IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 WP(C).No. 31173 of 2008(J) -------------------------- PETITIONER(S): --------------- VARGHESE THOMAS, KALAIKATTIL PANICKARU VEEDU, MAMMEN MATHAI NAGAR, MANJADI P.O., THIRUVALLA. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.JACOB P.ALEX RESPONDENT(S): --------------- 1. SECRETARY, THIRUVALLA MUNICIPALITY, MUNICIPAL OFFICE, THIRUVALLA. 2. THIRUVALLA MUNICIPALITY, THIRUVALLA, REP. BY ITS SECRETARY. 3. THE CHAIRMAN, SPECIAL BUILDING COMMITTEE, THIRUVALLA MUNICIPALITY, MUNICIPAL OFFICE, THIRUVALLA. 4. MONICHAN THOMAS, KALAIKATTIL HOUSE, KAVIYOOR, THIRUVALLA. R1 TO R3 BY ADV. SRI.S.SUBHASH CHAND, SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2009, ALONG WITH WPC NO. 17758 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.31173/08 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE BUILDING PERMIT DATED 17.10.2003 NO.185/01-02. EXT.P2: TRUE COPY OF THE S.O.(SA) NO.1108/04/LSGD DTD.24.3.04. EXT.P3: TRUE COPY OF THE MINUTES OF THE SPECIAL BUILDING COMMITTEE DATTED 29.4.2004. EXT.P4: TRUE COPY OF THE RECEIPT DTD 22.9.2004 FOR RS.116440/- EXT.P5: TRUE COPY OF THE LETTER NO.R1-651-4/04 DTD 27.12.2004. EXT.P6: TRUE COPY OF THE MINUTES OF THE SPECIAL COMMITTEE DATED 20.6.2005. EXT.P7: TRUE COPY OF THE LETTER DP-6905/05 DATED 1.10.2005. EXT.P8: TRUE COPY OF THE REPLY ISSUED TO THE 1ST RESPONDENT BY THE CHIEF TOWN PLANNER DATED 22.11.2005. EXT.P9: TRUE COPY OF THE DEMAND NOTICE DATED 30.1.2006 OF THE 4TH RESPONDENT. EXT.P10: TRUE COPY OF THE RECEIPT NO.17713 FOR REMITTANCE OF RS.150000/-. EXT.P10(a): TRUE COPY OF THE RECIEPT NO.25560 DTD.22.3.07 FOR REMITTANCE OF RS.10500/-. EXT.P11: TRUE COPY OF THE DEMAND NOTICE NO.R1-6514/04 DATED 13.9.2007 FOR AN AMOUNT OF RS.661055/-. EXT.P12: TRUE COPY OF THEOCCUPANCY CERTIFICATE ISSUED BY THE MUNICIPAL ENGINEER, THIRUVALLA ON 30.6.2008. EXT.P13: TRUE COPY OF THE LETTER NO.R1-6514/04 DATED 5.8.2008. WPC.31173/08 EXT.P14: TRUE COPY OF THE LETTER DATED 8.6.2008 SENT TO THE 1ST REPSODENT BY THE PETITIONER. EXT.P15: TRUE COPY OF THE LETTER DATED 11.7.2008 SENT TO THE 1ST RESPONDENT BY THE PETITIONER. EXT.P16: TRUE COPY OF THE JUDGMENT DATED 12.8.2008 IN W.P(C). 23652 OF 2008 OF THIS HON'BLE COURT. EXT.P17: ORDER NO.R1-6514/04 DATED 3.10.2008 OF THE 1ST REPSONDENT. EXT.P18 SERIES: RENT/LEASE DEED. ANNEXURE 1: APPEAL FILED BEFORE THE TRIBUNAL. ANNEXURE 11: IA NO.1358/08 FILED BEFORE THE TRIBUNAL. ANNEXURE 111: RECEIPT DATED 10.2.2009 FOR RS.603288/- ANNEXURE IV: RECEIPT DATED 10.2.2009 FOR RS.220171/- ANNEXURE V: ORDER DATED 11.3.2009 OF TRIBUNAL. ANNEXURE VI: NOTICE DATED 24.2.2009 FROM R2. ANNEXURE A: TRUE COPY OF THE PROVISIONAL TAX ASSESSMENT NOTICE DATED 24.2.2009 FOR THEYEAR 2008-09. ANNEXURE B: TRUE COPY OF THE OBJECTION DATED 3.4.2009 TO ANNEXURE A. ANNEXURE C: TRUE COPY OF THE REPLY DATED 20.4.09 BEARING NO.R1- 6514/04. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).Nos.31173 OF 2008 & 17758 OF 2009 ------------------------------------------- Dated this the 6th day of July, 2009 JUDGMENT 1.The petitioner in these matters owns a building within the jurisdiction of Thiruvalla Municipality. Issues arose between him and the Municipality regarding payment of property tax and also regarding numbering of the building and issuance of ownership certificate. After hearing counsel for parties and following earlier interim orders, this Court issued a further interim order in W.P(C).31173/08, on 25.11.2008, directing the Municipality to issue occupation (occupancy) certificate and to make regular assessments of property tax. In respect of assessments purportedly made under Section 242 of the Kerala Municipality Act, 1994, hereinafter, the “Act”, the petitioner was relegated to file an appeal before the Tribunal for Local Self Government Institutions. WPC.31173/08 & 17758/09 Page numbers 2. Following the aforesaid, the petitioner filed an appeal to the Tribunal and that has been returned with an endorsement that he has to remit the amounts covered by the demand impugned in the appeal. This led to the institution of W.P(C).17758/09. 3. From the aforesaid, it is clear that there are two issues between the parties; one relatable to regular assessments made pursuant to the interim order in W.P(C).31173/08 and the other relatable to the purported invocation of Section 242 of the Act and assessments thereunder. The latter among the two, though is a matter on which the petitioner was relegated to the Tribunal, is essentially one on which an appeal would lie before the appropriate standing committee and not before the Tribunal. The condition precedent to be satisfied to sustain that appeal is deposit. With the passage of time, deposit has been made in terms of the appeal presented before the Tribunal. Obviously therefore, that has to be reckoned as a deposit made for the purpose of the appeal before the standing committee and taking into consideration the pendency of these WPC.31173/08 & 17758/09 Page numbers writ petitions and the exercise carried out by the petitioner before the Tribunal, it is directed that in so far as the purported levy under Section 242 of the Act is concerned, the standing committee shall entertain an appeal from the petitioner on that issue and decide thereon in accordance with law, provided such appeal is filed within a period of two weeks from the date of receipt of a copy of this judgment. 4. In so far as it relates to the regular assessment, Ext.P7 in W.P (C).17758/09 is issued notifying the petitioner of the amounts assessed as yearly tax and payables thereon. While the counsel for the Municipality may be justified, on the terms of the statute, in saying that such an assessment admits for, only the institution of an appeal against it to the standing committee, which again would be conditional on the deposit of the disputed amount, a reading of Ext.P7 would show that it contains the grant of an opportunity of pre-decisional hearing since it is stated therein that if the petitioner has any objections to the fixation of the tax as shown therein, he would WPC.31173/08 & 17758/09 Page numbers be entitled to file objections. He has accordingly filed objections, which is Ext.P8 in W.P(C).17758/09. Having been afforded such an opportunity by the statutory authority, though that might not have been mandatory, it is inappropriate to deny him such an opportunity. This is because, even in the absence of a rule of hearing being statutorily prescribed, an opportunity of hearing could be extended except in cases where it is prohibited by express or inexcusably implied exclusion of the natural justice. Under such circumstances, it is directed that the proposal made as per Ext.P7 will stand provisional, obliging the Secretary of the Municipality to hear the petitioner on his objections and to issue a final order of assessment in terms of law. Let that be done within a period of two months, in accordance with law. 5. As a consequence of the above, further enforcement of Exts.P9 and P10 in W.P(C).17758/09 will be held back, awaiting decision as aforesaid. The occupancy certificate and ownership certificate issued by the Municipality in terms of WPC.31173/08 & 17758/09 Page numbers the interim orders would stand provisional, to be regulated by what follows the procedures directed above. The writ petitions are disposed of accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.7/7.