High Court of KeralaSingle Judge2020-02-11Writ petition disposed of with liberty to appea...

T. J. Mathewkutty v. State of Kerala and others

Case / Petition Number:WP(C).No.2807 OF 2020(A)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2020-02-11
Court Decision / Holding: This writ petition will stand disposed of. The court held that the petitioner may avail the remedy of an appeal under Rule 16 against the demand, especially for the year 2013-14, and that penal interest or recovery charges should not bar relief; the court did not accept the interpretation that liability lies with the tenant; since lease terms envisage owner liability, the matter may be revisited by the Taxation Appellate Committee after hearing if necessary; BSNL may be involved as needed.
Final Disposition: Writ petition disposed of with liberty to appeal before Taxation Appellate Committee for the 2013-14 issue; BSNL may be heard if necessary; no liability for penal interest or recovery charges established in this order.

Parties to the Case

Appellants / Petitioners

T. J. Mathewkutty aged 71 years, S/O LATE T.C. JOSEPH, Thottathil House, Kottathoore P.O., Ayroor, Pathanamthitta District

Respondents

State of Kerala represented by its Secretary, Department of Revenue, Kerala Government Secretariat, Thiruvananthapuram-695001
The District Collector, Pathanamthitta-689645
The Deputy Tahsildar (RR), Ranni Taluk, Pathanamthitta District-689645
Cherukol Grama Panchayath, Kattoor P.O., Kozhencherry, Pathanamthitta District-689650, represented by its Secretary
The Secretary, Cherukole Grama Panchayath, Kattoor P.O., Kozhencherry, Pathanamthitta District-689650
Bharat Sanchar Nigam Ltd, Unit Officer/GMT Office, Office of the General Manager, Thiruvalla-689101, represented by its General Manager
The Deputy General Manager (P and A), BSNL, Thiruvalla-689101
The Assistant General Manager (L and B), Office of the General Manager, Telecom, BSNL, Thiruvalla-689101

Legal Representation & Advocates

Counsels for Petitioners

• Sri V. Philip Mathew
• Sri Jeph Joseph

Counsels for Respondents

• Sri C. S. Manilal
• Sri S. Nidheesh
• M. M. Jasmine (Government Pleader)
• Mathews G. Philip (Senior Counsel for BSNL)

Case Synopsis & Summary

The petitioner, T. J. Mathewkutty, owner of 18.01 acres in Re.Sy.No.43/9, Cherukole, entered into a lease with Bharat Sanchar Nigam Limited (BSNL) for erecting a telecom tower on 120 square metres of his land. The lease makes the owner liable to pay taxes, rates, house tax and other charges to local authorities, but the 5th respondent Grama Panchayath demanded property tax for BSNL’s tower for three periods: Rs. 48,542 for 2013-16 under Rule 14 of the Kerala Panchayath Raj Act (Property Tax, Service Cess and Surcharge) Rules, 2011, and Rs. 93,106 for 2013-2019. The petitioner represented that BSNL should bear the tax liability; he argued Rule 18 of the Rules does not impose owner liability, though the interregnum argued that BSNL had already paid some amounts. The petitioner cited a Division Bench decision in RP No. 411/2018/Writ Appeal No. 2620/2017 (Bharath Sanchar Nigam Ltd. v. State of Kerala) to support his case. The Panchayath maintained that liability rests with the owner and urged filing an appeal under Rule 16 for remedy. The Court noted the lease terms make the owner liable, but advised that the petitioner may pursue an appeal on the year 2013-14 and any penal interest/recovery charges should be considered appropriately. The petition was disposed of with directions for a pragmatic, hearing-based remedy, including possible Taxation Appellate Committee review if necessary.

Provisions of Law Cited

Rule 14 of the Kerala Panchayath Raj Act (Property Tax, Service Cess and Surcharge) Rules, 2011Rule 18 of the Kerala Panchayath Raj Act RulesRule 16 of the Kerala Panchayath Raj Act Rules

Legal Doctrines & Maxims

ex facie (on the face of it)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that Rule 18 does not envisage owner liability; lease terms indicate owner (lessor) liability for taxes; but BSNL had partly paid and the 2013-14 tax is time-barred under the Kerala Panchayath Raj Act; the petitioner seeks exemption or setting aside of demand and urges the remedy of appeal under Rule 16.

Contentions of Respondents

The respondents contend that the owner is liable for property tax as per the lease terms and the associated demands are valid; the remedy is to file an appeal; penal interest and recovery charges are to be considered separately; the court should allow BSNL to pursue its remedy.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Bharath Sanchar Nigam Ltd. v. State of Kerala	RP.No.411/2018	Mentioned Only	Cited by the petitioner to support contentions; the present judgment does not expressly adopt or distinguish its ratio.

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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 AMIT RAWAL** **TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941** ## **WP(C).No.2807 OF 2020(A)** ## **PETITIONER:** **T.J.MATHEWKUTTY AGED 71 YEARS** **S/O. LATE T.C. JOSEPH, THOTTATHIL HOUSE, KOTTATHOOR P O, AYROOR, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.V.PHILIP MATHEW SRI.JEPH JOSEPH** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001** - **2 THE DISTRICT COLLECTOR, PATHANAMTHITTA-689645.** - **3 THE DEPUTY TAHSILDAR,(RR) RANNI TALUK, PATHANAMTHITTA DISTRICT-689645.** - **4 CHERUKOLE GRAMA PANCHAYATH KATTOOR P O, KOZHENCHERRY, PATHANAMTHITTA DISTRICT, 689650, REPRESENTED BY ITS SECRETARY.** - **5 THE SECRETARY, CHERUKOLE GRAMA PANCHAYATH, KATTOOR P O, KOZHENCHERRY, PATHANAMTHITTA DISTRICT-689650** - **6 BHARAT SANCHAR NIGAM LTD, UNIT OFFICER/GMT OFFICE, OFFICE OF THE GENERAL MANAGER, THIRUVALLA-689101, REPRESENTED BY ITS GENERAL MANAGER,** - **7 THE DEPUTY GENERAL MANAGER(P AND A) BHARAT SANCHAR NIGAM LTD, THIRUVALLA-689101.** **WP(C).No.2807 OF 2020(A)** **2** **8 THE ASSISTANT GENERAL MANAGER (L AND B), OFFICE OF THE GENERAL MANAGER, TELECOM, BHARAT SANCHAR NIGAM LTD, THIRUVALLA-689101.** **BY ADV. SRI.C.S.MANILAL BY ADV. SRI.S.NIDHEESH** **GP M.M.JASMINE;SC FOR BSNL MATHEWS G.PHILIP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.2807 OF 2020(A)** **3** ## **JUDGMENT** The petitioner is the owner of 18.01 Ares of land situated in Re.Sy.No.43/9 of Cherukole Village. The petitioner entered into a lease agreement with Bharath Sanchar Nigam Limited (BSNL) for the erection of telecommunication tower on portion of property measuring 120 square metres. As per the terms and conditions of the lease agreement the lessor ie. the petitioner is required to pay all the rates or taxes, house tax, other charges, assessments and out-goings imposed or payable to the Municipal Council or Government or any other local Authority. 2. The learned counsel appearing for the petitioner submits that in the year 2017, the 5[th] respondent secretary of the said Grama Panchayath issued a demand notice dated 19.12.2017 under Rule 14 of the Kerala Panchayath Raj Act (Property Tax, Service Cess and Surcharge) Rules, 2011 demanding to pay property tax of Rs.48,542/- for the year 2013-16. The aforementioned demand was in respect of the **WP(C).No.2807 OF 2020(A)** **4** telecommunication tower constructed by the BSNL. The petitioner vide Ext.P3 representation dated 28.01.2019 apprised the authorities that the BSNL is to liable to pay the aforementioned tax. However, again a demand notice dated 15.11.2018 was issued in the year 2013-2019 demanding to pay property tax of Rs.93,106/-. The similar request as contained in Ext.P2 representation to recover from the BSNL was submitted by the petitioner. 5[th] respondent vide communication dated 27.03.2019 (Ext.P5) informed the petitioner that it did not accept prayer of exemption from payment of the property tax being the liability of the owner. 3. The learned counsel for the petitioner submits that Rule 18 of the aforementioned Rule do not envisage any liability to be incurred by the owner, but by an occupier also. However, in the interregnum BSNL has already, as per the statement made by the counsel for the BSNL, deposited amount of Rs.28,485/- for the year 21014-15, 2015-16, 2017-18, but demand for the year 2013-2014 has not been paid being time barred in view of provisions of the Kerala **WP(C).No.2807 OF 2020(A)** **5** Panchayath Raj Act. In support of the aforementioned contentions reliance has been laid to the judgment of the Division Bench of this Court in RP.No.411/2018 in writ appeal No.2620/2017 titled as Bharath Sanchar Nigam Ltd. v. State of Kerala and others. Therefore, the demand is _ex facie_ without jurisdiction liable to be set aside. 4. Per contra learned counsel representing the Grama Panchayath submits that the amount of Rs.28,485/- is excluding of the penal interest and recovery charges, but, no amount for the year 2013-2014 has been paid. The remedy for the petitioner is to file an appeal under Rule 16 of the aforementioned Rules and this is what has been laid down in the judgments cited supra. Having heard the counsel for the parties, perused the paper book, I am of the view that the petitioner is at liberty to avail the remedy of appeal against the order of demand particularly with regard to the year 2013-14 and non liability of payment of penal interest or recovery charges as this Court is not in agreement that liability is of tenant and not **WP(C).No.2807 OF 2020(A)** **6** that of owner. The terms and condition of lease, clearly envisage liability towards any taxes, would be of lessor, that is owner, in the instant case. In case, such appeal is preferred before the Taxation Appellate Committee, the same shall be decided in a pragmatic and reasonable manner after affording an opportunity of hearing to the parties, if necessary BSNL as well. This writ petition will stand disposed of. **Sd/-** nak **AMIT RAWAL JUDGE** **WP(C).No.2807 OF 2020(A)** **7** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **COPY OF STANDARD LEASE AGREEMENT DATED 03.01.2005 EXECUTED BETWEEN THE PETITIONER AND THE 7TH RESPONDENT.** **EXHIBIT P2 COPY OF REPRESENTATION DATED 03.01.2018 SUBMITTED BY THE PETITIONER BEFORE THE GENERAL MANAGER, BSNL, THIRUVALLA.** **EXHIBIT P3 COPY OF REPRESENTATION DATED 28.01.2019 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.** **EXHIBIT P4 COPY OF RECEIPT DATED 28.01.2019 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT PANCHAYATH.** **EXHIBIT P5 COPY OF COMMUNICATION/NOTICE NO.C6350/19 DATED 27.03.2019 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.** **EXHIBIT P6 COPY OF FORM 1 DEMAND NOTICE DATED 06.09.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DEMANDING TO PAY RS.11,798/EXHIBIT P7 COPY OF FORM 10 DEMAND NOTICE DATED 06.09.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DEMANDING TO PAY RS.11,798/EXHIBIT P8 COPY OF FORM 1 DEMAND NOTICE DATED 06.09.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DEMANDING TO PAY RS.1506/EXHIBIT P9 COPY OF FORM 1 DEMAND NOTICE DATED 06.09.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DEMANDING TO PAY RS.30,478/EXHIBIT P10 COPY OF FORM 10 DEMAND NOTICE DATED 06.09.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DEMANDING TO PAY RS.30,478/-** **WP(C).No.2807 OF 2020(A)** **8** **EXHIBIT P11** **COPY OF COMMUNICATION NO.B-940/2019-20/5 DATED 17.09.2019 ISSUED BY THE 8TH RESPONDENT TO THE 5TH RESPONDENT.** **EXHIBIT P12** **COPY OF REPRESENTATION DATED 23.09.2018 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT.** **EXHIBIT P13** **COPY OF FORM 1 DEMAND NOTICE DATED 20.11.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DEMANDING TO PAY RS.35,018/-** **EXHIBIT P14** **COPY OF FORM 10 DEMAND NOTICE DATED 20.11.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DEMANDING TO PAY RS.35,018/-** //TRUE COPY// P.A TO JUDGE