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2022 Supreme(Online)(KER) 28495
N. Nagaresh, J
P.M. Jose – Appellant
Versus
Municipality of Adoor – Respondent
WP(C) NO. 18643 OF 2022
For the Appellants/Petitioners: Manu Ramachandran, M. Kiran Lal, T.S. Sarath, R. Rajesh (Varkala), Sameer M Nair, Geethu Krishnan, Harsha Susan Sam
For the Respondents: K. Shaj
The court held that when a statutory appeal against tax demand notices is pending, the authorities must decide the appeal and interim stay applications before initiating coercive proceedings, and provisional trade licences may be granted to tenants pending the outcome.
Headnote:The petitioner challenges demand notices for building tax arrears under the Kerala Municipalities Act, specifically contending that the power under Section 242(5) should only apply to the unauthorised portion of a building, rather than the entire structure. The petitioner owns a commercial building with a roof-top truss work which the respondents deem unauthorised, leading to tax demands on the whole property despite the existence of an occupancy certificate for the main structure. The primary issue is whether demand notices for the entire building are sustainable when only a portion is alleged to be unauthorised, and whether statutory appeals and stay petitions should be decided before coercive action is taken. The court focuses on the pending statutory appeal and the need for a fair hearing to resolve the dispute regarding the authorisation of the rooftop structure and the resulting tax liability. In view of the facts and reasons as stated above, the writ petition is disposed of with the following directions: (1) The 3rd respondent is directed to consider Ext.P4 appeal and take a decision thereon, in accordance with law, after giving an opportunity of hearing to the petitioner. (2) The 4th respondent shall consider Ext.P5 interim application for stay, taking into consideration the urgency of the matter involved. (3) If the tenants of the building make application for renewal of trade licence from the Municipal authorities, the same shall be considered and renewal shall be granted provisionally to them if they are otherwise eligible, subject to the outcome of the statutory appeal. (4) Any coercive proceedings against the petitioner will stand deferred till the 4th respondent considers and pass orders on Ext.P5.
| Table of Content |
|---|
| 1. challenge against building tax demands based on unauthorised roof construction. (Para 1 , 2 , 3) |
| 2. arguments regarding partial unauthorised construction and the existence of statutory appeals. (Para 4 , 5 , 6) |
| 3. direction to resolve statutory appeals before taking coercive action. (Para 7) |
J U D G M E N T
Dated this the 13th day of June, 2022
The petitioner, who is owner of a building by name and style 'Eminence Mall' in Adoor Municipality near Maria Hospital, has approached this Court seeking to quash Ext.P2 series demand notices and to declare that the power under Section 242(5) of the Kerala Municipalities Act is applicable only to that extent of building which is unauthorised and remaining portion of the same building can be used for other purposes.
2. The petitioner states that he is the title holder of a building which he let out to tenants. The building was constructed and completed in the year 2010 as a commercial building. Occupancy Certificate was also issued. The petitioner purchased the building during the year 2014. Even when the petitioner purchased the shopping complex, there was a temporary roof structure on the terrace of the building. The respondents have now taken a stand that the construction of roof top is unauthorised. The respondents have issued Ext.P2 series of notices for arrears of building tax in respect of the entire building.
3. Aggrieved by Ext.P2 series, the petitioner has preferred Ext.P4 appeal before the Standing Committee for Finance of Municipal Council and Ext.P5 stay petition also, before the Chairperson of the Municipal Council. Pending consideration of the appeal and stay petition, if the respondents proceed with Ext.P2 series of notices, the petitioner and the tenants will be put to untold hardship and misery, contends the petitioner.
4. The counsel for the petitioner would contend that the construction of truss work at roof top cannot be treated as unauthorised construction in view of the law laid down by this Court in various judgments. Assuming that it is an unauthorised construction, the respondents are competent to re-assess the tax and demand the arrears of tax only in respect of that portion of the building, which is authorised construction. In view of Section 242(5), the demand made by the respondents is unsustainable. Therefore, if Ext.P2 series demand notices are enforced pending consideration of statutory appeal, the petitioner and his tenants will be put to untold loss and misery.
5. The Standing Counsel entered appearance and resisted the writ petition on behalf of the respondents.
6. The learned standing Counsel, however, submitted that since the petitioner has filed statutory appeal, the same can be considered by the competent authorities. The applications submitted by the petitioner for interim reliefs can also be considered.
7. In view of the facts and reasons as stated above, the writ petition is disposed of with the following directions:
(1) The 3rd respondent is directed to consider Ext.P4 appeal and take a decision thereon, in accordance with law, after giving an opportunity of hearing to the petitioner.
(2) The 4th respondent shall consider Ext.P5 interim application for stay, taking into consideration the urgency of the matter involved.
(3) If the tenants of the building make application for renewal of trade licence from the Municipal authorities, the same shall be considered and renewal shall be granted provisionally to them if they are otherwise eligible, subject to the outcome of the statutory appeal.
(4) Any coercive proceedings against the petitioner will stand deferred till the 4th respondent considers and pass orders on Ext.P5.
