Travancore Devaswom Board v. Cherthala Municipality

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944 ``` ``` W.P.(C)NO.31630OF 2013 ``` ``` PETITIONER: ``` ``` THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY THE SECRETARY NANTHANCODE, THIRUVANANTHAPURAM, REPRESENTED BY THE SECRETARY ``` ``` BY ADV BIJU G., SC ``` ## **`RESPONDENTS:`** - **`1 CHERTHALA MUNICIPALITY REPRESENTED BY THE SECRETARY CHERTHALA, PIN 688524`** - **`2 THE SECRETARY TO GOVERNMENT DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001`** ``` BY ADVS. SRI.JOBY CYRIAC, SC, CHERTHALA MUNICIPALITY J.OM PRAKASH ``` ## **`OTHER PRESENT:`** ## **`SRI S. RAJMOHAN – SR. GOVERNMENT PLEADER`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.P.(C)No.31630 of 2013 ## **JUDGMENT** Anil K. Narendran, J. The petitioner, Travancore Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2, which is the relevant extract of Bill Collector Hand Book of Municipal Council, Cherthala regarding levy and collection of Rs.12,024/- on 28.03.2010, towards property tax for the second half of 1996-97 in respect of building No.IV/208A of Cherthala Municipality, owned by Cherthala Devaswom, which is under the management of the Travancore Devaswom Board; Ext.P3 demand notice dated 18.02.2011 issued by the 1[st] respondent Cherthala Municipality demanding Rs.1,64,128/- towards property tax for the said building for the first and second half of 1997-98 to the first and second half of 2009-10; Ext.P4 demand notice dated 20.08.2011 issued by the 1[st] respondent Cherthala Municipality demanding Rs.4,19,278/towards property tax for the said building from the first and second half of 1997-98 to the first and second half of 2011-12; Ext.P7 communication dated 09.11.2011 issued by the Secretary of the 1[st] respondent Cherthala Municipality, addressed to the Commissioner of Travancore Devaswom Board, whereby the 3 ## W.P.(C)No.31630 of 2013 petitioner was informed that the request made in Ext.P6 representation dated 19.09.2011 for exemption from payment of property tax of the said building cannot be considered, in the absence of application for vacancy remission, within the time limit specified in Section 239 of the Kerala Municipality Act, 1994; Ext.P8 demand notice dated 01.12.2012 issued by the 1[st] respondent Cherthala Municipality demanding Rs.4,37,314/towards property tax for the said building from the first and second half of 1997-98 to the first and second half of 2012-13 and Ext.P13 reply dated 27.08.2013 of the Secretary of the 1[st] respondent Cherthala Municipality to Ext.P12 lawyer notice dated 07.07.2013 issued on behalf of the Secretary of the Travancore Devaswom Board, whereby, the Board was informed that any objections to levy of property tax has to be raised before the Municipality within 30 days from the date of receipt of the demand notice and for vacancy remission applications will have to be made before the Municipality, within the time limit specified in Section 239 of the Kerala Municipality Act. In the absence of any such objection or application for vacancy remission, the request made in Ext.P12 lawyer notice to cancel the levy and demand of property tax in respect of the building in question cannot be 4 ## W.P.(C)No.31630 of 2013 considered. The petitioner has also sought for a writ of mandamus commanding the respondents not to levy any property tax in respect of building No.IV/208A of Cherthala Municipality; and a declaration that the petitioner is not liable to pay property tax with respect of the said building for the period from 1996 to 2013. 2. On 19.12.2013 when this writ petition came up for admission, this Court issued urgent notice to the respondents. This Court granted an interim stay of all further proceedings pursuant to Ext.P8 demand notice dated 01.12.2022 issued by the 1[st] respondent Municipality for a period two months. The said interim order, which was extended for a period of four months on 19.02.2014 was extended until further orders on 18.06.2014. 3. The 1[st] respondent Cherthala Municipality has filed a counter affidavit dated 28.07.2017, wherein it is stated that the Travancore Devaswom Board started construction of the building in question, i.e., auditorium of Cherthala Devaswom, without obtaining any building permit from the Municipality. The Secretary of the Municipality issued Ext.R1(a) notice dated 09.11.1994 to the Assistant Devaswom Commissioner and also the Sub Group Officer to stop the illegal construction. After the issuance of Ext.R1(a) notice, the Assistant Devaswom Commissioner, 5 ## W.P.(C)No.31630 of 2013 Ambalapuzha submitted an application for building permit, based on which Ext.R1(b) building permit dated 14.02.1995 was issued by the Secretary of the Municipality. After completing the construction, the Administrative Officer of Cherthala Devaswom submitted Annexure R1(c) request dated 21.04.1997 for issuing completion certificate and occupancy certificate for the auditorium constructed in the premises of Cherthala Sree Karthiyayini Devi Temple. Based on the said request, the Building Inspector of Cherthala Municipality conducted site inspection and reported that the construction of the auditorium is completed. The stand taken in the counter affidavit filed by the 1[st] respondent is that since the construction of the auditorium was not in conformity with the approved plan and sketch, which form part of Ext.R1(b) building permit, the building was not numbered. Hence the matter was taken up before the 2[nd] respondent State for regularisation of the illegal construction. By Ext.P1 order dated 21.01.2010, the 1[st] respondent Municipality was directed to regularise the construction of auditorium and number the same. Based on the directions contained in Ext.P1 order, occupancy certificate was issued with effect from 21.02.1997, the date on which the construction was completed and the building was assigned building No.IV/208A. 6 ## W.P.(C)No.31630 of 2013 Therefore, the 1[st] respondent Municipality would contend that the Travancore Devaswom Board is liable to pay property tax in respect of the auditorium from the year 1996-97 second half onwards. A demand notice for the second half of 1996-97 was served on the Administrative Officer of Cherthala Devaswom on 17.03.2010 for a sum of Rs.12,024/-, which was paid on 28.03.2010, vide receipt No.18423. In the absence of any challenge, the assessment of property tax made in accordance with law has become final. If the auditorium remained closed, the petitioner ought to have sought remission of property tax, invoking the provisions under Section 239 of the Kerala Municipality Act, within the time limit stipulated therein. Relying on the provisions under Section 235 of the Kerala Municipality Act Court in **Attukal Bhagavathy Trust v. Corporation of Thiruvananthapuram [2001 (1) KLT 108]** , the 1[st] respondent Municipality would contend that an auditorium building in the temple premises is not liable for exemption from property tax. 4. On 28.06.2022, when this writ petition came up for consideration, this Court passed the following order; “This writ petition relates to the demand for property tax by 7 ## W.P.(C)No.31630 of 2013 Cherthala Municipality in respect of Building No.208A in Ward No.14 of Cherthala Municipality. The said building was constructed as the auditorium of Sree Karthiyayini Devi Temple, Cherthala, a temple under the management of the Travancore Devaswom Board. 2. On 10.08.2022, when this writ petition came up for consideration, the learned Standing Counsel for Travancore Devaswom Board sought adjournment to place on record few photographs of the auditorium in question. 3. Today, when this case is taken up for consideration, the learned Standing Counsel has made available for the perusal of this Court few photographs of the said building. The learned Standing Counsel would submit that the building is not being used as auditorium for quite long. The learned Standing Counsel is not in a position to offer proper explanation for non-use of the building constructed as the auditorium of Sree Karthiyayini Temple. Those photographs are extracted hereunder: **==> picture [241 x 209] intentionally omitted <==** 8 W.P.(C)No.31630 of 2013 **==> picture [216 x 259] intentionally omitted <==** 4. In **Travancore Devaswom Board v. Mohanan Nair [(2013) 3 KLT 132]** a Division Bench of this Court noticed that in **A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]** the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of 9 W.P.(C)No.31630 of 2013 the same can be gone into by the High Court in these proceedings. 5. In **Abu K.S. v. Travancore Devaswom Board [2022 SCC OnLine Ker 1642]** [judgment dated 09.02.2022 in W.P.(C) No.2254 of 2022] a Division Bench of this Court, in which both of us were parties, was dealing with a case in which Kuthaka right for running Aymanam Sri. Narasimha-swami Auditorium (sadyalayam) constructed by the Travancore Devaswom Board was auctioned for a period of two years from 01.08.2019 to 31.07.2021, for Rs.2,41,000/-. The average monthly income generated from the said building constructed by the Travancore Devaswom Board by spending several lakhs of rupees was only Rs.10,000/-. Relying on the law laid down by the Apex Court in **M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65]** this Court held that, while auctioning the right for running that sadyalayam, the Travancore Devaswom Board and its officials have to ensure that proper income to the Board is generated from the said building. In case of any default committed by the successful bidder in remitting the balance auction amount, electricity charges or any other statutory dues payable as per the tender conditions, the concerned Assistant Devaswom Commissioner and the Sub Group Officer have to take prompt action against such bidder and the said fact has to be promptly reported to the concerned officer in the Estate Division of the Travancore Devaswom Board. 6. In **T.Krishnakumar v. Cochin Devaswom Board [2022 SCC OnLine Ker 3700]** , a Division Bench of this Court, in which both of us were parties, held that in view of the law laid down by this Court in **Abu K.S. v. Travancore Devaswom** 10 W.P.(C)No.31630 of 2013 **Board [2022 SCC OnLine Ker 1642]** , relying on the decision of the Apex Court in **M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65]** , while leasing out the buildings owned by the Devaswoms, the Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said buildings. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. The action of the Board as a trustee cannot be equated to that of mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated. 7. Registry is directed to initiate _suo motu_ proceedings regarding the non-use of the auditorium of Sree Karthiyayini Devi Temple, Cherthala and list the matter before the Devaswom Bench on 29.08.2022 at 2.00 p.m.” 5. Based on the directions contained in the order dated 26.08.2022 in this writ petition, DBP No.48 of 2022 has already been registered, which is now pending consideration. 6. Heard the learned Standing Counsel for Travancore Devaswom Board for the petitioner, the learned Standing Counsel for Cherthala Municipality for the 1[st] respondent and also the learned Senior Government Pleader for the 2[nd] respondent State. 7. The issue that arises for consideration in this writ petition is as to whether the challenge made in this writ petition against levy of property tax for the auditorium constructed in the 11 ## W.P.(C)No.31630 of 2013 premises of Cherthala Sree Karthiyayini Devi Temple of Cherthala Devaswom, which is under the management of the Travancore Devaswom Board can be sustained in law. 8. The levy of property tax on every building constructed within the area of a Municipality is governed by the provisions under Section 233 of the Kerala Municipality Act. As per subsection (1) of Section 233, every Council of the Municipality shall, in accordance with the provisions of the said Act and the rules as may be prescribed, levy property tax on every building (including the land appurtenant thereto) situated within the area of the respective Municipality and not exempted as per the provisions of the Act. Section 235 of the deals with exemption from property tax, services, etc. As per Section 235, the buildings and lands enumerated in clauses (a) to (j) of the said Section shall be exempted from property tax as may be levied under Section 233 and service cess as may be levied under sub-section (4) of Section **==> picture [444 x 32] intentionally omitted <==** **----- Start of picture text -----**<br> 230. In view of the law laid down by a Division Bench of<br>**----- End of picture text -----**<br> this Court in **Attukal Bhagavathy Trust v. Corporation of Thiruvananthapuram [2001 (1) KLT 108]** , an auditorium building in the temple premises is not liable for exemption from property tax. 12 W.P.(C)No.31630 of 2013 9. As per Section 239 of the Kerala Municipality Act, deals with vacancy remission. The said provision reads thus; “239. Vacancy remission:-(1) When any building, whether ordinarily let or occupied by the owner himself has been vacant and unlet for a half year, the owner shall be entitled to a remission of tax for that half year. (2) If the owner had already paid the tax in respect of a half year in which a remission is due, he shall be entitled to get either refund or shall be entitled to get the amount adjusted in the tax for the succeeding half year. 3(a) No such remission shall be admissible unless the owner of the building or his agent has previously thereto delivered notice to the Secretary; (i) that the building is vacant and unlet, or (ii) that the building will be vacant and unlet from a specified date either in the half year in which notice is delivered or in the succeeding half year. (b) Every notice under clause (a) shall expire with the half year succeeding the half year during which it is so delivered and shall have no effect thereafter.” 10. In view of the provisions under Section 239 of the Kerala Municipality Act for vacancy remission, the owner of the building has to deliver notice of vacancy remission to the Secretary of the Municipality, within the time limit specified in sub-section (3) of Section 239. In the writ petition, the petitioner has no case that notice as per the requirements of Section 239 of 13 W.P.(C)No.31630 of 2013 the Act seeking vacancy remission has been delivered to the Secretary of the 1[st] respondent Municipality, within the time limit specified in sub-section (3) of Section 239. 11. The specific stand taken in the counter affidavit filed by the 1[st] respondent is that after completing the construction of the auditorium in the premises of Cherthala Sree Karthiyayini Devi Temple, the Administrative Officer of Cherthala Devaswom submitted Annexure R1(c) request dated 21.04.1997 for issuing completion certificate and occupancy certificate for that building. Based on the said request, the Building Inspector of Cherthala Municipality conducted site inspection and reported the construction of the auditorium is completed. Since the construction of the auditorium was not in conformity with the approved plan and sketch, which forms part of Ext.R1(b) building permit, the building was not numbered. Hence, the matter was taken up before the 2[nd] respondent State for regularisation of the illegal construction. By Ext.P1 order dated 21.01.2010, the 1[st] respondent Municipality was directed to regularise the construction of auditorium and number the same. Based on the directions contained in Ext.P1 order, occupancy certificate was issued with effect from 21.02.1997, the date on which the construction was 14 ## W.P.(C)No.31630 of 2013 completed and the building was assigned building No.IV/208A. A demand notice for the second half of 1996-97 was served on the Administrative Officer of Cherthala Devaswom on 17.03.2010 for a sum of Rs.12,024/-, which was paid on 28.03.2010, vide receipt No.18423. 12. In the absence of any challenge, the assessment of property tax made as above has attained finality. Admittedly, the Travancore Devaswom Board has not submitted any application for vacancy remission, after complying with the statutory requirements of Section 239 of the Kerala Municipality Act. In such circumstances, the Board cannot challenge the levy and demand of property tax in respect of the building in question for the period covered by Exts.P2, P3, P4 and P8 demand notices. For the aforesaid reasons, the stand taken by the 1[st] respondent Municipality in Ext.P7 communication and Ext.P13 reply cannot be said to be arbitrary or illegal. 13. In the result, the challenge made in this writ petition against Exts.P2, P3, P4 and P8 demand notices and also Exts.P7 and P13 fails. The petitioner is also not entitled to the declaratory reliefs sought for in respect of the building in question or a writ of mandamus commanding the 1[st] respondent not to levy any 15 ## W.P.(C)No.31630 of 2013 property tax in respect of the building in question, for the period from 1996 to 2013, since no mandamus can be issued to direct the 1[st] respondent Municipality to do something which is contrary to law or to act in contravention of the statutory provisions, as held by the Apex Court in **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** . The writ petition is accordingly dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** bkn/- 16 W.P.(C)No.31630 of 2013 ``` APPENDIX OF WP(C) 31630/2013 ``` ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 TRUE COPY OF THE ORDER NO 65865/R A1/2009/LSGD DATED 31-01- 2010 ISSUED BY THE 2ND RESPONDENT ``` ``` EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGE OF THE BILL COLLECOTR HAND BOOK OF THE IST RESPONDENT ``` ``` EXHIBIT P3 TRUE COPY OF THE DEMAND NOTICE DATED 18-02-2011 ISSUED BY THE IST RESPONDENT FOR RS 1,64,128/- ``` ``` EXHIBIT P4 TRUE COPY OF THE DEMAND NOTICE SENT BY THE IST REPSONDENT TO THE PETITIONER DATED 20-08-2011 FOR RS 4,19,278 ``` ``` EXHIBIT P5 TRUE COPY OF THE LEGAL OPINION SENT BY THE LAW OFFICER OF PETITIONER BOARD DATED 26-09-2011 ``` ``` EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BOARD BEFORE THE IST RESPONDNET DATED 19-06-2011 ``` ``` EXHIBIT P7 TRUE COPY OF THE LETTER SENT BY THE IST RESPONDENT TO THE PETITIONER BOARD DATED 09-11-2013 ``` ``` EXHIBIT P8 TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE IST REPSONDENT TO THE PETITIONER BOARD DATED 01-12-2012 FOR RS 4,37,314 ``` ``` EXHIBIT P9 TRUE COPY OF THE LETTER SENT BY THE IST RESPONDENT DATED 06- 12-2012 TO THE PETITIONER BOARD ``` ``` EXHIBIT P10 TRUE COPY OF THE REPORT PREPARED BY THE ASSISTANT DEVASWOM COMMISSIONER, AMBALAPUZHA TO THE DEVASWOM COMMISSIONER DATED 12-08-2011 ``` ``` EXHIBIT P11 TRUE COPY OF THE LETTER NO ROC 10394/11/L DATED 19-09-2011 SENT BY THE DEVASWOM COMMISSSIONER TO THE IST RESPONDENT ``` ``` EXHIBIT P12 TRUE COPY OF THE LAWYER NOTICE SENT BY THE ADVOCATE FOR TRAVANCORE DEVASWOM BOARD TO THE IST RESPONDENT DATED 07-07-2013 ``` ``` EXHIBIT P13 TRUE COPY OF THE REPLY SENT BY THE IST RESPONDENT TO THE ADVOCATE RADHAKRISHNAN NAIR DATED 27.08.2013 ```