Dismissed

Bharat Sanchar Nigam Limited v. Additional Chief Secretary

Kerala HC5 Mar 2019WA/336/2019

Case brief

AI extract

What is this about?

The Division Bench dismissed a writ appeal challenging Single Judge's order. The court held that the State Government cannot use general powers to issue guidelines to interdict local self government institutions from exercising their statutory powers under Section 210 for tax recovery and prosecution.

What did the court decide?

The writ appeal was dismissed; no further guidelines to Government ordered; local bodies may proceed with recovery steps.

Bharat Sanchar Nigam Limited Vs Additional Chief Secretary — Landlord and Tenant | Kerala HC (2019)

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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 C.K.ABDUL REHIM &

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY ,THE 05TH DAY OF MARCH 2019 /14TH PHALGUNA, 1940

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WA.No. 336 of 2019

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AGAINST THE JUDGMENT IN WP(C) 28472/2018 of THIS COURT

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APPELLANT/PETITIONER:

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BHARAT SANCHAR NIGAM LIMITED REPRESENTED BY GENERAL MANAGER(L AND B), O/O THE CHIEF GENERAL MANAGER, BHARAT SANCHAR NIGAM LTD., KERALA CIRCLE, THIRUVANANTHAPURAM-695033.

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BY ADV. SRI.P.J.PHILIP, SC, BSNL

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RESPONDENTS/RESPONDENTS:

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1 ADDITIONAL CHIEF SECRETARY LOCAL SELF GOVERNMENT DEPARTMENT, 4TH FLOOR, SECRETARIAT ANNEXE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.

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2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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OTHER PRESENT:

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SR.GP.SRI. V.K.SHAMSUDHEEN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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W.A. No.336/2019

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C.K. ABDUL REHIM &

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R. NARAYANA PISHARADI, JJ.

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Writ Appeal No. 336 OF 2019

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Dated this the 5^th day of March, 2019

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J U D G M E N T

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Abdul Rehim, J.

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M/s Bharat Sanchar Nigam Limited(BSNL, for short), who is the petitioner in W.P.(C) 28472/2018 is challenging judgment

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of the learned Single Judge dismissing the writ petition.

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The relief sought for in the writ petition is to;

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“Direct the 1^st respondent to call upon the local bodies under it to refrain from taking prosecution steps under Section 210, Second Proviso, of the Kerala Panchayath Raj Act, 1994, without following Section 203(3) to (10) of the Kerala Panchayat Raj Act,1994”.

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The writ petition was filed in the context that the

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W.A. No.336/2019

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Kerala Panchayat Raj Act, 1993('the Act, for short) underwent an amendment through which ' mobile telephone towers' are treated as ' building ' attracting property tax. The appellant challenged the said amendment in a writ petition before this court, which was unsuccessful. An attempt to review the said judgment was also failed. The appellants have no case that the amendment is still under challenge before any higher forum. Hence it has to be presumed that the liability of the appellant to pay property tax to the respective local self government institutions with respect to the 'mobile telephone towers' cannot be disputed. Back drop of the situation under which the appellant was persuaded to file the present writ petition was that, various self government institutions have issued demand notices and also initiated recovery steps, including prosecution under Section 210 of the Act, for realization of the amount of property tax due from the appellant. One among the main grounds on which the above writ petition was instituted, seems

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W.A. No.336/2019

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to be that, the assessment of property tax was made without complying and completing the requisite procedure contemplated under Section 203(3) to (10) of the Act. It is conceded that, in Ext.P6 judgment of the Division Bench in RP 411/2018 in W.A.No.2620/2017 this court reserved the liberty of the appellant to challenge the demands made by the individual local self government institutions on all the grounds available to them, if there is any violation of the mandatory procedure. The relief sought, quoted above, is to issue direction to the State Government to instruct the local bodies to refrain from taking prosecution steps on the basis that they failed to complete the requisite procedure under Section 203(3) to (10) of the Act, before making the assessment.

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While dismissing the writ petition the learned Judge observed that, as long as the liability of the appellant remains crystallized under Section 203, if they have got any grievance against the tax being collected, efficacious remedy is available

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W.A. No.336/2019

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under the statute itself by way of appeal and revision. We are of the opinion that, even before the completion of the assessment itself, the appellant can point out to the self government institutions concerned, that they are not authorised to collect the tax, if they have in any manner violated or not complied with the requisites procedure stipulated under Section 203. Since the statutory requirements provided under Section 203 of the Act remains in the statue book, there is no necessity for the Government to issue any further guidelines, in exercise of the powers vested under Section 189 of the Act, because any steps if taken in violation of the mandatory provisions will definitely entile the assessee to challenge the validity of the assessments and to challenge the consequential recovery steps, including the steps if any for prosecution.

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Further, we do not think that the Government can, in

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exercise of powers vested under Section 189, interdict any of the local self government institutions in exercising their powers

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W.A. No.336/2019

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contemplated under Section 210 of the Act for taking steps to recover arrears of the tax. The steps for prosecution contemplated under the proviso to Section 210 can be instituted only if the local self government institutions fails to recover the arrears through other method of distraint provided under the said provision. If in a particular case, the assessment is valid and has not subjected to appeal or revision, then the local self government institutions cannot in any manner be refrained by the Government from taking such distraint actions and on failure from taking any steps for prosecution. Such restrictions cannot be imposed by the Government in exercise of powers vested under Section 189, which is in the nature of general power to issue guidelines. This is especially in view of the fact that the definition of 'Panchayat' contained under Article 243 of the Constitution of India, which means an institution of 'Self Government' constituted under Section 243B, for the rural areas. Therefore it is clear that the constitutional mandate itself

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W.A. No.336/2019

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is to constitute Panchayats at different level to work as 'Self Government' within their sphere of activities. Therefore, the general powers to issue guidelines vested on the Government cannot be invoked in any manner to interdict exercise of any statutory powers vested on such self government institutions.

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Therefore, if the appellant is in any manner aggrieved by the assessment or by the demand of property tax made, they will be at liberty to object or challenge it before the concerned local self government institutions itself or before the appropriate appellate or revisional authorities. Merely because the appellant is having mobile telephone towers within the territorial limits of various self government institutions and merely because there is a possibility of the appellant being put to face coercive steps of distraint or prosecution before different authorities and different courts having territorial jurisdiction, the Government cannot interfere in any manner to interdict exercise of the powers vested on such local self government

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W.A. No.336/2019

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institutions. With respect to compliance of the statutory provisions contained in Section 203 also, we are of the considered opinion that no further guidelines are required to be issued from the side of Government, because the statute itself is clear and unambiguous.

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Under the above mentioned circumstances, we do not find any scope for interference with the findings rendered by the learned Single Judge while dismissing the writ petition.

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Consequently, the above writ appeal fails and the same is

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hereby dismissed.

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Sd/- C.K. ABDUL REHIM, JUDGE .

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Sd/- R. NARAYANA PISHARADI, JUDGE .

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ul/-

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[True copy]