Kerala High Court

Corporation Of Cochin vs Lourdes Hospital on 5 February, 2025

Author: A.K.Jayasankaran Nambiar

Bench: A.K.Jayasankaran Nambiar

                                                      2025:KER:10449

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT

    THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                   &

            THE HONOURABLE MR. JUSTICE EASWARAN S.

 WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946

                        WA NO. 1756 OF 2020

        AGAINST   THE   JUDGMENT       DATED   29.09.2020   IN   WP(C)

NO.17961 OF 2020 OF HIGH COURT OF KERALA

APPELLANTS/RESPONDENTS 2 AND 3 IN WPC:

    1      CORPORATION OF COCHIN
           COCHIN 682 011.
           REPRESENTED BY ITS SECRETARY.

    2      SECRETARY,
           CORPORATION OF COCHIN,
           COCHIN-682011.

           BY ADVS.
           PRAVEEN K. JOY
           SRI.K.B.ARUNKUMAR



RESPONDENTS/PETITIONER AND 1ST RESPONDENT IN WPC:

    1      LOURDES HOSPITAL
           PACHALAM, ERNAKULAM DISTRICT, PIN-682012,
           REPRESENTED BY ITS DIRECTOR,
           FR.SHAIJU AUGUSTINE THOPPIL.

    2      STATE OF KERALA
           REPRESENTED BY THE SECRETARY, DEPARTMENT OF LOCAL
           SELF GOVERNMENT, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM-695001.
 WA No.1756/2020
                                2

                                              2025:KER:10449




             BY ADVS.
             SRI.ENOCH DAVID SIMON JOEL
             SRI.S.SREEDEV
             SRI.RONY JOSE
             SHRI.CIMIL CHERIAN KOTTALIL
             SMT.RESMITHA RAMACHANDRAN - GP


THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.02.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA No.1756/2020
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                                  JUDGMENT

Easwaran S., J.

The Corporation of Cochin has come up with the present intra-

court appeal against the judgment dated 29.09.2020 in W.P.

(C)No.17961 of 2020.

2. The brief facts necessary for disposal of the appeal are as

follows:

The 1st respondent approached this Court challenging the

demand notice issued for Building Tax. The case projected by the

writ petitioner is that, in the year 2001, as a part of expansion

process, the petitioner which is a hospital established for a charitable

purpose started constructing new buildings. While so, during

December 2011, notice of assessment was issued by the appellant

purporting to assess the property tax on the new constructions made

by the petitioner. Though the petitioner sought an opportunity for

hearing to explain as to why the said assessment cannot be sustained,

the appellant proceeded to confirm the assessment.

2. Initially, the order of assessment was challenged in W.P.

(C)No.19456 of 2012 by judgment dated 17.08.2012. The same was

disposed of directing the petitioner to avail the remedy under Section

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509 of the Kerala Municipalities Act, 1994. Thought the petitioner

preferred appeal against the said proceedings, the same was rejected

by order dated 12.09.2012. The said order was challenged in W.P.

(C)No.23206 of 2012 and it is stated that the same is pending

consideration.

3. Thereafter, the appellant proceeded to issue a demand

notice dated 30.03.2013. The said demand notice along with another

20 demand notices were challenged in W.P.(C)No.9292 of 2013 and it

is stated that the demand has been stayed by this Court in the

aforesaid writ petition. It is stated that though the building was

completed as in the year 2012, the appellant - Corporation did not

issue the Occupancy Certificate and therefore the buildings were not

put to use. After several representations given by the petitioner, the

Corporation, pursuant to the decision dated 06.08.2019 in an adalath

decided to issue the Occupancy Certificate for the new construction.

Pursuant to the decision as afore stated, the Occupancy Certificate

was issued by the appellant - Corporation on 10.01.2020. Later a

demand notice dated 15.02.2020 along with an additional 20 demand

notices were issued to the petitioner seeking the payment of Building

Tax without giving remission of the Building Tax.

4. The consequential demand notices were questioned

before the learned Single Judge on the ground that the benefit of

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Section 242 of the Kerala Municipalities Act, 1994, has not been

granted. The petitioner further contended that the period for which

the Corporation refused to issue the Occupancy Certificate cannot be

taken for the purpose of assessing the liability of the petitioner

towards Building Tax. The learned Single Judge who considered the

writ petition, followed the principles laid down by this Court in

Sheela v. Kollam Municipal Corporation [2017 (4) KLT 887] and

also relying on the provisions under Sections 239 and 240 of the

Kerala Municipalities Act, quashed the assessment orders and

consequential demand notice. As against the aforesaid findings, that

the appellant is before us in the intra-court appeal.

5. Heard, Sri.K.B.Arunkumar - learned counsel appearing for

the appellant and Sri.Enoch David Simon Joel - learned counsel

appearing for the 1st respondent/writ petitioner.

6. The learned counsel for the appellant pointed out that the

building occupied by the petitioner was put to unauthorized use and

therefore the Corporation is entitled to assess the Building Tax from

the date on which the petitioner started to occupy the building. It is

further submitted that the construction being unauthorized the

Corporation has got every right to claim the property tax from the

petitioner.

7. On the other hand, the learned counsel appearing for the

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writ petitioner would contend that the issue canvased by the

appellant is no longer res integra in the light of the decision of the

Division Bench in P.J. Joy and Others v. Corporation of Cochin

and Others [2024 (3) KLT 147]. He would further point out that the

Corporation did not take steps against the alleged unauthorized

constructions.

8. On a consideration of the rival submissions raised across

the bar, we are of the considered view that the writ appeal has to fail

for the reasons to follow:

i. The question as to whether the petitioner is entitled for

remission of the Building Tax in terms of provisions under Section

240 and 242 of the Kerala Municipalities Act 1994, is no longer res

integra in the light of the decision of the Division Bench in P.J. Joy

(supra). On a perusal of the decision of the Division Bench, it is seen

that the Division Bench has held that it is not mere utilization of a

building that would attract the provision, but utilization of an

unlawfully constructed building. Therefore, the Corporation of

Cochin cannot assess the building.

ii. There is yet another reason as to why the claim of the

appellant has to fail. The appellant has tried to project a case by

producing additional documents in the appeal. When we look into

Annexure 2 letter dated 23.12.2011 addressed by the writ petitioner

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to the Corporation, we find that the petitioner had stated sufficient

reasons as to why they could not complete the construction within the

permitted time due to scarcity of fund. It is also disclosed in the said

letter that the petitioner had submitted an applications dated

05.01.2010 and 19.10.2011 for extension of time for completion of the

building. However, the appellant sat over the said applications and

neither granted the extension of time, nor rejected the said