IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 28^TH DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943 WP(C) NO. 4281 OF 2020 PETITIONER :

JOSE C.D., AGED 42 YEARS, S/O.DEVASSYKUTTY, CHEMBAKASSERY HOUSE, THANISSERY, THRISSUR DISTRICT - 680 701.

BY ADVS.

SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.RAFEEK. V.K.

SRI.U.M.HASSAN SMT.P.PARVATHY SMT.SURYA P SHAJI SHRI.MANAS P HAMEED SHRI.GAUTHAM MOHAN H.

SMT.AATHIRA SUNNY RESPONDENTS :

1 IRINJALAKUDA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, IRINJALAKUDA P.O., THRISSUR, PIN - 680 121.

2 THE SECRETARY, IRINJALAKUDA MUNICIPALITY, IRINJALAKUDA P.O., THRISSUR, PIN - 680 121.

BY ADVS.

SRI.K.K.CHANDRAN PILLAI (SR.)

SMT.S.AMBILY, SC, IRINJALAKUDA MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

BECHU KURIAN THOMAS, J.

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W.P.(C) No.4281 of 2020 =-=-=-=-=-=-=-=-=-=-=-=-=-=

Dated this the 28^th day of February, 2022

JUDGMENT

Petitioner is challenging Ext.P1 series of demand notices issued by the respondent Municipality. Petitioner is the owner of buildings bearing Nos.VI 803 B2, B3, B4, B5, B2(A), B3, B3(A), B3(B) of Chempakasserry Ward, Irinjalakuda. According to the petitioner, the property tax for the building was fixed at the rate of Rs.90/- per square metre by the respondents and the petitioner continued to remit the same till 2017-18. However, by Ext.P1 demand notice, the rate of property tax was enhanced to Rs.140/- per square metre, that too with retrospective effect. It is in such circumstances that this writ petition has been filed challenging the very basis of such a demand.

2. Sri.Saijo Hassan, the learned counsel for the petitioner contended that Ext.P1 series of demand notices have been issued without any order of adjudication and the said reason alone is sufficient to render Ext.P1 demand notices as contrary to law.

3. I have heard the learned Senior Counsel Sri.K.K.Chandran Pillai duly instructed by Adv.S.Ambily on behalf of the respondent Municipality. The learned Senior counsel submitted that, under the guise of the dispute regarding the enhancement of the property tax, petitioner has not paid the property tax even at the rate of Rs.90/- per square metre for 2017-18 and that such conduct ought not be perpetrated. It was also pointed out that, Ext.P1 was only a provisional demand and had the petitioner filed any objection to such a demand, necessarily, the Municipality would have considered the same. The learned Senior Counsel further submitted that failure of the petitioner to file an objection to the provisional demand would automatically render the said demand as a finalised order, creating a liability upon the petitioner, which cannot be challenged under Article 226 of the Constitution of India and the remedy ought to be an appeal under the statute.

4. I have considered the rival contentions.

5. It is trite law that a demand notice can be issued only on the basis of an order of assessment (refer the judgment in WA.No.1533/2020 dated 26.11.2020). In view of the above categoric proposition of law, the demand notices alleged to have been issued as Ext.P1 cannot sustain without an order of assessment.

6. However, as rightly pointed out by the learned Senior Counsel, Ext.P1 series of notices clearly mentions that an opportunity is granted to the petitioner to show cause against the said demand and if he had any objection, the same could be put in writing, failing which the amount demanded would be recovered in accordance with law. 7. In view of the above specific wordings in Ext.P1, it was necessary that petitioner files an objection and invite an adjudication order if he so desires. Without inviting such an adjudication order by filing an objection, it is not proper for the petitioner to have directly approached this Court. However, having regard to the circumstances and in the interest of justice, petitioner is granted an opportunity to fi