Kerala High Court
K.M.Sukumaran vs Aluva Municipality on 12 June, 2025
2025:KER:41274
W.P.(C).No.20990 of 2015
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
THURSDAY, THE 12TH DAY OF JUNE 2025 / 22ND JYAISHTA, 1947
WP(C) NO. 20990 OF 2015
PETITIONER:
K.M.SUKUMARAN
AGED 68 YEARS
S/O.K.K.MAYILAN, RESIDING AT KOCHUVEETIL,
NETAJI ROAD, COUNCILOR, ALUVA MUNICIPALITY, ALUVA,
PIN 683 101, ERNAKULAM DISTRICT.
BY ADV SRI.VIJAI MATHEWS
RESPONDENTS:
1 ALUVA MUNICIPALITY
REPRESENTED BY ITS SECRETARY, ALUVA MUNICIPAL HOUSE,
PIN 683 101, ERNAKULAM DISTRICT.
2 THE DISTRICT COLLECTOR
ERNAKULAM CIVIL STATION, KAKKANAD 682 030.
3 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
4 OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
REPRESENTED BY ITS SECRETARY, SAPHALLAYAM COMPLEX,
TRIDA BUILDING, PALAYAM, UNIVERSITY PO,
THIRUVANANTHAPURAM 695 034.
5 GRIGARY JOSEPH,
XIV/275 KOLLAMPARAMBIL,
ALUVA WEST, ERNAKULAM 683 101.
BY ADVS.
SRI.K.S.ARUN KUMAR
SRI.K.T.THOMAS
SRI.NIKHIL BERNY
SRI.TONY AUGUSTINE - GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P.(C).No.20990 of 2015
2
S.MANU, J.
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W.P.(C).No.20990 of 2015
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Dated this the 12th day of June, 2025
JUDGMENT
Challenge in this writ petition is against Ext.P7 notice
issued by the respondent Municipality on 17.7.2012, Ext.P11
order of the Ombudsman for Local Self-Government Institutions
in C.M.P.No.246/2013 in O.P.No.1135/2011 dated 26.7.2013,
Ext.P14 proceedings of the Chairman, Standing Committee for
Finance of the respondent Municipality dated 06.12.2013,
Ext.P18 proceedings of the Principal Secretary, Local Self-
Government Department dated 23.10.2014 and Ext.P19
demand notice issued by the respondent Municipality on
09.04.2015. Petitioner has also sought for a direction to the 1 st
respondent to make final assessment of building tax in respect
of his building. He has also inter alia sought for direction to take
action against erring officers of the respondent Municipality for
their alleged failure to take steps to assess tax.
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2. On his application, a building permit was issued by
the respondent Municipality on 02.01.1993. According to the
petitioner, he submitted completion certificate. But the
Municipality failed to take appropriate actions on the basis of the
completion certificate, including the assessment for building tax.
3. Petitioner contested in the election held in 2010 and
was elected as a Member of the Municipality. He obtained a
non-liability certificate for the purpose of contesting which was
issued on 26.8.2010. The 5th respondent made a representation
to the Ombudsman for Local Self-Government Institutions,
alleging that the petitioner was actually a defaulter with respect
to building tax. The learned Ombudsman passed Ext.P6 order
dated 28.4.2012 in the Original Petition filed by the 5 th
respondent directing the Municipality to take appropriate
actions and to levy tax. Thereafter, Ext.P7 notice was issued by
the Municipality on 17.7.2012. Petitioner submitted Ext.P8 on
08.08.2012 objecting to Ext.P7. Petitioner raised several
contentions in Ext.P8. The objection was examined by the
Municipality and by Ext.P9 dated 13.9.2012 his contentions
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were rejected and demand notice was issued. It was demanded
that the petitioner shall remit the dues within 15 days.
4. Against Ext.P9, petitioner claims to have submitted
Ext.P10 before the Chairman of the Standing Committee for
Finance. He thereafter raised a grievance before the learned
Ombudsman in O.P.No.1135/2011 filed by the 5 th respondent by
preferring C.M.P.No.246/2013. The learned Ombudsman by
Ext.P11 order dated 26.7.2013 disposed the C.M.P. observing
that the petitioner had to move the appropriate appellate forum
under the Building Tax Rules.
5. Later, the petitioner approached this Court in W.P.
(C)No.22500/2013. The writ petition was disposed on
10.09.2013. The judgment has been produced as Ext.P12. It is
extracted hereunder:-
"The limited relief sought for by the petitioner
is for a direction to consider and pass final
orders on Exhibit P8 appeal that is pending
before the 4th respondent. The petitioner is
aggrieved by the property tax assessment
made by the third respondent on his building.
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The Government pleader takes notice for the
first respondent. Since Exhibit P8 appeal is
pending, I do not consider it necessary to issue
notice to the other respondents.
2. This writ petition is therefore disposed
of directing the 4th respondent to consider
Exhibit P8 appeal, in accordance with law and
to pass appropriate orders thereon, as
expeditiously as possible and at any rate within
a period of two months of the date of
production of a copy of this judgment by the
petitioner."
6. The Municipality proceeded to comply with the
directions in the judgment mentioned above. However, the
Municipality could not find out any appeal filed by the petitioner.
Hence, Ext.P13 notice dated 18.10.2013 was issued requesting
the petitioner to produce copy of the appeal, receipt obtained on
submitting the appeal and copy of the receipt showing
remittance of property tax.
7. Ext.P14 order was later issued, on 6.12.2013 by the
Chairman of the Standing Committee for Finance on the basis of
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the decision taken by the Committee on the same day. It was
stated in Ext.P14 that though this Court had directed to consider
the appeal of the petitioner the appeal was not liable to be
entertained for failure to remit the amount as per impugned
demand notice and also for the reason that the appeal was not
filed within 30 days. Petitioner thereafter submitted a
representation to the Hon'ble Minister. The said representation
was considered by the Government and the Principal Secretary,
Local Self-Government Department by Ext.P18 dated
23.02.2014 rejected the request of the petitioner and observed
that in case the petitioner has further grievances he can
approach the Tribunal for Local Self-Government Institutions.
Thereafter, Ext.P19 demand notice was issued by the
Municipality on 9.4.2015.
8. By Ext.P21 dated 13.2.2015 the Principal Secretary,
LSGD Department directed the Secretary of the Municipality to
levy tax and recover the same from the petitioner treating it as
'escaped assessment'.
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9. The learned counsel for the petitioner submitted that
the petitioner was actually harassed by the Municipality by not
taking appropriate actions after he submitted the completion
certificate. The learned counsel contended that every step
taken by the Municipality in the case of the petitioner was
contrary to law. He submitted that though the anomalies were
pointed out by the petitioner from the beginning, no authority
has properly addressed the issues pointed out by the petitioner.
He further submitted that the impugned proceedings are non-
sustainable in the eyes of law and referred to various provisions
of the Municipality Act and relevant Rules in support of his
contentions.
10. The Municipality has filed counter affidavit. It is
stated in the counter affidavit that the petitioner completed the
construction and started residing in the building without
obtaining occupancy certificate. It is further stated by the
Municipality that occupancy certificate was issued on 17.7.2012
which has been produced as Annexure-R1(a). The Municipality
states that the building was assessed to property tax on the
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basis of Ext.R1(b) return submitted by the petitioner and that
Ext.P7 demand notice was issued. Ext.P8 submitted by the
petitioner was considered as a revision petition by the Secretary
of the Municipality in terms of the Taxation and Finance Rules,
Schedule II, Kerala Municipalities Act, 1960 and the same was
rejected stating reasons. Fresh demand notice was issued on
19.9.2012 demanding the petitioner to remit tax for the period
from 1993-94 (Second half) to 2012-13. Municipality points out
that the petitioner has suppressed these material facts in the
writ petition. The return submitted by the petitioner and copy
of the demand notice dated 19.9.2012 have been produced by
the Municipality as Annexures.R1(b) and R1(c) respectively.
11. Municipality further contends that Ext.P8 appeal was
considered and rejected by it pursuant to Ext.P12 judgment.
Petitioner later approached the Government and the
Government did not find any merit in his contentions. In the
absence of any challenge to the assessment and demand notice,
the petitioner is estopped from challenging the demand of
property tax. Further, the Municipality states that the petitioner
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obtained Ext.P5 non-liability certificate by furnishing false
information. Municipality asserts that the assessment carried
out was strictly in terms of the provisions of the Kerala
Municipality Act, 1994 and the Rules. It is also stated in the
counter affidavit that the petitioner has remitted property tax
for the years 2023-24 (Second half) and 2024-25 (First and
Second halves) to the Municipality during the pendency of this
writ petition.
12. The learned Standing Counsel for the Municipality
contended that the petitioner is pursuing the writ petition
without any bonafides. He submitted that the petitioner has
suppressed various material facts and has been making efforts
to evade payment of tax. He argued that the petitioner is not
entitled to maintain any challenge against the assessment and
demand for the reason that his appeal was rejected and no
further legally sustainable challenge was raised by him. He
contended that there is no infirmity in the assessment and the
petitioner is liable to pay the dues as per Ext.R1(c) demand
notice.
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13. Petitioner has filed a reply affidavit refuting the
contentions of the Municipality.
14. I have heard the learned counsel for the petitioner
and the learned Standing Counsel elaborately and perused the
pleadings and documents.
15. Petitioner has a case that the Municipality initially
proceeded considering the building as unauthorised and the
assessment was made on that basis. This is virtually admitted
by the Municipality also in its counter affidavit with respect to
Ext.P4. However, Municipality states that, Ext.P7 demand notice
was issued after making the assessment to property tax on the
basis of the return submitted by the petitioner. It is also
submitted that the final assessment was made on the basis of
the prevailing Rules. Merits of this contention as well as
propriety and legality of the assessment could have been
challenged by the petitioner by invoking statutory remedies.
Nevertheless the petitioner did not pursue such remedies
properly.
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16. The petitioner once approached this Court in
W.P.(C)No.22500/2013 which was disposed of by Ext.P12
judgment. This Court directed the Standing Committee for
Finance of the Municipality to dispose the appeal filed by the
petitioner aggrieved by the assessment made by the
Municipality. The said judgment was rendered by this Court on
the basis of a specific plea for a direction to consider the
appeal. The appeal was considered and as narrated above, was
rejected by the Municipality. The petitioner thus invoked a
statutory remedy and persuaded this Court to issue a writ for
consideration of his appeal. However, the appeal was not in
accordance with the statutory provisions. The Standing
Committee rejected it. Statutory remedy of challenging the
decision by filing revision was available. The same was not
availed by the petitioner. He instead submitted a representation
to the Government which was also rejected. Government
examined the grievance of the petitioner and his contentions
and for reasons clearly stated in the reply rejected the same.
Thereafter, the petitioner submitted Ext.R1(b) return.
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Nonetheless, the said fact has not been disclosed in this writ
petition. Ext.R1(a) occupancy certificate was issued to the
petitioner on 17.7.2012. The said crucial fact also has not been
revealed by the petitioner. Municipality thereafter issued
Ext.R1(c) notice which according to the Municipality reflects the
final assessment. The said notice was received by the petitioner
as evident from the endorsement on Ext.R1(c).
17. A litigant approaching this Court invoking extra-
ordinary jurisdiction under Article 226 of the Constitution cannot
be permitted to blow hot and cold. Petitioner approached this
Court in an earlier round of litigation for a direction to consider
his appeal. Rejection of his appeal was not challenged as
provided under law. Instead the petitioner took misguided steps.
He turned round and contended in this writ petition that the
impugned assessment of the Municipality being illegal, he need
not have further pursued the statutory remedies and was
entitled to invoke the writ jurisdiction. Having obtained a
direction from this Court in support of his pursuit of statutory
remedies in the earlier round, the petitioner cannot be
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permitted to contend so in this second round of litigation. So
also several crucial facts which are pointed out in the counter
affidavit filed by the Municipality have been suppressed in this
writ petition. It is also to be noticed that the petitioner has
remitted property tax for the years 2023-24 (Second half) and
2024-25 (First and Second half) with the Municipality.
18. In view of the above discussion, in my considered
view no relief is liable to be granted in this writ petition and the
petitioner shall remit tax in accordance with the final
assessment in Ext.R1(c). However, the liability to pay will be
limited as per Section 539 of the Kerala Municipality Act 1994.
Writ Petition is accordingly disposed of.
Sd/-
S.MANU
JUDGE
skj
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APPENDIX OF WP(C) 20990/2015
PETITIONER'S EXHIBITS:
P1 TRUE COPY OF THE LETTER ISSUED BY THE ASSISTANT
DIRECTOR, LOK SABHA SECRETARIAT, DATED 16.1.1992 TO
THE CHIEF SECRETARY, GOVERNMENT OF KERALA
P2 TRUE COPY OF THE BUILDING PERMIT DATED 2.1.1993
ISSUED BY THE MUNICIPAL COMMISSIONER
P3 TRUE COPY OF THE RECEIPT ISSUED BY THE MUNICIPAL
COMMISSIONER ON RECEIPT OF THE COMPLETION
CERTIFICATE
P4 TRUE COPY OF INDEX SHEET OF ALUVA MUNICIPALITY
P5 TRUE COPY OF THE NON-LIABILITY CERTIFICATE ISSUED
BY THE MUNICIPALITY
P6 TRUE COPY OF THE ORDER OF OMBUDSMAN FOR LOCAL SELF
GOVERNMENT INSTITUTIONS DATED 28.4.2012
P7 TRUE COPY OF NOTICE O.R2-7767/2011 DATED 17.7.2012
ISSUED TO THE PETITIONER
P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONER DATED 8.8.12
P9 TRUE COPY OF COMMUNICATION ISSUED TO THE
PEITTIONER BY HTE SECRETARY DATED 13.9.12
P10 TRUE COPY OF REPRESENTATION SUBMITTED BY HTE
PETITIONER TO THE CHAIRMAN OF THE STANDING
COMMITTEE DATED 20.9.2012
P11 TRUE COPY OF THE ORDER OF THE OMBUDSMAN DATED
26.7.2013
P12 TRUE COPY OF THE JUDGMENT DATED 10.9.2013 IN WP(C)
P13 TRUE COPY OF THE COMMUNICATION ISSUED TO THE
PETITIONER DATED 18.10.2013
P14 TRUE COPY OF THE ORDER PASSED BY THE VICE
CHAIRPERSON OF ALUVA MUNICIPALITY DATED 6.12.2013
P15 TRUE COPY OF THE COMMUNICATION ISSUED TO THE
PETITIOER BY THE OFFICE OF THE DISTRICT COLLECTOR,
ERNAKULAM DATED 23.1.2014
P16 TRUE COPY OF THE COMMUNICATION ISSUED TO THE
PETITIONER DATED 11.4.2014
P17 TRUE COPY OF THE MINUTES DATED 29.8.2011 OF THE
ALUVA MUNICIPALITY
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P18 TRUE COPY OF THE GOVERNMENT ORDER DATED 23.2.2014
P19 TRUE OF THE DEMAND NOTICE DATED 9.4.2015
P20 TRUE COPY OF THE DETAILED OBJECTION OT THE DEMAND
NOTICE
P21 TRUE COPY OF THE GOVT.ORDER DATED 13.2.2015
P22 TRUE COPY OF NOTICE DATED 18.1.2012 ISSUED BY THE
MUNICIPALITY
P23 TRUE COPY OF THE CHEQUE DATED 13.11.2014 FOR A SUM
OF RS.4500/-
RESPONDENTS' ANNEXURES
ANNEXURE-R1(a) True copy of Occupancy Certificate
dated 17.07.2012 issued by Assistant
Engineer, Aluva Municipality
ANNEXURE-R1(b) True copy of property tax return
submitted by petitioner
ANNEXURE-R1(C) True copy of the requisition dated
05.07.2014 submitted by Secretary,
Aluva Municipality
Annexure-R1(d) True copy of the affidavit dated
05.08.2010 submitted by the petitioner
Annexure-R1(a) True copy of Occupancy Certificate
dated 17.07.2012 issued by Assistant
Engineer, Aluva Municipality
Annexure-R1(b) True copy of property tax return
submitted by petitioner
Annexure-R1(c) True copy of demand notice dated
19.09.2012 issued by 1st respondent to
petitioner
Annexure-R1(d) True copy of the affidavit dated
05.08.2010 submitted by the petitioner
