IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 WP(C).No. 37590 of 2007(Y) -------------------------------------- PETITIONER: -------------------- A.P.MAJEED KHAN VELLANKULATHALAVEEDU ATHIYANNUR, NEYYATTINKARA THIRUVANANTHAPURAM DIST. BY ADV. SRI.ANIL K.NARENDRAN RESPONDENTS: ----------------------- 1. THE CORPORATION OF THIRUVANANTHAPURAM THIRUVANANTHAPURAM REP. BY ITS SECRETARY. 2. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM. BY ADV. SRI.N.NANDAKUMARA MENON (SR.) - R1 SRI.P.K.MANOJKUMAR - R1 BY GOVERNMENT PLEADER SRI.K.V.MANOJ KUMAR - R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37590/2007 APPENDIX PETITIONERS EXHIBITS ANTONY DOMINIC, J ----------------------------------------------------------------- W.P.(C).NO.37590/2007 ----------------------------------------------------------------- Dated this the 2nd day of June, 2008 JUDGMENT Challenge in this writ petition is against Ext.P18, an endorsement made by the second respondent, on a revision that was filed by the petitioner against Ext.P16 order of the first respondent, rejecting Ext.P14 appeal filed by the petitioner against Ext.P5. 2. Petitioner submits that, he had constructed eight shop rooms, out of which seven are lying vacant and none of them has been let out. Since seven rooms were lying vacant, petitioner submitted Ext.P2, requesting that tax shall not be demanded in respect of those vacant seven rooms that were lying vacant. It is stated that the receipt of Ext.P2 has been acknowledged by the respondents as per Ext.P2(a). The petitioner submits that subsequently he got Exts.P3 and P4 notices demanding tax for all the above 2 eight shop rooms. On receipt of the notices, he repeated his request in Ext.P2, by submitting Ext.P4, the receipt of which is acknowledged by Ext.P5(a). Since he had not paid the tax due in terms of Ext.P3 and P4, revenue recovery proceedings were threatened and as a result there of, tax for the period up to Ist half of 2006-07 was paid by the petitioner, the receipt of which is acknowledged by Ext.P6 to P13. 3. Against Exts.P3 and P4, petitioner filed an appeal and again made Ext.P15 to the Corporation reiterating that 7 rooms of the building were lying vacant. It is submitted that, by Ext.P15(a), Ext.P15 made by the petitioner was acknowledged by respondents. Subsequently, by Ext.P16 order, the respondents rejected Ext.P14 appeal, on the ground that the same was filed belatedly. Aggrieved by Ext.P16 order petitioner submitted Ext.P17 revision before the 2nd respondent and on Ext.P17 the tribunal made certain endorsements, copy of which is produced in the writ petition as Ext.P18. According to the tribunal the revision was defective in as much as the tax demanded in terms of the orders impugned before him were not paid and hence 3 there is non compliance with Section 509(11) of the Municipalies Act. In Ext.P18, petitioneris further directed to pay tax for the future period as well. It is in the aforesaid background this writ petition has been filed . 4. On behalf of the first respondent a statement has been filed where the averments of the petitioner have been disputed. As regards the claim that 7 rooms of the building were lying vacant, it has been stated in para 6 of the statement as follows. “It is brought to the notice of this Honourable Court that at the time when the building tax was assessed it is seen that the building was under the occupation of the owner and he is making use of the building. The petitioner has at no point of time raised the objection that he is not the occupier of the building. In the property tax Index sheet, the name of the occupier is shown as the owner.” The above averment has been denied in the reply affidavit. 5. Therefore what arises for determination is the liability of the petitioner for payment of tax as demanded for the period subsequent to the first half of 2006-07. As 4 already noticed, Section 509 of the Municipalities Act deals with appeals and sub section 11 there of provides that no appeal or revision shall be filed against levy of tax, if the tax shown in the demand notice has not been paid. The ground on which the petitioner pleads that he is not liable to pay the tax is that the seven rooms in respect of which the tax is now demanded are lying vacant. 6. Though the petitioner has raised a dispute on the correctness of the claim made by the respondents in their statement filed to the effect that at the time of inspection, they had found that 7 out of 8 rooms were in the occupation of the petitioner himself, it being a disputed question of fact, this court will not be justified in concluding the issue one way or other. In my view, this isquarely is a matter which is to be considered by the tribunal, being a fact finding authority before whom evidence can also be let in by both the parties. In view of that, the objection in Ext.P18 to the extent requiring payment of tax as demanded has to be sustained and the correctness of which has to be decided by the tribunal. 5 7. The petitioner takes objection to the direction in Ext.P18 requiring him to pay the tax up to second half of 2007-08. Section 509(11) only requires payment of tax as shown in the demand notice for maintaining an appeal against levy of tax. However, the demand notice which led the petitioner to file the appeals are Exts.P3 and P4. These notices require payment of tax for the period only up to the second half of 2006-07. Therefore, in effect what the Tribunal has required the petitioner to pay in Ext.P18 is tax for the future period as well. This does not seem to have the sanction of Section 509(11) and therefore the direction to the extent it required the petitioner to pay tax for the period beyond the second half of 2006-07, cannot be sustained. 8. Therefore, upholding the direction in Ext.P18 except the one requiring payment of tax for the period beyond the period covered by Exts.P3 and P4, the writ petition is disposed of. Petitioner shall comply with the directions in Ext.P18 to the extent upheld as above, within two weeks from today 6 and on payment of tax as above, the Tribunal will deal with the appeal on merits. ANTONY DOMINIC JUDGE vi.