Kerala High Court
Corporation Of Cochin vs Corporation Of Cochin on 10 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WA.No.272 OF 2021
AGAINST THE JUDGMENT DATED 21.012021 IN WP(C) 1407/2021(A) OF HIGH
COURT OF KERALA
APPELLANTS/RESPONDENT NO.1 AND 2 IN WPC 1407/2021:
1 CORPORATION OF COCHIN
COCHIN-682 011, REPRESENTED BY ITS SECRETARY.
2 SECRETARY,
CORPORATION OF COCHIN, COCHIN-682 011.
BY ADV. SRI.PRAVEEN K. JOY
RESPONDENT/PETITIONER IN WPC 1407/2021:
LOURDES HOSPITAL
PACHALAM, ERNAKULAM DISTRICT, PIN-682 012. REPRESENTED BY
ITS DIRECTOR, FR SHAIJU AUGUSTINE THOPPIL
R1 BY ADV. SRI.ENOCH DAVID SIMON JOEL
R1 BY ADV. SRI.S.SREEDEV
R1 BY ADV. SRI.RONY JO
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.02.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No. 272/2021 :2:
Dated this the 10th day of February, 2021.
JUDGMENT
SHAJI P. CHALY, J.
The appeal is preferred by respondents 1 and 2 in W.P.(C) No.
1407 of 2021 challenging the judgment of the learned single Judge
dated 21.01.2021, whereby the following directions were issued:
"3. On a consideration of the facts and circumstances of the
case and the submissions made across the Bar, I am of the view that
inasmuch as the issue regarding liability of the petitioner to property
tax for the period prior to the date of issuance of the Occupancy
Certificate is currently decided in favour of the petitioner by the
judgment of the Single Judge referred above, although, the said
judgment is stated to be in appeal before the Division Bench, the
dispute regarding liability to property tax cannot, now be cited by
the respondent Corporation as a reason for not acting on the
application for Ownership Certificate and issuing the same to the
petitioner, if the facts necessary for the same are established before
the Corporation.
Accordingly, I dispose the writ petition with a direction to the
respondent Corporation to accept the property tax as offered by the
petitioner in Ext.P11 communication and issue to it an Ownership
Certificate pursuant to Ext.P10 application, if the petitioner is found
to satisfy the requirements therefor, without insisting on payment of
the differential property tax demanded by the respondent
Corporation, within an outer time limit of three weeks from the date
of receipt of a copy of this judgment. It is made clear that the
issuance of the Ownership Certificate by the respondent Corporation
shall be without prejudice to its contentions as regards the liability of
the petitioner to the differential property tax claimed by it. The
petitioner shall produce a copy of this judgment together with a copy
of the writ petition before the respondent Corporation for further
action."
It is thus, challenging the legality and correctness of the said
judgment, this appeal is preferred.
2. Basic facts for the disposal of the appeal, as is discernible
from the writ petition, are as follows:
The writ petitioner is said to be a non profit charitable hospital
set up and managed by the Lourdes society for Health Care and
Research run by priests and nuns of the Christian religious faith. In
the year 2001, the writ petitioner started certain constructions of
additional buildings in the premises in which a hospital is existing.
However, the construction could not be completed on account of
certain financial constraints and finally, the works were completed
during March, 2012. Pursuant to the completion of the construction,
occupancy certificate was sought for by the writ petitioner. While so,
in the year 2011, a notice of assessment was issued by the Secretary
of the Corporation purporting to assess the property tax on the new
constructions made by the petitioner for the period 2008-2012.
Anyhow, after completing the procedural requirements, assessment
was completed as per Ext. P1 order dated 07.08.2012, culminated in
the filing of the writ petitions challenging the same, and that the said
dispute is apparently pending consideration before a Division Bench of
this Court consequent to the judgment rendered by a learned single
Judge in favour of the writ petitioner.
3. The basic issue raised in the writ petition in question is that
the writ petitioner has applied for an ownership certificate, evident
from Ext. P10 dated 01.12.2020. However, the said application was not
considered. According to the writ petitioner, the attempt of the
appellants to delay the issuance of the ownership certificate is causing
innumerable difficulties to it. It was significantly contended in the writ
petition that a dispute pertaining to property tax is pending cannot be
a ground for denial of ownership certificate. It was in the said
background, the writ petition was filed and consequently, the directions
extracted above were issued by the learned single Judge.
4. The paramount contention advanced by the Corporation and
the Secretary in this appeal is that the judgment rendered by the
learned single Judge is illegal, since the issue in respect of imposition
of property tax is under consideration before a Division Bench of this
Court in W.A. No. 1756 of 2020 and further that the dictum laid down
by this Court in Sheela v. Kollam Municipal Corporation1 that a
building owner is not liable to pay property tax in respect of the period
prior to the date of issuance of the occupancy certificate, will not apply
to the facts of this case, since the building is granted with an
unauthorised number as the construction was carried out in violation of
the Building Rules. However, we do not propose to go into the said
aspect, since that is the subject matter of consideration before a
Division Bench in writ appeal.
5. The facts discussed above would make it clear that the
subject issue raised by the writ petitioner in the writ petition was that
there was failure or considerable delay on the part of the appellants to
decide the application submitted by the writ petitioner seeking
ownership certificate.
6. Merely because a dispute is pending consideration in respect
of the property tax, that will not take away the absolute right of the
building owner to seek issuance of the ownership certificate before the
appellants. Anyhow, it is an admitted fact that the issue with respect
to the property tax was held in favour of the building owner and being
aggrieved, the appellants have preferred an appeal before the Division
Bench of this Court, which is pending consideration.
7. The appellants are not having a case that the writ petitioner
1 2017(4) KLT 887
is not the owner of the property and the building constructed therein.
We are also informed that even though the initial construction was
held to be an unauthorised one, subsequently, constructions were
regularised and provided with regular building number. Therefore, by
any stretch of imagination, it cannot be said that merely because a
dispute is pending by and between the parties in regard to the
property tax to be paid, that will not enable the appellants to withhold
the issuance of an ownership certificate as is sought for by the writ
petitioner.
8. After having heard the learned counsel for the appellant, Sri.
Praveen K. Joy and learned counsel appearing for the respondent Sri.
Rony Jose and perusing the pleadings and materials on record, we are
of the considered opinion that the appellants have not made out any
case of jurisdictional error or other illegalities committed by the
learned single Judge while passing the judgment in favour of the writ
petitioner, justifying interference in an intra-court appeal.
Needless to say, the appeal fails and accordingly, it is dismissed.
S. MANIKUMAR,
CHIEF JUSTICE.
SHAJI P. CHALY,
JUDGE.
Rv
