Allowed

A.R.Associates, v. State of Kerala

Kerala HC14 Jun 2023WP(C)/10461/2022

Case brief

AI extract

What is this about?

Held the demand notice for unauthorized archive tax was not legal as the Division Bench had regularized the petitioner's construction. The writ petition challenging the notice was allowed and the notice set aside.

What did the court decide?

Ext.P4 demand notice issued by the 2nd respondent is set aside and declared illegal.

What the court decided

A.R.Associates, Vs State of Kerala — Property and Title | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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WEDNESDAY, THE 14TH DAY OF JUNE 2023 / 24TH JYAISHTA, 1945

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WP(C) NO. 10461 OF 2022

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PETITIONER:

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M/S A.R.ASSOCIATES,
CHANDHAPPURA, KODUNGALLUR, THRISSUR - 680664,
REPRESENTED BY ITS MANAGING PARTNER MRS. REHNA ASHARAF,
AGED 61 YEARS, W/O. DR. C. MUHAMMED ASHARAF.
BY ADVS.
MILLU DANDAPANI
SIRAJ ABDUL SALAM

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RESPONDENTS:

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1STATE OF KERALA,
REPRESENTED BY ADDITIONAL CHIEF SECRETARY (FINANCE),
NORTH BLOCK FINANCE WING, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695001.

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2SECRETARY,
KODUNGALLUR MUNICIPAL CORPORATION, NH 66, STAR NAGAR,
UZHUVATHUKADAVU, KODUNGALLUR, THRISSUR DISTRICT -
680664.

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BY ADV SHRI.K.A.NOUSHAD, SC, KODUNGALOOR MUNICIPALITY,
THRISSUR

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OTHER PRESENT:

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SRI.APPU.P.S-GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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 WP(C) 10461/2022

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JUDGMENT

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Dated this the 14^th day of June, 2023

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This writ petition is filed seeking the following reliefs:-

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i. issue a writ of certiorari quashing Ext. P4 demand notice issued by the 2^nd respondent as illegal.

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ii. issue any writ or declaration declaring that the petitioner is not liable to pay any amount as stated in Exhibit P4 demand notice.

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Heard the learned counsel for the petitioner, the learned Government Pleader and the learned Standing Counsel appearing for the Municipality.

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It is submitted by the learned counsel for the petitioner that the petitioner was conducting a hospital in the jurisdiction of the 2^nd respondent, Municipality. It is submitted that the petitioner had submitted an application for a building permit for the additional construction of a second building on 25.09.2012. Since no orders were passed by the respondents on the application, the petitioner contended that he had a deemed permit under the provisions of Section 392(2) of the Kerala Municipality Act, 1994 read with Rule 15 of the Kerala Municipality Building Rules, 2019. The petitioner started

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 WP(C) 10461/2022

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construction of a nine storied building. While the construction was going on, a demand notice was issued by the 2^nd respondent for property tax at enhanced rates on the presumption that the construction carried out was unauthorised. A further demand for further amounts was raised on 05.01.2017. The petitioner was informed, on enquiries, that there was encroachment into land owned by the Municipality and therefore his application for building permit could not have been considered.

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The petitioner approached this Court filing W.P. (C)No.5981/2017 and the further action on the demands was stayed on condition that the petitioner remits an amount of Rs.3 Lakhs within one month. The said amount has been paid. It is submitted that the proceedings of the 2^nd respondent dated 18.09.2017 was challenged before this Court by filing W.P.(C) No.31227/2017 and an interim order was passed on 16.01.2018, directing the issuance of a building permit to the petitioner. By Ext.P1, a provisional building permit was issued. Subsequently, the writ petition was dismissed finding that the petitioner had encroached into the property of the Municipality and therefore no permit could have been granted to the petitioner. The

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 WP(C) 10461/2022

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petitioner has filed WA No.1844/2018 against the judgment of the learned Single Judge.

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The learned counsel for the petitioner had made available copies of the interim orders passed by the Division Bench of this Court in WA No.1844/2018. When the matter had come up for admission on 18/9/2018, the Division Bench recorded that a new building had been completed on the strength of the interim order granted by the learned Single Judge and that two hospitals are functioning in the same premises. It was also recorded that the chief concern expressed by the Municipality is that 2.777 cents of Municipal land is encroached by the petitioner for the construction of the hospital. The learned counsel for the appellant submitted that even if 2.777 lands of Municipality is ignored for the purpose of the building permit, the newly constructed building would satisfy the norms of the Municipality Building Rules in so far as set back and other parameters are concerned. It was further submitted that if the Municipality can allow retention of a supporting pillar of the hospital building on a negligible portion of the encroached land, the appellants are prepared to surrender possession of the

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 WP(C) 10461/2022

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encroached land. Thereafter, on 27.09.2018 the contention of the petitioner that the municipal authorities have granted only provisional building permit and that they should provide regular number to the building and provide occupancy certificate if the petitioner surrenders possession of the alleged encroachment was also recorded. On 22/1/2019 another interim order was passed by the Division Bench requiring the appellant to file an affidavit with regard to his intention to surrender the alleged encroached land. An advocate commissioner was deputed who identify the puramboke land and mark the same. The appellant was required to submit a further affidavit indicating the intention to surrender the said identified puramboke, the affidavit was filed. Thereafter, by order dated 3/10/2019, the submission with regard to the surrender of the puramboke was recorded by this Court. This Court further recorded the report of the Chief Town Planner that there is no issue regarding set back provided at the side of the building where the dispute of encroachment on the puramboke land existed. The Chief Town Planner had made it clear that despite such encroachment, sufficient statutory set back is available on that side. The learned counsel for the

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 WP(C) 10461/2022

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Municipality submitted that the issuance of Occupancy Certificate and numbering of the building can be considered on the petitioner submitting the requisite completion plan. The petitioner was therefore required to submit a completion plan and the Municipality was directed to take a decision with respect to issuance of occupancy certificate and numbering of the building within two weeks from the date of receipt of the completion plan. On 28^th October, 2019 it was submitted before a Division Bench of this Court that the completion plan along with the certificate was submitted on 25/10/2019. Thereafter, the writ appeal was disposed of directing issuance of the occupancy certificate and grant of regular number to the building on the petitioner paying all dues to the Municipality.

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It is submitted that the petitioner had paid an amount of Rs. 17,86,459/- as the tax in respect of the building for the entire period when it was unauthorised, till the issuance of the building permit. Regular number was also assigned to the petitioner. But, thereafter, Ext.P4 notice has now been issued to the petitioner dated 03.02.2022, requiring the payment of a further amount of Rs.10,35,509/- being the arrears of UA tax for

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 WP(C) 10461/2022

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the period 2018-19 first and second half years as well as the first half year of 2019-2020. The learned counsel for the petitioner submits that since the issuance of the provisional building permit pursuant to the interim order dated 16.01.2018 was found to be proper by a Division Bench of this Court, there could be no demand for UA tax in respect of the first and second half years of 2018-2019 and the first half year of 2019-2020.

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A statement is filed on behalf of the respondents stating that the occupancy certificate had been issued to the petitioner only on the basis of Ext.P3 judgment in Writ Appeal No.1844/2018 that is in November, 2019 and therefore the building has to be deemed to be unauthorised till the grant of the issuance of the occupancy certificate. It is contended that the demand raised is completely justified.

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A detailed counter affidavit is also paced on record producing the judgment in W.P.(C).No.31227/2017 and contending that with the dismissal of the writ petition, the provisional building permit granted on the basis of the interim order of the learned Single Judge dated 16.01.2018 also became ineffective and therefore, it is only on issuance of the occupancy

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 WP(C) 10461/2022

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certificate that the petitioner's building could be deemed to be authorised.

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Having considered the contentions advanced on either side, I notice that the provisional building permit had been granted for the construction already carried out by the petitioner, pursuant to the interim order of this Court dated 16.01.2018. It is true that the writ petition in which the interim order was rendered stood dismissed by Ext.R2(a) judgment dated 20.08.2018. However, matters did not end there. A writ appeal was filed by the petitioner, in which, the interim orders referred to above have been rendered. From a reading of the interim orders and the final judgment, the only logical conclusion that can be arrived is that the provisional building permit issued by the Municipality on the basis of the interim order of the learned Single Judge dated 16.01.2018 stood approved and regularised by the operation of the orders of the Division Bench of this Court. It is after specifically adverting to the nature of the constructions carried out by the petitioner as disclosed from the commission report and on the specific finding that even after surrender of the encroached area that the

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 WP(C) 10461/2022

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building permit would continue to be legal and valid, since there is no violation of the Building Rules that the Division Bench of this Court had directed the issuance of occupancy certificate to the petitioner. Therefore, the contention that the building would still be unauthorised, after the issuance of the building permit as evidenced by Ext.P1 cannot be accepted.

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In the above factual situation, I am of the opinion that the demand raised by Ext.P4 for unauthorised tax in respect of the building for the 1^st and 2^nd half years of the year 2018 as well as the first half year of 2019 on the ground that the occupancy certificate had been issued only in 2019 cannot be accepted as being legal or valid. In the above view of the matter, I am of the opinion that the writ petition is liable to be allowed.

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The writ petition is so allowed. Ext.P4 is set aside.

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Sd/-

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ANU SIVARAMAN JUDGE

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ska

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 WP(C) 10461/2022

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APPENDIX OF WP(C) 10461/2022

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`PETITIONER EXHIBITS` `Exhibit P1`	`TRUE COPY OF THE BUILDING PERMIT NO. 347/12-` `13 ISSUED BY THE 2ND RESPONDENT DATED` `22.01.2018.`
`Exhibit P2`	`TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED` `BY THE 2ND RESPONDENT DATED 16.11.2019.`
`Exhibit P3`	`TRUE COPY OF THE JUDGMENT OF THIS HON'BLE` `COURT IN WA 1844 OF 2018 DATED 13.11.2019.`
`Exhibit P4`	`TRUE COPY OF THE NOTICE NO. R1/B.A -347/12-13` `DATED 03.02.2022 ISSUED BY THE 2ND` `RESPONDENT.`
`Exhibit P5`	`TRUE COPY OF THE REPLY SUBMITTED BY THE` `MANAGING PARTNER OF THE PETITIONER FIRM DATED` `21.02.2022.`
`Exhibit P7`	`TRUE COPY OF THE LICENCE BEARING` `NO.130201012100139 DATED 16/7/2021 ISSUED BY` `THE 2ND RESPONDENT TO THE LICENCE OF THE` `PETITIONER’S OTHER BUILDINGS`
`Exhibit P8`	`TRUE COPY OF THE APPLICATION SUBMITTED BY THE` `LICENCE ALONG WITH ALL REQUISITE DOCUMENTS`
`RESPONDENT EXHIBITS`
`Exhibit R2(a)`	`A true copy of the Judgment 20/08/2018 in` `W.P. No. 31227/2017 of this Hon'ble Court`
`PETITIONER EXHIBITS`
`Exhibit P6`	`TRUE COPY OF THE 2ND RESPONDENT ALONG WITH` `THE RECEIPT ACKNOWLEDGEMENT DATED 21.02.2022` `RECEIVED FROM THE 2ND RESPONDENT.`
`RESPONDENT EXHIBITS`
`Exhibit R2(c)`	`A true copy of the communication issued by` `the petitioner intimating the surrender of` `the property`
`Exhibit R2(b)`	`A true copy of the affidavit filed by the` `Kodungalloor Municipality`
`PETITIONER EXHIBITS`
`Exhibit P9`	`TRUE COPY OF THE APPLICATION DATED 06.02.2023` `SUBMITTED FOR RENEWAL OF LICENCE ALONG WITH` `ALL REQUISITE DOCUMENTS SUBMITTED BEFORE THE` `2ND RESPONDENT`

A.R.Associates, v. State of Kerala

Case brief

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What the court decided

A.R.Associates, v. State of Kerala

Case brief

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