Kerala High Court
Radha Namboothiri vs The Thrissur Corporation on 17 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
WP(C) NO. 20446 OF 2021
PETITIONER:
RADHA NAMBOOTHIRI
AGED 77 YEARS,
W/O.LATE C.P. MADHAVAN NAMBOOTHIRI,
CHENGALLUR MANA, PERAMANGALAM P.O.,
THRISSUR DISTRICT-680 545.
BY ADV. BINOY VASUDEVAN
RESPONDENTS:
1 THE THRISSUR CORPORATION
REPRESENTED BY ITS SECRETARY,
CORPORATION OFFICE,
THRISSUR-680 001.
2 THE SECRETARY
THRISSUR CORPORATION,
CORPORATION OFFICE,
THRISSUR, 680 001.
BY ADV SANTHOSH P.PODUVAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08.03.2022, THE COURT ON 17.03.2022 DELIVERED THE
FOLLOWING:
W.P.(C) No.20446/21 -:2:-
BECHU KURIAN THOMAS, J.
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W.P.(C) No.20446 of 2021
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Dated this the 17th day of March, 2022
JUDGMENT
Petitioner challenges the demand of property tax for the building
constructed by her. Petitioner objects to the demand of tax for the
period from the date of submission of completion certificate, instead of
the date of occupancy certificate.
2. Petitioner had entered into a joint venture agreement for the
construction of a multistoried apartment complex. When the
construction of the apartment complex was completed in 2013,
petitioner applied for issuance of an occupancy certificate on
08-04-2013 by submitting a completion certificate. However, as
evident from Ext P2, the occupancy certificate was issued only on
21-11-2019. In the meantime, the 2nd respondent issued a demand
notice dated 17-08-2020 directing the petitioner to pay property tax
under the Kerala Municipality (Property tax, Service Tax, Service Tax
and Surcharge) Rules, 2011, (for short 'the Rules') for the period from
2013-14 onwards. According to the petitioner, the liability to pay
property tax falls only from the date of issuance of occupancy
certificate, as held by this Court in Sheela v. Kollam Municipal
Corporation (2017 (4) KLT 887) and that the demand for the period
prior to the date of occupancy certificate, is legally impermissible.
3. A statement has been filed by the respondents contending
that as per Rule 24 of the Rules, property tax can be levied from the
date of completion of the building or date of occupancy, whichever is
earlier and that, upon site inspection and enquiry, it was revealed that
the apartments in the building was sold out prior to the year 2019
itself. Respondents further pleaded that electricity connection was
obtained for the building and that the same is being continued,
indicating that the building was put to use even prior to the date of
issuance of the occupancy certificate. Respondents further contended
that the issuance of the occupancy certificate was delayed due to the
default of the petitioner to submit the final NOC from the Fire and
Rescue Department and that the decision relied upon by the petitioner
is not applicable to the facts of the case.
4. On a consideration of the rival contentions, it is understood
that though the petitioner had applied for occupancy certificate as
early as on 08-04-2013, for reasons that can be attributed to the
petitioner itself, the occupancy certificate was issued only on
21-11-2019. There is nothing on record to suggest that the petitioner
had occupied the building unauthorisedly, after submitting the
completion certificate. Respondents have not issued any notice
intimating the unauthorised occupation or directing the petitioner to
desist from occupying the building before obtaining the occupancy
certificate. In the absence of any such action initiated by the
respondents, it cannot be assumed, merely on the basis of the
electricity connection continuing in the name of the petitioner, the
details of which are not even available, that the building was occupied
by the petitioner prior to issuance of occupancy certificate.
5. In the decision reported in Sheela v. Kollam Municipal
Corporation (2017 (4) KLT 887), this Court had held that a conjoint
reading of the provisions clearly indicated that while the charge of
property tax that accrued in respect of a building fell immediately on
the completion of its construction, the liability to pay property tax
depends entirely on whether the building was occupied or used for the
purpose for which it was constructed. It was further observed that if
the charging provision is to be continued as intending a levy and
collection of tax in respect of the buildings with effect from the date of
completion of construction, irrespective of whether they were occupied
or not, the statutory provision in section 239 of the Kerala Municipality
Act, 1994, relating to vacancy remission, would be rendered
meaningless.
6. Coming to the facts of the case, as mentioned earlier, there is
nothing on record to show that the building was occupied prior to the
occupancy certificate and further, the respondents have not issued any
notice directing the petitioner to desist from occupying the building
without obtaining the occupancy certificate. In the absence of any
such proceedings, this Court cannot come to a conclusion that the
building was occupied even before obtaining the occupancy certificate.
7. In such a view of the matter, the demand of the respondents
to pay the property tax for the building under consideration from the
date of submission of the completion certificate, is without the
authority of law. Petitioner is liable to remit the property tax for the
building covered by Ext.P2 occupancy certificate only from the date of
issuance of occupancy certificate, i.e; 21-11-2019 and not for any
earlier period. Therefore there will be a direction to the 2 nd
respondent to consider and dispose of Ext.P5 in the light of the above
directions, within a period of thirty days from the date of receipt of a
copy of this judgment.
The writ petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF WP(C) 20446/2021
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JOINT VENTURE AGREEMENT
DATED 10.7.2009 SIGNED BETWEEN THE
PETITIONER, HER SIBLINGS AND THE
BUILDER.
EXHIBIT P2 TRUE COPY OF THE OCCUPANCY CERTIFICATE
ISSUED BY THE 2ND RESPONDENT DATED
21.11.2019.
EXHIBIT P3 TRUE COPY OF THE DEMAND NOTICE DATED
17.8.2020 IN RESPECT OF BUILDING NUMBER
BEARING 519/5 FOR THE SECOND HALF OF
2013-2014.
EXHIBIT P3(a) TRUE COPY OF THE DEMAND NOTICE DATED
17.8.2020 IN RESPECT OF BUILDING NUMBER
BEARING 519/8 FOR THE SECOND HALF OF
2013-2014.
EXHIBIT P4 TRUE COPY OF THE CIRCULAR
NO.R.C.32/100/2020/LS.GD DATED 3.5.2020.
EXHIBIT P5 TRUE COPY OF THE REQUEST SUBMITTED BY
THE PETITIONER DATED 18.5.2020.
EXHIBIT P5(a) TRUE COPY OF THE RECEIPT ISSUED BY THE
OFFICE OF THE IST RESPONDENT
ACKNOWLEDGING EXHIBIT P-5.
EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED 17.8.2020
FOR THE BUILDING BEARING NO.519/5.
EXHIBIT P6(a) TRUE COPY OF THE RECEIPT DATED 17.8.2020
FOR THE BUILDING BEARING NO.519/8.
