IMPORTANT POINT
Imposition of tax under Section 242 of the Kerala Municipality Act, 1994 applies only if the building is unlawfully constructed or utilised for specific purposes mentioned in the Act.

JUDGMENT :

A.J. Desai, J.

The question involved in this appeal is whether the owner and occupier of a building, who has constructed the building in tune with the building permit granted by the Corporation, can be made liable to pay the tax and penalty under Section 242 of the Kerala Municipality Act, 1994 (for short “Act”), on the ground that the building was occupied without obtaining the certificates mandated as per Rule 22 of the Kerala Municipality Building Rules, 1999 (for short “1999 Rules”).

2. The short facts that arise from the record are as under:

The appellants/petitioners had applied for the construction of a hospital building consisting of ground plus four floors way back in the year 2001. The plan submitted along with the application was sanctioned and the appellants issued with Ext.P1 building permit dated 25.03.2002. The appellants completed the construction of the ground floor in the year 2003 and the rest of the floors in the year 2011. Thereafter, the appellants requested the Corporation to grant certificates as provided under Rule 22 of the 1999 Rules. In response to the said request, a communication was sent by the Corporation on 30.04.2011, asking the appellants to submit the no objection certificates issued by the Fire Force Department and the Pollution Control Board. It is the case of the appellants that, in spite of such certificates being produced in March 2012, the occupancy certificate was not issued. Meanwhile, the Corporation issued a notice on 05.01.2012 demanding property tax along with the penalty provided under Section 242 of the Act. Objections were raised by the appellants against such demand and ultimately an order was passed on 07.04.2012 (Exhibit P11). By the said order, the appellants were asked to pay the property tax as well as the penalty as provided under Section 242 of the Act. The said order came to be challenged by the appellants by filing the captioned writ petition. The respondents opposed the reliefs sought in the writ petition by filing counter affidavit. The learned Single Judge, after hearing both sides, refused to entertain the writ petition in view of the alternate remedy of appeal available under the Act. Hence, this appeal.

3. The learned Senior Counsel Mr. Kurian George Kannanthanam would submit that the case of the Corporation all throughout has been that the building was unauthorisedly occupied and not regarding unlawful construction of the building. He would submit that the Corporation had specifically stated in the first communication (Exhibit P4) dated 30.04.2011 that the construction work has been completed in tune with the building permit No. KRP1-474/2001 dated 25.03.2022. He would submit that only if a building is constructed unlawfully, the owner can be penalised under Section 242 of the Act. He would submit that, after construction of the 1st floor and issuance of partial occupancy certificate, the nurses working in the hospital conducted in the portion for which partial occupancy certificate had been issued, used to take rest in the second floor. Terming such usage as unauthorised occupancy, the Corporation had raised the unconscionable demand for tax. He would further submit that there is no provision either in the Act or in the 1999 Rules empowering the Corporation to impose penalty if the property is occupied without obtaining the certificates under Rule 22 of the 1999 Rules. He would submit that as per sub-section (25) of Section 2 of the Act, the term ‘occupier’ includes the owner who is in occupation of a building, which is the case on hand. Therefore, even if the building is occupied for some time without appropriate certificates, the authority cannot levy tax under Section 242 of the Act. He, therefore, would submit that the order impugned in the writ petition, i.e., Exhibit P11 dated 07.04.2012, is required to be quashed and set aside. He would submit that these aspects have not been properly taken note of by the learned Single Judge and therefore, the j