IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(C).No. 27526 of 2007(B) --------------------------------------- PETITIONERS: ------------------- 1. S. RAFEEKA, THOUFEEK MAHAL, KARAPUZHA P.O., KOTTAYAM-686003. 2. SHAJAHAN S., THOUFEEK MAHAL, KARAPUZHA P.O., KOTTAYAM-686003. 3. RAFEEK S., THOUFEEK MAHAL, KARAPUZHA P.O., KOTTAYAM-686003. 4. HALIMA S., THOUFEEK MAHAL, KARAPUZHA P.O., KOTTAYAM-686003. 5. NAFISATH S., THOUFEEK MAHAL, KARAPUZHA P.O., KOTTAYAM-686003. 6. HAJIRA S., THOUFEEK MAHAL, KARAPUZHA P.O., KOTTAYAM-686003. BY ADV. SRI.K.I.MAYANKUTTY MATHER SMT.S.AMINA RESPONDENTS: ----------------------- 1. SECRETARY, MUNICIPALITY OF KOTTAYAM, KOTTAYAM. 2. MUNICIPALITY OF KOTTAYAM, KOTTAYAM, REPRESENTED BY ITS SECRETARY. 3. COMMISSIONER, KOTTAYAM MUNICIPALITY, KOTTAYAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL ADMINISTRATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.SIBY MATHEW - R1-2 SRI.A.A.MOHAMMED NAZIR - R1-2 BY GOVERNMENT PLEADER SRI.K.V.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.27526/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE OCCUPANCY CERTIFICATE IN RESPECT OF THE IST PETITIONER ISSUEE BY THE IST RESPONDENT. EXT.P2:- COPY OF THE DEMAND NOTICE DT.1.1.2007. EXT.P2(a):- COPY OF THE DEMAND NOTICE 1.1.2007. EXT.P3:- COPY OF THE INFORMATION FURNISHED BY THE IST RESPONDENT DT. 1.2.2007. EXT.P3(a):- COPY OF THE INFORMATION FURNISHED BY THE SIT RESPONDENT DT. 3.2.2007. EXT.P3(b):- COPY OF THE INFORMATION BY THE IST RESPONDENT DT. 17.2.2007. EXT.P3(c):- COPY OF THE INFORMATION FURNISHED BY THE IST RESPONDENT DT. 19.2.2007. EXT.P3(d):- COPY OF THE INFORMATION FURNISHED BY THE IST RESPONDENT DT. 9.4.2007. EXT.P4:- COPY OF THE OBJECTION SUBMITTED BY THE PETITIONERS BEFORE THE IST RESPONDENT DT. 2.2.07. EXT.P5:- COPY OF THE DEMAND NOTICE ISSUED BY THE IST RESPONDENT DT. 8.5.07. EXT.P5(a):- COPY OF THE DEMAND NOTICE ISSUED BY THE IST RESPONDENT DT. 8.5.07. EXT.P6:- COPY OF THE GOVERNMENT ORDER G.O.(MS) NO. 271/2006. DT. 27.11.2006. EXT.P7:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. NO.15806/2007 DT. 6.7.07. EXT.P8:- COPY OF THE DEMAND NOTICE ISSUED BY THE IST RESPONDENT DT. 5.9.2007. EXT.P8(a):- COPY OF THE DEMAND NOTICE ISSUED BY THE IST RESPONDENT DT. 5.9.2007. EXT.P9:- COPY OF THE PROCEEDINGS OF THE IST RESPONDENT DT. 7.9.2007. /TRUE COPY/ P.A. TO JUDGE tss ANTONY DOMINIC, J ----------------------------------------------------------------- W.P.(C).NO.27526/2007 ----------------------------------------------------------------- Dated this the 9th day of June, 2008 JUDGMENT Challenge in this writ petition is against Ext.P6 Government Order and also Ext.P8 and P8(a) demand notices. 2. The issue raised in this writ petition is regarding the levy of property tax in respect of a commercial complex constructed by the petitioners. According to them, they are constructed only the ground floor of the building, having a plinth area of 331 sq. mtrs. Petitioners submit that, they were issued Exts.P2 and P2(a) demand notices, demanding an amount of Rs.1,15,914/-. Petitioners contend that, for quantifying the tax amount, annual rent was taken at the rate of Rs.185.5 per sq.ft and tax levied was at the rate of 32.5 per sq.ft. W.P(c).No.27526/2007 2 3. On receipt of the demand notices, petitioners filed Ext.P4 objection and overruling the same, giving a marginal reduction by 8%, they were again issued Exts.P5 and P5(a) demand notices. Though against Exts.P5 and P5(a), an appeal was maintainable under Section 509 of the Muncipalities Act, petitioners filed a writ petition before this court as WP(c).No.15806/2007. The provocation for filing this writ petition, instead of resorting to the statutory remedy, was that, in the meanwhile the Government had issued Ext.P6 Order placing restrictions on the freedom of the appellate authority to grant relief in matters of this nature. 4. The writ petition was considered by this court and by Ext.P7, the case was disposed of recording the submission of the counsel for the Muncipality that the matter will be reconsidered. The challenge against the Government Order was left open in the judgment. In pursuance to the judgment, the matter was reconsidered and again Exts.P8 and P8(a) demand notices were issued. W.P(c).No.27526/2007 3 They were also issued Ext.P9 final order. It is in this back ground, aggrieved by Exts.P8 and P8(a), this writ petition has been filed seeking to challenge the demand notices referred to above and also Ext.P6 Government order. 5. Learned Counsel for the petitioners seeks to impugn Exts.P8 and P8(a) on the ground that those orders do not contain reasons for the levy, that is imposed on the petitioners. The counsel refers to the decisions reported in K.O. Kunju V. Executive Officer, Thrikkakara Panchayat & Another (1984 KLJ 470) and K.J. joseph & Ors. V. Corporation of Cochin(1987(2)KLT 427) in support of this proposition. Objection is also taken to Ext.P6 on the ground that, it being only an administrative instruction, cannot override the statutory provision and that the Government can not place any fetter on the right of the appellate authority to grant relief as it deems fit. It is contended that, in respect of similar buildings located in areas, which are more commercially important, the property tax levied is much less than that is levied on the W.P(c).No.27526/2007 4 petitioner. Reference is made to Ext.P3, to support this contention. 6. The learned Government Pleader and the Standing Counsel for the Municipality seek to support Exts.P6 and P8 and P8(a). Counsel submits that as against Exts.P8 or P9 final orders, an appeal is maintainable under Section 509 of the Act to the Standing Committee of the Muncipality. It is also contended that the source of power to issue Ext.P6 is in Section 279 of the Muncipalities Act. It is also submitted that, Exts.P8 and P9 contains the reasons and therefore the argument that they are not speaking orders is incorrect. 7. I have considered the submissions made by the counsel for both the parties. Ext.P6 shows that, by the said order the Government had directed that in order to protect the financial resources of local bodies, restrictions should be imposed on the relief that is to be granted in the appeals and revision that are entertained by the Appeal Standing Committees. It is stated that, the maximum permissible relief has to be restricted to 20% of the levy that has been W.P(c).No.27526/2007 5 imposed. The order does not refer to any statutory provision on the basis of which the same is issued and I should also accept the contention of the learned counsel for the petitioners that neither Section 509 nor section 279 enables the Government to issue such an order. Going by the terms of Section 509, it is for the appellate revisional authority to decide what relief should be granted in each case. In my view, so long as the statues does not place any fetter on that right, no authority even those superior to the appellate authority including Government, can issue executive instructions placing fetters on the statutory right that is conferred on the appellate/revisional authority. In any case, it is for the appellate/revisional authority to grant relief and the authority cannot be expected to act at the dictates of any other superior authority and surrender his discretion. Ext.P6, in my view, is suffers from all these illegalities and is liable to be set aside and I do so. 8. Next contention raised by the learned counsel for the petitioners is that Exts.P8 and P8(a) demand notices W.P(c).No.27526/2007 6 and Ext.P9 are not speaking orders. A reading of these orders show that the orders do not reflect the basis on which the levy has been quantified or the rate has been adopted in this case. Since, Exts.P8, P8(a) and P9 does not contain the reasons which lead the Municipality to levy the tax as demanded therein, these orders are liable to be held as non-speaking orders. In the judgments relied on by the counsel for the petitioners, this court had already taken the view that, the orders passed by the local bodies imposing tax should contain reasons. In view of this Exts.P8,P8(a) and P9 deserves to be quashed. I do so. 9. True as contended by the counsel for the Municipality, though an appeal is provided under Section 509 to the Standing Committee, in view of the fact that the Exts.P8, P8(a) demand notices and Ext.P9 final orders are bad for not containing the reasons there of, there is no question of directing the petitioners to file appeal in terms of Section 509 as the appellate authority will not be in a position to appreciate the case, in the absence of reasons W.P(c).No.27526/2007 7 for the levy. As Exts.P8 and P8(a) and P9 stand quashed, the first respondent shall issue notice to the petitioners hear their objections and thereafter pass fresh orders in the matter. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE vi. W.P(c).No.27526/2007 8