this Court by the Learned Counsel, on their respective stand, I am of
the view, that the impugned orders cannot be justified in law. The objection taken on the ground of availability of alternate remedy is not a ground
to reject the writ petitions at this stage, after admitting these writ petitions and allowing them to be pending for all these years. It has often been held
that rejection of the writ petitions, when they come up for final hearing after long number of years, merely on the ground of not exhausting the
effective alternate remedy available, is not justified.
So far as the merits of the contentions urged before this Court are concerned, the Petitioners, in my view, have made out a valid grievance. The
tern ''urban land'' has been defined u/s 2(13) of the Act and it runs as follows:
2(13): Urban land means any land which is used or is capable of being used as a building - site and includes garden or grounds, if any, appurtenant
to a building but does not include any land which is registered as wet in the revenue accounts of the Government and used for the cultivation of wet
crops.
Explanation: For the purposes of this clause, any site on which any building has been constructed shall be deemed to be urban land;
The scope of the said provision came up for consideration on more than one occasion before this Court in the context of different facts and
situation. The Learned Counsel for the Petitioner places reliance upon a decision of this Court reported in S. Sarangapani Iyengar Vs. The Asst.
Commr. Urban Land Tax, as against the claim made by the Respondents, relying upon the decision of this Court reported in The Asst.
Commissioner, ULT v. A. Chelladurai 1988 1 LW 438.
The decision in S. Sarangapani Iyengar v. Asst. Commissioner, ULT 1988 I LW 152 has been rendered by the learned Chief Justice of this
Court (Justice M.N. Chandurkar, Chief Justice) in case, where challenge had been made to the order of the Urban Land Tax Tribunal. The claim
in the said case was as before me, that the lands concerned therein were agricultural lands, and consequently, not liable to assessment under Urban
Land Tax Act, The Tribunal took a view that the lands ceased to be agricultural lands, since they were kept vacant during fasli 1381-85. In the
context of such a claim, the learned Chief Justice held that merely because the agricultural land has not been cultivated for some time, the land does
not cease to be agricultural land, especially when it is not put into any other use. Analysing the scope of Section 2(13) of the Act, it has been held
as follows:
We are not concerned in this case, with the question as to whether the land in question falls within the exception in the latter part of the definition.
The Taxing Authority must satisfy itself that a dry land is an urban land, which means that it is either used as a building site or is capable of being
used as a building site. There is of course the inclusive part which would become applicable only if the land is appurtenant to an existing building in
respect of vacant land, the only part of the definition which becomes material is that part which refers to the land which is capable of being used as
a building site. Every land which is vacant may not necessarily be capable of being used as a building site much less agricultural land. When we deal
with agricultural land'', must be taken into account that the presumption would be that it is going to be used for the purpose of agriculture. An
agricultural land is not normally used for a building site and in any case it is not capable of being used as a building site in the normal course, unless
of course the owner sets a part of it apart by way of a lay-out or intends to construct a building in some part of the property. Normally agricultural
lands must be construed as agricultural lands and since agricultural lands are not normally used for building sites, it must be assumed that they are
not capable of being used as building sites unless steps have been taken to have it used as building site. Agricultural lands will, therefore, stand
excluded from the definition of ''urban land'' unless they are intended to be converted for building purposes or house sites. In this view of the
matter, the order of assessment in respect of the agricultural lands in question will have to be set aside.
The decision relied oil by the learned Government Advocate (Taxes) for the Respondents, reported in Assistant Commissioner of ULT v. A
Chelladurai 1988 L.LW. 438, is also one rendered by the very same learned Chief Justice. In the said case, the question was related to an extent
of land in Velacherry village, measuring 1.11, acres of land, on which admittedly a building also existed, which was licensed and used for packing
crackers. In view of such activities carried on in the building, and having regard to the terms of the licence issued under the Explosives Act, the
surrounding lands appurtenant to the building were required to be left vacant and could not be used for building purposes within the radius of 59
metres. In the context of such a claim, the question regarding the taxability of the vacant land came up for consideration before the learned Chief
Justice. While analysing the definition of ''urban land'' in Section 2(13) of the Act, in the context of facts-situation presented in the said case, it has
been observed as hereunder:
This definition, therefore, clearly contemplates that ''urban land'' includes any land which is appurtenant to a building though it also excludes any
land which is registered as wet in the revenue accounts of the Government and used for the cultivation of wet crops. Now, when definition of urban
land'' refers to land which is capable of being used as a building site, that part of the definition cannot be torn from the context and the definition has
to be read as a whole. The effect of reading the definition of ''urban land'' as a whole will be that urban land will include garden or grounds, if any,
appurtenant to a building.
It is clear that notwithstanding that the area in dispute to the extent of 59 metres radius cannot be used as a building etc., though specifically falls
under the First part of the definition, it will stand included in the inclusive part of the definition as grounds appurtenant to the main building. The
Tribunal, was therefore, in error in excluding the area for the purpose of levy of Urban Land Tax. The order of the Tribunal is set aside and the
order of the Assistant Commissioner is restored.
In the decision relied on by the Revenue, the land was construed to be urban land, since the particular land under consideration, was found to be
appurtenant to the building, which is existing in the very land and therefore, stood included, within the meaning of the inclusive part of the definition,
which took into its fold the appurtenant land of a building.
The sum and substance of the ratio of both the decisions, relied on by either of the parties, in my view, is one and the same and that every land,
which is vacant may not be capable of being used as a building site, and that the taxing authorities must satisfy themselves, before choosing the
imposition of tax under the Act, that a particular land is ''urban land'' which means that it is either used as a building site or is capable of being used
as a building site. The only exception is, with reference to an appurtenant land to the existing building. De hors the fact that any active agricultural
operation is effectively carried on in the land or not, the vacant land cannot be said to be falling within the definition of ''urban land'' for the purpose
of the Act, unless it is used or capable of being used as building site. In this case, there is no serious dispute about the fact that in the scheme,
validly framed by the Madras Metropolitan Development Authority, the lands in question fall within the recreational zone, over which, private
construction of building is prohibited. The lands are not claimed or are shown to be by the Respondents to be appurtenant to any building.
Consequently, the mere fact that the dry land in question are claimed to be vacant, is no ground to treat them as ''urban land'' within the meaning of
Section 2(13) of the Act so as to subject them to the levy of urban land tax. Even that apart, the inspection notes and some of the observations in
the orders challenged herein, would go to show, that there were standing casuarina plantations, though they were not providing evidence of
systematic and continuous cultivation. The very success of agricultural operations themselves would depend on several factors, like the condition of
soil, water resources and other essential factors. Even at the inspection, lands in question have been noticed to be sandy lands, and the expectation
of effective agricultural operations in a systematic and continuous manner, over such lands, is wholly unjustified. Therefore, I am of the view, that
the decision relied on by the Learned Counsel reported in S. Sarangapani lyemgar v. Asst. Commissioner of ULT 1988 I LW 152 would squarely
apply to these cases. Unless the dry lands in question are shown to have been classified and converted into non-agricultural use, merely because
there is no cultivation during some years or there was no systematic and continuous agricultural operation, the lands cannot on that account alone
be held to be ''urban land'' within the meaning of the Act.
For all these reason, stated above, the impugned proceedings are hereby quashed and the writ petitions shall stand allowed as prayed for. If
the Petitioners have deposited any amount pursuant to the orders of this Court, during the pendency of these writ petitions, they are entitled to get
refund of the same and the authorities are obliged to refund such amounts of the Petitioners. There will be no order as to costs.