Dr.P.J.Joy vs The Corporation Of Kochi
2024 Latest Caselaw 9128 Ker

Kerala High Court

Dr.P.J.Joy vs The Corporation Of Kochi on 3 April, 2024

Author: V.G.Arun

Bench: V.G.Arun

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI
                              &
             THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
                     WA NO. 1520 OF 2023

AGAINST THE JUDGMENT DATED 14.06.2023 IN WP(C) NO.10791 OF
                 2012 OF HIGH COURT OF KERALA

APPELLANTS/PETITIONERS:


    1      DR.P.J.JOY
           AGED 75 YEARS, DR.JOY'S HOSPITAL FOR WOMEN,
           THAIKOODAM, VYTTILA, KOCHI, PIN - 682 019

    2      DR. ANNE JOY
           AGED 73 YEARS, DR.JOY'S HOSPITAL FOR WOMEN,
           THAIKOODAM, VYTTILA, KOCHI, PIN - 682 019

           BY ADVS KURIAN GEORGE KANNANTHANAM (SR.)
                   TONY GEORGE KANNANTHANAM

RESPONDENTS/RESPONDENTS:


    1      THE CORPORATION OF KOCHI
           REPRESENTED BY THE SECRETARY PARK AVENUE ROAD KO-
           CHI, PIN - 682011

    2      THE SECRETARY
           CORPORATION OF KOCHI, PARK AVENUE ,KOCHI, PIN -
           682011

           BY ADV K B ARUNKUMAR

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.04.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.1520 of 2023
                                 2

                                                            "CR"


                           JUDGMENT

Dated this the 3rd day of April 2024

A.J. Desai, C.J.

The question involved in this appeal is whether the owner

and occupier of a building, who has constructed the building in

tune with the building permit granted by the Corporation, can

be made liable to pay the tax and penalty under Section 242 of

the Kerala Municipality Act, 1994 (for short "Act"), on the

ground that the building was occupied without obtaining the

certificates mandated as per Rule 22 of the Kerala Municipality

Building Rules, 1999 (for short "1999 Rules").

2. The short facts that arise from the record are as under:

The appellants/petitioners had applied for the construction of

a hospital building consisting of ground plus four floors way

back in the year 2001. The plan submitted along with the

application was sanctioned and the appellants issued with

Ext.P1 building permit dated 25.03.2002. The appellants

completed the construction of the ground floor in the year

2003 and the rest of the floors in the year 2011. Thereafter,

the appellants requested the Corporation to grant certificates

as provided under Rule 22 of the 1999 Rules. In response to

the said request, a communication was sent by the Corporation

on 30.04.2011, asking the appellants to submit the no

objection certificates issued by the Fire Force Department and

the Pollution Control Board. It is the case of the appellants that,

in spite of such certificates being produced in March 2012, the

occupancy certificate was not issued. Meanwhile, the

Corporation issued a notice on 05.01.2012 demanding property

tax along with the penalty provided under Section 242 of the

Act. Objections were raised by the appellants against such

demand and ultimately an order was passed on 07.04.2012

(Exhibit P11). By the said order, the appellants were asked to

pay the property tax as well as the penalty as provided under

Section 242 of the Act. The said order came to be challenged

by the appellants by filing the captioned writ petition. The

respondents opposed the reliefs sought in the writ petition by

filing counter affidavit. The learned Single Judge, after hearing

both sides,refused to entertain the writ petition in view of the

alternate remedy of appeal available under the Act. Hence, this

appeal.

3. The learned Senior Counsel Mr. Kurian George

Kannanthanam would submit that the case of the Corporation

all throughout has been that the building was unauthorisedly

occupied and not regarding unlawful construction of the

building. He would submit that the Corporation had specifically

stated in the first communication (Exhibit P4) dated 30.04.2011

that the construction work has been completed in tune with

the building permit No. KRP1-474/2001 dated 25.03.2022. He

would submit that only if a building is constructed unlawfully,

the owner can be penalised under Section 242 of the Act. He

would submit that, after construction of the 1st floor and

issuance of partial occupancy certificate, the nurses working in

the hospital conducted in the portion for which partial

occupancy certificate had been issued, used to take rest in the

second floor. Terming such usage as unauthorised occupancy,

the Corporation had raised the unconscionable demand for tax.

He would further submit that there is no provision either in the

Act or in the 1999 Rules empowering the Corporation to

impose penalty if the property is occupied without obtaining

the certificates under Rule 22 of the 1999 Rules. He would

submit that as per sub-section (25) of Section 2 of the Act, the

term 'occupier' includes the owner who is in occupation of a

building, which is the case on hand. Therefore, even if the

building is occupied for some time without appropriate

certificates, the authority cannot levy tax under Section 242 of

the Act. He, therefore, would submit that the order impugned

in the writ petition, i.e., Exhibit P11 dated 07.04.2012, is

required to be quashed and set aside. He would submit that

these aspects have not been properly taken note of by the

learned Single Judge and therefore, the judgment impugned

may also be set aside.

4. On the other hand, the learned Standing Counsel for

the Corporation vehemently submitted that the Corporation

has not committed any error in issuing notice under Section

242 of the Act. He would submit that the Corporation is

empowered to levy tax for buildings constructed/

reconstructed or utilised unlawfully, at three times the normal

property tax payable. He would submit that, when the officials

of the Corporation visited the premises in question, the

building was found occupied with the permission of the

appellants and that too, without obtaining the certificates to

be issued by the Corporation under Rule 22 of the 1999 Rules.

Therefore, he would submit that the building, even if

constructed in tune with the permit, is required to be treated

as one constructed unlawfully and the Corporation has rightly

levied three times the property tax as stipulated in Section 242

of the Act. According to the Standing Counsel, these aspects

have been correctly dealt with by the learned Single Judge and,

therefore, the impugned judgment warrants no interference.

5. We heard learned Advocates appearing for the

respective parties.

6. The translated version of the communication issued in

response to the request made by the appellants for grant of

certificates under Rule 22 of the 1999 Rules (Exhibit P4), reads

as under:

"CORPORATION OF COCHIN

KRP1-474/01 Corporation Office, P.B.No.1016, Ernakulam, Kochi - 682 011.

Date: 30-04-2011

NOTICE

Sub: Cochin Vyttila Region Town Planning - Building Construction - Reg. Giving occupancy.

Ref: 1. Building Permit No.KRP1-474/2001 dated 25-3- 2002.

2. Application for Occupancy, dated 15-3-2011.

Since the construction of the Building in Dvn.No. 46 in Sy.No.1042/1, 2, 4 of Poonithura Village, was complete in tune with the building permit referred to as Item No.1 above, application for occupancy was submitted as per reference mentioned as Item No.2 above.

The application for occupancy can be considered only if NOC from the Fire Force Department and Pollution Control Board are produced.

Therefore you are directed to produce the NOC from the Fire force and Pollution Control Board within 30 days of receipt of this notice.

Sd/-

Asst. Executive Engineer

Dr.P.J. Joy MD Dr. Annie Joy, Director and Partners Dr. Joys Hospital, Vyttila, Cochin - 15."

7. From the above communication, it is evident that the

Corporation has accepted the entire building i.e. the ground

and four floors, to have been constructed in accordance with

the building permit issued to the appellants. The only demand

in the said notice was to produce no objection certificates from

the Fire Force Department and the Pollution Control Board.

Therefore, it cannot be said that the building is unlawfully

constructed.

8. In our considered opinion, construction of a building

and its occupation are not the same. If a person, after

completing the construction in accordance with the permit

granted by the Corporation occupies the building without

obtaining occupancy certificate, tax cannot be levied under

Section 242 of the Act. The learned standing counsel for the

Corporation having contended that in case of illegal occupancy

also, tax is liable to be paid as provided under Section 242 of

the Act, it is essential to read that provision carefully.

9. Section 242 of the Act reads as under:

"242. Levying of tax for the building constructed unlawfully.-- (1) Notwithstanding anything contained in this Act or the rules made thereunder, where any person has unlawfully constructed or reconstructed any building, such building shall without prejudice to any action that may be taken against that person, be liable to pay the sum of property tax that would have been paid, had the

said building been constructed lawfully, together with twice the amount, towards property tax of the building constructed unlawfully with effect from the date of completion or utilisation of that for any of the purpose mentioned in sub-section (2) of section 233, whichever is earlier, till the date of demolition of that building.

(2) Nothing contained in sub-section (1) shall preclude the Secretary from proceeding against such person under section 406 of the Act and the owner shall not have the right to get any compensation due to any action taken by the Secretary under this section.

(3) No building number as provided under section 380 shall be affixed to the building constructed unlawfully and they shall be given special number as prescribed. Any delay in giving special number shall not be a bar to levy property tax retrospectively under sub- section (1).

(4) Secretary shall maintain ward-wise special registers recording the survey number of the land on which the building has been constructed unlawfully, name and particulars of the owner of the land, special number given to the building, details of property tax levied and collected for the building.

(5) The Municipality shall not grant permit or licence to use the building constructed unlawfully and given a special number as provided in subsection (3) and liable to be proceeded against under section 406, for any trade, commerce or industrial purposes or any other purposes and if the Municipality has granted any permit

or licence, that shall be reconsidered and cancelled after giving notice to the owner of the building and the licencee."

10. Sub-section (1) of Section 242 leaves no room for

doubt that, imposition of tax under the provision would apply

only if the building is constructed/re-constructed unlawfully or

such unlawfully constructed building is utilised for any of the

purposes mentioned in sub-section (2) of Section 233.

Although construction is not defined in the Act, reconstruction

is defined under Section 2(38). The dictionary meaning of the

word "construction" is "the process or method of building or

making something, especially roads, buildings, bridges, etc.".

The contention of the Standing Counsel for the Corporation

that, utilisation of a building for any of the purposes mentioned

in Section 233(2) would also attract tax and penalty under

Section 242 can only be rejected, since a careful reading of the

provision would show that it is not mere utilisation of a building

that would attract the provision, but utilisation of an unlawfully

constructed building. Therefore, in our considered opinion, the

Corporation cannot charge tax under Section 242 alleging

unauthorised occupation of the appellants' building. As the

order under challenge cannot be perceived as one issued under

Section 242 of the Act, the finding of the learned Single Judge

that the appellants have an effective alternate remedy under

Section 509 of the Act cannot also be sustained.

11. When we raised a query to the learned standing

counsel for the Corporation about the specific provision

enabling levy of penalty for unauthorised occupation, he could

not bring to our notice any such provision either in the Act or in

the Rules, other than Section 242 of the Act. In this context, we

also take note of Article 265 of the Constitution of India which

stipulates that no tax shall be levied or collected except by

authority of law.

12. Having held so, we take note of Section 233 of the

Act which empowers the Corporation to levy the property tax

on every building, except those which are exempted as per the

provisions of the Act. Insofar as the appellants' building was

occupied even prior to the issuance of the occupancy

certificate, the Corporation can calculate and levy tax from the

period of unauthorised occupancy.

Accordingly, the appeal is allowed, the judgment

impugned is set aside and Exhibit P11 order, quashed. The

Corporation shall issue appropriate notice under Section 233

of the Act within a period of 10 days. As the appellants have

already remitted some amount towards property tax based on

this Court's order, the Corporation shall also furnish the

appellants with the details of the deficit, if any, in the property

tax remitted.

Pending interlocutory applications, if any, shall stand

closed.

Sd/-

A.J. Desai Chief Justice

Sd/-

V.G. Arun Judge vpv