Allowed

Corporation of Thiruvananthapuram v. the Tribunal for Local Self Government

Kerala HC22 Nov 2022WP(C)/3607/2011

Case brief

AI extract

What is this about?

The High Court disposed of two connected writ petitions challenging property tax assessment orders. The Court directed the Corporation to follow the Tribunal's earlier directive for fresh assessment based on similar buildings, dismissing the Corporation's petition and allowing the petitioner's petition to quash the subsequent demand.

What did the court decide?

Writ petition WP(C).40516/2016 allowed, Ext.P15 quashed; Writ petition WP(C).3607/2011 dismissed confirming Tribunal order.

Corporation of Thiruvananthapuram Vs the Tribunal for… — Property and Title | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

¶4

TUESDAY, THE 22ND DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944

¶5

WP(C) NO. 3607 OF 2011

¶6

PETITIONER:

¶7

CORPORATION OF THIRUVANANTHAPURAM
REPRESENTED BY ITS SECRETARY,
CORPORATION BUILDINGS, VIKHAS BHAVAN,
THIRUVANANTHAPURAM-33.
BY ADVS.
SUMAN CHAKRAVARTHY, SC, THIRUVANANTHAPURAM
CORPORATION
P.K.MANOJKUMAR

¶8

RESPONDENTS:

¶9

1THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, THIRUVANANTHAPURAM-695001.
2M/S.PARTHAS POWER HOUSE ROAD
THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING
PARTNER, S.NAGARAJULU, PIN 695030.
BY ADVS.
M.AJAY (IRUMPANAM)
HARISH GOPINATH
KVP.JAYALEKSHMY
R.S.KALKURA
M.S.KALESH
A.V.PRIYA
V.VINAY MENON

¶10

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 22.11.2022, ALONG WITH WP(C).40516/2016, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:

¶11

WP(C).Nos.3607/2011 & 40516/2016

¶12

¶13

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶14

PRESENT

¶15

THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

¶16

TUESDAY, THE 22ND DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944
WP(C) NO. 40516 OF 2016

¶17

PETITIONER:

¶18

M/S.PARTHAS
A REGISTERED PARTNERSHIP FIRM, POWER HOUSE ROAD,
THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING
PARTNER , ARJUN, S/O.M.SREENIVASA REDDIAR,
AGED 62 YEARS
BY ADVS.
SRI.R.S.KALKURA
SRI.HARISH GOPINATH
SRI.M.S.KALESH

¶19

RESPONDENTS:

¶20

1CORPORATION OF THIRUVANANTHAPURAM
REPRESENTED BY ITS SECRETARY,
CORPORATION BUILDING, MUSEUM JUNCTION,
THIRUVANANTHAPURAM PIN-695 033

¶21

2TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS
THIRUVANANTHAPURAM, REPRESENTED BY ITS
SECRETARY, THIRUVANANTHAPURAM,PIN-695 001
BY ADVS.
N.NANDAKUMARA MENON (SR.)
SHRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION
SHRI.SUMAN CHAKRAVARTHI, SC

¶22

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.11.2022, ALONG WITH WP(C).3607/2011, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶23

WP(C).Nos.3607/2011 & 40516/2016

¶24

¶25

P.V.KUNHIKRISHNAN, J.

¶26

W.P.(C).Nos.3607 of 2011 & 40516 of 2016 ---------------------------------------------Dated this the 22^nd day of November, 2022

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JUDGMENT

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These two writ petitions are connected and therefore

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I am disposing these writ petitions by a common judgment.

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I will narrate the facts in W.P.(C).

¶31

No.40516/2016:

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Petitioner is a registered partnership concern carrying on business in textile and other allied business.

¶33

The petitioner has constructed a multi-storied building for the purpose of their business, based on the licence and permit issued by the 1^st respondent Corporation. It is the case of the petitioner that the construction of the building was completed in the year 2000, strictly in accordance to

¶34

¶35

WP(C).Nos.3607/2011 & 40516/2016

¶36

the permit and plan approved by the 1^st respondent. On 24.02.2007, the petitioner received Property Tax Assessment Index Sheets. On receipt of the said notices, revisions were submitted by the petitioner against the assessment of property tax. The 1^st respondent refused to consider the objections on the ground that the same was belated and barred by limitation. Hence the petitioner submitted a representation before the Secretary, Local Administration, State of Kerala. The State of Kerala issued a direction to the 1^st respondent to consider the objections of the petitioner and on receipt of that communication, the 1^st respondent directed the petitioner to submit the receipts pertaining to the payment of tax. The petitioner, on 21.07.2007, remitted the tax payable for the first half year and the same was communicated to the 1^st respondent. Subsequent to the direction issued by the Government against the assessment as per communication dated 28.05.2007, the matter was placed

¶37

¶38

WP(C).Nos.3607/2011 & 40516/2016

¶39

by the 1^st respondent authorities before the Standing Committee for Appeal on Taxation. The Standing Committee for Appeal on Taxation, vide order dated 19.10.2007, revised the assessment order as per Ext.P2. Aggrieved by the order of the Standing Committee, the petitioner preferred a revision petition before the Tribunal for Local Self Government Institutions, Thiruvananthapuram (for short, the Tribunal). There was some defect pointed out in the revision. Aggrieved by the said order of the Tribunal, the petitioner preferred W.P. (C).No.7140 of 2008 before this Court. This Court originally passed an interim order in the above writ petition directing the Tribunal to register the revision if the same is resubmitted by the petitioner accompanied by a receipt for payment of Rs.20 lakhs. Ext.P5 is the interim order. Accordingly the petitioner remitted an amount of Rs.20 lakhs and the Tribunal accepted the revision and numbered the same as R.P. No.38 of 2008. The revision

¶40

¶41

WP(C).Nos.3607/2011 & 40516/2016

¶42

petition was heard and disposed by the Tribunal upholding the contentions of the petitioner and the decision of the Standing Committee for Appeals on Taxation was set aside. Ext.P6 is the order passed by the Tribunal. It is the case of the petitioner that ignoring the directions in Ext.P6, an assessment order is passed by the 1^st respondent, as evident by Ext.P7. Aggrieved by Ext.P7 assessment order, the petitioner preferred revision before the 1^st respondent Corporation, as evident by Ext.P8. The Secretary of the 1^st respondent Corporation, as per Ext.P10, revised the assessment; but, according to the petitioner, it is contrary to the directions issued by the Tribunal. Aggrieved by Ext.P10 order of the Secretary of the 1^st respondent, the petitioner filed appeal before the Standing Committee for Appeal on Taxation of the 1^st respondent. The Standing Committee for Appeal on Taxation, as per Ext.P11, considered the appeal and passed a revised order. Aggrieved by Ext.P11, the

¶43

¶44

WP(C).Nos.3607/2011 & 40516/2016

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petitioner preferred revision before the 2^nd respondent, the Tribunal. Ext.P12 is the revision. The revision was disposed setting aside Ext.P11 decision of the Standing Committee for Appeal on Taxation and the Secretary of the 1^st respondent Corporation was directed to make fresh proper assessment of the building of the petitioner by taking into account the assessment of other similar and similarly situated building. Ext.P13 is the order passed by the Tribunal. Aggrieved by Ext.P13 order, the 1^st respondent preferred W.P.(C).No.3607 of 2011. In the meanwhile W.P.(C).7140 of 2008, in which Ext.P5 interim order was passed, was disposed by the learned Single Judge of this Court, recording the submission that the 1^st respondent had challenged the subsequent orders of the Tribunal by way of writ petition and leaving open all the contentions. Ext.P14 is the judgment in W.P.(C).7140 of 2008. Thereafter the 1^st respondent issued notice dated 25.11.2016 demanding an amount of Rs.34,98,010/- and

¶46

¶47

WP(C).Nos.3607/2011 & 40516/2016

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a penalty of Rs.34,60,763/-, as evident by Ext.P15.

¶49

Aggrieved by Ext.P15, W.P.(C). No.40516/2016 is filed.

¶50

Heard the learned counsel for the petitioner in W.P.(C). No.40516/2016 and the learned Standing Counsel appearing for the Corporation. As I stated earlier, in W.P.(C).No.3607/2011 is filed by the Corporation of Thiruvananthapuram challenging Ext.P15 order of the Tribunal which is produced as Ext.P13 in W.P.(C). No.40516/2016.

¶51

The Standing Counsel appearing for the Corporation submitted that Ext.P15 in W.P.(C). No.3607/2011 (Ext.P13 in W.P.(C). No.40516/2016) is unsustainable and it is liable to be set aside. The counsel submitted that Section 234 of the Kerala Municipality Act is already deleted from the Act and a new rule is framed. The counsel for the petitioner in W.P.(C). No.40516/2016 submitted that the new rule is not applicable and the direction of the Tribunal is to make fresh assessment as

¶52

¶53

WP(C).Nos.3607/2011 & 40516/2016

¶54

per Section 234 of the Kerala Municipality Act. The counsel submitted that admittedly the construction was completed before the deletion of Section 234 of the Kerala Municipality Act.

¶55

This Court considered the contentions of the petitioners in these writ petitions. The petitioner in W.P(C). No.3607/2011 is challenging Ext.P15 order. The Tribunal, after considering the entire facts, directed the Corporation to make fresh proper assessment of the building of the petitioner in that revision petition as per Section 234 of the Kerala Municipality Act. It will be

¶56

better to extract Ext.P15 in W.P.(C). No.3607/2011:

¶57

“7. The Points

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It is well settled law that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. (Beerankutty Vs. Municipal Commissioner, Manjeri, 1984 K.L.T. Short Notes 46- Case No. 77).

¶59

WP(C).Nos.3607/2011 & 40516/2016

¶60

¶61

Rule 18 of the Tribunal Rules provides as follows:-

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Directions to the Local Self Government Institution, - If the Tribunal on considering the petition and connected records, is satisfied that any notice or order issued or action taken by the Village Panchayat Municipality or its Secretary as the case may be, is not issued or taken in accordance with the procedure under, the Panchayat Act or the Municipality Act or the rules made there under it may direct such Village Panchayat or Municipality or the Secretary to issue notice or order or to take action afresh complying the procedure under law.

¶63

It is well settled law that the assessment of property tax as per Section 234 of the Kerala Municipality Act is to be done by taking into consideration the assessment of other similar and similarly situated building also. In R.P. 38/2008 by order dated 28.7.2008 the Secretary of the Corporation was directed to make fresh proper assessment of the building as per Section 234 of the Kerala Municipality Act by taking into consideration the assessment of other similar and similarly situated buildings also. As per the direction the Secretary would have considered which are the buildings similar and similarly situated compared to the buildings of the Petitioner and the rate of annual rental value per squire meter of such similar and

¶64

WP(C).Nos.3607/2011 & 40516/2016

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similarly situated buildings would have been adopted for assessment of the buildings of the Petitioner. If there were no such exactly similar and similarly situated buildings as the buildings of Petitioner then the Secretary would have adopted the assessment of those buildings which are nearest in similarity to the building of Petitioner as basis and the difference in assessment would have been explained with reference to the difference between Petitioner's buildings and those buildings nearest in similarity. As per the file produced by the Counter Petitioner no such attempt is seen made in subsequent assessment of the buildings by the Secretary and in passing orders in the Revision before the Secretary and in passing the impugned decision in Appeal. In the written statement filed by the 2^nd Counter Petitioner also there is no reference to the assessment of any other buildings though there is general statement to the effect that the fresh assessment was done considering that of similar and similarly satiated buddings. Pages 229 to 234 of the file produced by 2^nd Counter Petitioner is copy of the order in Revision 38/2008. Pages 235 to 248 of the file are the property tax assessment index sheets relating to the fresh assessment made by the Secretary. In those assessment sheets there is no reference to the assessment of any other building as similar and similarly situated to the

¶67

WP(C).Nos.3607/2011 & 40516/2016

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buildings of Petitioner. Pages 249 to 310 of the file is the Revision filed before the Secretary against the assessment and pages 337 to 338 of the file is pointed out as the order in the Revisions filed before the Secretary and pages 328 to 336 is pointed out as the Appeal tiled against the order of the Secretary in Revision. Page 56 of the file contains copy of the impugned decision in the Appeal before the Committee. The decision is to the effect that the assessment is found to be excessive and hence the annual rental value is reduced by 15 %. How the annual rental value reduced by 15% becomes proper assessment as directed in the previous Revision 38/2008 is not made clear in the impugned decision. Apparently the direction given by this Tribunal in Revision Petition 38/2008 is not complied with and the conduct of the Secretary in making the fresh assessment without specifically considering the assessment of other similar and similarly situated buildings amounts to maladministration regarding which the affected parties may initiate proper proceedings before the Hon'ble Ombudsman. In the circumstances the impugned decision is not sustainable and is liable to be set aside.

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In the result, the Revision Petition is allowed. The impugned decision No. 1 (7) dated 27.6.2009 of the Standing Committee for Appeals on Taxation of the

¶71

WP(C).Nos.3607/2011 & 40516/2016

¶72

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Thiruvananthapuram Corporation is set aside. The Secretary of the Corporation is directed to make fresh proper assessment of the buildings of Petitioner, as per Section 234 of the Kerala Municipality Act, by taking into consideration the assessment of other similar and similarly situated buildings also, as indicated above, without any unnecessary delay.”

¶74

A reading of the above order passed by the Tribunal it is clear that the Tribunal only directed the Corporation to make fresh proper assessment of the building of the petitioner as per Section 234 of the Kerala Municipality Act by taking into consideration the assessment of other similar and similarly situated building. There is nothing to interfere with Ext.P15 in W.P. (C). No.3607/2011. Moreover, Section 234 of the Kerala Municipality Act is deleted subsequent to the assessment in this case and therefore the Corporation is bound to decide the matter in the light of Section 234 of the Kerala Municipality Act.

¶75

WP(C).Nos.3607/2011 & 40516/2016

¶76

¶77

Based on Ext.P15 in W.P.(C). No.3607/2011

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(Ext.P13 in W.P.(C). No.40516/2016) assessment order is passed by the Corporation. A reading of Ext.P15 will show that the same was issued based on Ext.P14 judgment. The contents in Ext.P14 judgment is extracted hereunder:

¶79

“The petitioner had challenged the Order of the Corporation demanding tax on the building. The Tribunal refused to entertain the appeal filed by the petitioner on the ground that the tax demanded has not been remitted. The Court, by interim order, directed consideration of the appeal on deposit of Rs.20 lakhs. The said amount was deposited by the petitioner and the Tribunal has passed an Order in favour of the petitioner, which has been challenged by the Corporation in a separate writ petition.

¶80

Hence, leaving open all contentions to be urged in the said writ petition filed by the Corporation, the above writ petition is dismissed as infructuous without any observation on merits.”

¶81

At that time, admittedly W.P.(C).No.3607/2011

¶82

filed by the Corporation was pending in which the Corporation challenged the order passed by the Tribunal

¶83

¶84

WP(C).Nos.3607/2011 & 40516/2016

¶85

in R.P.No.117/2009. Admittedly, no orders are passed by

¶86

the Corporation as directed by the Tribunal in R.P.No.117/2009. In such circumstances, Ext.P15 is liable

¶87

to be set aside and there can be a direction to the Corporation to pass appropriate orders as directed by the Tribunal in R.P.No.117/2009.

¶88

Therefore, these two writ petitions are disposed of with following directions:

¶89

W.P.(C). No.3607/2011 is dismissed

¶90

confirming the order dated 23.02.2010 in R.P.No.117/2009 on the file of the Tribunal for Local Self Government Institutions, Thiruvananthapuram.

¶91

W.P.(C). No.40516/2016 is allowed and Ext.P15 is quashed. The 1^st respondent Corporation is directed to pass appropriate orders as directed by the Tribunal for Local Self Government Institutions,

¶92

WP(C).Nos.3607/2011 & 40516/2016

¶93

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Thiruvananthapuram in the order dated 23.02.2010 in R.P.No.117/2009.

¶95

Sd/-

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P.V.KUNHIKRISHNAN

¶97

JUDGE

¶98

JV/DM

¶99

WP(C).Nos.3607/2011 & 40516/2016

¶100

¶101

APPENDIX OF WP(C) 40516/2016

¶102

PETITIONER EXHIBITS

¶103

`EXHIBIT P1`	`TRUE COPY OF THE PARTNERSHIP DEED IN`
	`RESPECT OF THE PARTNERSHIP FIRM`
	`M/S/PARTHAS DATED 24.4.2004`
`EXHIBIT P2`	`TRUE COPY OF THE REGISTRATION`
	`CERTIFICATE DATED 29.5.2004 ISSUED BY` `THE REGISTRAR OF FIRMS EVIDENCING THE` `REGISTRATION OF THE FIRM ,M.S.PARTHAS`
`EXHIBIT P3`	`TRUE COPY OF THE ORDER DATED`
	`19.10.2007 ISSUED BY THE STANDING` `COMMITTEE OF THE 2ND RESPONDENT`
`EXHIBIT P4`	`TRUE COY OF THE REVISION PETITION`
	`FILED ON 12.2.208 BY THE PETITIONER`
	`BEFORE THE 2ND RESPONDENT WITH THE` `ENDORSEMENT` `MADE` `BY` `THE` `2ND` `RESPONDENT.`
`EXHIBIT P5`	`TRUE COPY OF THE INTERIM ORDER DATED` `17.3.2008 IN WP(C) NO.7140 OF 2008 ON` `THE FILE OF THIS HON'BLE COURT.`
`EXHIBIT P6`	`TRUE COPY OF THE ORDER DATED 28.7.2008`
	`IN R.P.NO.38 OF 2008 ON THE FILE OF` `THE TRIBUNAL FOR LOCAL SELF GOVERNMENT` `INSTITUTIONS, THIRUVANANTHAPURAM`
`EXHIBIT P7`	`TRUE COY OF THE ASSESSMENT ORDER DATED`
	`23.3.2009` `ISSUED` `BY` `THE` `1ST` `RESPONDENT.`
`EXHIBIT P8`	`TRUE COPY OF THE REVISION SUBMITTED BY`
	`THE PETITIONER BEFORE THE SECRETARY OF`
	`THE 1ST RESPONDENT CORPORATION IN`
	`15.4.2009`
`EXHIBIT P9`	`TRUE COPY OF THE REPRESENTATION`
	`SUBMITTED BY THE PETITIONER BEFORE THE`
	`SECRETARY OF THE CORPORATION DATED` `24.9.2009`
`EXHIBIT P10`	`TRUE COPY OF THE ORDER DATED 13.5.2009`
	`ISSUED BY THE SECRETARY OF THE 1ST` `RESPONDENT`
`EXHIBIT P11`	`TRUE COPY OF THE REVISED ORDER DATED` `27.6.2009`
`EXHIBIT P12`	`TRUE COPY OF THE REVISION PETITION`

¶104

WP(C).Nos.3607/2011 & 40516/2016

¶105

¶106

	`DATED 14.9.2009` `AS REVISION NO.11`	`FILED BY THE PETITION` `7 OF 2009`
`EXHIBIT P13`	`TRUE COPY OF THE`	`ORDER DATED 23.2.2010`
	`IN REVISION PETIT`	`ION NO,117 OF 2009 ON`
	`THE FILE OF TH`	`E TRIBUNAL FOR LOCAL`
	`SELF` `GOVERNM` `THIRUVANANTHAPURA`	`ENT` `INSTITUTIONS,` `M`
`EXHIBIT 14`	`TRUE COPY OF`	`THE JUDGMENT DATED`
	`19.9.2016 IN WP(` `THE FILE OF THIS`	`C0NO.7140 OF 2008 ON` `HON'BLE COURT.`
`EXHIBIT P15`	`TRUE COPY OF T`	`HE NOTICE OF DEMAND`
	`DATED 25.11.2016` `RESPONDENT TO THE`	`ISSUED BY THE 1ST` `PETITIONER.`

¶107

WP(C).Nos.3607/2011 & 40516/2016

¶108

¶109

APPENDIX OF WP(C) 3607/2011

¶110

PETITIONER’S EXTS :

¶111

EXT.P1:COPYOFOCCUPANCYCERTIFICATE
NO.TP3/45756/95 DTD 14.2.2006 ISSUED BY THE
ASSISTANT TOWN PLANNING OFFICER, CORPORATION OF
THIRUVANANTHAPURAM TO S.NAGARAJALU

¶112

EXT P2: COPY OF ASSESSMENT ORDER FOR 2000-2001
DTD 23.6.2006 ISSUED BY THE CORPORATION OF
THIRUVANANTHAPURAM BY S.NAGARAJALU

¶113

EXT P3: COPY OF REVISION MEMO FILED BY R2 BEFORE
THESECRETARY,CITYCORPORATION,
THIRUVANANTHAPURAM DTD 19.3.2007

¶114

EXT P4: COPY OF COMMUNICATION NO.R4/TP3/45756/95
DTD 7.4.2007 ISSUED BY THE REVENUE OFFICER,
TRIVANDRUM CORPORATION TO NAGARAJALU

¶115

EXT P5: COPY OF GOVERNMENT ORDER NO.25239/R.C
2/2007/LSGD DTD 28.5.2007 ISSUED BY THE
GOVERNMENT TO THE TRIVANDRUM CORPORATION.

¶116

EXT P6: COPY OF ORDER NO.APL/R4/45756/95 DTD
19.10.2007 ISSUED BY THE CHAIRMAN, CORPORATION OF
THIRUVANANTHAPURAM.

¶117

EXT P7: COPY OF REVISION MEMO FILED BY R2 BEFORE
R1

¶118

¶119

WP(C).Nos.3607/2011 & 40516/2016

¶120

EXT P8: COPY OF ORDER PASSED BY THE TRIBUNAL FOR
LOCAL SELF GOVERNMENT INSTITUTIONS, IN RP
NO.38/2008 DTD 28.7.2008

¶121

EXT P9: COPY OF ASSESSMENT ORDER NO.R4/TP3/
45756/95 DTD 23.3.2009 ISSUED BY THE SECRETARY,
CORPORATION OF THIRUVANANTHAPURAM, REVENUE
DEPARTMENT.

¶122

EXT P10: COPY OF REVISION MEMO DTD 15.4.2009
SUBMITTED BY R2 BEFORE THE SECRETARY, CORPORATION
OF THIRUVANANTHAPURAM

¶123

EXT P11: COPY OF REPRESENTATION DTD 29.4.2009
SUBMITTED BY R2 BEFORE THE SECRETARY, CORPORATION
OF THIRUVANANTHAPURAM

¶124

EXT P12: COPY OF COMMUNICATION NO.R/4/TP3/
45756/95 DTD 13.5.2009 ISSUED BY THE PETITIONER
TO R2.

¶125

EXTP13:COPYOFCOMMUNICATION

¶126

NO.AP4/RA/TP5/45756/05 DTD 27.6.2009 ISSUED BY
THE PETITIONER TO R2.

¶127

EXT P14: COPY OF REVISION MEMO DTD 15.9.2009
SUBMITTED BY R2 BEFORE R1.

¶128

EXT P15: COPY OF ORDER OF REVISION PETITION

¶129

WP(C).Nos.3607/2011 & 40516/2016

¶130

NO.117/2009 DTD 23.2.2010 ISSUED BY R1 TO 2ND
PETITIONER.

¶131

RESPONDENTS EXTS: NIL

¶132

TRUE COPY

¶133

P.A.TO JUDGE

Corporation of Thiruvananthapuram v. the Tribunal for Local Self Government

Case brief

What is this about?

What did the court decide?

Corporation of Thiruvananthapuram v. the Tribunal for Local Self Government

Case brief

What is this about?

What did the court decide?

What the court decided

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