Anitha Sanal vs The Deputy Tahasildar (Rr)
2023 Latest Caselaw 10141 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
     THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945
                          WP(C) NO. 26058 OF 2023
PETITIONER/S:
           ANITHA SANAL, AGED 59 YEARS, D/O LATE T.V RAJAPPAN PILLAI
           DIVYA HOUSE, THEKKENADA, VAIKOM, KOTTAYAM DISTRICT, PIN -
           686141

            BY ADV KAVERY S THAMPI


RESPONDENT/S:
    1    THE DEPUTY TAHASILDAR (RR)VAIKOM TALUK OFFICE FIRST FLOOR,
         MINI CIVIL STATION, WEST GATE ROAD, VAIKOM, KOTTAYAM
         DISTRICT, PIN - 686141

    2       THE VILLAGE OFFICER NADUVILLE VILLAGE, VAIKOM TALUK
            KOTTAYAM DISTRICT, PIN - 686141

    3       THE VAIKOM MUNICIPALITY MUNICIPAL OFFICE, WEST GATE ROAD
            VAIKOM, KOTTAYAM DISTRICT, REPRESENTED BY ITS SECRETARY,
            PIN - 686141

    4       THE SECRETARYVAIKOM MUNICIPALITY MUNICIPAL OFFICE, WEST
            GATE ROAD VAIKOM, KOTTAYAM DISTRICT, PIN - 686141

    5       THE FINANCE STANDING COMMITTEEVAIKOM MUNICIPALITY
            MUNICIPAL OFFICE, WEST GATE ROAD VAIKOM, KOTTAYAM
            DISTRICT, REPRESENTED BY ITS AUTHORIZED OFFICER., PIN - 686141

            BY ADVS.GOVERNMENT PLEADER; Sreekala A SC r3 & r5


        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.26058/2023
                                    -2-




                        JUDGMENT

The present writ petition under Article 226 of the

Constitution of India has been filed impugning Exts.P8, P9 and

P9(a).

2. Learned Counsel for the petitioner submits that in

view of the provisions of Section 282 read with Section 539 of

the Kerala Municipality Act 1994, no tax demand can be

enforced after the expiration of a period of three years from

the date on which the distraint could have first been made, a

suit could have first been instituted, or prosecution could have

first been commenced. She, therefore, submits that the

demand for building tax prior to the Assessment Year 2018-19

is barred by the limitation, as provided under Section 539 read

with Section 282 of the Kerala Municipality Act.

3. Ms A Sreekala, learned Counsel for the 3 rd and the

5th respondents, has submitted that the demand notices or the W.P.(C) No.26058/2023

tax due were sent time and again. Despite the demand notices,

the petitioner failed to remit the tax. She, therefore, submits

that the petitioner is liable to pay the tax as per Exts.P8 and

P9.

4. I have considered the submissions advanced by the

Counsel for the petitioner and the respondents.

5. Section 539 of the Kerala Municipality Act

contemplates that the tax prior to three years cannot be

collected by putting a distraint order. Section 282 of the

Kerala Municipality Act provides that the assessment could be

done within four years from the date on which such person

should have been assessed. Reading the provisions of Sections

539 and 282 conjointly, it would be evident that the assessment

for tax for a period could be done within four years from the

last date of that Assessment Year. Regarding the Assessment

Year 2011-12, the notice could have been issued within four W.P.(C) No.26058/2023

years for making the assessment. No such notices were issued,

and only the impugned order in Ext.P8 has been passed in

respect of Assessment Years from 2011-12 to 2022-23.

5.1 It would be apt to reproduce Sections 539 and 282 of

the Kerala Municipality Act, which reads as follows:

"539. Limitation for recovery of dues - (1) No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to a Municipality under this Act after the expiration of a period of three years from the date on which distraint might first have been made, suit might first have been instituted, or prosecution might first have been commenced, as the case may be, in respect of such sum:

Provided that in the case of assessments made under Section 282, the said period of three years shall be computed from the date on which distraint might have been made, suit instituted, or prosecution commenced after the assessment under the said section shall have been made.

(2) Where any amount due to the Municipality has been barred by limitation under sub-section (1) due to the default of not taking steps at the appropriate time, and it is found in a lawful enquiry that it was lost due to the default of any W.P.(C) No.26058/2023

officer or officers, the amount so lost to the Municipality shall be realised with twelve per cent interest thereon form such officer or officers.

282. Power to assess in case of escape from assessment - Notwithstanding anything to the contrary contained in this Act or the rules made thereunder, where for any reason a person liable to pay any tax or fees leviable under this Chapter has escaped assessment in any half-year, the Secretary may at any time within four years from the date on which such person should have been assessed, serve on him a notice assessing to the tax or fee due and demanding payment thereof within fifteen days from the date of such service and thereupon the provisions of this Act and the Rules made thereunder shall, so far as may be, apply as if the assessment was made in the half-year to which the tax or fee relates"

5.2 Considering the aforesaid fact, I am of the view that

no assessment could have been passed in respect of the

building tax prior to the period 2018-19. Thus, the present

writ petition is disposed of with a direction to the petitioner

to pay the tax from 2018-19 till 2023-24. For the prior period

from 2011-12 to 2017-18, the demand for tax is quashed. W.P.(C) No.26058/2023

5.3 The Municipality is directed to issue a fresh notice

to the petitioner for demand of tax within a period of fifteen

days for the period from 2018-19 up to date. If the petitioner

has paid any tax for this period, that shall be considered and

given credit.

With aforesaid, the present writ petition is allowed in

part.

Sd/-

DINESH KUMAR SINGH JUDGE

jjj W.P.(C) No.26058/2023

APPENDIX OF WP(C) 26058/2023 PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE BUILDING PERMIT NO: 26/11-12 DATED 07.05.2011 ISSUED IN FAVOR OF PETITIONER AND SMT. DEVI PARVATHY FROM THE 3RD RESPONDENT MUNICIPALITY

Exhibit P2 A TRUE COPY OF THE DEMAND NOTICE NO: R1-1407/12 DATED 17.03.2012 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER AND HER SISTER

Exhibit P3 A TRUE COPY OF THE STATUTORY APPEAL FILED BY THE PETITIONER AND HER SISTER DEVI PARVATHI WITH THE 5TH RESPONDENT ON 16.04.2012

Exhibit P4 A TRUE COPY OF RECEIPT NO: 3229 DATED 16.04.2012 ISSUED FROM THE 3RD RESPONDENT MUNICIPALITY

Exhibit P5 A TRUE COPY OF THE RECEIPT ISSUED IN FAVOR OF THE PETITIONER FROM 3RD RESPONDENT MUNICIPALITY FOR REMITTING RS. 1654/-, THE HALF- YEARLY TAX AMOUNT

Exhibit P6 A TRUE COPY OF NOTICE NO: R1-8232/2022 DATED 26.11.2022 ISSUED TO THE PETITIONER AND HER SISTER

Exhibit P7 A TRUE COPY OF THE REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER AND HER SISTER WITH THE MUNICIPAL COUNCIL OF VAIKOM MUNICIPALITY

Exhibit P8 A TRUE COPY OF THE DEMAND NOTICE NO: MTF NO: 31 DATED 23.01.2023 ISSUED BY THE VAIKOM MUNICIPALITY

Exhibit P9 A TRUE COPY OF THE DEMAND NOTICE NO: RRC NO:

2023/2724/05 ISSUED TO THE PETITIONER AND HER SISTER UNDER SECTION 7 OF THE KERALA REVENUE W.P.(C) No.26058/2023

RECOVERY ACT 1968 DATED 15.05.2023 BY THE 1ST RESPONDENT

Exhibit P9(a) A TRUE COPY OF THE DEMAND NOTICE NO: RRC NO:

2023/2724/05 ISSUED TO THE PETITIONER AND HER SISTER UNDER SECTION 34 OF THE KERALA REVENUE RECOVERY ACT 1968 DATED 15.05.2023 BY THE 1ST RESPONDENT

Exhibit P10 A TRUE COPY OF THE LAND TAX RECEIPT ISSUED IN FAVOR OF THE PETITIONER AND HER SISTER FROM NADUVILLE VILLAGE OFFICE DATED 27.05.2023

RESPONDENT EXHIBITS

Exhibit R4(a) True photocopy of office copy of the demand notices No.9468. 9469. 9470 dated 02.07.2019 from this respondent to the petitioner's father, Late Rajappan Pillai

Exhibit R4(b) True photocopy of the demand notices No.9489 dated 05.07.2019