Tilak Nagar Association vs State Of Kerala

Kerala High Court

Tilak Nagar Association vs State Of Kerala on 20 May, 2024

Author: P Gopinath

Bench: P Gopinath

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
        MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
                       WP(C) NO. 26806 OF 2017
PETITIONER:

            TILAK NAGAR ASSOCIATION
            TILAK NAGAR, PAROTTUKONAM, NALANCHIRA P.O,
            THIRUVANANTHAPURAM, REPRESENTED BY ITS GENERAL
            SECRETARY GOPEENDRAN NAIR,S/O.AYYAPPAN PILLAI, AGED 74
            YEARS, DEEPAM,PAROTTUKONAM, NALANCHIRA P.O.,
            THIRUVANANTHAPURAM - 695 015.
            BY ADV SRI.JOSE THOMAS (PALA)


RESPONDENTS:

    1       THE STATE OF KERALA,
            REPRESENTED BY THE PRINCIPAL SECRETARY,LOCAL SELF
            GOVERNMENT DEPARTMENT, SECRETARIAT,
            THIRUVANANTHAPURAM, PIN: 695 004.
    2       THE MUNICIPAL CORPORATION OF THIRUVANANTHAPURAM,
            REPRESENTED BY ITS SECRETARY,CORPORATION OFFICE,
            THIRUVANANTHAPURAM,PIN - 695 033.
            BY ADVS.
            SRI.N.NANDAKUMARA MENON (SR.)
            SRI.P.K.MANOJ KUMAR, SC, TVPM CORPORATION

            SRI. SUMAN CHAKRAVARTHY (SC- TVM CORP),
            SRI. VENUGOPAL V (GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 26806 OF 2017
                                  2

                             JUDGMENT

The petitioner has approached this Court being aggrieved by the fact that Ext.P9 appeal filed by the petitioner before the Tribunal for Local Self Government Institutions, Thiruvananthapuram (hereinafter referred to as 'the LSGT') under Section 509 of the Kerala Municipality Act, 1994 (hereinafter referred to as '1994 Act') against Ext.P5 proceedings of the respondent Corporation has been rejected by Ext.P11 order on the ground that it is barred by limitation.

2. The learned counsel appearing for the petitioner would submit that on receipt of Ext.P5 proceedings, the petitioner had preferred Ext.P6 representation before the Government in terms of the provisions contained in Section 233(18) of the 1994 Act. It is submitted that Ext.P6 representation was considered by the Government and Ext.P8 communication was issued to the petitioner only on 29.06.2015. It is submitted that immediately on receipt of Ext.P8 communication, Ext.P9 appeal had been preferred before the LSGT. It is submitted that the appeal has been dismissed by Ext.P11 order on the ground that it was not filed within the statutory period of limitation taking into consideration WP(C) NO. 26806 OF 2017 3 the date of Ext.P5 order. It is submitted that when the petitioner had a statutory remedy before the Government under sub-section (18) of Section 233 of the 1994 Act and the petitioner had availed such remedy, the petitioner could not be found fault with for not having filed an appeal against Ext.P5 order within the period of limitation from the date of that order and any period of limitation will have to be counted only from the date of Ext.P8 order of the Government.

3. The learned Government Pleader and the learned counsel appearing for the Trivandrum Corporation would submit that the petitioner had to file an appeal under the provisions of Section 509 of the 1994 Act within a period of 30 days and since no such appeal had been filed within 30 days of Ext.P5 order, there is absolutely no illegality in Ext.P11 order of the LSGT warranting interference at the hands of this Court under Article 226 of the Constitution of India. It is also pointed out that the petitioner has no remedy of appeal under Section 509 of the 1994 Act against Ext.P8 order of the Government.

4. Having heard the learned counsel for the petitioner, the learned Government Pleader and the learned Standing Counsel appearing for the Trivandrum Corporation, I am of the view that WP(C) NO. 26806 OF 2017 4 the petitioner is entitled to succeed.

Sub-section (18) of Section 233 reads as follows:-

"The Government may, at any time, inspect the accuracy of the assessment of property tax made by the Secretary in the case of a building and give appropriate direction to the Secretary in this regard and the Secretary shall be bound to comply with it."

Though Ext.P5 is dated 21.01.2011, it is seen from Ext.P5 that below the place assigned for fixing the signature of the Chairman, the date 26.02.2011 is affixed. Therefore the date of Ext.P5 must be taken as 26.02.2011 and not 21.01.2011. It is seen that immediately thereafter on 28.02.2011, the petitioner has preferred Ext.P6 under sub-section (18) of Section 233 before the Government. That representation of the petitioner was disposed of by the Government only on 29.06.2015 through Ext.P8 order. Since the Ext.P6 representation of the petitioner was in terms of the provisions contained in sub-section 18 of Section 233 of the 1994 Act, the petitioner could not have been found fault with for not having preferred an appeal against Ext.P5 before the LSGT within a period of 30 days from the date of Ext.P5. Since the petitioner had preferred a statutory representation against Ext.P5, any period of limitation should have been counted only from the date of WP(C) NO. 26806 OF 2017 5 Ext.P8 and not from the date of Ext.P5. As already noted, Ext.P8 is dated 29.06.2015 and Ext.P9 appeal has been preferred on 23.07.2015. Though this contention was taken before the Tribunal, the Tribunal has rejected the contention as is seen from a reading of paragraph 9 of Ext.P11 order.

Therefore, this writ petition is allowed. Ext.P11 is quashed. Ext.P9 appeal preferred by the petitioner shall stand restored to the file of the Tribunal for Local Self Government Institutions, Thiruvananthapuram and the same shall be considered and disposed of on merits by the Tribunal, after affording an opportunity of hearing to the parties, within a period of six months from the date of receipt of a certified copy of this judgment. I make it clear that I have not expressed any opinion on the merits of the petitioner's claim.

Sd/-

GOPINATH P. JUDGE DK WP(C) NO. 26806 OF 2017 6 APPENDIX OF WP(C) 26806/2017 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE LEASE DEED DATED 27.3.2001 EXHIBIT P2 TRUE COPY OF THE PERMIT DATED 5.1.2010 BY 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF THE PROPERTY TAX ASSESSMENT DATED 10.8.2010 EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 20.11.2010 EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 21.1.2011 EXHIBIT P6 TRUE COPY OF THE APPEL DATED 28.2.2011 EXHIBIT P7 TRUE COPY OF REPRESENTATION DATED 2.6.2014 EXHIBIT P8 TRUE COPY OF LETTER BY 1ST RES. DATED 29.6.2015 EXHIBIT P9 TRUE COPY OF APPEAL/PETITION 706/15 FILED ON 23.07.2015 EXHIBIT P10 TRUE COPY OF WRITTEN STATEMENT DATED 20.9.2016 EXHIBIT P11 TRUE COPY OF ORDER DATED 11.5.2017 BY TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.