Abraham Philip v. Secretary, Thodupuzha Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 21ST DAY OF JUNE 2017/31ST JYAISHTA, 1939** ## **WP(C).No. 31237 of 2008 (R)** **-------------------------------------------** **PETITIONER(S) : -------------------------** **ABRAHAM PHILIP, NARAKATHINAMKUNNEL HOUSE, THODUPUZHA P.O., THODUPUZHA TALUK, IDUKKI DISTRICT.** ## **BY ADV. SRI.RAJU JOSEPH** **RESPONDENT(S) : -----------------------------** **THE SECRETARY, THODUPUZHA MUNICIPALITY, THODUPUZHA.** **BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT, S.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 31237 of 2008 (R)** ## **-------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: TRUE COPY OF THE BUILDING PERMIT B.A. 273/06-07 DATED 22.11.2006.** - **EXHIBIT P2: TRUE COPY OF THE NOTICE DATED 26.12.2006.** - **EXHIBIT P3: TRUE COPY OF THE DETAILED OBJECTION DATED 31.01.2007 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY.** - **EXHIBIT P4: TRUE COPY OF THE ACKOWLEDGEMENT DATED 31.01.2007.** - **EXHIBIT P5: TRUE COPY OF THE PROPERTY TAX RECEIPT SHOWING PAYMENT OF TAX IN RESPECT OF THE BUILDING NO. XXIII/1141 FOR THE YEAR 2007-2008 DATED 31.01.2008.** - **EXHIBIT P6: TRUE COPY OF THE NOTICE DATED 07.05.2008.** **RESPONDENT(S)' EXHIBITS :** **ADDITIONAL EXHIBIT R1(A):** **TRUE COPY OF THE JUDGMENT IN SA 315/94 OF THIS HON'BLE COURT.** **ADDITIONAL EXHIBIT R1(B): TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 05.07.2006.** **ADDITIONAL EXHIBIT R1(C): TRUE COPY OF THE CONSENT LETTER EXECUTED BY THE PETITIONER DATED 15.11.2006. ADDITIONAL EXHIBIT R1(D): TRUE COPY OF THE BUILDING PLAN SUBMITTED BY THE PETITIONER.** **ADDITIONAL EXHIBIT R1(E): TRUE COPY OF THE REVISION PETITION DATED 01.02.2007 SUBMITTED BY THE PETITIONER.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **A.MUHAMED MUSTAQUE, J.** _**********************************************************************_ W.P.(C) No.31237 of 2008 _**********************************************************************_ Dated this the 21[st] day of June, 2017 ## JUDGMENT The petitioner was proceeded for unauthorised construction by the Thodupuzha Municipality in the year, 1989. The Municipality initiated action alleging that the petitioner constructed an additional building on an existing building without permission. The Municipality issued a demolition order invoking under Section 247(1) of the Municipality Act, then prevailing Act. Aggrieved by the order, the petitioner instituted a suit. The suit essentially was for an injunction restraining the Municipality from demolishing unauthorised construction. The matter went up to this Court in the second appeal. This Court dismissed the second appeal dated 3.7.2007(S.A.No.315 of 1994). In the meanwhile, the petitioner regularised the building as per the regularisation application dated 5.7.2006. The Municipality, thereafter, assessed the building and raised a demand for property tax for the period 2000-2001. The demand notice was issued on 26.12.2006. The petitioner filed a revision before the Commission. This was rejected stating that the revision was unaccompanied by the payment of property tax. W.P.(C) No.31237 of 2008 2 2. The legality of the demand is questioned on the ground of limitation. The learned senior counsel appearing for the petitioner would submit that the building ought to have been assessed from the date of illegal occupation or completion and therefore, the period of limitation is to be reckoned for four years as referred under Section 282 of the Kerala Municipality Act, 1984 ( for short, the “Act”). 3. On the other hand, the learned Standing Counsel for the Municipality would submit the date for limitation has to be reckoned from the date of regularisation and also would argue that the period involved in the suit will have to be excluded while calculating the period of limitation. The learned counsel also relied upon the judgment of this Court in **Assistant Commissioner (Assessment) v. Grasim Industries Limited (2006 (1) KLT 821)** . 4. Admittedly, the assessment is in respect of the period during which the building remained unauthorised. The Municipality initiated action against the petitioner in the year 1989. Under Section 242 of the Act, the Municipality is empowered to levy tax for the building constructed unlawfully. The date from which liability has to be reckoned is also referred in Section 242 of the W.P.(C) No.31237 of 2008 3 ## Act. It is appropriate to refer Section 242(1) of the Act: “Notwithstanding anything contained in this Act or the rules made thereunder, where any person has unlawfully constructed or reconstructed any building, such building shall without prejudice to any action that may be taken against that person, be liable to pay the sum of property tax that would have been paid, had the said building been constructed lawfully, together with twice the amount, towards property tax of the building constructed unlawfully with effect from the date of completiion or utilisation of that for any of the purpose mentioned in sub-section (2) of section 233, whichever is earlier, till the date of demolition of that building.” 5. The above shows that the liability to pay property tax in respect of the building unlawfully constructed is from the date on which it was completed or from the date of completion or occupation till the date of demolition of the building. 6. Therefore, the liability of an owner of the unauthorised building to pay property tax would run from the date of completion or occupation from such building. The Municipality Act is a self contained Act prescribed the period of limitation in respect of the matters provided therein. Section 539 of the Act prescribed the period of limitation for recovery of the dues. It is a general provision for recovery of the dues. It prescribed the period of three ## W.P.(C) No.31237 of 2008 4 years from the date on which it first became due. This provision would show that the limitation as such provided is in respect of the building which has been already assessed for the purpose of property tax. Admittedly, in this case, the assessment proceedings initiated against the petitioner on noting illegal construction. Therefore, there was no occasion to assess this building for the purpose of assessment prior to issuance of such notice. Section 282 of the Act stipulates the power to assess in case of escape from assessment. The relevant provision reads as follows: “ **Power to assess in case of escape from assessment** : Notwithstanding anything to the contrary contained in this Act or the rules made thereunder, where for any reason a person liable to pay any tax or fees leviable under this Chapter has escaped assessment in any half-year, the Secretary may at any time within four years from the date on which such person should have been assessed, serve on him a notice assessing to the tax or fee due and demanding payment thereof within fifteen days from the date of such service and thereupon the provisions of this Act and the rules made thereunder shall, so far as may be, apply as if the assessment was made in the half-year to which the tax or fee relates.” It also stipulates the period of limitation. The period is four years from the date on which such person should have been assessed. ## W.P.(C) No.31237 of 2008 5 Section 282 of the Act if read in the light of Section 242 of the Act, it is clear that the date has to be reckoned from the date of completion or occupation of the unauthorised building. The Municipality passed an order for demolition of the unauthorised building in the year 1989, that means the Municipality has every power to assess this building from the date on which such notice was issued for demolition. The Municipality has no case that by the time issue notices, the building was not completed. In fact, the Municipality by subsequent order, regularised such construction in the year 2006. It is obvious that the building was completed at least in the year 2000 as the Municipality had chosen to assess the building first time for the period of 2000-2001. Therefore, it is clear that the building was completed atleast in the year 20002001 for the purpose of assessment. Therefore, the only question is whether the Municipality can recover it after the period of limitation. As noted above, the period of limitation has to be reckoned with reference to the date of completion or the date of occupation. The notice itself shows that the building was liable to be assessed for 2000-2001. The first time the notice for assessment was made only in the year 26.12.2006. Therefore, in W.P.(C) No.31237 of 2008 6 the light of the period of limitation as prescribed under Section 282 of the Act, the demand is set aside. 7. However, the learned Standing Counsel for the Municipality would submit that the period during which the case was pending will have to be excluded for the purpose of calculating the period of limitation. He relied upon the judgment of this Court in **Assistant Commissioner** 's case ( _supra_ ). The Municipality has not chosen to assess the building when the legal proceedings were pending, nothing prevented the Municipality from raising such demand against the petitioner. Considering the prayer in the suit, the Municipality could have issued demand notice assessing the building. In the absence of any statutory provisions saving the period of limitation involved in a legal proceedings, this Court cannot rewrite Section 282 of the Act. Therefore, this writ petition has to be allowed. Accordingly, it is allowed. The judgment relied by the petitioner has no application as that was rendered under the Kerala Sales Tax Act. 8. The learned Standing Counsel for the Municipality would submit that they have issued other demands for the subsequent period (subsequent to 2000-2001) within the time. It W.P.(C) No.31237 of 2008 7 is to be noted that once an assessment is made for unauthorised construction, then limitation period will have to be reckoned under Section 539 of the Act. Therefore, if any demand is raised within three years from the date on which it was due, certainly, the petitioner will liable to pay the amount, if such demand has been legally raised as against the petitioner. The writ petition is allowed by setting aside impugned demands. No costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ln /True copy/ P.A. to Judge