IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 OP.No. 38660 of 2001(B) ---------------------------------- PETITIONER(S): ------------------------ S.ABDUL RAZZAK, 44/1257 A., ASHOKA CROSS ROAD, KALOOR KOCHI 17. BY ADV. SRI.K.A.JALEEL RESPONDENT(S): ------------------------- 1. THE SECRETARY, CORPORATION OF COCHI, COCHI CORPORATION OFFICE, COCHI 11. 2. THE SUPERINTENDENT, REVENUE SECTION, COCHI CORPORATION ZONAL OFFICE EDAPALLY, COCHI 11. ADV. SRI.K.R.SUNIL FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.38660/2001 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE IST RESPONDENT'S ASSESSMENT ORDER DT. 21.7.1993. P2:- COPY OF THE APPELLATE ORDER ON A.P. NO.28/92-97 DTD. 17.6.1996. P3:- COPY OF THE HONOURABLE COURT'S INTERIM ORDER DT. 8.7.1996 IN CMP. 5294/96. P4:- COPY OF THE PETITIONER'S REPRESENTATION DTD. 4.2.1997. P5:- COPY OF THE PETITIONER'S REPRESENTATION 15.9.1998 SUBMITTED TO THE IST RESPONDENT. P6:- COPY OF THE JUDGMENT DTD. 5.6.2000 IN OP. NO.2994/1996. P7:- COPY OF THE SPECIAL NOTICE DTD. 17.12.2001 TO PETITIONER FROM IST RESPONDENT FOR BUILDING NO.44/1257. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss C.T. RAVIKUMAR, J. -------------------------------------------- O.P. NO.38660 OF 2001 -------------------------------------------- Dated this the 24th day of May, 2011 JUDGMENT The petitioner was assessed to property tax in respect of his residential building bearing No.1257A in Ward No.44 of Cochin Corporation. This Writ Petition has been filed mainly challenging Ext.P7. The further prayer is for issuance of a writ of mandamus commanding the respondents to permit the petitioner to discharge the liability for arrears of property tax from 1994 in 7 equal bimonthly instalments commencing from 1st January 2002. 2. Against Ext.P1 assessment order dated 21.7.1993, the petitioner has preferred an appeal and that culminated in Ext.P2 order. During the pendency of the appeal, the petitioner was served with a demand notice requiring the petitioner to remit the amount in terms of Ext.P1 assessment order and cautioning him to face recovery proceedings in default. Aggrieved thereby, the petitioner has filed O.P.No.2994/1996 before this Court. As per Ext.P3 order, this Court stayed the recovery proceedings till the disposal of the said original petition. During the pendency of the said original petition, Ext.P2 appellate order was passed O.P. NO.38660/2001 2 and virtually the original petition had become infructuous. Thereupon, the petitioner has preferred Ext.P4 representation before the second respondent seeking permission to remit tax for the period from 1.4.1996. According to the petitioner, despite the receipt of Ext.P4, no action was taken thereon. Subsequently, Ext.P5 representation was submitted by the petitioner on 15.9.1998 requesting the first respondent to accept the property tax in terms of Ext.P2 order. Later, O.P.No.2994/2006 was dismissed as infructuous as per Ext.P6 judgment and the said judgment was communicated to the respondents. Long later, Ext.P7 demand notice was issued to the petitioner. As per Ext.P7, a penalty of Rs.5746/- was also imposed on the petitioner for the arrears of property tax demanded therein. The contention of the petitioner is that no latches or default could be attributed on him for the inordinate delay in issuing Ext.P7 demand notice, especially, in view of the fact that he had earlier represented before the respondents to permit him to effect payment in terms of Ext.P2 order in and vide Exts.P4 and P5. The imposition of penalty and demand for the arrears of tax for the entire period from 1992-93 till 31.3.2002 is illegal, it is contended. 3. No counter affidavit has been filed in this Writ Petition. As already noticed hereinbefore, one of the prayers of the petitioner is for issuance of a writ of mandamus commanding the respondents to permit O.P. NO.38660/2001 3 him to discharge the liability of arrears of property tax in instalments commencing from 1.1.2002. As already stated, against Ext.P1assessment order, the petitioner has preferred an appeal and Ext.P2 order was passed in the said appeal. As per the said order, the property tax assessed at the rate of Rs.979/- as per Ext.P1 was reduced to Rs.501/-. Evidently, as per Ext.P7, assessment of tax for the period from 1992-'93 to 2001-'02 was made in terms of Ext.P2. Considering the fact that the petitioner himself had requested the respondents vide Exts.P4 and P5 to permit him to effect payment of property tax in terms of Ext.P2, the failure to respond to Exts.P4 and P5 and to receive the same in terms of Ext.P2 cannot be worked out against the petitioner and therefore, I am of the view that the petitioner cannot be saddled with the liability to pay penalty of Rs.5746/-. The contention of the petitioner is that he was not permitted to remit the property tax in terms of Ext.P2 despite the receipt of Exts.P4 and P5. It was about after 18 months since the production of Ext.P6 judgment in O.P.NO.2994/1996 that Ext.P7 demand notice, imposing a penalty of Rs.5746/- as well, was issued to the petitioner. The respondents cannot be permitted to take advantage of the delay and latches on their part. In the absence of a counter affidavit refuting specific contentions of the petitioner, the contentions of the petitioner attributing delay and latches on the part of the respondents in issuing demand notice and then attempting to O.P. NO.38660/2001 4 gain undue benefits even for such lapse, cannot be said to be bereft of any basis. That apart, what exactly is the basis for imposing penalty to the tune of Rs.5746/- is also not discernible from Ext.P7. In view of the said circumstances, I am inclined to accept the contention of the petitioner that the action on the part of the respondents in saddling the petitioner with penalty is unsustainable. Accordingly, Ext.P7 to the extent it imposes penalty to the tune of Rs.5746/- is set aside. Accordingly, this original petition is disposed of as hereunder:- The petitioner is permitted to effect payment of the amount of property tax demanded as per Ext.P7 after deducting the penalty of Rs.5746/- in three equal monthly instalments commencing from 31.5.2011. Balance two instalments shall be paid on or before 30th day of succeeding months. The learned counsel for the petitioner submitted that on 21.12.2001, this Court directed the petitioner to deposit an amount of Rs.3,000/- as condition for staying the impugned order. It is made clear that in case the petitioner had deposited Rs.3,000/- in terms of the said interim order, the petitioner shall pay only the balance amount viz., Rs.8276/- to satisfy the demand made as per Ext.P7. (C.T. RAVIKUMAR, JUDGE) spc O.P. NO.38660/2001 5 O.P. NO.38660/2001 6 O.P. NO.38660/2001 7 C.T. RAVIKUMAR, J. JUDGMENT September, 2010