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HIGH COURT OF KERALA
Dinesh Kumar Singh, J
ATC TELECOM INFRASTRUCTURE PVT. LTD – Appellant
Versus
UNION OF INDIA – Respondent
WP(C) 6449/2022
PROPERTY TAX - DEMAND NOTICE - LIMITATION PERIOD - UNAUTHORIZED CONSTRUCTION - SECTION 282 OF THE KERALA MUNICIPALITY ACT - SECTION 242 OF THE KERALA MUNICIPALITY ACT - HEARING OPPORTUNITY:
Fact of the Case:
The petitioner challenged the demand notices issued by the municipality for property tax, arguing that the demand for a period more than four years previous to the date of the notice was barred by the limitation period under Section 282 of the Kerala Municipality Act. The petitioner also claimed that no opportunity for a hearing was provided before issuing the demand notice.
Finding of the Court:
The court held that the four-year limitation period under Section 282 of the Kerala Municipality Act was not applicable in this case because the petitioner had put up unauthorized construction without a valid permit from the municipality. The court found that Section 242 of the Act, which deals with unauthorized constructions, was relevant for levying the penalty and tax.
Issues: 1. Whether the limitation period under Section 282 of the Kerala Municipality Act applies to unauthorized constructions? 2. Whether the petitioner was entitled to a hearing opportunity before issuing the demand notice?
Ratio Decidendi: The court held that Section 282 of the Kerala Municipality Act, which provides a four-year limitation period for demanding property tax, does not apply to unauthorized constructions. The court relied on Section 242 of the Act, which specifically deals with unauthorized constructions and provides for the imposition of penalties and taxes. The court also held that the petitioner was entitled to a hearing opportunity before issuing the demand notice, and the failure to provide such an opportunity rendered the demand notice invalid.
Final Decision: The court allowed the writ petition and treated the impugned demand notice as a show-cause notice. The petitioner was directed to file a reply within three weeks, and a hearing opportunity was to be provided before finalizing the order of assessment/demand.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE
14TH DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 WP(C) NO. 6449 OF 2022 PETITIONER/S:
ATC TELECOM INFRASTRUCTURE PVT. LTD (FORMERLY KNOWN AS ATC TELECOM TOWER CORPORATION AND ESSAR TELECOM INFRASTRUCTURE PVT. LTD., VIOM 28, CHERAMANGALATH, SHENOY ROAD, KALOOR, KOCHI-17, REP. BY HEAD LEGAL, BABU PATTATHANAM, AGED 40 YEARS, S/O.CHANDRAN, RESIDING AT DEVARAGAM, MANALUDI, RAMANATTUKARA P.O., PIN-673633.
BY ADVS.P.SATHISAN DONA AUGUSTINE RESPONDENT/S:
1 UNION OF INDIA DEPARTMENT OF INFORMATION AND TECHNOLOGY, SOUTH DELHI P.O., NEW DELHI-110003, REPRESENTED BY ASSISTANT SOLICITOR GENERAL.
2 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM P.O., PIN-695001.
3 SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM P.O., PIN-695001.
4 DIRECTOR OF MUNICIPALITIES, SWARAJ BUILDING, NANDANKODE, KAWADIAR POST, THIRUVANANTHAPURAM-695003.
5 IRINJALAKUDA MUNICIPALITY, IRINJALAKUDA P.O., IRINJALAKUDA-680121, REP. BY ITS SECRETARY.
6 THE SECRETARY, IRINJALAKUDA MUNICIPALITY, IRINJALAKUDA P.O., IRINJALAKUDA-
680121.
BY ADVS.
M JAYAKRISHNAN VAZHOOR K.K.CHANDRAN PILLAI (SR.)
SMT.S.AMBILY, SC, IRINJALAKUDA MUNICIPALITY OTHER PRESENT:
K.R.DEEPA -SPL.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
J U D G M E N T The present writ petition has been filed impugning Exhibits P4 and P4(a) demand notices issued by the Irinjalakuda Municipality.
2. Though several arguments have been advanced, the main argument which has been given emphasis by the learned Counsel for the petitioner is that under the provisions of Section 282 of the Kerala Municipality Act, no demand can be made in respect of the property tax on a building/property for a period more than four years previous to the date of the demand notice. It is further submitted that the petitioner was not afforded any opportunity for a hearing, and without completing the assessment, the demand notice has been issued.
3. On the other hand, Shri K K Chandran Pillai, learned Senior Counsel, assisted by Adv S Ambily appearing for the 5th and 6th respondents submits that the petitioner has put up unauthorized construction without any valid permit from the Municipality and therefore the provisions of Section 539 or Section 282 have no application as it is an unauthorized and illegal construction. For levying the penalty and tax, Section 242 is relevant, and the demand notice has been issued under the provisions of Section 242 of the Kerala Municipality Act. Therefore, the four-year limitation period has no applicability to the facts of the present case.
4. Be that as it may, the fact remains that no notice was issued to the petitioner and no opportunity of hearing was granted to the petitioner before issuing the demand notice. In view thereof, the present writ petition is allowed. The impugned demand notice is to be treated as a show-cause notice. The petitioner is directed to file his reply to the demand notice within a period of three weeks from today.
Before finalizing the order, the petitioner shall be afforded an opportunity of hearing by respondents 5 and 6 and thereafter only the order of assessment/demand shall be passed.
Sd/-
DINESH KUMAR SINGH JUDGE jjj APPENDIX OF WP(C) 6449/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CERTIFICATE OF INCORPORATION OF THE PETITIONER COMPANY.
Exhibit P2 TRUE COPY OF THE PRINT OUT OF NOTIFICATION DATED 14.1.2011.
Exhibit P2(a) TRUE ENGLISH TRANSLATION OF EXT.P2 NOTIFICATION.
Exhibit P3 TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON’BLE HIGH COURT OF KERALA IN WP(C)
NO.22723/2011 DATED 20.8.2011.
Exhibit P4 TRUE COPY OF DEMAND NOTICE OF IRINJALAKUDA MUNICIPALITY FOR BUILDING NO.19/178 [D1 (UA)]
DATED 27.9.2021.
Exhibit P4(a) TRUE COPY OF DEMAND NOTICE OF IRINJALAKUDA MUNICIPALITY FOR BUILDING NO.34/72 [1(UA)] DATED
16.8.2021.
Exhibit P5 TRUE COPY OF
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