IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 WP(C).No. 34360 of 2004(M) ----------------------------------- PETITIONER(S): ------------------------ SURAYYA, D/O.LATE V.BEERAN KOYA, 12/507, MUSALIYARAKAM, KUTICHIRA, KOZHIKODE -1. BY ADV. MR.AVM.SALAHUDIN RESPONDENT(S): ------------------------- 1. THE CORPORATION OF KOZHIKODE REP. BY ITS SECRETARY, KOZHIKODE. 2. SECRETARY, KOZHIKODE CORPORATION, KOZHIKODE. BY ADVS. MR.M.P.PRABHANANDAN,SC,KOZHIKODE CORPN FOR R1, R2 MR.P.V.KUNHIKRISHNAN,SC,KOZHIKODE CORP FOR R1 & R2 MR.K.D.BABU,SC,KOZHIKODE CORPORATION FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.34360/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PETITION DT. 19.7.04 FOR CHANGE OF REGISTRY OF OWNER SHIP MADE BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P2:- COPY OF THE DEMAND NOTICE DT. 31.8.04 SENT BY THE 2ND RESPONDENT TO THE PETITIONER. P3:- COPY OF THE OBJECTIONS DT. 15.9.04 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. TRUE COPY P.A. TO JUDGE TSS THOTTATHIL B RADHAKRISHNAN, J ........................................... WP(C).NO. 34360 OF 2004 ............................................ DATED THIS THE 9th DAY OF JUNE, 2009 JUDGMENT The petitioner's father owned an item of property and he was liable to pay property tax to the Corporation of Kozhikode. He died in 1993. Later, the petitioner applied to the Corporation to change the name of the owner of the building by showing her as the owner. The Corporation took the stand that the transfer of ownership can be done only upon payment of the amount of property tax which remained as arrears. The petitioner challenges that fundamentally on the ground that in terms of the declaration of law by the Division Bench of this court in Corporation of Cochin V. New India Maritime Agencies (P) Ltd(2003(3) KLT 209), the Corporation is entitled to claim the arrears more than that is due for the past three years. That decision was rendered on the question of the power of the Corporation to take destraint action in terms of Section 417 of the Municipal Corporations Act. The provision for transfer of ownership is not a mode of destraint. The liability to pay arrears of tax is a condition imposed for WP(C)34360/2004 2 transfer of ownership. That liability of the transferee for payment of such tax need not necessarily include the penalty and other provisions, which may definitely accrue when a destraint action is taken. Therefore, if the petitioner deposits the amount of tax without penalty as shown in Ext.P2, and makes appropriate request to the counsel of the Corporation for waiver of the payment of fine as a condition precedent for transfer of ownership, that will be duly considered sympathetically. Writ petition ordered accordingly. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/9/6