High Court of KeralaSingle Judge2020-12-08Writ petition disposed of; appellate authority ...

Parisons Infrastructure Pvt. Ltd. v. Corporation of Cochin and others

Case / Petition Number:W.P.(C) No.26494 OF 2020(J)

Neutral Citation:,

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
Judgment Date: 2020-12-08
Court Decision / Holding: Disposed of by directing the appellate authority under Section 509(1) to consider Ext.P13 after remittance of the tax demanded in Ext.P18 within one week of receipt of a certified copy of the judgment, with a hearing and final orders within six weeks; no order as to costs.
Final Disposition: Writ petition disposed of; appellate authority to entertain Ext.P13 after tax remittance within one week; final orders within six weeks; no costs.

Parties to the Case

Appellants / Petitioners

Parisons Infrastructure Pvt. Ltd., having its registered office at 6/1183, Kunhipari Buildings, Cherootty Road, P.O. Beach, Kozhikode 673 032, represented by its Director

Respondents

Corporation of Cochin represented by its Secretary, Corporation Office, P.B.No.1016, Ernakulam-682 011
Assistant Revenue Officer, Corporation of Cochin, Corporation Office, P.B.No.1016, Ernakulam-682 011
Chairperson, Corporation Council, Corporation of Cochin, Corporation Office, P.B.No.1016, Ernakulam-682 011

Legal Representation & Advocates

Counsels for Petitioners

• C. P. Mohammed Nias

Counsels for Respondents

• Sri. S. Sudheesh Kumar, Standing Counsel

Case Synopsis & Summary

Parisons Infrastructure Pvt. Ltd., a lessee operating petroleum and edible oil storage tanks on land leased from Cochin Port Trust, filed a writ petition under Article 226 seeking to quash Ext.P17 notice and Ext.P18 demand, and to compel the Municipal Council to consider Ext.P13, an appeal under Section 509 of the Kerala Municipality Act, 1994, challenging the Standing Committee for Finance’s 27.04.2019 decision rejecting vacancy remission for the periods 01.10.2017–31.03.2018 and 01.04.2018–30.09.2018. The petition also sought a stay of coercive measures pending Ext.P19 stay petition. The core legal question was whether the petitioner could obtain mandamus to require the Council to entertain Ext.P13 without remitting the tax demanded in the related notices, and whether coercive steps could be kept in abeyance pending disposal of the stay petition. The court examined Kerala Municipality Act, Section 509 (sub-sections 2, 3, 11), holding that an appeal under sub-section (2) can be entertained only if tax shown in the demand notice is paid (sub-section 11) and that sub-section (3) has no application to such an appeal. Relying on State of U.P. v. Harish Chandra and Bhaskara Rao AB v. CBI, the court held that mandamus cannot direct compliance with a provision or action contrary to law. Consequently, the petition was disposed of with a conditional direction to the appellate authority to consider Ext.P13 after remittance of tax (Ext.P18) within one week of receipt of a certified copy, with a hearing and final orders within six weeks, and no costs.

Provisions of Law Cited

Article 226 of the Constitution of IndiaSection 509 of the Kerala Municipality Act, 1994 (sub-sections 2, 3, 11)

Legal Doctrines & Maxims

No mandamus can be issued to compel action contrary to law, or to require an authority to act in contravention of statutory provisions.
Courts are to enforce the rule of law and not pass orders or directions contrary to statutory provisions.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that Ext.P13 under Section 509 should be entertained by the Municipal Council without a prior remittance of tax for the periods in question. It seeks mandamus to compel the Council to consider Ext.P13 and to stay enforcement of Exts.P17 and P18 pending Ext.P19. It argues that the statutory conditions cannot negate relief under Article 226 and that delay or denial would undermine the purpose of remission during vacancies, causing disproportionate harm to business and investment. The petitioner asserts that remittance should be considered in the context of stay petitions and that the appellate authority must be allowed to decide after hearing, with due process.

Contentions of Respondents

The Corporation contends that Section 509(11) bars entertaining any appeal where the tax demanded has not been paid; Section 509(3) does not apply to such an appeal; mandamus cannot compel action contrary to law; reliance is placed on established jurisprudence (Harish Chandra and Bhaskara Rao) to deny the relief and on the need for tax compliance prior to appeal. It argues that Ext.P13 cannot be entertained unless the tax is remitted, and that coercive steps can be kept in abeyance only in accordance with the statutory provisions and stay petitions.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
State of U.P. v. Harish Chandra	[(1996) 9 SCC 309]	Positive	Cited to support the proposition that mandamus cannot compel compliance or contravene statutory provisions.
Bhaskara Rao A.B. v. CBI	[(2011) 10 SCC 259]	Positive	Cited to reinforce that courts cannot direct action contrary to statutory provisions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **TUESDAY, THE 08TH DAY OF DECEMBER 2020 / 17TH AGRAHAYANA, 1942** ## **W.P.(C) No.26494 OF 2020(J)** ## **PETITIONER:** **PARISONS INFRASTRUCTURE PVT.LTD HAVING ITS REGISTERED OFFICE AT 6/1183, KUNHIPARI BUILDINGS, CHEROOTTY ROAD, P.O. BEACH, KOZHIKODE 673 032 REPRESENTED BY ITS DIRECTOR.** **BY ADV. SRI.C.P.MOHAMMED NIAS** ## **RESPONDENTS:** **1 CORPORATION OF COCHIN REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, P.B.NO.1016, ERNAKULAM-682 011. 2 ASSISTANT REVENUE OFFICER, CORPORATION OF COCHIN, CORPORATION OFFICE, P.B.NO.1016, ERNAKULAM-682 011.** - **3 CHAIRPERSON, CORPORATION COUNCIL, CORPORATION OF COCHIN, CORPORATION OFFICE, P.B.NO.1016, ERNAKULAM-682 011.** ## **SRI. S.SUDHEESH KUMAR, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) No.26494 OF 2020(J)** -2- ## **JUDGMENT** The petitioner Company, which is in the business of infrastructure leasing/running of petroleum and edible oil storage tanks in Mangalore and Cochin and which has taken on lease an extent of 1.43 hectares of land from Cochin Port Trust, where it has constructed 12 petroleum storage tanks and 9 edible oil storage tanks and other buildings, has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that the respondents cannot, under law, refuse to consider Ext.P13 appeal filed before Municipal Council for vacancy remission, without the petitioner first remitting tax for the period from 01.10.2017 to 31.03.2018 and from 01.04.2018 to 30.09.2018 and to issue a consequential writ of certiorari to quash Ext.P17 notice dated 21.12.2019 issued by the 2[nd] respondent Assistant Revenue Officer of the 1[st] respondent Corporation of Cochin, whereby the petitioner was informed that unless there is statutory compliance by remitting the tax for the relevant period, Ext.P13 appeal cannot be considered. The petitioner has also sought for a writ of certiorari to quash Ext.P18 demand notice dated 06.03.2020 issued by the 1[st] respondent or in the alternative a writ of mandamus commanding ## **W.P.(C) No.26494 OF 2020(J)** -3- the 1[st] respondent to keep in abeyance the enforcement and execution of Ext.P17 notice dated 21.12.2019 issued by the 2[nd] respondent and Ext.P18 demand notice dated 06.03.2020 issued by the Deputy Secretary of the 1[st] respondent Grama Panchayat till orders are passed in Ext.P19 stay petition filed before the 3[rd] respondent in Ext.P13 appeal. 2. On 02.12.2020, when this writ petition came up for admission, the learned counsel for the petitioner was directed to ensure that an additional copy of the writ petition is served on the learned Standing Counsel for the Corporation. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the Corporation. 4. The issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for a writ of mandamus commanding the Municipal Council to consider Ext.P13 appeal, which is one filed against Ext.P10 decision of the Standing Committee for Finance of the 1[st] respondent Corporation dated 27.04.2019, invoking the provisions under Section 509 of the Kerala Municipality Act, 1994, without remitting the tax covered for the period from 01.10.2017 to 31.03.2018 and from 01.04.2018 to 30.09.2018 and also whether the petitioner is entitled to seek an ## **W.P.(C) No.26494 OF 2020(J)** -4- order to keep in abeyance coercive steps pursuant to Exts.P17 and P18 notices, pending consideration of Ext.P19 stay petition filed in Ext.P13 appeal. 5. Ext.P13 appeal filed by the petitioner is one invoking the provisions under Section 509 of the Kerala Municipality Act, against Ext.P10 decision of the Standing Committee for Finance of the 1[st] respondent Corporation, whereby the application made by the petitioner for vacancy remission for the period from 01.10.2017 to 31.03.2018 and from 01.04.2018 to 30.09.2018 stands rejected. 6. Section 509 of the Kerala Municipality Act, 1994 deals with appeal and revision. As per sub-section (2) of Section 509, an appeal against any notice or order passed of the Secretary on the levy of tax, may be preferred to the Standing Committee for Finance in the case of Town Panchayat or Municipal Council and to the Standing Committee for appeals on taxation in the case of Municipal Corporation. As per sub-section (3) of Section 509, - pending decision on an appeal filed under sub section (1) the Chairperson may, if an application is made, stay the operation of the notice, order or other proceedings on which the appeal is based. As per sub-section (11) of Section 509, no appeal or revision shall be filed against the levy of tax, if the tax shown in ## **W.P.(C) No.26494 OF 2020(J)** -5- the demand notice has not been paid. 7. In view of the provisions under sub-section (11) of Section 509, an appeal filed under sub-section (2) of Section 509 of the Act against any notice or order passed by the Secretary on the levy of tax can be entertained only if the tax shown in the demand notice has been paid. The provisions under sub-section (3) has no application in an appeal filed under sub-section (2) of Section 509. 8. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. 9. In view of the law laid down in the decisions referred to supra, conclusion is irresistible that no mandamus can be issued to the appellate authority in the 1[st] respondent Corporation to ## **W.P.(C) No.26494 OF 2020(J)** -6- consider Ext.P13 appeal filed by the petitioner, in view of the non compliance of sub-section (11) of Section 509 of the Act. Since the provisions under sub-section (3) of Section 509 of the Act has no application in an appeal filed under sub-section (2) of Section 509, the petitioner cannot seek a writ of mandamus commanding the 3[rd] respondent Chairperson to consider Ext.P19 stay petition filed in Ext.P13 appeal or to keep in abeyance the coercive steps in Exts.P17 and P18 till the disposal of Ext.P19 stay petition or even a writ of certiorari to quash Ext.P18 demand notice. 10. The learned counsel for the petitioner would submit that the petitioner shall remit the tax shown in Ext.P18 demand notice, which is the subject matter of Ext.P13 appeal, as directed in Ext.P17 communication dated 21.12.2019. 11. The learned Standing Counsel for the Corporation, on instructions, would submit that on remitting the tax demanded in Ext.P17, the appellate authority shall consider Ext.P13 appeal filed by the petitioner and take an appropriate decision, with notice to the petitioner. In such circumstances, this writ petition is disposed of by directing the appellate authority in the 1[st] respondent Corporation, which is competent to entertain an appeal filed under sub-section ## **W.P.(C) No.26494 OF 2020(J)** **==> picture [19 x 7] intentionally omitted <==** (1) of Section 509 of the Kerala Municipality Act, to consider and pass appropriate orders on Ext.P13 appeal filed by the petitioner, in case the petitioner remits the tax demanded in Ext.P18 within a period of one week from the date of receipt of a certified copy of this judgment. Final orders shall be passed, after affording a reasonable opportunity of being heard to the petitioner, as expeditiously as possible, at any rate, within a period of six weeks from the date of receipt of a certified copy of this judgment. No order as to costs. Sd/- **ANIL K. NARENDRAN** **das/bpr** -8- ## **W.P.(C) No.26494 OF 2020(J)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 4.4.2014 ISSUED BY THE IST RESPONDENT IN FAVOUR OF THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE ORDER OF REMISSION FOR THE PERIOD 1.10.2015 TO 31.3.2016 ISSUED BY THE IST RESPONDENT IN FAVOUR OF THE PETITIONER, DATED 4.4.2017. EXHIBIT P3 TRUE COY OF THE ORDER OF REMISSION FOR THE PERIOD 1.4.2016 TO 30.9.2016 ISSUED BY THE IST RESPONDENT IN FAVOUR OF THE PETITIONER, DATED 4.4.2017. EXHIBIT P4 TRUE COPY OF THE ORDER OF REMISSION FOR THE PERIOD 1.10.2016 TO 31.3.2017 ISSUED BY THE IST RESPONDENT IN FAVOUR OF THE PETITIONER DATED 8.11.2017. EXHIBIT P5 TRUE COPY OF THE ORDER OF REMISSION FOR THE PERIOD 1.4.2017 TO 30.9.2017 ISSUED BY THE IST RESPONDENT IN FAVOUR OF THE PETITIONER DATED 30.4.2018. EXHIBIT P6 TRUE COPY OF THE APPLICATION FOR REMISSION FOR THE PERIOD 1.10.2017 TO 31.3.2018 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 25.9.2017. EXHIBIT P7 TRUE COPY OF THE APPLICATION FOR REMISSION FOR THE PERIOD 1.4.2018 TO 30.9.2018 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 21.3.2018. EXHIBIT P8 TRUE COPY OF THE REPORT OF THE REVENUE INSPECTOR. EXHIBIT P9 TRUE COPY OF THE INSPECTION REPORT OF THE STANDING COMMITTEE FOR FINANCE DATED 13.3.2019.** -9- **W.P.(C) No.26494 OF 2020(J)** |**EXHIBIT P10**|**TRUE COPY OF THE DECISION OF THE STANDING**| |---|---| ||**COMMITTEE FOR FINANCE DATED 27.4.2019.**| |**EXHIBIT P11**|**THE TRUE COPY OF NOTICE DATED 17.5.2019**| ||**SENT BY THE 2ND RESPONDENT TO THE**| ||**PETITIONER.**| |**EXHIBIT P12**|**TRUE COPY OF THE LETTER DATED 27.7.2019**| ||**SENT BY THE 2ND RESPONDENT TO THE**| ||**PETITIONER.**| |**EXHIBIT P13**|**TRUE COPY OF THE APPEAL FILED BY THE**| ||**PETITIONER BEFORE THE 3RD RESPONDENT**| ||**DATED 23.9.2019.**| |**EXHIBIT P14**|**TRUE COPY OF THE REIVEW PETITION FILED BY**| ||**THE PETITIONER BEFORE THE IST RESPONDENT**| ||**DATED 23.9.2019.**| |**EXHIBIT P15**|**TRUE COPY OF THE NOTICE DATED 2.11.2019**| ||**SENT BY THE 2ND RESPONDENT TO THE**| ||**PETITIONER.**| |**EXHIBIT P16**|**TRUE COPY OF THE APPLICATION DATED**| ||**24.9.2018 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE IST RESPONDENT SEEKING**| ||**REMISSION FOR THE PERIOD 1.10.2018 TO**| ||**31.3.2019.**| |**EXHIBIT P17**|**TRUE COPY OF THE NOTICE DATED 21.12.2019**| ||**SENT BY THE 2ND RESPONDENT TO THE**| ||**PETITIONER.**| |**EXHIBIT P18**|**TRUE COPY OF THE DEMAND NOTICE DATED**| ||**6.3.2020 ISSUED BY THE IST RESPONDENT TO**| ||**THE PETITIONER.**| |**EXHIBIT P19**|**TRUE COPY OF THE STAY PETITIN FILED BY**| ||**THE PETITIONER BEFORE THE 3RD RESPONDENT.**| |**EXHIBIT P20**|**TRUE COPY OF THE TERMINALLING SERVICES**| ||**AGREEMENT EXECUTED BETWEEN THE PETITIONER**| ||**AND HPCL DATED 24.1.2019.**|