## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE P.BHAVADASAN**
**WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932**
**SA.No. 16 of 1999(B)**
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**AS.71/1996 of II ADDL.SUB COURT,KOZHIKODE OS.252/1991 of ADDL.MUNSIFF COURT,KOZHIKODE-I**
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## **APPELLANT(S): RESPONDENT IN LOWER APPELLATE COURT/ DEFENDANT IN TRIAL COURT:**
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**CORPORATION OF CALICUT, REPRESENTED BY ITS SECRETARY (COMMISSIONER), CALICUT.**
**BY ADVS. SRI.K.D.BABU, SC,CALICUT CORPORATION, SRI.KPG.MENON.**
## **RESPONDENT(S): APPELLANT IN LOWER APPELLATE COURT/ PLAINTIFF IN TRIAL COURT:**
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**P.P.AYISHABI, D/O. AHMEDKOYA HAJI, VAKKAPARAMBA, WARD NO.10 OF CALICUT CORPORATION, CALICUT.**
## **BY ADV. SRI.V.V.SURENDRAN**
**THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **Kss**
## **P.BHAVADASAN, J.**
------------------------------------SA No.16 of 1999-B ------------------------------------Dated this the 5th day of January 2011
## Judgment
This appeal arises out of an assessment proceedings initiated by the defendant Corporation in respect of a hotel building said to belong to the plaintiff. According to the plaintiff, the building was let out to a single tenant and therefore, it should be assessed only in that manner. Initially, the Corporation did so. But, later, they found that the rooms of the building were given to different persons on separate rental arrangement and the claim of the plaintiff that the building was outstanding on a single tenancy, was incorrect. Therefore, assessment was made in respect of each room.
2. Aggrieved by the assessments so made, the plaintiff seems to have filed an appeal before the Commissioner. That was rejected. The plaintiff would say that thereafter, the plaintiff filed an appeal before the
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standing committee, which had not been disposed of as on the date of filing of the suit. The main grievance of the plaintiff was that it was without following the legal formalities and procedures that the assessment was done and that is in violation of the principles of natural justice and relevant statutory provisions.
2. The defendant responded by pointing out that the plaintiff was unable to show that the building was outstanding on a single tenancy. In pursuance of the inspection made by the officials of the Corporation and the report made available, the rooms in the building were outstanding on independent lease with different persons. They pointed out that no appeal has been filed before the standing committee and only a complaint has been preferred, which cannot be considered.
3. When demand notice was served on the plaintiff, she approached the trial court. The trial court was unimpressed by the case put forward by the plaintiff and dismissed the suit. The plaintiff went up in appeal as AS
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No.71/96 before the Sub Court, Kozhikode. The lower appellate court, on a consideration of the materials, found that there has been gross violation of the procedural formalities in making the assessment of tax due from the plaintiff and on that sole ground, set aside the judgment and decree of the trial court. However, the lower appellate court was careful enough to ensure that the Corporation was at liberty to make the assessments in accordance with law. The said judgment and decree are assailed in this second appeal.
## 4. The following questions of law are seen raised in this second appeal :
_“(A) Having regard to the fact that the suit is one for a declaration that the proceedings taken by the defendantCorporation under the Kerala Municipal Corporations Act for assessing the property owned by the plaintiff to property tax is void, illegal and inoperative as against the plaintiff and since the provisions of the said Act had been complied with by the defendant-Corporation for making the assessment, is not the suit barred and not_
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_maintainable in view of the provisions contained in Section 429 of the Kerala Municipal Corporations Act, 1961 ?_
_(B) Having regard to the fact that the Kerala Municipal Corporations Act, 1961 provides for the procedure to be followed by the assessing authority in the matter of assessing the property to property tax and has also provided for a remedy available to the aggrieved assessee to file appeal against the concerned authorities prescribed by the Taxation Rules and since the plaintiff has not availed of such alternative remedy, is not the suit liable to be dismissed on this ground alone ?_
_'(C) Having regard to the fact that the Kerala Municipal Corporations Act has provided for an elaborate procedure to be followed by the assessing authority in the matter of assessing of property to property tax under the Act, has not the lower appellate court committed an error in assuming that the principles of natural justice have been violated in making the assessment in question ?_
_(D) Having regard to the fact that the plaintiff has not_
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_produced any oral and documentary evidence in support of her case that property tax has not been assessed properly and opposed to facts and thereby the assessee-plaintiff has failed to discharge the onus of proof cast on her, should not the lower appellate court have dismissed the suit on this ground ?”_
5. The learned counsel for the appellant pointed out that in view of Section 429 of the Kerala Municipal Corporations Act, 1961, the suit was not maintainable. Further, statutory remedies being available to the plaintiff, the plaintiff should have taken recourse to those remedies and by-passing the statutory remedies, she cannot approach the civil court for redressal of her grievance. It is also pointed out that the plaintiff had not produced any document to show that the building was outstanding on single tenancy. It is also significant to notice that no oral evidence whatsoever was adduced by the plaintiff in respect of the allegations in the plaint. Therefore, it is contended that the judgment and decree of the lower
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appellate court are unsustainable in law.
6. The learned counsel for the respondent, on the other hand, pointed out relying on the decision in “ _**Corporation of Thiruvananthapuram v. Bhaskaran Nair**_ ” (1985 KLT 213) that it is true that normally the aggrieved party cannot approach the civil court directly for redressal of his grievance, but, there may be exceptional circumstances, when recourse to civil court for redressal of grievance can be had. One such instance is when there is gross violation of natural justice and total violation of procedural formalities while making the assessment. This is a typical case of the said nature and therefore, the lower appellate court was justified in granting a decree, it is contended.
7. The point of law raised is only of academic interest. The lower appellate court has not precluded the Corporation from making fresh assessment. In the light of the plea they have taken in the written statement, all that
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the lower appellate court has stated is that they shall follow the proper procedure and comply with the formalities under the statute. The lower appellate court has not interdicted the Corporation from taking such courses are as available to them to make the assessment. In the light of the said fact, it is unnecessary to go into the question as to whether it was proper on the part of the plaintiff to have approached the civil court instead of availing the statutory remedies. Since no rights of the Corporation, as such, are affected and liberty is given to them to proceed in accordance with law, it is felt that at this distance of time, interference is not called for.
The result is that since no prejudice is, as such, caused to the Corporation, this appeal is only to be dismissed. It is accordingly dismissed. There will be no order as to costs.
## **P.Bhavadasan, Judge**
sta
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