Water World Tourism Company Pvt. Ltd. v. Alappuzha Municipality and The Secretary, Alappuzha Municipality

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941** ## **WP(C).No. 6514 of 2019** ## **PETITIONER :** **WATER WORLD TOURISM COMPANY PVT. LTD. REPRESENTED BY ITS MANAGING DIRECTOR MATHEW JOSEPH, THIRUMALA WARD, CHUNGAM, ALAPPUZHA688011.** **BY ADVS.** **SRI.K.S.HARIHARAPUTHRAN SMT.BHANU THILAK SRI.SETHURAM DHARMAPALAN** ## **RESPONDENTS:** - **1 ALAPPUZHA MUNICIPALITY REPRESENTED BY ITS SECRETARY, ALAPPUZHA-688001.** - **2 THE SECRETARY, ALAPPUZHA MUNICIPALITY, ALAPPUZHA-688001.** **BY ADV. SRI.AZAD BABU, SC, ALAPPUZHA MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.6514 of 2018 2 ## **J U D G M E N T** The petitioner, which is stated to be Company incorporated under the Companies Act, represented by its Managing Director, which is conducting a resort in Mullackal Village in Ambalapuzha Taluk in the name and style 'Lake Palace Resort', in the property having an extent of 11.20 Acres with large number of buildings, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to accept Ext.P7 series of applications dated 28.02.2019 for renewal of D&O licence, on accepting property tax from the petitioner at the rate shown in Ext.P5. 2. On 05.03.2019, when this writ petition came up for admission, the learned Standing Counsel for the respondents sought time to get instructions. 3. By the order dated 11.03.2019, the 2[nd] respondent was directed to file an affidavit explaining the facts and circumstances, with reference to the materials placed on record, including Exts.P1 and P2. 4. On 22.03.2019, when this writ petition came up for consideration, this Court passed the following order: “The provisions under Section 443 of the Kerala Municipality Act, 1994, which prescribe conditions precedent to grant or renewal of license reads as follows:- “ **443. Conditions precedent to grant or renewal of licence.-** Notwithstanding anything contained in this Act or any other law, the Secretary may refuse to grant or renew a licence under the provisions of this Act or any other law which authorizes him to issue a licence, if W.P.(C)No.6514 of 2018 3 the person applying for the licence has made default in the payment of any taxes or fees payable by him to the Municipality, provided the Secretary may, if he deems fit, grant or renew the licence for a period not exceeding two months on satisfactory guarantee for the payment within the said period.” 2. In the instant case, as can be seen from Ext.P6 series of demand notices, substantial amount has been demanded towards property tax, which the petitioner has not so far remitted, going by the submission made by the learned counsel for the petitioner. 3. The learned counsel for the petitioner, after referring to Ext.P13 Government order dated 06.03.2019 issued by the Local Self Government Department, would point out that the demand made in Ext.P6 series of demand notices requires revision in view of the said Government order, which fact has been admitted in paragraph 12 of the counter affidavit filed by respondents 1 and 2. 4. The fact that, even if the petitioner is found eligible for any benefit under Ext.P12 Government order, it will not wipe off the entire demand made in Ext.P6 series of demand notices is not in dispute. 5. The learned counsel for the petitioner and also the learned Standing Counsel for the Municipality to address arguments in this regard. It would be open to the learned Standing Counsel for the Municipality to file additional affidavit, if any. 6. The learned Government Pleader attached to the State Attorney would point out that the State of Kerala, is not made a party to this writ petition.” 5. A counter affidavit has been filed by respondents 1 and 2 which is followed by a reply affidavit filed by the petitioner. After the order of this Court dated 22.03.2019, respondents 1 and 2 have filed an additional counter affidavit. W.P.(C)No.6514 of 2018 4 6. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the Municipality, representing respondents 1 and 2. 7. As already noticed, the relief sought for in this writ petition is a writ of mandamus commanding respondents 1 and 2 to accept Ext.P7 series of applications for renewal of D&O licence made by the petitioner, on accepting the property tax at the rate shown in Ext.P5. 8. As borne out from the pleadings and materials on record, proceedings have already been initiated against the petitioner for unauthorised construction, by the issuance of Exts.P1 and P2 provisional orders under sub-sections (1) and (2) of Section 406 of the Kerala Municipality Act, 1994. Ext.P6 series of demand notices issued by the Municipality are for payment of property tax. Along with the counter affidavit of respondents 1 and 2, Ext.R1(d) notice dated 05.01.2019 issued by the Municipal Engineer is placed on record, which would show that the applications made by the petitioner on 23.11.2018 for regularisation of unauthorised constructions were found defective for the reasons stated therein. Ext.R1(d) notice was followed by Ext.P10 notice dated 05.03.2019. ## 9. In **Santosh Kumar v. Central Warehousing Corporation** **[(1986) 2 SCC 343]** the Apex Court held that what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. Article 226 is not meant to avoid or circumvent W.P.(C)No.6514 of 2018 5 the process of the law and the provisions of the Statute. 10. As already noticed in the order dated 25.03.2019, Section 443 of the Municipality Act, which contains a non-obstante clause, provides that, notwithstanding anything contained in the Act or any other law, the Secretary may refuse to grant or renew a licence under the provisions of this Act or any other law which authorizes him to issue a licence, if the person applying for the licence has made default in the payment of any taxes or fees payable by him to the Municipality, provided the Secretary may, if he deems fit, grant or renew the licence for a period not exceeding two months on satisfactory guarantee for the payment within the said period. 11. After the order of this Court dated 22.03.2019, an additional counter affidavit has been filed by respondents 1 and 2, wherein a table showing the amount demanded in Ext.P6 series of notces and the amount payable after revising the same in accordance with Ext.P13 Government Order dated 06.03.2019, is placed on record as Ext.R1(e), as per which, the total amount payable towards property tax comes to Rs.2,82,89,867/-. 12. The learned counsel for the petitioner would contend that the quantification of property tax made by respondents 1 and 2 in Ext.R1(e) is highly exorbitant. The question as to whether what is the actual amount due from the petitioner towards property tax, cannot be decided in this writ petition filed under Article 226 of the Constitution of India, especially when the only relief sought for in this writ petition is W.P.(C)No.6514 of 2018 6 an order directing the respondents to consider and pass appropriate orders on Ext.P7 series of applications made by the petitioner for renewal of D&O licenses. 13. During the course of arguments, the learned Standing Counsel for the Municipality would submit that Ext.P7 series of applications for renewal of D&O licenses are now pending consideration before the 2[nd] respondent and the said respondent shall take an appropriate decision on those applications, taking note of the relevant facts and circumstances and also the statutory provisions on or before 28.03.2019. 14. The learned counsel for the petitioner would submit that the petitioner may be given an opportunity of being heard before a decision is taken on Ext.P7 series of applications for renewal of D&O licenses. 15. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of recording the submission made by the learned Standing Counsel for the Municipality on behalf of the 2[nd] respondent, that the said respondent shall pass orders on Ext.P7 series applications made by the petitioner for renewal of D&O licenses, on or before 28.03.2019, after affording an opportunity of being heard to an authorised representative of the petitioner, on 27.03.2019 at 11.00 am. 16. It is made clear that this Court has not expressed anything as to the entitlement or otherwise of the petitioner for renewal of D&O W.P.(C)No.6514 of 2018 7 licenses, as sought for in Ext.P7 series of applications, and it is for the 2[nd] respondent to take an appropriate decision, strictly in accordance with law. All legal and factual contentions raised are left open to be raised before the appropriate authority, at appropriate stage. Sd/- **ANIL K.NARENDRAN JUDGE** AV/25/3 W.P.(C)No.6514 of 2018 8 ## **APPENDIX OF WP(C) 6514/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER E 3-22287/18 DATED 09-11-2018 OF THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE PROVISIONAL ORDER DATED 09-11-2018 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE RECEIPTS NO.32125.32126,32127, 32130, 32132 AND 32133 DATED 26-11-2018. EXHIBIT P4 TRUE COPY OF THE RECEIPTS NO.32356,32357, 32359, 32361 AND 32364 DATED 27.11.2018.** **EXHIBIT P5 TRUE COPY OF THE TAX RECEIPTS(34 IN NUMBERS) DATED 15-11-2018.** **EXHIBIT P6 TRUE COPY OF THE DEMAND NOTICES NO T331598/17 (76 IN NUMBERS) DATED 19-022019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE APPLICATION NO.2916 DATED 28-02-2019.** - **EXHIBIT P7 A TRUE COPY OF THE APPLICATION NO.2917 DATED 28-02-2019.** - **EXHIBIT P7 B TRUE COPY OF THE APPLICATION NO.2918 DATED 28-02-2019.** - **EXHIBIT P7 C TRUE COPY OF THE APPLICATION NO.2919 DATED 28-02-2019.** - **EXHIBIT P7 D TRUE COPY OF THE APPLICATION NO.2920 DATED 28-02-2019.** **EXHIBIT P8 TRUE COPY OF THE CHEQUE NO.230197 DATED 28.02.2019.** **EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 05-01-2018 RECEIVED BY THE PETITIONER-COMPANY ON 15-01-2019** **EXHIBIT P10** **TRUE COPY OF THE NOTICE DATED 05-03-2019** W.P.(C)No.6514 of 2018 9 **EXHIBIT P11** **TRUE COPY OF THE PETITIONER'S LETTER DATED 11-03-2019** **EXHIBIT P11(a)** **TRUE COPY OF THE RECEIPT DATED 11-032019 OF THE 1ST RESPONDENT** **EXHIBIT P12** **TRUE COPY OF THE REPORT DATED 22-04-2004** **EXHIBIT P13 TRUE COPY OF THE GOVERNMENT ORDER DATED 06-03-2019** **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(a)** **TRUE COPY OF THE JOINT INSPECTION REPORT SUBMITTED TO THE MUNICIPALITY** **EXHIBIT R1(b) TRUE COPY OF THE NOTICE NO.T3.31598/17 DATED 3/11/2017 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** **EXHIBIT R1(c) TRUE COPY OF THE REPLY DATED NIL RECEIVED ON 6/11/17 SENT BY PETITIONER TO THE 2ND RESPONDENT** **EXHIBIT R1(d) TRUE COPY OF THE LETTER DATED 5/1/2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** **EXHIBIT R1(e) TABLE SHOWING THE AMOUNT OF PROPERTY TAX DEMANDED AS PER EXT.P6 SERIES DEMAND NOTICES AS MODIFIED BY EXT.P13 GOVERNMENT ORDER**