Kerala High Court
K.M.Sukumaran vs Aluva Municipality on 12 June, 2025
2025:KER:41274
W.P.(C).No.20990 of 2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
THURSDAY, THE 12TH DAY OF JUNE 2025 / 22ND JYAISHTA, 1947
WP(C) NO. 20990 OF 2015
PETITIONER:
K.M.SUKUMARAN
AGED 68 YEARS
S/O.K.K.MAYILAN, RESIDING AT KOCHUVEETIL,
NETAJI ROAD, COUNCILOR, ALUVA MUNICIPALITY, ALUVA,
PIN 683 101, ERNAKULAM DISTRICT.
BY ADV SRI.VIJAI MATHEWS
RESPONDENTS:
1 ALUVA MUNICIPALITY
REPRESENTED BY ITS SECRETARY, ALUVA MUNICIPAL HOUSE,
PIN 683 101, ERNAKULAM DISTRICT.
2 THE DISTRICT COLLECTOR
ERNAKULAM CIVIL STATION, KAKKANAD 682 030.
3 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
4 OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
REPRESENTED BY ITS SECRETARY, SAPHALLAYAM COMPLEX,
TRIDA BUILDING, PALAYAM, UNIVERSITY PO,
THIRUVANANTHAPURAM 695 034.
5 GRIGARY JOSEPH,
XIV/275 KOLLAMPARAMBIL,
ALUVA WEST, ERNAKULAM 683 101.
BY ADVS.
SRI.K.S.ARUN KUMAR
SRI.K.T.THOMAS
SRI.NIKHIL BERNY
SRI.TONY AUGUSTINE - GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:41274
W.P.(C).No.20990 of 2015
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S.MANU, J.
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W.P.(C).No.20990 of 2015
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Dated this the 12th day of June, 2025
JUDGMENT
Challenge in this writ petition is against Ext.P7 notice issued by the respondent Municipality on 17.7.2012, Ext.P11 order of the Ombudsman for Local Self-Government Institutions in C.M.P.No.246/2013 in O.P.No.1135/2011 dated 26.7.2013, Ext.P14 proceedings of the Chairman, Standing Committee for Finance of the respondent Municipality dated 06.12.2013, Ext.P18 proceedings of the Principal Secretary, Local Self- Government Department dated 23.10.2014 and Ext.P19 demand notice issued by the respondent Municipality on 09.04.2015. Petitioner has also sought for a direction to the 1 st respondent to make final assessment of building tax in respect of his building. He has also inter alia sought for direction to take action against erring officers of the respondent Municipality for their alleged failure to take steps to assess tax.
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2. On his application, a building permit was issued by the respondent Municipality on 02.01.1993. According to the petitioner, he submitted completion certificate. But the Municipality failed to take appropriate actions on the basis of the completion certificate, including the assessment for building tax.
3. Petitioner contested in the election held in 2010 and was elected as a Member of the Municipality. He obtained a non-liability certificate for the purpose of contesting which was issued on 26.8.2010. The 5th respondent made a representation to the Ombudsman for Local Self-Government Institutions, alleging that the petitioner was actually a defaulter with respect to building tax. The learned Ombudsman passed Ext.P6 order dated 28.4.2012 in the Original Petition filed by the 5 th respondent directing the Municipality to take appropriate actions and to levy tax. Thereafter, Ext.P7 notice was issued by the Municipality on 17.7.2012. Petitioner submitted Ext.P8 on 08.08.2012 objecting to Ext.P7. Petitioner raised several contentions in Ext.P8. The objection was examined by the Municipality and by Ext.P9 dated 13.9.2012 his contentions 2025:KER:41274 W.P.(C).No.20990 of 2015 4 were rejected and demand notice was issued. It was demanded that the petitioner shall remit the dues within 15 days.
4. Against Ext.P9, petitioner claims to have submitted Ext.P10 before the Chairman of the Standing Committee for Finance. He thereafter raised a grievance before the learned Ombudsman in O.P.No.1135/2011 filed by the 5 th respondent by preferring C.M.P.No.246/2013. The learned Ombudsman by Ext.P11 order dated 26.7.2013 disposed the C.M.P. observing that the petitioner had to move the appropriate appellate forum under the Building Tax Rules.
5. Later, the petitioner approached this Court in W.P. (C)No.22500/2013. The writ petition was disposed on 10.09.2013. The judgment has been produced as Ext.P12. It is extracted hereunder:-
"The limited relief sought for by the petitioner is for a direction to consider and pass final orders on Exhibit P8 appeal that is pending before the 4th respondent. The petitioner is aggrieved by the property tax assessment made by the third respondent on his building.
2025:KER:41274 W.P.(C).No.20990 of 2015 5 The Government pleader takes notice for the first respondent. Since Exhibit P8 appeal is pending, I do not consider it necessary to issue notice to the other respondents.
2. This writ petition is therefore disposed of directing the 4th respondent to consider Exhibit P8 appeal, in accordance with law and to pass appropriate orders thereon, as expeditiously as possible and at any rate within a period of two months of the date of production of a copy of this judgment by the petitioner."
6. The Municipality proceeded to comply with the directions in the judgment mentioned above. However, the Municipality could not find out any appeal filed by the petitioner. Hence, Ext.P13 notice dated 18.10.2013 was issued requesting the petitioner to produce copy of the appeal, receipt obtained on submitting the appeal and copy of the receipt showing remittance of property tax.
7. Ext.P14 order was later issued, on 6.12.2013 by the Chairman of the Standing Committee for Finance on the basis of 2025:KER:41274 W.P.(C).No.20990 of 2015 6 the decision taken by the Committee on the same day. It was stated in Ext.P14 that though this Court had directed to consider the appeal of the petitioner the appeal was not liable to be entertained for failure to remit the amount as per impugned demand notice and also for the reason that the appeal was not filed within 30 days. Petitioner thereafter submitted a representation to the Hon'ble Minister. The said representation was considered by the Government and the Principal Secretary, Local Self-Government Department by Ext.P18 dated 23.02.2014 rejected the request of the petitioner and observed that in case the petitioner has further grievances he can approach the Tribunal for Local Self-Government Institutions. Thereafter, Ext.P19 demand notice was issued by the Municipality on 9.4.2015.
8. By Ext.P21 dated 13.2.2015 the Principal Secretary, LSGD Department directed the Secretary of the Municipality to levy tax and recover the same from the petitioner treating it as 'escaped assessment'.
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9. The learned counsel for the petitioner submitted that the petitioner was actually harassed by the Municipality by not taking appropriate actions after he submitted the completion certificate. The learned counsel contended that every step taken by the Municipality in the case of the petitioner was contrary to law. He submitted that though the anomalies were pointed out by the petitioner from the beginning, no authority has properly addressed the issues pointed out by the petitioner. He further submitted that the impugned proceedings are non- sustainable in the eyes of law and referred to various provisions of the Municipality Act and relevant Rules in support of his contentions.
10. The Municipality has filed counter affidavit. It is stated in the counter affidavit that the petitioner completed the construction and started residing in the building without obtaining occupancy certificate. It is further stated by the Municipality that occupancy certificate was issued on 17.7.2012 which has been produced as Annexure-R1(a). The Municipality states that the building was assessed to property tax on the 2025:KER:41274 W.P.(C).No.20990 of 2015 8 basis of Ext.R1(b) return submitted by the petitioner and that Ext.P7 demand notice was issued. Ext.P8 submitted by the petitioner was considered as a revision petition by the Secretary of the Municipality in terms of the Taxation and Finance Rules, Schedule II, Kerala Municipalities Act, 1960 and the same was rejected stating reasons. Fresh demand notice was issued on 19.9.2012 demanding the petitioner to remit tax for the period from 1993-94 (Second half) to 2012-13. Municipality points out that the petitioner has suppressed these material facts in the writ petition. The return submitted by the petitioner and copy of the demand notice dated 19.9.2012 have been produced by the Municipality as Annexures.R1(b) and R1(c) respectively.
11. Municipality further contends that Ext.P8 appeal was considered and rejected by it pursuant to Ext.P12 judgment. Petitioner later approached the Government and the Government did not find any merit in his contentions. In the absence of any challenge to the assessment and demand notice, the petitioner is estopped from challenging the demand of property tax. Further, the Municipality states that the petitioner 2025:KER:41274 W.P.(C).No.20990 of 2015 9 obtained Ext.P5 non-liability certificate by furnishing false information. Municipality asserts that the assessment carried out was strictly in terms of the provisions of the Kerala Municipality Act, 1994 and the Rules. It is also stated in the counter affidavit that the petitioner has remitted property tax for the years 2023-24 (Second half) and 2024-25 (First and Second halves) to the Municipality during the pendency of this writ petition.
12. The learned Standing Counsel for the Municipality contended that the petitioner is pursuing the writ petition without any bonafides. He submitted that the petitioner has suppressed various material facts and has been making efforts to evade payment of tax. He argued that the petitioner is not entitled to maintain any challenge against the assessment and demand for the reason that his appeal was rejected and no further legally sustainable challenge was raised by him. He contended that there is no infirmity in the assessment and the petitioner is liable to pay the dues as per Ext.R1(c) demand notice.
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13. Petitioner has filed a reply affidavit refuting the contentions of the Municipality.
14. I have heard the learned counsel for the petitioner and the learned Standing Counsel elaborately and perused the pleadings and documents.
15. Petitioner has a case that the Municipality initially proceeded considering the building as unauthorised and the assessment was made on that basis. This is virtually admitted by the Municipality also in its counter affidavit with respect to Ext.P4. However, Municipality states that, Ext.P7 demand notice was issued after making the assessment to property tax on the basis of the return submitted by the petitioner. It is also submitted that the final assessment was made on the basis of the prevailing Rules. Merits of this contention as well as propriety and legality of the assessment could have been challenged by the petitioner by invoking statutory remedies. Nevertheless the petitioner did not pursue such remedies properly.
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16. The petitioner once approached this Court in W.P.(C)No.22500/2013 which was disposed of by Ext.P12 judgment. This Court directed the Standing Committee for Finance of the Municipality to dispose the appeal filed by the petitioner aggrieved by the assessment made by the Municipality. The said judgment was rendered by this Court on the basis of a specific plea for a direction to consider the appeal. The appeal was considered and as narrated above, was rejected by the Municipality. The petitioner thus invoked a statutory remedy and persuaded this Court to issue a writ for consideration of his appeal. However, the appeal was not in accordance with the statutory provisions. The Standing Committee rejected it. Statutory remedy of challenging the decision by filing revision was available. The same was not availed by the petitioner. He instead submitted a representation to the Government which was also rejected. Government examined the grievance of the petitioner and his contentions and for reasons clearly stated in the reply rejected the same. Thereafter, the petitioner submitted Ext.R1(b) return.
2025:KER:41274 W.P.(C).No.20990 of 2015 12 Nonetheless, the said fact has not been disclosed in this writ petition. Ext.R1(a) occupancy certificate was issued to the petitioner on 17.7.2012. The said crucial fact also has not been revealed by the petitioner. Municipality thereafter issued Ext.R1(c) notice which according to the Municipality reflects the final assessment. The said notice was received by the petitioner as evident from the endorsement on Ext.R1(c).
17. A litigant approaching this Court invoking extra- ordinary jurisdiction under Article 226 of the Constitution cannot be permitted to blow hot and cold. Petitioner approached this Court in an earlier round of litigation for a direction to consider his appeal. Rejection of his appeal was not challenged as provided under law. Instead the petitioner took misguided steps. He turned round and contended in this writ petition that the impugned assessment of the Municipality being illegal, he need not have further pursued the statutory remedies and was entitled to invoke the writ jurisdiction. Having obtained a direction from this Court in support of his pursuit of statutory remedies in the earlier round, the petitioner cannot be 2025:KER:41274 W.P.(C).No.20990 of 2015 13 permitted to contend so in this second round of litigation. So also several crucial facts which are pointed out in the counter affidavit filed by the Municipality have been suppressed in this writ petition. It is also to be noticed that the petitioner has remitted property tax for the years 2023-24 (Second half) and 2024-25 (First and Second half) with the Municipality.
18. In view of the above discussion, in my considered view no relief is liable to be granted in this writ petition and the petitioner shall remit tax in accordance with the final assessment in Ext.R1(c). However, the liability to pay will be limited as per Section 539 of the Kerala Municipality Act 1994.
Writ Petition is accordingly disposed of.
Sd/-
S.MANU JUDGE skj 2025:KER:41274 W.P.(C).No.20990 of 2015 14 APPENDIX OF WP(C) 20990/2015 PETITIONER'S EXHIBITS:
P1 TRUE COPY OF THE LETTER ISSUED BY THE ASSISTANT DIRECTOR, LOK SABHA SECRETARIAT, DATED 16.1.1992 TO THE CHIEF SECRETARY, GOVERNMENT OF KERALA P2 TRUE COPY OF THE BUILDING PERMIT DATED 2.1.1993 ISSUED BY THE MUNICIPAL COMMISSIONER P3 TRUE COPY OF THE RECEIPT ISSUED BY THE MUNICIPAL COMMISSIONER ON RECEIPT OF THE COMPLETION CERTIFICATE P4 TRUE COPY OF INDEX SHEET OF ALUVA MUNICIPALITY P5 TRUE COPY OF THE NON-LIABILITY CERTIFICATE ISSUED BY THE MUNICIPALITY P6 TRUE COPY OF THE ORDER OF OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS DATED 28.4.2012 P7 TRUE COPY OF NOTICE O.R2-7767/2011 DATED 17.7.2012 ISSUED TO THE PETITIONER P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 8.8.12 P9 TRUE COPY OF COMMUNICATION ISSUED TO THE PEITTIONER BY HTE SECRETARY DATED 13.9.12 P10 TRUE COPY OF REPRESENTATION SUBMITTED BY HTE PETITIONER TO THE CHAIRMAN OF THE STANDING COMMITTEE DATED 20.9.2012 P11 TRUE COPY OF THE ORDER OF THE OMBUDSMAN DATED 26.7.2013 P12 TRUE COPY OF THE JUDGMENT DATED 10.9.2013 IN WP(C) NO.22500/2013 P13 TRUE COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER DATED 18.10.2013 P14 TRUE COPY OF THE ORDER PASSED BY THE VICE CHAIRPERSON OF ALUVA MUNICIPALITY DATED 6.12.2013 P15 TRUE COPY OF THE COMMUNICATION ISSUED TO THE PETITIOER BY THE OFFICE OF THE DISTRICT COLLECTOR, ERNAKULAM DATED 23.1.2014 P16 TRUE COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER DATED 11.4.2014 P17 TRUE COPY OF THE MINUTES DATED 29.8.2011 OF THE ALUVA MUNICIPALITY 2025:KER:41274 W.P.(C).No.20990 of 2015 15 P18 TRUE COPY OF THE GOVERNMENT ORDER DATED 23.2.2014 P19 TRUE OF THE DEMAND NOTICE DATED 9.4.2015 P20 TRUE COPY OF THE DETAILED OBJECTION OT THE DEMAND NOTICE P21 TRUE COPY OF THE GOVT.ORDER DATED 13.2.2015 P22 TRUE COPY OF NOTICE DATED 18.1.2012 ISSUED BY THE MUNICIPALITY P23 TRUE COPY OF THE CHEQUE DATED 13.11.2014 FOR A SUM OF RS.4500/-
RESPONDENTS' ANNEXURES ANNEXURE-R1(a) True copy of Occupancy Certificate dated 17.07.2012 issued by Assistant Engineer, Aluva Municipality ANNEXURE-R1(b) True copy of property tax return submitted by petitioner ANNEXURE-R1(C) True copy of the requisition dated 05.07.2014 submitted by Secretary, Aluva Municipality Annexure-R1(d) True copy of the affidavit dated 05.08.2010 submitted by the petitioner Annexure-R1(a) True copy of Occupancy Certificate dated 17.07.2012 issued by Assistant Engineer, Aluva Municipality Annexure-R1(b) True copy of property tax return submitted by petitioner Annexure-R1(c) True copy of demand notice dated 19.09.2012 issued by 1st respondent to petitioner Annexure-R1(d) True copy of the affidavit dated 05.08.2010 submitted by the petitioner