W.P.(C) No. 5213 of 2013

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 12[TH] DAY OF JANUARY 2024 / 22ND POUSHA, 1945 ``` ## **`WP(C) NO. 5213 OF 2013`** ## **`PETITIONER:`** ``` DR.G.KRISHNAMOHAN, AGED 52 YEARS S/O.P.G.MENON,PROPRIETOR, SREE GURUVAYOORAPPAN KALYANAMANDAPAM, (FORMERLY CHARUTHA KALYANAMANDAPAM), PUTHUR, PALAKKAD DISTRICT. BY ADV SRI.E.P.GOVINDAN ``` ## **`RESPONDENTS:`** - `1 THE SECRETARY, PALAKKAD MUNICIPALITY, MUNICIPAL BUILDING, PALAKKAD 678 001` - `2 THE PALAKKAD MUNICIPAL COUNCIL, REPRESENTED BY ITS CHAIRMAN, MUNICIPAL BUILDING, PALAKKAD 678 001.` - `3 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM 695 001. BY ADVS.` ``` SHRI.BINOY VASUDEVAN, SC, PALAKKAD MUNICIPALITY SRI.P.S.APPU SRI.A.R.NIMOD SRI.T.C.SURESH MENON ``` ## **`OTHER PRESENT:`** ``` SRI RIYAL DEVASSY, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C).5213/2013 2 # **P. V. KUNHIKRISHNAN, J.** ## **------------------------------------------W.P(C).No.5213 of 2013 ------------------------------------------Dated this the 12[th] day of January, 2024** ## **JUDGMENT** The petitioner is the owner of a Kalyanamandapam situated in Survey no.1289/1 having Municipal No.07/119 (14) of the Palakkad Municipality. The building was originally owned by one Vishruthakumar of Palakkad is the submission. The petitioner purchased the Kalyanamandapam along with the land in court auction conducted by the Sub Court, Palakkad in E.P.No.56/2002 in O.S.405/2001 is the further submission. According to the petitioner, the possession of the property was handed over to the petitioner by the Sub Court of Palakkad in November 2010. It is submitted that the sale deed was executed in favour of the petitioner by the Sub Court, Palakkad as evident by Ext.P1. The sale was confirmed by this Court and the possession was handed over to the petitioner in November 2010 as per Ext.P2 delivery report. Therefore, it is submitted that the petitioner became the absolute owner in possession of the W.P(C).5213/2013 3 Kalyanamandapam and the land attached to it by virtue of Exts.P1 and P2. 2. It is submitted that the petitioner was paying property tax under the Kerala Municipality Act, 1994 for the above Kalyanamandapam after taking possession of the same in November 2010 as per Ext.P2. The petitioner was also paying tax under the Tax on Luxuries Act, 1976 for the Kalyanamandapam after November 2010. It is submitted that the name of the owner of the property was not able to change in the revenue records due to procedure delay at that time. 3. Now the petitioner is aggrieved by the revised demand notice issued by the 1[st] respondent revising the property tax of the above said Kalyanamandapam retrospectively from 01.04.2009. Ext.P3 is the revised demand notice dated 30.03.2012. It is submitted that, half yearly tax of the above Kalyanamandapam was enhanced to Rs.1,26,182/- with retrospective effect from 01.04.2009. Originally, the annual property tax was Rs.13,702/-. It is submitted that, Ext.P4 notice was issued proposing to enhance the property tax retrospectively from 01.04.2009. The name of the owner mentioned W.P(C).5213/2013 4 in Ext.P4 was the former owner K.Visruthkumar. 4. The contention of the petitioner is that, Ext.P4 notice was issued under section 238 of the Kerala Municipality Act, 1994. The petitioner submitted Ext.P5 reply to Ext.P4 notice. Ext.P5 was rejected by the 1[st] respondent stating that the petitioner is not the owner of the disputed Kalyanamandapam. The petitioner submit that, Exts.P1 and P2 are not considered by the authorities for proving the ownership of the building. Moreover, it is also submitted that, Ext.P4 was served on the petitioner. Ext.P6 is the order rejecting Ext.P5. It is submitted that, Ext.P6 letter was issued in a mechanical manner without applying the mind. It is further submitted that the entire proceedings initiated by the 1[st] respondent is vitiated and liable to be quashed and the petitioner was denied an effective opportunity of personal hearing at the time of issuing Ext.P3 order retrospectively enhancing the property tax of the Kalyanamandapam from 01.04.2009. It is also submitted that the 1[st] respondent have no jurisdiction to enhance the building tax after the repeal of section 238 of the Kerala Municipality Act, 1994. Section 238 of the Act was repealed as per Act 30 of 2009 with effect from 07.10.2009. W.P(C).5213/2013 5 Similarly, section 234 of the Act was also repealed with effect from 07.10.2009 by Act 30 of 2009. Therefore, it is submitted that the respondents have no jurisdiction to fix the building tax based on the rental value after the repeal of section 234 of the Act. Hence the enhanced building tax demanded retrospectively from 01.04.2009 is without jurisdiction. It is submitted that, section 233 of the Act was amended as per Act 20 of 2009 permitting the levy of building tax on square feet basis. But, further action pursuant to section 233 of the Act was not intiated by the respondent. Therefore, building tax was collected at the rate at the time of repealing of section 234 of the Act on 07.10.2009. 5. It is also submitted that the property tax was revised in Palakkad municipality alone. The other municipalities are collecting property tax at the rate prevalent prior to repeal of section 234 and 238 of the Act by Act 30 of 2009. It is also submitted that the 1[st] respondent reduced the half yearly tax to Rs.1,26,182/- against 1,38,915/- proposed in Ext.P4 notice. The petitioner paid the enhanced half yearly tax of Rs.1,26,182/- as per Ext.P7 receipt. It is stated that, Ext.P3 demand notice issued by the 1st respondent is W.P(C).5213/2013 6 vitiated and liable to be quashed and the 1[st] respondent has no jurisdiction to enhance the property tax after the repeal of section 234 of the Act. It is also submitted that, there is no justification to revise the property tax based on receipt of rent after 07.10.2009 because sections 234 and 238 were repealed as per Act 30 of 2009. Hence this writ Petition filed with the following prayers: i. To call for the records leading to Ext.P3 revised demand notice issued by the first respondent and quash the same by issuing a writ of certiorari or by issuing any other appropriate writ, order or direction. ii. To declare that the first respondent have no jurisdiction to revise the property tax retrospectively from 1-4-2009 after the repeal of Section 238 of the Kerala Municipality Act, 1994. iii. To declare that the property tax cannot be revised based on rental value after the repeal of Section 234 of the Kerala Municipality Act, 1994 and amendment of Section 233 of the Act. iv. To declare that the petitioner is the owner in possession of the Kalyanamandapam and the landed properties therein by virtue of Exts.P1 and P2. v. To issue appropriate ordes staying the recovery proceedings initiated against the petitioner and his W.P(C).5213/2013 7 properties. vi. To issue a writ of mandamus or any other appropriate writ, order or direction directing the first respondent to return the excess property tax collected as per Ext.P7 receipt. vii. To issue such other writ, order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case. 6. Heard counsel for the writ petitioner, the Standing Counsel appearing for the 1[st] and 2[nd] respondents and the Government Pleader. 7. After hearing the parties, I am of the considered opinion that, there is some force in the argument of the petitioner. Ext.P3 is issued, by which the half yearly tax of the building was enhanced to Rs.1,26,182/- retrospectively from 01.04.2009 when the original annual property tax was Rs.13,702/-. Section 238 of the Kerala Municipality Act was repealed as per Act 30 of 2009 with effect from 07.10.2009. In such circumstances, the 1[st] respondent cannot revise the property tax after the repeal of section 238 of the Act. W.P(C).5213/2013 8 8. Therefore, there is some force in the argument that revising the property tax retrospectively from 01.04.2009 is not correct. Moreover, the property tax cannot be determined on the basis of rental value after the amendment of Section 233 of the Act and repeal of Section 234 of the Act. Moreover, Ext.P6 order was passed by the 1[st] respondent without considering Exts.P1 and P2, by which the petitioner is the owner of the property. Therefore, the 1[st] respondent ought to have considered the matter based on Ext.P5 reply submitted to Ext.P4 notice. Therefore, the impugned orders are to be set aside. The matter is to be reconsidered by the 1[st] respondent. If any excess amount is paid by the petitioner towards tax as per Ext.P7, the same should be repaid to the petitioner. Therefore, this writ petition is disposed of with the following directions; i. Ext.P3 and P6 are set aside. ii. The 1[st] respondent is directed to reconsider the matter in the light of Ext.P5, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Iii. The petitioner is free to file additional W.P(C).5213/2013 9 representation also, if he want to raise any additional point. iv. If any excess amount is paid by the petitioner as tax as per Ext.P7, the excess amount shall be refunded to the petitioner. Sd/- **P. V. KUNHIKRISHNAN JUDGE** Sbna/nvj