Dr. G. Krishnamohan v. The Secretary, Palakkad Municipality; Palakkad Municipal Council represented by its Chairman; The State of Kerala represented by the Secretary, Local Administration Department

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` FRIDAY, THE 12[TH] DAY OF JANUARY 2024 / 22ND POUSHA, 1945 ``` ## **`WP(C) NO. 24377 OF 2017`** ## **`PETITIONERS:`** ## **`DR.G.KRISHNAMOHAN`** ``` AGED 56 YEARS, S/O P.G.MENON, PROPRIETOR, SREE GURUVAYOORAPPAN KALYANAMANDAPAM, (FORMERLY CHARUTHA KALYANAMANDAPAM), PUTHUR, PALAKKAD DISTIRCT. ``` ``` BY ADVS. ``` ``` SRI.E.P.GOVINDAN SMT.G.DEEPA ``` ## **`RESPONDENTS:`** - **`1 THE SECRETARY, PALAKKAD MUNICIPALITY PALAKKAD MUNICIPALITY, MUNICIPAL BUILDING, PALAKKAD, PIN-678001`** - **`2 THE PALAKKAD MUNICIPAL COUNCIL REPRESENTED BY ITS CHAIRMAN, MUNICIPAL BUILDING, PALAKKAD, PIN-678001.`** - **`3 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDURM, PIN - 695001.`** ``` BY ADVS. ``` - **`SRI.P.S.APPU`** ``` SRI.A.R.NIMOD ``` ``` SRI.T.C.SURESH MENON ``` ``` SHRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY SRI. RIYAL DEVASSY, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.24377 OF 2017 ``` 2 **P.V.KUNHIKRISHNAN, J. -----------------------------------W.P.(C)No.24377 of 2017 ------------------------------------Dated this the 12[th ] day of January, 2024** ## **JUDGMENT** The petitioner is the owner of a Kalyanamandapam situated in Survey no.1289/1 having Municipal No.07/119 (14) of the Palakkad Municipality. The building was originally owned by one K.Vishruthakumar of Palakkad is the submission. The petitioner purchased the Kalyanamandapam along with the land in court auction conducted by the Sub Court, Palakkad in E.P.No.56/2002 in O.S.405/2001 is the further submission. According to the petitioner, the possession of the property was handed over to the petitioner by the Sub Court of Palakkad in November 2010. It is submitted that the sale deed was executed 3 ``` WP(C) NO.24377 OF 2017 ``` in favour of the petitioner by the Sub Court, Palakkad as evident by Ext.P1. The sale was confirmed by this Court and the possession was handed over to the petitioner in November 2010 as per Ext.P2 delivery report. Therefore, it is submitted that the petitioner became the absolute owner in possession of the Kalyanamandapam and the land attached to it by virtue of Exts.P1 and P2. 2. It is submitted that the petitioner was paying property tax under the Kerala Municipality Act, 1994 for the above Kalyanamandapam after taking possession of the same in November 2010 as per Ext.P2. The petitioner was also paying tax under the Tax on Luxuries Act, 1976 for the Kalyanamandapam after November 2010. It is submitted that the name of the owner of the property was not able to change in the revenue records due to procedure delay at that time. ``` WP(C) NO.24377 OF 2017 ``` 4 3. The Petitioner is aggrieved by the arrear notice dated 06.06.2017 demanding a sum of Rs.8,37,645/- including interest of Rs.1,94,862/-. Ext.P3 is the arrear notice. It is submitted that Sections 231, 232, and 233 of the Kerala Municipality Act r/w Rule 3 of the Kerala Municipality (Publication of Notification Regarding New Taxes) Rules, 1988 prescribe the procedure for levy of property tax within the Municipal area. It is submitted that the half yearly tax for the disputed Kalyana Mandapam was enhanced to Rs.1,26,182/- by the 1[st] respondent as per his order dated 30.03.2012 as evident by Ext.P4 and the same was challenged before this Court by filing WP(C) No.5213/2013. This Court admitted the above writ petition and passed Ext.P5 order and the petitioner was paying the original tax as directed by 5 ``` WP(C) NO.24377 OF 2017 ``` this Court in Ext.P5 interim order. It is the case of the petitioner that the petitioner’s liability to file return arises only after issuing notice by the 1[st] respondent in accordance with Sec.233(10) of the Act. According to Section 233(11) of the Act, the owner of the building shall file return within the time prescribed under Section 233(11) of the Act. According to the petitioner no returns were filed because no notices were issued by the 1[st] respondent. The contention of the petitioner is that the action of the 1[st] respondent in issuing Ext.P3 arrear notice without making an assessment of tax and issuing demand notice in accordance to Section 233(10) and 233(11) of the Act was arbitrary and illegal. Therefore, it is submitted that the petitioner was denied a reasonable opportunity of being heard while issuing Ext.P3 arrear notice. Therefore it is submitted that the action of the 1[st] respondent in issuing Ext.P3 arrear notice during the 6 ``` WP(C) NO.24377 OF 2017 ``` pendency of Ext.P5 stay order of this Court is not justifiable. It is also submitted that the petitioner paid property tax at the rate of Rs.13,702/- in accordance with Ext.P5 interim order, as evident by Ext.P6. Therefore it is submitted that Ext.P3 arrear notice is unsustainable. Hence this writ petition is filed with ## following prayers: - “i. To call for the records leading to Ext.P3 arrear notice issued by the first respondent and quash the same by issuing a writ of certiorari or by issuing any other appropriate writ order or direction. - ii. To issue appropriate orders staying the recovery proceedings initiated against the petitioner and his properties. - iii. To issue a writ of mandamus or any other appropriate writ order or direction directing the first respondent to give credit the amount paid by the petitioner in accordance with Ext.P5 interim order of this Hon'ble court and as per Ext.P7 receipt. - iv. To declare that the petitioner is the owner ``` WP(C) NO.24377 OF 2017 ``` 7 in possession of the Kalyanamandapam and the landed properties therein by virtue of Ext.P1 and P2. - v. To issue such other writ order or direction as this Hon'ble court may deem fit in the facts circumstances of the case.” (SIC) 4. Heard the learned counsel for the petitioner, the learned counsel for respondents 1 and 2 and also the learned Government Pleader for the 3[rd] respondent. 5. This Court already disposed W.P.(C). No.5213/2013 by a separate judgment in which this Court was pleased to set aside Ext.P4 order and directed the 1[st] respondent to reconsider the matter. Ext.P3 is an arrear notice issued by the 1[st] respondent. In the light of quashing Ext.P4 as per the judgment in W.P.(C). No.5213/2013, I think Ext.P3 also can be set aside. The 1[st] respondent will reconsider the matter 8 ``` WP(C) NO.24377 OF 2017 ``` strictly in accordance with Sections 231, 232 and 233 of the Municipality Act. Therefore, this writ petition is disposed of with following directions: 1. Ext.P3 is set aside. 2. The 1[st] respondent is directed to reconsider the matter in the light of Sections 231, 232 and 233 of the Municipality Act. Sd/- JV/nvj **P.V.KUNHIKRISHNAN JUDGE** ``` WP(C) NO.24377 OF 2017 ``` 9 ## **`APPENDIX OF WP(C) 24377/2017`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE SALE DEED DT.6/10/2008 EXECUTED IN FAVOUR OF THE PETITIONER BY THE HON'BLE SUB COURT OF PALAKKAD. ``` - `EXHIBIT P2 TRUE COPY OF THE DELIVERY REPORT DT. 29/1/2010 IN O.S.NO.405/01 OF THE HON'BLE SUB COURT OF PALAKKAD.` - `EXHIBIT P3 TRUE COPY OF THE ARREAR NOTICE DT. 6/6/2017 WAS ISSUED BY THE FIRST RESPONDENT.` - `EXHIBIT P4 TRUE COPY OF THE ORDER DT. 30/3/2012 PASSEDBY THE FIRST RESPONDENT.` - `EXHIBIT P5 TRUE COPY OF THE ORDER DT.25/2/2013 IN WOC 5213/13 OF THIS HON'BEL COURT.` - `EXHIBIT P6 TRUE COPY OF THE RECEIPT DT. 13/1/2017 ISSUED BY THE FIRST RESPONDENT.` - `EXHIBIT P7 TRUE COPY OF THE RECEIPT NO.0005818 DT. 5/6/2012 ISSUED BY THE FIRST RESPONDENT.` RESPONDENTS EXHIBITS : NIL ## //TRUE COPY// PA TO JUDGE