Kerala High Court
Tgn Kumar vs Kochi Municipal Corporation on 8 July, 2025
2025:KER:49760
W.A No.1445 of 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
WA NO. 1445 OF 2025
AGAINST THE JUDGMENT DATED 10.06.2025 IN WP(C)
NO.21252 OF 2025 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
TGN KUMAR
AGED 54 YEARS
SON OF MR. TV GOPALAN, RESIDING AT 33/3004, VENNALA
(PO)ERNAKULAM DISTRICT, PIN - 682028
BY ADV SHRI.SHAJI CHIRAYATH
RESPONDENTS/RESPONDENTS:
1 KOCHI MUNICIPAL CORPORATION
CORPORATION OFFICE, PARK AVENUE ROAD, ERNAKULAM TOWN
REPRESENTED BY ITS SECRETARY, PIN - 682011
2 ACCOUNTANT GENERAL (AUDIT I), KERALA
INDIAN AUDIT & ACCOUNTS DEPARTMENT, OFFICE OF THE
ACCOUNTANT GENERAL (AUDIT I), AUDIT BHAVAN, STATUE,
THIRUVANANTHAPURAM,, PIN - 695001
2025:KER:49760
W.A No.1445 of 2025
2
3 ASSISTANT EXECUTIVE ENGINEER
KOCHI MUNICIPAL CORPORATION, EDAPPALLY ZONAL OFFICE,
AJUMANA ROAD, EDAPPALLY, ERNAKULAM, PIN - 682024
BY ADVS SHRI.K.JANARDHANA SHENOY, SC, KOCHI MUNICIPAL
CORPORATION
SRI.LEO LUKOSE
SRI.VIPIN P VARGHESE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
19.06.2025, THE COURT ON 08.07.2025 DELIVERED THE FOLLOWING:
2025:KER:49760
W.A No.1445 of 2025
3
JUDGMENT
Sushrut Arvind Dharmadhikari, J.
The present intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958 assails the judgment dated 10.06.2025 in WP(C) No.21252 of 2025 whereby the learned Single Judge has disposed of the writ petition by directing the 3rd respondent to afford the appellant an opportunity of being heard before Ext.P5 order is finalised, notwithstanding Ext.P6 notice, as expeditiously as possible.
2. The writ petitioner is the appellant in the present case. The writ petition was filed challenging the illegal re-assessment of the appellant's building by the 3rd respondent pursuant to the audit report of the 2nd respondent, when building permit and tax assessment are completed by the 1st respondent.
3. The appellant is the owner and in possession of the property having an extent of 10.12 Ares situated in Survey No.78/3-2-2 of Edappally South Village, Kanayannur Taluk, Ernakulam District and the building bearing No.42/1643A of Kochi 2025:KER:49760 W.A No.1445 of 2025 4 Municipal Corporation. The appellant has regularly paid the building tax to the Kochi Municipal Corporation from the date of issuance of completion certificate for occupancy by the Kochi Municipal Corporation and Ext.P1 is the current building tax receipt.
4. The appellant was issued Ext.P3 notice by the 3rd respondent directing demolition of alleged unauthorised construction and Ext.P5 provisional assessment order was purportedly issued on the basis of the same. The grievance of the appellant is that the learned Single Judge failed to consider that the 3rd respondent being a statutory authority is bound to issue documents and reports relied on by it while passing the said order. On the contrary, there is no opportunity granted to the appellant to peruse the document or cross-examine either the auditor of the 3rd respondent or the engineer staff of the 1st respondent, which amounts to violation of the principles of natural justice. The learned Single Judge also failed to assess as to whether the 2nd respondent has power to inspect and adjudicate 2025:KER:49760 W.A No.1445 of 2025 5 matters relating to building permit and property tax. The issues which arise for consideration in this appeal are:
(i) Whether the 2nd respondent has jurisdiction under the Kerala Local Fund Audit Act, 2014 or The Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971 (hereinafter referred to as 'the CAG Act, 1971') to inspect and adjudicate matters relating to building permit and property tax.
(ii) Whether Exts.P3 and P5 are legally sustainable.
5. On the other hand, learned counsel for the respondents submitted that the writ petition itself was not maintainable inasmuch as only the show cause Notice Ext.P3 has been issued asking the appellant to show cause as to why the building cannot be demolished as it is an unauthorized construction. Therefore, at this stage, the petition ought not to have been entertained and the appeal itself is not maintainable and is liable to be dismissed.
2025:KER:49760 W.A No.1445 of 2025 6
6. Heard both sides and perused the records.
7. The powers of the Local Fund Audit Department are governed by the Kerala Local Fund Audit Act, 1994. Section 4 thereof enables audit of accounts of local authorities. Section 5 defines the scope of such audit as examination of accounts and transactions to verify financial regularity and compliance with applicable rules. Section 6 confers only access to documents and records for audit purposes and does not empower the department to pass executive or quasi-judicial orders. Similarly, under the CAG Act 1971, Section 14 authorises audit of bodies substantially financed by government funds, and Section 20 permits audit on a request by the Governor. These provisions are also confined to financial audit and do not empower the CAG or its delegates to pass enforceable directions or adjudicate building related issues.
8. In contrast, the Kerala Municipality Act, 1994 provides a clear and exclusive mechanism under Sections 233 to 235 for assessment and revision of building tax. These powers are conferred solely upon the Municipal Secretary and Standing 2025:KER:49760 W.A No.1445 of 2025 7 Committee for Finance. Section 295 mandates annual audit by the Government, but only of accounts, not substantive decisions like issuance of building permits. We are of the considered opinion that the 2nd respondent has no statutory authority to determine the legality of building construction or to reassess the building tax fixed by the 1st respondent. The functions of the auditors i.e the 2nd respondent under both the Acts i.e. Kerala Local Fund Audit Act and CAG Act are limited to examination of accounts and do not extend to executive enforcement or demolition. Moreover, the language and tenor of Ext.P3 disclose that the 3rd respondent has already taken a decision for demolition. Therefore, the challenge in the writ petition is maintainable.
9. Had the show cause notice been simply asking for a reply, the situation would have been different. But in the present show cause notice, there is a specific finding with regard to demolition which cannot be sustained that too without affording the appellant an opportunity to be heard. This amounts to direct 2025:KER:49760 W.A No.1445 of 2025 8 infraction of the principles of natural justice. Such unilateral and punitive action beyond the jurisdiction of the 3rd respondent renders Ext. P3 arbitrary and illegal. As a result, Ext.P5 being a provisional assessment order issued in furtherance of illegal notice also cannot be sustained.
10. In view of the aforesaid, we are of the conclusion that the learned Single Judge has not considered the provisions as mentioned hereinabove of both the Acts leading to disposal of the writ petition by directing the 3rd respondent to afford an opportunity of hearing and thereafter pass a reasoned and speaking order.
11. Accordingly, the judgment passed by the learned Single Judge cannot be upheld. The same is hereby set aside. Ext.P3 notice issued by the 3rd respondent is declared to be illegal, arbitrary and without jurisdiction and the same is also quashed. Ext.P5 provisional assessment order also stands quashed as a consequence having no independent legal basis. The 2nd respondent has no power or authority to inspect, review or 2025:KER:49760 W.A No.1445 of 2025 9 reassess the legality of building permit or assessment of building tax made by the Municipal Corporation under the Kerala Municipality Act, 1994. It is made clear that the quashment of Exts.P3 and P5 are confined to the case of the appellant alone and shall not affect any third party proceedings.
Accordingly, this writ appeal is allowed. No order as to costs.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M
JUDGE
smp