I.B.S. Software Services Pvt. Ltd. v. State of Kerala & others; Sun Tech Business Solutions Pvt. Ltd. v. State of Kerala & others (WA Nos. 1180 of 2023 and 1194 of 2023, High Court of Kerala)

WA.No.1180 and 1194 of 2023 1 2024:KER:59605 **==> picture [58 x 57] intentionally omitted <==** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 WA NO. 1180 OF 2023** **AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.27151 OF 2010 OF HIGH COURT OF KERALA APPELLANT/PETITIONER** **IBS SOFTWARE SERVICES PVT. LTD, 521 -524 NILA, TECHNOPARK, TRIVANDRUM, REPRESENTED BY MR. RAMESH BABU, COMPANY SECRETARY AND VICEPRESIDENT, LEGAL TAX AND CORPORATE AUDIT [IN WRIT PETITION] AND NOW DULY REPRESENTED BY MR. SHABARINATH THAMPY, SENIOR LEGAL COUNSEL, IBS SOFTWARE SERVICES PVT. LTD, 521 -524 NILA, TECHNOPARK, TRIVANDRUM, PIN – 695581** **BY ADVS. N.AJITH K.JAYAKUMAR (SR.)** ## **RESPONDENTS** - **1 THE STATE OF KERALA, REPRESENTED BY SECRETARY DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001** - **2 THE MUNICIPAL CORPORATION OF TRIVANDRUM, REPRESENTED BY ITS SECRETARY,TRIVANDRUM CORPORATION,TRIVANDRUM DIST, PIN – 695001** **3 ELECTRONICS TECHNOLOGY PARKS -KERALA (TECHNOPARK), AN AUTONOMOUS BODY OF GOVT. OF KERALA,REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,TECHNOPARK CAMPUS TRIVANDRUM, PIN – 695581** WA.No.1180 and 1194 of 2023 2 **==> picture [58 x 57] intentionally omitted <==** 2024:KER:59605 **BY ADV SUMAN CHAKRAVARTHY, SC, THIRUVANANTHAPURAM CORPORATION SMT K.V RESHMI-R3 SMT.RESMITHA RAMACHANDRAN SR.GP** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2024, ALONG WITH WA.1194/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1180 and 1194 of 2023 3 2024:KER:59605 **==> picture [58 x 57] intentionally omitted <==** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946** **WA NO. 1194 OF 2023** **AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.11182 OF 2010 OF HIGH COURT OF KERALA** **APPELLANT** **SUN TEC BUSINESS SOLUTIONS PVT. LTD. 321 NILA, TECHNOPARK, TRIVANDRUM-695581,, REPRESENTED BY, MR. NIRUP GOPALAKRISHNAN NAIR,, HEAD HUMAN RESOURCE, SUN TEC BUSINESS SOLUTIONS, PVT. LTD., PIN – 695581** **BY ADVS. N.AJITH K.JAYAKUMAR (SR.)** ## **RESPONDENTS** - **1 THE STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN – 695001** - **2 THE MUNICIPAL CORPORATION OF TRIVANDRUM REPRESENTED BY ITS SECRETARY, TRIVANDRUM CORPORATION, TRIVANDRUM DIST., PIN – 695001** - **3 ELECTRONICS TECHNOLOGY PARKS-KERALA (TECHNOPARK) AN AUTONOMOUS BODY OF GOVT, OF KERALA, REPRESENTED BY ITS CHIEF EXECUTIVE, OFFICER, TECHNOPARK CAMPUS TRIVANDRUM, PIN – 695581** WA.No.1180 and 1194 of 2023 4 **==> picture [58 x 57] intentionally omitted <==** 2024:KER:59605 **BY ADVS.** **STANDING COUNSEL SRI.SUMAN CHAKRAVARTHY ADV.SM.K.V.RASHMI -R3 SMT.RESMITHA RAMACHANDRAN. SR.GP** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2024, ALONG WITH WA.1180/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1180 and 1194 of 2023 5 2024:KER:59605 **==> picture [58 x 57] intentionally omitted <==** **J U D G M E N T** ============ ## Dr. A.K.Jayasankaran Nambiar, J. As both these writ appeals involve a common issue and impugn separate but similar judgments of a learned Single Judge, they are taken together for consideration and disposed by this common judgment. 2. The appellants before us were the writ petitioners before the learned Single Judge. They are private limited companies incorporated under the provisions of the Indian Companies Act. They had taken on lease, premises from the 3[rd] respondentElectronics Technology Parks-Kerala (Technopark), which is an autonomous body of Government of Kerala. The premises were taken on lease for the purposes of conducting their business in software development. In the writ petitions preferred by them, they were aggrieved by the demand notices issued by the 3[rd] respondentTechnopark, seeking payment of property tax for the period from 1999-2000 to 2008-09 in respect of the premises occupied by them within the Technopark. It was their contention in the writ petition that, in as much as the liability to pay property tax was on the owner of the premises, which on the facts of the instant case was WA.No.1180 and 1194 of 2023 6 **==> picture [58 x 57] intentionally omitted <==** 2024:KER:59605 the 3[rd] respondent, the 3[rd] respondent could not have insisted on a payment of property tax by them as a pre-condition for extending the validity of the lease agreement entered into between them and the 3[rd] respondent. 3. When the writ petitions came up for hearing before the learned Single Judge, the learned Judge found that it was on the basis of the terms in the lease agreement that the 3[rd] respondent had issued the demand notices and hence, if there was any dispute between the appellant herein on the one hand and the 3[rd] respondent-Technopark on the other with regard to the construction of the clauses in the lease agreement, then resort had to be taken to the remedies before a civil court and the writ court could not go into the dispute between the parties concerned. The writ petitions were accordingly dismissed by the learned Single Judge. 4. In the appeals before us, it is the submission of Sri.Jayakumar, the learned Senior Counsel, assisted by Smt. Anju, the learned Counsel appearing on behalf of the appellants that the learned Single Judge erred in dismissing the writ petitions since it is trite that the liability to property tax under the Kerala Municipality Act and Rules stood squarely on the 3[rd] respondent and WA.No.1180 and 1194 of 2023 7 **==> picture [58 x 57] intentionally omitted <==** 2024:KER:59605 not on the appellants herein. Referring to the terms of the lease agreement entered into between the appellants and the 3[rd] respondent, he would submit that the clause in the lease agreement which stipulates that the lessee shall pay the statutory taxes and other levies due to the Government and other local bodies, only requires the appellants to pay such taxes and other levies as may fall upon them by virtue of the conduct of their business activities within the premises of the Technopark. It is their specific contention that the liability to property tax rests squarely on the owner of the properties, which in the instant case was the Technopark (the 3[rd] respondent herein), and they could not pass on the said liability to the appellants either directly or indirectly by taking recourse to the aforementioned clause in the lease agreement. 5. On an enquiry made with the Standing Counsel for the Trivandrum Corporation as also with the learned counsel for the 3[rd] respondent-Technopark, we are given to understand that no demand of property tax has been made by the Corporation either on the 3[rd] respondent or on the appellants herein. In the event of any demand being raised on the 3[rd] respondent by the Municipal Corporation, it would be open to the 3[rd] respondent to take up the matter with the adjudicating authorities under the Kerala WA.No.1180 and 1194 of 2023 8 2024:KER:59605 **==> picture [58 x 57] intentionally omitted <==** Municipalities Act and Rules. 6. The liability of the 3[rd] respondent to pay property tax in relation to the premises occupied by the appellants herein will have to be adjudicated before the adjudicating authorities under the Kerala Municipality Act and Rules. For the purposes of the instant appeals, we are of the definite view that the demands raised by the 3[rd] respondent against the appellants herein for payment of property tax, which is primarily a liability that falls squarely on the 3[rd] respondent in terms of the Kerala Municipality Act and Rules, cannot be legally sustained. We are also of the view that the argument that the terms of a contract cannot be looked into in a writ petition that is preferred before this Court, cannot be legally countenanced in the light of the recent pronouncement of the Supreme Court in **M.P. Power Management Company Limited, Jabalpur v. Sky Power Southeast Solar India Private Limited and Others – ((2023) 2 SCC 703).** **7.** Thus, in any view of the matter, we find that the impugned judgments of the learned Single Judge cannot be legally sustained. The writ appeals are therefore allowed, by setting aside the impugned judgments of the learned Single Judge and allowing the writ petitions, by quashing the demand notices issued by the 3[rd] respondent that are impugned in the writ petitions aforementioned, WA.No.1180 and 1194 of 2023 9 **==> picture [58 x 57] intentionally omitted <==** 2024:KER:59605 and declaring that under the scheme of the Kerala Municipality Act and Rules, the appellants herein, as lessees to premises owned by the 3[rd] respondent, will not be liable to the property tax leviable on the said premises, except in the circumstances prescribed under the statute for recovery of such taxes from them. For the record, we also take note of the submission of the learned Senior Counsel for the appellants that pursuant to the interim order passed in the writ petitions, the lease agreements of the appellants have since been renewed by the 3[rd] respondent without insisting on payment of the property tax demanded from them. The writ appeals are allowed as above. Sd/- ## **DR. A.K.JAYASANKARAN NAMBIAR** **JUDGE** Sd/- **SYAM KUMAR V.M. JUDGE** smm