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Marimuthu Nadar v. The Tuticorin Municipality, By Its Commissioner, Janab Mahdi Hussain And Another
Structured Summary of the Opinion — Town Planning Scheme "D" (Tuticorin Municipality)
Factual and Procedural Background
The plaintiffs, as representative litigants and owners of properties within the Tuticorin Municipality, instituted a suit in the District Munsif's Court, Tuticorin challenging the Town Planning Scheme "D" published by the Tuticorin Municipality under the Madras Town Planning Act. They sought a declaration that the "D" scheme was illegal and ultra vires and a permanent injunction preventing the Municipality from enforcing any provisions of the scheme against the plaintiffs.
For jurisdiction and court-fee purposes the plaintiffs valued the suit at Rs. 110 and paid court-fee of Rs. 15 for the declaration (under Schedule II Article 17, Court-fees Act) and Re.1-1-0 for injunction (under Section 7(iv)(d), Court-fees Act). A preliminary issue was raised about the correctness of the court-fee paid.
The Court-fee Examiner issued a check slip asserting that valuation should have been made under the proviso to Section 7 Clause iv-c (introduced by Madras Act V of 1922), which provides that where the relief sought is with reference to any immovable property, valuation shall not be less than half the value of the immovable property. The District Munsif upheld the Court-fee Examiner's contention and held that the proviso applied to the present suit. The matter proceeded by civil revision to the court that produced this opinion.
Legal Issues Presented
- Whether a suit for a declaration that a town planning scheme is illegal and ultra vires, together with a consequential injunction to prohibit enforcement of that scheme, must be valued under the proviso to Section 7 Clause iv-c (Madras Court-fees Act) requiring valuation at not less than half the value of the immovable property affected.
Arguments of the Parties
Plaintiffs' Arguments
- The plaintiffs sought a declaration that the D scheme was illegal and ultra vires, primarily on the ground that the Municipality had no authority to start the scheme and had not complied with statutory requirements—especially as to preparation and publication under Sections 8 and 9 of the Madras Town Planning Act.
- The plaintiffs treated the suit as being concerned with the validity of the scheme itself and therefore valued the suit at Rs. 110 for court-fee purposes (paying the fees accordingly under Schedule II Article 17 and Section 7(iv)(d)).
Lower Court / Court-fee Examiner's Position (as summarized in the opinion)
- The Court-fee Examiner (and the District Munsif who upheld that contention) held that because the scheme affects immovable properties and confers powers on the Municipality that interfere with ownership and possession, the declaration and consequential injunction were "with reference to immovable properties".
- Accordingly, the proviso to Section 7 Clause iv-c would apply and valuation should have been not less than half the value of the immovable property affected (per the proviso introduced by Madras Act V of 1922).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Venkatakrishna Pattar, AIR 1927 Mad 348 | Jackson J. observed that, where relief sought is declaration of an easementary right, it might be said to be "with reference to immovable property", but the proviso should be read so that "with reference to" means involving possession of land, house and/or garden; thus proviso would not apply to easements. | The court relied on this reasoning to support a narrow interpretation of "with reference to any immovable property" — i.e., that mere connection to immovable property (e.g., easements or indirect effects) does not necessarily invoke the proviso. |
| Gurunatha Chettiar v. Secretary of State, AIR 1936 Mad 201 | Varadachariar J. referred to the above observation and noted that the prima facie meaning of "with reference to any immovable property" is that the dispute should in some sense relate to the title to the immovable property. | The court cited this authority to reinforce that the proviso applies where the suit relates to title or direct rights in immovable property, not merely to matters that affect property indirectly. |
| Ahmed Hussain Sahib v. Ghani Veeri Chettiar (case arising under Madras Town Planning Act) | Held that mere inclusion of property within a Town Planning scheme does not make the owner incompetent to sell nor does publication of the scheme affect or interfere with title to the property. | The court used this precedent to support the proposition that publication of a town planning scheme does not, by itself, make the suit one that is "with reference to immovable properties" for the purpose of the proviso; the scheme challenges concern the Council's powers rather than title to properties. |
| Turlapati Venkateswara Rao v. Municipal Council Masulipatam | Where a representative suit challenged the validity of a Municipal resolution relating to a market, the subject-matter of the suit was the resolution (and its validity) and not the market itself; accordingly the suit fell under Article 17-B of Schedule II (and court-fee on the market's value was not required). | The court invoked this principle to distinguish the subject-matter (the municipal act/resolution/scheme) from the immovable property affected by it — underscoring that validity challenges to governmental resolutions/schemes are not necessarily suits "with reference to" the property. |
Court's Reasoning and Analysis
The court began by examining the statutory powers contained in Section 4 of the Madras Town Planning Act (VII of 1920), noting that a town planning scheme may provide for laying out roads, the construction/alteration/removal/demolition of buildings, acquisition by purchase of land within the scheme area, allotment or reservation of land for streets and buildings, and that the municipal council has powers (e.g., under Section 19) to remove or alter buildings and under Section 20 persons injuriously affected may seek compensation.
The court acknowledged that the scheme, if brought into effect, would permit the Municipality to interfere with ownership and possession of immovable properties. However, it drew a distinction between: (a) a suit whose real subject-matter is the immovable property (i.e., a dispute about title or possession), and (b) a suit whose real subject-matter is the validity of a municipal act or scheme (i.e., the competence of the Municipality and compliance with statutory procedure).
Applying earlier authorities, the court emphasized that the phrase "with reference to any immovable property" in the proviso to Section 7 Clause iv-c should be read to mean disputes that directly relate to title or possession of immovable property (involving the possession of land, house and/or garden), not every case where the subject matter may indirectly affect property rights.
The court observed that the plaintiffs' declaration challenged the scheme on grounds that the Municipality lacked authority and failed to comply with statutory requirements (notably Sections 8 and 9). The suit was therefore directed at the validity of the scheme and the Municipality's power to publish and enforce it; it was not a suit directed to any particular immovable property as its subject-matter nor was title or possession denied by the defendants.
The consequential injunction sought was to prevent enforcement of the scheme, which, although ultimately aimed at preventing interference with ownership and possession, was tied to prevention of enforcement of an allegedly invalid scheme rather than to a direct claim of title or possession to the properties themselves.
On these grounds and by reference to prior decisions (including those summarized in the Table of Precedents Cited), the court concluded that the declaration and the injunction were not "with reference to immovable properties" in the sense required to invoke the proviso to Section 7 Clause iv-c; consequently the plaintiffs' valuation and court-fee payment were correct.
Holding and Implications
CIVIL REVISION PETITION ALLOWED
Direct holding:
- The court reversed the District Munsif's decision that the proviso to Section 7 Clause iv-c applied, and held that the plaintiffs' suit (a challenge to the validity of the Town Planning Scheme "D" and a consequential injunction) was not a suit "with reference to immovable properties" for the purpose of that proviso.
- The valuation put forward by the plaintiffs (Rs. 110) and the court-fee paid thereon were held to be correct.
- The civil revision petition was allowed and the petitioner plaintiffs were awarded costs.
Implications:
- The immediate effect is that the lower court's order requiring valuation under the half-value proviso was set aside, and the plaintiffs' chosen valuation and court-fee payments stand.
- The court's analysis clarifies that a suit challenging the validity of a municipal town-planning scheme is to be treated as a suit whose subject-matter is the scheme (the municipal act/resolution) rather than automatically being treated as a suit "with reference to immovable property" simply because the scheme affects immovable properties. The proviso to Section 7 Clause iv-c is properly engaged where the dispute relates directly to title or possession of immovable property.
- This decision addresses the proper classification for court-fee valuation of suits challenging municipal schemes; no factual disposition beyond the parties before the court was made in this opinion apart from awarding costs to the successful revisional applicants.
This summary is based exclusively on the text of the provided opinion. No information has been added beyond what is contained in that opinion.
of 1950 in the District Munsif's Court, Tuticorin, a representative suit on behalf of themselves and other owners of properties within the Tuticorin Municipality in respect of which the defendants who are the Tuticorin Municipality published a scheme for the area covered by these properties as the area of Town Planning Scheme "D" of the Tuticorin Municipality. The suit was for a declaration that the "D" scheme 'propounded by the defendants under the Town Planning Act was illegal and 'ultra vires' and for a permanent injunction prohibiting them from enforcing all or any provisions of the scheme against the plaintiffs.
2. The plaintiffs valued the suit for purposes of court-fee and jurisdiction at Rs. 110 and paid a court-fee of Rs. 15 for declaration under Schedule II Article 17, Court-fees Act and for injunction at Re. 1-1-0 under Section 7(iv)(d), Court-fees Act. An issue was raised as to the correctness of the Court-fee paid which was tried as a preliminary issue.
Besides, the Court-fee examiner also issued a check slip that the suit should have been valued under the proviso to Section 7 Clause iv-c, Madras Court-fees Act. Section 7 Clause iv-c relates to suits to obtain a declaratory decree or order where conse quential relief is prayed and a proviso is added by the enactment of Madras Act V of 1922. That proviso is in the following terms:
Provided that in suits coming under Sub-clause (c) (of Section 7-iv) in cases where the relief sought is with reference to any immoveable property, such valuation shall not be less than half the value of the immoveable property calculated in the manner provided for by paragraph (v) of this section.
3. The learned District Munsif upheld the contention of the Court-fee examiner and held that the proviso to Section 7 Clause iv-c was applicable to the present case.
4. Section 4, Madras Town Planning Act (VII of 1920), says that a town planning scheme may provide for several matters including the laying out the roads etc. the construction, alteration, removal or demolition of buildings, bridges and other structures, the acquisition, by purchase of any land within the area included in the scheme the construction or houses, the allotment or reservation of land for streets, roads, squares, houses, buildings etc. On the publication of a draft scheme and its sanctioning by the local Government no person shall erect, or proceed with, any building or work or without the permission of the Municipal Council and persons intending to put up buildings, shall conform to the directions or the Council, and the Council has, under Section 19, the power to remove, pull down, or alter, any building or to execute the work themselves. Persons injuriously affected may, under Section 20, apply for compensation.
Since the area covered by the scheme published by the Municipal Council, affects, to a large extent, the rights of owners of these properties and confers powers on the Municipality to interfere with such ownership of immoveable properties, the argument that found support with the lower court is that the scheme concerns immovable properties, and the declaration asked for viz., that the scheme is 'ultra vires' and illegal, is a declaration in respect of immovable properties and, injunction being the consequential relief, the suit must be valued under the proviso to Section 7(iv)(c) as a suit for declaration with consequential relief, as the relief is sought with reference to immovable properties. The lower court took the view that, in substance, the suit was for a declaration of the rights of the plaintiffs in the properties covered by the D scheme and the injunction prohibiting the defendants from enforcing all or any of the provisions of the scheme meant that the defendants were prohibited from altering the structures or interfering with the possession of the suit properties which again are the immovable properties, and as such both the declarations and the injunction asked for were with reference to immovable properties.
In -- Re., Venkatakrishna Pattar, AIR 1927 Mad 348 (A)', where it was a suit in respect of an easementary right, Jackson J. observed that inasmuch as the relief sought was the declaration of the right of easement, the relief might be said to be with reference to immovable property. And he further observed.
"The proviso should be read with the clause so as to make 'with reference to mean' involving the possession of land, house and/or garden, and then the proviso would not be applicable to easements at all."
This observation of Jackson J. was referred to by Varadachariar J. in -- 'Gurunatha Chettiar v. Secretary of State', AIR 1936 Mad 201 (B), who observed that it seemed to him that the 'prima facie' interpretation of that expression, namely,
"the relief sought is with reference to any immovable property was that the dispute should in some sense relate to the title to the immovable property".
5. Myself and Govinda Menon J. had occasion to consider a case arising from the Madras Town Planning Act in -- 'Ahmed Hussain Sahib v. Ghani Veeri Chettiar', (C). There we held that the mere fact that a particular area was included in a Town Planning scheme would not justify holding the owner of a property within the Municipality as incompetent to sell the same or that his title to deal with it was affected, and, as such, the publication or notification of the scheme with reference to these properties would not have the effect of interfering with title to the properties covered by the scheme.
The declaration that is asked for is with reference to the proposed scheme on several grounds mainly on the ground that the defendants had no authority to start the scheme and that they had not complied with the provisions of the Act, especially relating to the preparation of and publishing of the scheme with special reference to Sections 8 and 9 of the Act. The suit was mainly, therefore, for declaring that the scheme decided upon and sought to be published was in contravention of the provisions of the Act and was therefore illegal and 'ultra vires', and not binding on the plaintiffs. The consequence of bringing into effect the proposed scheme would no doubt entitle the Municipality to interfere with the rights of ownership and possession of immovable properties and if a declaration and injunction are asked for in respect of the scheme, it is to prevent the municipality from interfering with the right of the plaintiffs to own and enjoy the immovable properties concerned. In that manner, the relief asked for may be indirectly connected or may he held to affect the plaintiffs' right to the possession and ownership of the immovable properties. But could it be said that the relief asked for concerns title to immovable properties?
In -- 'Turlapati Venkateswara Rao v. Municipal Council Masulipatam', (D), where a suit filed In a representative capacity for a declaration that a resolution passed by a Municipal Council relating to a market was illegal, 'ultra vires' and void, was held to fall under Article 17-B of Schedule II, Court-fees Act and that it was not a case where court-fee should be paid on the value of the market itself. The learned Chief Justice held that the opinion of the Subordinate Judge that as the declaration asked for was in respect of a resolution which related to the market the subject matter in dispute should be deemed to be the market whose valuation was about Rs. 7 lakhs, was wrong, that the subject matter of the suit was not market but the resolution whose validity was being impeached and that though no doubt, the resolution related to the market that would not make it the subject-matter of the suit.
Even in the present case the initiation of a scheme for a particular area arises by resolution under Section 9 of the Madras Town Planning Act under which the Municipal Council may by resolution, decide to prepare a scheme. This publication of the resolution, the subsequent publication of the scheme and other matters consequent are provided under the Act. What is questioned here is about the right of the Municipal Council to publish a scheme applicable to the area within the Municipality in which the properties of the plaintiffs are, situated and on the ground apart from its being 'ultra vires' and illegal, as not being in conformity with the requirements of the Act. The mere fact that the scheme decided upon by a resolution of the Municipal Council relates to immovable properties would not make the properties covered in the suit the subject-matter of the suit and the declaration asked for is in respect of the proposed scheme and not in respect of the immovable properties which may be affected by the scheme.
So also is the consequential relief of injunction which is to prohibit the Municipal Council from enforcing the scheme even though the ultimate effect of such a prohibition is to prevent the Municipal Council from interfering with the ownership and possession of the immovable properties belonging to the plaintiffs. Both the substance of the plaint and the relief asked for relate only to the proposed scheme and are not directed against any immovable properties. In valuing plaints of this nature, one has to see what the real subject-matter of the suit is. No title to or right to possession of the immovable property is in question in the sense that such a right or title has been denied by the defendants and that the declaration and injunction had become necessitated thereby. The scope of the suit is confined to the defendants' rights to exercise the powers under the Madras Town Planning Act. Though the relief asked for may be some way connected to the immovable properties they cannot therefore amount to reliefs with reference to immovable properties. The declaration and the injunction asked for could not, therefore be with reference to immovable properties, when alone Court-fee under the proviso to Section 7(iv)(c) has to be paid. The valuation put up by the plaintiffs and the Court-fee paid thereon are correct.
6. In the result the civil revision petition is allowed with costs.
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