Kerala High Court
Atc Telecom Infrastructure Pvt. Ltd vs Union Of India on 30 October, 2024
Author: P Gopinath
Bench: P Gopinath
2024:KER:80976
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
WP(C) NO. 13461 OF 2022
PETITIONER:
ATC TELECOM INFRASTRUCTURE PVT. LTD.,
(FORMERLY KNOWN AS ATC TELECOM TOWER CORPORATION
AND ESSAR TELECOM INFRASTRUCTURE PVT. LTD.,
VIOM NETWORKS LTD. AND WIRELESS TT INFO SERVICE
LTD.) ATC HOUSE, 65/1836-28, CHERAMNGALATH,
SHENOY ROAD, KALOOR, KOCHI-17,
REP. BY HEAD LEGAL BABU PATTATHANAM,
AGED 40 YEARS, S/O. CHANDRAN,
RESIDING AT DEVARAGAM, MANALUDI,
RAMANATTUKARA P.O., PIN-673 633.
BY ADVS.
P.SATHISAN
DONA AUGUSTINE
RESPONDENTS:
1 UNION OF INDIA,
DEPARTMENT OF INFORMATION AND TECHNOLOGY,
SOUTH DELHI P.O., NEW DELHI-110 003,
REPRESENTED BY ASSISTANT SOLICITOR GENERAL.
2 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM P.O.,
PIN-695 001.
3 THE SECRETARY,
LOCAL ADMINISTRATION DEPARTMENT,
GOVT. SECRETARIAT, THIRUVANANTHAPURAM P.O.,
PIN-695 001.
2024:KER:80976
WP(C) 13461/2022 2
4 DIRECTOR OF MUNICIPALITIES,
SWARAJ BUILDING, NANDANKODE, KAWADIAR POST,
THIRUVANANTHAPURAM-695 003.
5 KANNUR MUNICIPAL CORPORATION,
P.B. NO.39, SPCA ROAD, TALAP P.O., KANNUR-670 001,
REP. BY ITS SECRETARY
6 THE SECRETARY,
KANNUR MUNICIPAL CORPORATION, P.B. NO.39,
SPCA ROAD, TALAP P.O., KANNUR-670001
BY ADVS
M.MEENA JOHN, SC, KANNUR MUNICIPAL
CORPORATION
K R DEEPA (SPL GP)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C) 13461/2022 3
JUDGMENT
The issue raised in this writ petition is covered by the
declaration of law contained in the judgment in
W.P(C)No.35316/2023 and connected cases, where this
Court held as follows:
"8. Section 282 of the Kerala Municipality Act,
1994 reads as follows:
"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.
Section 539 of the Kerala Municipality Act, 1994
reads as follows:
"539. LIMITATION FOR RECOVERY
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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 officer or officers, the
amount so lost to the Municipality shall
be realised with twelve per cent interest
thereon from such officer or officers."
9. 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. Section 539 provides
that the tax prior to three years cannot be
collected by putting a distraint order. Therefore,
going by Section 282 of the Kerala Municipality
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Act, the assessment of tax for a period could be
done within four years from the last date of that
Assessment Year. The demand notice could have
been issued within three years of making the
assessment. In these cases, admittedly, no demand
of the property tax in respect of the mobile towers
erected by the petitioner was made within three
years of making the assessment. Therefore, the
impugned demand notices are set aside. The
matter is remitted to the respective Municipalities,
to issue fresh notice in respect of the property tax
for the last four years from the date of the
impugned notices and finalize the assessment in
accordance with the law, after giving an
opportunity of hearing to the petitioner".
2. Heard the learned Special Government Pleader
appearing for respondent Nos. 2 to 4 and the learned
Standing Counsel appearing for respondent Nos. 5 and 6.
3. Having heard the learned counsel as above, I am of
the view that the issue raised in this writ petition is squarely
covered by the declaration of law as contained in the
judgment of this Court in W.P(C)No.35316/2023, which is
extracted herein above.
2024:KER:80976
Therefore, this writ petition is also disposed of on the
same lines and following the judgment of this Court in
W.P(C)No.35316/2023 and connected cases.
Sd/-
GOPINATH P.
JUDGE
ats
2024:KER:80976
APPENDIX OF WP(C) 13461/2022
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE CERTIFICATE OF
INCORPORATION OF THE PETITIONER COMPANY.
Exhibit P2 TRUE COPY OF PRINT OUT OF NOTIFICATION DATED
14/01/2011.
Exhibit P2A TRUE ENGLISH TRANSLATION OF EXT.P2
NOTIFICATION.
Exhibit P3 TRUE COPY OF THE INTERIM ORDER PASSED BY THE
HON'BLE HIGH COURT OF KERALA IN WP(C)
NO.22723/2011 DATED 20/08/2011.
Exhibit P4 TRUE COPY OF DEMAND NOTICE OF KANNUR
CORPORATION FOR BUILDING NO.32/953 DATED
14/03/2022.
Exhibit P5 TRUE COPY OF THE OBJECTION SUBMITTED BY THE
PETITIONER BEFORE THE 5TH RESPONDENT
PERTAINING TO DOOR NO.32/953 DATED
25/03/2022.
Exhibit P6 TRUE COPY OF THE INTERIM ORDER PASSED BY THE
HON'BLE HIGH COURT OF KERALA IN WP(C)
NO.12762/2018 DATED 11/04/2018.
Exhibit P7 TRUE COPY OF THE INTERIM ORDER PASSED BY THE
HON'BLE HIGH COURT OF KERALA IN WP(C)
NO.12729/2018 DATED 10/04/2018.
Exhibit P8 TRUE COPY OF THE INTERIM ORDER PASSED BY THE
HON'BLE HIGH COURT OF KERALA IN WP(C)
NO.35145 OF 2019 DATED 19/12/2019.
Exhibit P9 TRUE COPY OF THE INTERIM ORDER PASSED BY THE
HON'BLE HIGH COURT OF KERALA IN WP(C)
NO.28114 OF 2020 DATED 16/12/2020.
Exhibit P10 TRUE COPY OF THE INTERIM ORDER PASSED BY THE
HON'BLE HIGH COURT OF KERALA IN WP(C)
NO.28401 OF 2021 DATED 10/12/2021.
