Allowed

P.Udaya Senan v. Corporation of Kochi

Kerala HC6 Feb 2017WP(C)/3572/2010

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the validity of revenue recovery proceedings initiated in 2007 for dues allegedly accrued from 1999 to 2003. The Court held that the demand was barred by the three-year limitation period under Section 539 of the Kerala Municipality Act and set aside an order of the Tribunal.

What did the court decide?

Ext.P16 set aside; demand declared barred by limitation under Section 539 of the Kerala Municipality Act; writ petition allowed.

P.Udaya Senan Vs Corporation of Kochi — Writ and Judicial Review | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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MONDAY, THE 6TH DAY OF FEBRUARY 2017/17TH MAGHA, 1938

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WP(C).No. 3572 of 2010 (V)

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PETITIONER(S):

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P.UDAYA SENAN, AGED 57 YEARS, S/O. LATE NANU PANICKER, PRABHAS,, TOLL JUNCTION, ELAMPA.P.O., AVANAVANCHERRY,, ATTINGAL-695103, REP. BY POWER OF ATTORNEY HOLDER, MRS.SUPRABHA SENAN,AGED 55 YEARS, W/O.P.UDAYA SENAN, PRABHAS,TOLL JN, ELAMPA.P.O.,AVANAVANCHERRY, ATTINGAL 695103.

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BY ADV. SRI.THOMAS M.JACOB

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RESPONDENT(S):

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1. THE CORPORATION OF KOCHI, PARK AVENUE, ERNAKULAM, REPRESENTED BY ITS SECRETARY.

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2. THE SECRETARY, CORPORATION OF KOCHI, PARK AVENUE, ERNAKULAM.

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3. THE TAHSILDAR, REVENUE RECOVERY, TALUK OFFICE, CHIRAYINKEEZHU, THIRUVANANTHAPURAM.

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4. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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R1 & 2 BY ADV. SRI.S.RAMESH BABU, SC.COCHIN CORPN. BY ADV. GOVERNMENT PLEADER SMT.VIDHYA A.C. R1&2 BY ADV. SRI.K.ANAND, SC, COCHIN CORPN. BY P.K.SOYUZ, SC FOR R1 & R2

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC NO.3572/10

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APPENDIX

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PETITIONER'S EXHIBITS

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EXT.P1:TRUE PHOTOCOPY OF THE POWER OF ATTORNEY DT 26.2.2008 EXECUTED BY THE PETITIONER.

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EXT.P2: TRUE COPY OF THE REPRESENTATION DATED 5.6.1999 SUBMITTED BY THE PETITIONER.

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EXT.P3: TRUE COPY OF THE DEMAND BILL NO.MOR-3/14310/97 DT 4.10.99 ISSUED BY 2ND RESPONDENT.

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EXT.P4: TRUE COPY OF ORDER DT 14.12.1999 IN CMP NO.44819/1999 IN O NO.26550/1999.

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EXT.P5: TRUE COPY OF JUDGMENT DT 31.10.2005 IN OP NO.26550/1999.

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EXT.P6: TRUE COPY OF DEMAND NOTICE IN FORM NO.10.

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EXT.P7: TRUE COPY OF DEMAND NOTICE IN FORM NO.1.

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EXT.P8: TRUE COPY OF NOTICE ISSUED IN FORM NO.11 ATTACHING THE PROPERTY.

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EXT.P9: TRUE COPY OF THE OBJECTION DATED 30.4.2008 FILED BEFORE 3RD RESPONDENT.

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EXT.P10: TRUE COPY OF REPLY NO.MOR-3A-14755/08 DT 15.5.2008 BY THE PUBLIC INFORMATION OFFICER.

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EXT.P10(a): TRUE COPY OF DEED IN RESPECT OF ROOM NO.31/732-B.

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EXT.P10(b): TRUE COPY OF THE DEED IN RESPECT OF ROOM NO.31/732.

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EXT.P10(c): TRUE COPY OF REPORT OF THE REVENUE INSPECTOR TAKING POSSESSION OF HE ROOMS ON 13.10.2003.

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EXT.P10(d): TRUE COPY OF REQUISITION NO.14310/97 DT 14.2.2003 SUBMITTED BY THE 2ND RESPONDENT TO THE REVENUE INSPECTOR.

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EXT.P10(e): TRUE COPY OF INVENTORY DT 24.10.2004 OF MOVABLES TAKEN BY THE 1ST RESPONDENT FROM THE TWO ROOMS.

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WPC NO.3572/10

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-3-

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EXT.P10(f): TRUE COPY OF AUCTION PROCEEDINGS DT 17.3.2004.

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EXT.P10(g): TRUE COPY OF REQUISITION FOR REVENUE RECOVERY DATED 19.8.2007 MADE BY THE 2ND RESPONDENT.

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EXT.P10(h): TRUE COPY OF FORWARDING LETTER OF REVENUE RECOVERY REQUISITION DT 18.8.2007 BY DISTRICT COLLECTOR, ERNAKULAM TO DISTRICT COLLECTOR, THIRUVANANTHAPURAM.

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EXT.P10(i): TRUE COPY OF FORWARDING LETTER DT 2.12.2005 SENT BY STANDING COUNSEL OF THE 2ND RESPONDENT TO THE 2ND RESPONDENT.

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EXT.P11: TRUE COPY OF PETITION SUBMITTED BEFORE THE 2ND RESPONDENT.

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EXT.P11(a): TRUE COPY OF PETITION FOR AMENDMENT FILED BEFORE 2ND RESPONDENT.

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EXT.P12: TRUE COPY OF THE SALE NOTICE.

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EXT.P13: TRUE COPY OF JUDGMENT DT 25.2.2009 IN WPC NO.6056/2009.

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EXT.P14: TRUE COPY OF ORDER DT 28.3.2009 IN MOR 3A/14310/97 PASSED BY SECRETARY, CORPORATION OF KOCHI.

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EXT.P15: TRUE COPY OF ORDER NO.103 DATED 28.5.2009 IN MOR 3A/14310/97 PASSED BY MUNICIPAL CORPORATION COUNCIL, CORPORATION OF KOCHI.

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EXT.P16: TRUE COPY OF ORDER DT 26.10.2009 IN RP NO.71/2009 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.

//True Copy//

PS to Judge

A.M. SHAFFIQUE, J.

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=============== W.P. (C) No. 3572 of 2010

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==================

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Dated this, the 6^th day of February, 2017

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J U D G M E N T

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Petitioner has approached this Court seeking the following

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reliefs:-

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“(i) Set aside Ext.P16 order in RP No.71/2009 of the Tribunal for Local Self Government Institutions holding that the Tribunal has jurisdiction to entertain the same and direct the Tribunal to consider the issues on merit in accordance with law.

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(ii) Declare that the claim of the 1^st respondent against the petitioner is barred by Limitation U/s.539 of the Kerala Municipality Act.

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(iii) Issue a writ of certiorari or such other Writ direction or order quashing Ext.P6, P7, P8 and P12 revenue recovery proceedings and all further proceedings pursuant thereto.”

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Admittedly, the case of the petitioner is that for the period

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from 1999-2003, a demand had been made only for the year 2007,

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which is beyond the period of limitation as specified under Section 539 of Kerala Municipality Act. Section 539 reads as under:-

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“539. Limitation for recovery of dues.

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— (1) No distraint shall be made, no suit shall be

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W.P(C) No.3572/10

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-:2:-

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instituted and no prosecution shall be commenced in respect of any sum due to a Municipality under this Act after the expiration of a period of three years from the date on which distraint might first have been made, suit might first have been instituted, or prosecution might first have been commenced, as the case may be, in respect of such sum:

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Provided that in the case of assessments made under section 282 the said period of three years shall be computed from the date on which distraint might have been made, suit instituted, or prosecution commenced, after the assessment under the said section shall have been made.

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(2) Where any amount due to the Municipality has been barred by limitation under sub section ( 1 ) due to the default of not taking steps at the appropriate time, and it is found in a lawful enquiry that it was lost due to the default of any officer or officers, the amount so lost to the Municipality shall be realised with twelve per cent interest thereon from such officer or officers.”

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Apparently, there is a period of three years to take

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necessary action for recovery of any dues payable to the Corporation. The demand is made only in the year 2007 and there is no explanation under what circumstances the said demand had been delayed. The Tribunal also while considering Ext.P16 order

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W.P(C) No.3572/10

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had not adverted to the above issue in the proper perspective. When specific contention had been raised, Tribunal ought to have considered the same. The rent arrears claimed will come to `5,73,184/- with penal interest. In the absence of any material to indicate under what circumstances the delay can be explained and in the absence of any material to indicate that demand had been made prior to 19/8/2007, I am of the view that the Tribunal had erred in not upholding the contention taken up by the petitioner.

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In the result, the writ petition is allowed. Ext.P16 is set aside. It is declared that the demand made against the petitioner is barred by limitation under Section 539 of the Municipality Act.

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Sd/-

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A.M. SHAFFIQUE, JUDGE

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//TRUE COPY//

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PS TO JUDGE

P.Udaya Senan v. Corporation of Kochi

Case brief

What is this about?

What did the court decide?

P.Udaya Senan v. Corporation of Kochi

Case brief

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