Kerala High Court
Tgn Kumar vs Kochi Municipal Corporation on 8 July, 2025
2025:KER:49760
W.A No.1445 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
WA NO. 1445 OF 2025
AGAINST THE JUDGMENT DATED 10.06.2025 IN WP(C)
NO.21252 OF 2025 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
TGN KUMAR
AGED 54 YEARS
SON OF MR. TV GOPALAN, RESIDING AT 33/3004, VENNALA
(PO)ERNAKULAM DISTRICT, PIN - 682028
BY ADV SHRI.SHAJI CHIRAYATH
RESPONDENTS/RESPONDENTS:
1 KOCHI MUNICIPAL CORPORATION
CORPORATION OFFICE, PARK AVENUE ROAD, ERNAKULAM TOWN
REPRESENTED BY ITS SECRETARY, PIN - 682011
2 ACCOUNTANT GENERAL (AUDIT I), KERALA
INDIAN AUDIT & ACCOUNTS DEPARTMENT, OFFICE OF THE
ACCOUNTANT GENERAL (AUDIT I), AUDIT BHAVAN, STATUE,
THIRUVANANTHAPURAM,, PIN - 695001
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3 ASSISTANT EXECUTIVE ENGINEER
KOCHI MUNICIPAL CORPORATION, EDAPPALLY ZONAL OFFICE,
AJUMANA ROAD, EDAPPALLY, ERNAKULAM, PIN - 682024
BY ADVS SHRI.K.JANARDHANA SHENOY, SC, KOCHI MUNICIPAL
CORPORATION
SRI.LEO LUKOSE
SRI.VIPIN P VARGHESE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
19.06.2025, THE COURT ON 08.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Sushrut Arvind Dharmadhikari, J.
The present intra-court appeal filed under Section 5 of the
Kerala High Court Act, 1958 assails the judgment dated
10.06.2025 in WP(C) No.21252 of 2025 whereby the learned
Single Judge has disposed of the writ petition by directing the 3rd
respondent to afford the appellant an opportunity of being heard
before Ext.P5 order is finalised, notwithstanding Ext.P6 notice, as
expeditiously as possible.
2. The writ petitioner is the appellant in the present case.
The writ petition was filed challenging the illegal re-assessment of
the appellant's building by the 3rd respondent pursuant to the
audit report of the 2nd respondent, when building permit and tax
assessment are completed by the 1st respondent.
3. The appellant is the owner and in possession of the
property having an extent of 10.12 Ares situated in Survey
No.78/3-2-2 of Edappally South Village, Kanayannur Taluk,
Ernakulam District and the building bearing No.42/1643A of Kochi
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Municipal Corporation. The appellant has regularly paid the
building tax to the Kochi Municipal Corporation from the date of
issuance of completion certificate for occupancy by the Kochi
Municipal Corporation and Ext.P1 is the current building tax
receipt.
4. The appellant was issued Ext.P3 notice by the 3rd
respondent directing demolition of alleged unauthorised
construction and Ext.P5 provisional assessment order was
purportedly issued on the basis of the same. The grievance of the
appellant is that the learned Single Judge failed to consider that
the 3rd respondent being a statutory authority is bound to issue
documents and reports relied on by it while passing the said
order. On the contrary, there is no opportunity granted to the
appellant to peruse the document or cross-examine either the
auditor of the 3rd respondent or the engineer staff of the 1st
respondent, which amounts to violation of the principles of natural
justice. The learned Single Judge also failed to assess as to
whether the 2nd respondent has power to inspect and adjudicate
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matters relating to building permit and property tax. The issues
which arise for consideration in this appeal are:
(i) Whether the 2nd respondent has jurisdiction
under the Kerala Local Fund Audit Act, 2014 or The
Comptroller and Auditor General's (Duties, Powers
and Conditions of Service) Act, 1971 (hereinafter
referred to as 'the CAG Act, 1971') to inspect and
adjudicate matters relating to building permit and
property tax.
(ii) Whether Exts.P3 and P5 are legally sustainable.
5. On the other hand, learned counsel for the respondents
submitted that the writ petition itself was not maintainable
inasmuch as only the show cause Notice Ext.P3 has been issued
asking the appellant to show cause as to why the building cannot
be demolished as it is an unauthorized construction. Therefore, at
this stage, the petition ought not to have been entertained and
the appeal itself is not maintainable and is liable to be dismissed.
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6. Heard both sides and perused the records.
7. The powers of the Local Fund Audit Department are
governed by the Kerala Local Fund Audit Act, 1994. Section 4
thereof enables audit of accounts of local authorities. Section 5
defines the scope of such audit as examination of accounts and
transactions to verify financial regularity and compliance with
applicable rules. Section 6 confers only access to documents and
records for audit purposes and does not empower the department
to pass executive or quasi-judicial orders. Similarly, under the
CAG Act 1971, Section 14 authorises audit of bodies substantially
financed by government funds, and Section 20 permits audit on a
request by the Governor. These provisions are also confined to
financial audit and do not empower the CAG or its delegates to
pass enforceable directions or adjudicate building related issues.
8. In contrast, the Kerala Municipality Act, 1994 provides a
clear and exclusive mechanism under Sections 233 to 235 for
assessment and revision of building tax. These powers are
conferred solely upon the Municipal Secretary and Standing
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Committee for Finance. Section 295 mandates annual audit by
the Government, but only of accounts, not substantive decisions
like issuance of building permits. We are of the considered
opinion that the 2nd respondent has no statutory authority to
determine the legality of building construction or to reassess the
building tax fixed by the 1st respondent. The functions of the
auditors i.e the 2nd respondent under both the Acts i.e. Kerala
Local Fund Audit Act and CAG Act are limited to examination of
accounts and do not extend to executive enforcement or
demolition. Moreover, the language and tenor of Ext.P3 disclose
that the 3rd respondent has already taken a decision for
demolition. Therefore, the challenge in the writ petition is
maintainable.
9. Had the show cause notice been simply asking for a
reply, the situation would have been different. But in the present
show cause notice, there is a specific finding with regard to
demolition which cannot be sustained that too without affording
the appellant an opportunity to be heard. This amounts to direct
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infraction of the principles of natural justice. Such unilateral and
punitive action beyond the jurisdiction of the 3rd respondent
renders Ext. P3 arbitrary and illegal. As a result, Ext.P5 being a
provisional assessment order issued in furtherance of illegal notice
also cannot be sustained.
10. In view of the aforesaid, we are of the conclusion that
the learned Single Judge has not considered the provisions as
mentioned hereinabove of both the Acts leading to disposal of the
writ petition by directing the 3rd respondent to afford an
opportunity of hearing and thereafter pass a reasoned and
speaking order.
11. Accordingly, the judgment passed by the learned Single
Judge cannot be upheld. The same is hereby set aside. Ext.P3
notice issued by the 3rd respondent is declared to be illegal,
arbitrary and without jurisdiction and the same is also quashed.
Ext.P5 provisional assessment order also stands quashed as a
consequence having no independent legal basis. The 2nd
respondent has no power or authority to inspect, review or
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reassess the legality of building permit or assessment of building
tax made by the Municipal Corporation under the Kerala
Municipality Act, 1994. It is made clear that the quashment of
Exts.P3 and P5 are confined to the case of the appellant alone and
shall not affect any third party proceedings.
Accordingly, this writ appeal is allowed. No order as to
costs.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M
JUDGE
smp
