IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 WP(C).No. 13701 of 2008(F) ---------------------------------------- PETITIONER(S): -------------------------- 1. N.C.THOMAS, S/O.CHERIAN, AGED 61, NEDUKUDIYIL HOUSE, KOTHAMANGALAM P.O. PIN - 686 191. 2. O.P.KUNJAPPAN, S/O.PAILY, AGED 63, ORAVAKKUDY HOUSE, NELLIKUZHY P.O., KOTHAMANGALAM, PIN - 686 191. BY ADV. MR.S.SREEKUMAR RESPONDENT(S): --------------------------- 1. THE SECRETARY, KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM. 2. THE STANDING COMMITTEE FOR FINANCE, KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM. BY ADVS.MR.V.M.KURIAN, SC, MR.MATHEW B. KURIAN, MR.K.T.THOMAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13701/2008 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF BUILDING PERMIT AS B.A.NO.110/95-96 DTD. 08/08/1995 ISSUED BY THE 1ST RESPONDENT. P2: COPY OF APPROVED PLAN SUBMITTED BY THE 1ST RESPONDENT. P3: COPY OF DOCUMENT NO.4221 OF 1999 OF KOTHAMANGALAM SRO. P4: COPY OF RECEIPT DTD. 28/09/2000 ISSUED BY 1ST RESPONDENT. P5: COPY OF RECEIPT DTD. 18/01/2004 ISSUED BY 1ST RESPONDENT. P6: COPY OF RECEIPT DTD. 30/09/2005 ISSUED BY 1ST RESPONDENT. P7: COPY OF DEMAND NOTICE DTD. 27/03/2008 FOR RS.2,87,104/- FOR THE PERIOD 2005-06, 2006-07 & 2007-08. P8: COPY OF APPEAL DTD. 11/04/2008 SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. P9: COPY OF ACKNOWLEDGMENT CARD. P10: COPY OF COMPARATIVE TABLE OF THE ASSESSMENT OF TWO PORTIONS OF THE BUILDINGS. P11: COPY OF TAX ASSESSMENT DETAILS. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE OCCUPANCY CERTIFICATE DTD. 18/05/2006. R1(B): COPY OF THE REVISION PETITION DTD. 20/10/2006. R1(C): COPY OF THE ACKNOWLEDGEMENT INTIMATING REJECTION OF THE REVISION PETITION IN RESPECT OF ROOM NO.XXV/1064 - Y. R1(D): COPY OF THE REPLY DTD. 15/01/2008. R1(E): COPYOF THE NOTICE DTD. 22/04/2008. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ....................... W.P.(C).13701/2008 ....................... Dated this the 10th day of March, 2010 JUDGMENT The prayer sought in the writ petition is to quash Ext.P7. Petitioner also seeks a direction to the 2nd respondent to consider and dispose of Ext.P8 appeal without insisting on deposit of the amount covered by Ext.P7. 2. The dispute in the writ petition pertains to a building purchased by the petitioners by Ext.P3 sale deed. According to the petitioners, in respect of the aforesaid building, property tax was demanded and they filed Ext.P8 appeal to the standing committee of the Municipality. It is stated that while the appeal was pending, recovery proceedings were initiated and thereupon this writ petition was filed. It is also submitted that during the pendency of this writ petition, in compliance of the interim order passed by this Court, petitioner has remitted Rs.20,000/- each per year. 3. However in the counter affidavit filed by the respondent Municipality it is disclosed that against the assessment, W.P.(C).13701/08 2 petitioner has filed Ext.R1(b) revision which was rejected by Ext.R1(c). It is stated that against Ext.R1(c) no appeal was filed and therefore the assessment has become final. It is also their contention that when Ext.P7 demand notice was issued under Section 538 of the Kerala Municipality Act (in short 'the Act'), petitioner filed Ext.P8 appeal and on receipt of the said appeal, by Ext.R1(e) communication, petitioner was informed that in the absence of pre deposit of the tax demanded, appeal was not maintainable. It is stated that despite receipt of Ext.R1(e), since the petitioner did not remit even the 50% of the tax demanded, the appeal was rejected. 4. Irrespective of the controversies between the parties, fact remains that the petitioner has filed Ext.P8 appeal under Section 509 of the Act. To maintain an appeal under the Act, Section 509(ii) requires deposit of the tax demanded. Though the Municipality could have demanded the petitioner to remit the entire tax, Municipality demanded payment of only 50% of the tax as per Ext.R1(e) and as the petitioner did not comply with that condition, Municipality has rejected the appeal, for which the Municipality cannot be faulted. W.P.(C).13701/08 3 5. Be that as it may, having regard to the fact that the writ petition was pending and as the appeal of the petitioner was rejected for technical reasons, I feel it only appropriate that the petitioners shall be given an opportunity to contest the demand on merits. Therefore, I dispose of this writ petition directing that if the petitioners remits 50% of the tax due as on date deducting the amount paid by the petitioner pursuant to the interim orders passed by this Court in this writ petition, Ext.P8 appeal filed by the petitioners will be considered on merits. It is directed that such consideration will be available to the petitioners only if the petitioners remits the amount due as above, within ten days of receipt of notice from the Municipality calling upon the petitioners to remit such amount. ANTONY DOMINIC, Judge mrcs