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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SHAJI P. CHALY, J.
Kapico Kerala Resorts Pvt. Ltd. – Petitioner
Versus
The State of Kerala – Respondent
W.P. (C) No. 10869 of 2014
Decided On : 11-03-2022
Constitution of India, 1950 - Article 226 - Kerala Panchayat Raj Act, 1994 - Section 210, 203, 235AA - Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 - Rule 27 - Environmental (Protection) Act, 1986 - Section 3(1) and Section 3(2)(v) - Environmental (Protection) Rules, 1986 - Rule 5(3)(d) “Unlawful Construction” Writ Petition is filed by a private limited company incorporated under provisions of Companies Act, 1956, challenging Exts.P4 and P6 demand notices issued by Secretary of Panavally Grama Panchayat, 2nd respondent, directing petitioner to pay property tax to 36 buildings bearing different numbers and 54 buildings bearing different numbers, respectively, for different periods.
Finding of the Court:
There is no force or weight in arguments made by learned counsel for petitioner that construction being illegal and liable to be demolished, Panchayat is not liable to impose tax against petitioner; especially when it opens with a non-obstante clause so as to gather a meaning that in spite of building permit granted by Secretary, if it is unlawful consequences prescribed therein has to follow, and tax has to be paid till building is demolished - Petitioner has taken me through provisions of Chapter XXI of Act 1994 dealing with buildings - It is clear from said provisions that phraseology employed in those provisions are in respect of violation of provisions of Kerala Panchayat Raj Act, 1994 and Kerala Panchayat Building Rules, 2011, however phraseology employed in Section 235AA is “unlawful construction” which comprehends not only violation of provisions of Kerala Panchayat Raj Act, 1994 and Kerala Panchayat Building Rules, 2011, but every other situation by which construction becomes unlawful.
Result: Writ Petition dismissed.
JUDGMENT :
SHAJI P. CHALY, J.
1. This writ petition is filed by a private limited company incorporated under the provisions of the Companies Act, 1956, challenging Exts.P4 and P6 demand notices issued by the Secretary of the Panavally Grama Panchayat, the 2nd respondent, directing the petitioner to pay property tax of Rs. 35,70,446/- and Rs. 12,66,745/- to 36 buildings bearing different numbers and 54 buildings bearing different numbers, respectively, for different periods.
2. Brief material facts for the disposal of the writ petition are as follows:
xxx xxx xxx
3. Petitioner has secured Ext.P1 building permit on 10.10.2007 for construction of Standard Villas, Deluxe Villas, Two Bedroom Villas, Resident Villa and other buildings.
4. Admittedly, certain public interest litigations were filed before this Court, alleging inter-alia that the construction of the resort was illegal and against the provisions of the Coastal Regulation Zone Notification, 1991 and the plan prepared by the Kerala Coastal Zone Management Authority.
5. Finally the writ petitions were allowed holding that the constructions made by the petitioner are violative of the Coastal Zone Management Plan and Coastal Regulation Zone Notification, 1991, reported in Ratheesh vs. State of Kerala, 2013 (3) KLT 840. The said judgment of the Division Bench of this Court was upheld by the Hon’ble Apex Court in Kapico Kerala Resorts Private Limited vs. State of Kerala and Others, 2020 (3) SCC 18.
6. Be that as it may, the case projected by the petitioner is that the construction of the Villas have been completed and the Secretary of the Panchayat had allotted building numbers to all the buildings; the petitioner had remitted a sum of Rs. 18,30,334/- as property tax to the Panchayat on 31.01.2012 for the half year period of 2011-12 evident from Ext.P2 tax receipt dated 31.01.2012. It is also submitted that petitioner has remitted building tax for the first half of 2012-13 evident from Ext.P2(a) tax receipt dated 19.12.2012.
7. It seems the Panchayat has filed S.T. No. 1070 of 2013 before the Judicial First Class Magistrate Court-II, Cherthala under Section 210 of the Kerala Panchayat Raj Act, 1994 read with Rule 27 of the Kerala Panchayat Raj (Taxation, Levy and Appeal) Rules, 1996 alleging that the petitioner has failed to remit the building tax for the period 2012-13 evident from Ext.P3 complaint.
8. Anyhow Ext.P4 demand is dated 09.04.2013 and even though an appeal was preferred before the Standing Committee for Finance of the 2nd respondent Panchayat, it was rejected as per Ext.P5 order dated 06.01.2014.
9. Later the petitioner is served with Ext.P6 demand dated 14.03.2014 for the period 01.04.2013 to 31.07.2013.
10. The paramount contention advanced in the writ petition is that the Panchayat is not entitled to raise any demand against the building ordered to be demolished as per the judgment of the Division Bench of this Court and affirmed by the Hon'ble Apex Court as specified above.
11. That apart, it is submitted that there is no default or latches on the part of the petitioner in applying for building permit before the Secretary of the Grama Panchayat and securing the same and if at all there was any consequence on the basis of the Coastal Regulation Zone Notification and the Coastal Management Plan, the Secretary of the Panchayat ought not have issued the building permit and should not have numbered the buildings.
12. The sum and substance of the contention is that the Secretary of the Panchayat having granted permit and numbered the building, no manner of illegality can be attributed on the part of the petitioner and therefore the demand raised by the Secretary of the Grama Panchayat against the building ordered to be demolished by this Court and affirmed by the Hon'ble Apex Court cannot be legally sustained.
13. The Grama Panchayat has filed a detailed counter affidavit justifying the demand raised by it. It is also submitted that even if the construction is unlawful, the Pancha
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