Tax cannot be levied at penal rates for authorized occupation following an occupancy certificate under relevant municipal provisions.

J U D G M E N T

The petitioner herein is a charitable society registered under the Societies Registration Act, 1860. As the petitioner wanted to construct a community hall, a building permit was obtained from the respondent corporation as early as on 22.10.1986. Ext.P1 is the said building permit. However, due to various reasons, the work could not be completed during the subsistence of Ext.P1 building permit. Later, upon completion of the building in the year 2000, the petitioner submitted Ext.P2 application dated 28.03.2000, before the 2^nd respondent for regularising the construction. While the regularisation application was pending consideration, without taking a decision on the said application, proceedings were initiated against the petitioner by the 2^nd respondent, imposing liability to pay tax at three times, of the normal rates, treating the building as unauthorised. Ext.P3 is the said demand notice and the same was challenged before this Court by filing WP(C)No.35750/2016.

2. This Court, as per Ext.P4 judgment, disposed of the said writ petition, directing the respondents to consider the application submitted by the petitioner for regularisation. In the light of the above, the application was considered by the respondent Corporation and Ext.P5 was issued, granting ‘Occupancy Certificate’, wherein, the date of completion of the building is shown as 01.01.2000. Thereafter, the petitioner was issued with Ext.P1arrear demand notice, by the Corporation, wherein, a demand of tax at three times of the normal rates, was made for the period from 2009 to 2024 and this writ petition is submitted by the petitioner challenging the same.

3. A counter affidavit was submitted by the respondents 1 and 2, controverting the averments contained in the writ petition and opposing the reliefs sought. According to the respondents, the petitioner was using the building without obtaining any occupancy certificate as a community hall and therefore, the demand of property tax at three times as contemplated under Sec.242 of the Kerala Municipality Act is justifiable.

4. I have heard Sri. Arun Krishna Dhan, the learned counsel for the petitioner and Smt. Bindhumol Joseph, the learned Standing Counsel for the respondent Corporation.

5. The challenge raised against Ext.P7 is mainly on the ground that, since Ext.P5 occupancy certificate is already issued to the petitioner acting upon Ext.P2 application submitted by the petitioner for regularisation by showing the date of completion as 01.01.2000, under no circumstances, any tax at penal rates can be imposed under Sec.242 of the Act. The learned counsel for the petitioner also places reliance upon the decision rendered by the Division Bench of this Court inJoy P.J (Dr.) v. Corporation of Kochi 2024 (3) KHC 159

6. On the other hand, the learned Standing Counsel opposed the aforesaid contention, by pointing out that, as they were utilising the building, even before the occupancy certificate, as evidenced by Ext.P5, is issued, they are justified in demanding penal rates.

7. After carefully going through the records and examining the statutory provisions, I find merits in the submission made by the learned counsel for the petitioner. Of course it is true that, the proceedings under Sec.242 of the Kerala Municipality Act was initiated in the year 2013 itself. But the same was challenged by the petitioner before this Court by filing a writ petition, which resulted in Ext.P4 judgment. The specific contention raised by the petitioner in the writ petition which resulted in Ext.P4 judgment was that, all these proceedings are being initiated while the applic