IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 16 of 1999(B)
1. CORPORATION OF CALICUT
... Petitioner
Vs
1. P.P.AYISHABI
... Respondent
For Petitioner :SRI.K.D.BABU SC FOR CALICUT CORPN.
For Respondent :SRI.V.V.SURENDRAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :05/01/2011
O R D E R
P.BHAVADASAN, J.
————————————-
SA No.16 of 1999-B
————————————-
Dated this the 5th day of January 2011
Judgment
This appeal arises out of an assessment
proceedings initiated by the defendant Corporation in
respect of a hotel building said to belong to the plaintiff.
According to the plaintiff, the building was let out to a
single tenant and therefore, it should be assessed only in
that manner. Initially, the Corporation did so. But, later,
they found that the rooms of the building were given to
different persons on separate rental arrangement and the
claim of the plaintiff that the building was outstanding on a
single tenancy, was incorrect. Therefore, assessment was
made in respect of each room.
2. Aggrieved by the assessments so made, the
plaintiff seems to have filed an appeal before the
Commissioner. That was rejected. The plaintiff would say
that thereafter, the plaintiff filed an appeal before the
SA No.16/99 2
standing committee, which had not been disposed of as on
the date of filing of the suit. The main grievance of the
plaintiff was that it was without following the legal
formalities and procedures that the assessment was done
and that is in violation of the principles of natural justice
and relevant statutory provisions.
2. The defendant responded by pointing out that
the plaintiff was unable to show that the building was
outstanding on a single tenancy. In pursuance of the
inspection made by the officials of the Corporation and the
report made available, the rooms in the building were
outstanding on independent lease with different persons.
They pointed out that no appeal has been filed before the
standing committee and only a complaint has been
preferred, which cannot be considered.
3. When demand notice was served on the
plaintiff, she approached the trial court. The trial court was
unimpressed by the case put forward by the plaintiff and
dismissed the suit. The plaintiff went up in appeal as AS
SA No.16/99 3
No.71/96 before the Sub Court, Kozhikode. The lower
appellate court, on a consideration of the materials, found
that there has been gross violation of the procedural
formalities in making the assessment of tax due from the
plaintiff and on that sole ground, set aside the judgment
and decree of the trial court. However, the lower appellate
court was careful enough to ensure that the Corporation
was at liberty to make the assessments in accordance with
law. The said judgment and decree are assailed in this
second appeal.
4. The following questions of law are seen raised
in this second appeal :
“(A) Having regard to the fact that the suit is one for a
declaration that the proceedings taken by the defendant-
Corporation under the Kerala Municipal Corporations
Act for assessing the property owned by the plaintiff to
property tax is void, illegal and inoperative as against
the plaintiff and since the provisions of the said Act had
been complied with by the defendant-Corporation for
making the assessment, is not the suit barred and not
SA No.16/99 4
maintainable in view of the provisions contained in
Section 429 of the Kerala Municipal Corporations Act,
1961 ?
(B) Having regard to the fact that the Kerala Municipal
Corporations Act, 1961 provides for the procedure to be
followed by the assessing authority in the matter of
assessing the property to property tax and has also
provided for a remedy available to the aggrieved
assessee to file appeal against the concerned
authorities prescribed by the Taxation Rules and since
the plaintiff has not availed of such alternative remedy,
is not the suit liable to be dismissed on this ground
alone ?
‘(C) Having regard to the fact that the Kerala Municipal
Corporations Act has provided for an elaborate
procedure to be followed by the assessing authority in
the matter of assessing of property to property tax under
the Act, has not the lower appellate court committed an
error in assuming that the principles of natural justice
have been violated in making the assessment in
question ?
(D) Having regard to the fact that the plaintiff has not
SA No.16/99 5
produced any oral and documentary evidence in
support of her case that property tax has not been
assessed properly and opposed to facts and thereby the
assessee-plaintiff has failed to discharge the onus of
proof cast on her, should not the lower appellate court
have dismissed the suit on this ground ?”
5. The learned counsel for the appellant pointed
out that in view of Section 429 of the Kerala Municipal
Corporations Act, 1961, the suit was not maintainable.
Further, statutory remedies being available to the plaintiff,
the plaintiff should have taken recourse to those remedies
and by-passing the statutory remedies, she cannot
approach the civil court for redressal of her grievance. It is
also pointed out that the plaintiff had not produced any
document to show that the building was outstanding on
single tenancy. It is also significant to notice that no oral
evidence whatsoever was adduced by the plaintiff in
respect of the allegations in the plaint. Therefore, it is
contended that the judgment and decree of the lower
SA No.16/99 6
appellate court are unsustainable in law.
6. The learned counsel for the respondent, on
the other hand, pointed out relying on the decision in
“Corporation of Thiruvananthapuram v. Bhaskaran
Nair” (1985 KLT 213) that it is true that normally the
aggrieved party cannot approach the civil court directly for
redressal of his grievance, but, there may be exceptional
circumstances, when recourse to civil court for redressal of
grievance can be had. One such instance is when there is
gross violation of natural justice and total violation of
procedural formalities while making the assessment. This is
a typical case of the said nature and therefore, the lower
appellate court was justified in granting a decree, it is
contended.
7. The point of law raised is only of academic
interest. The lower appellate court has not precluded the
Corporation from making fresh assessment. In the light of
the plea they have taken in the written statement, all that
SA No.16/99 7
the lower appellate court has stated is that they shall follow
the proper procedure and comply with the formalities under
the statute. The lower appellate court has not interdicted
the Corporation from taking such courses are as available
to them to make the assessment. In the light of the said
fact, it is unnecessary to go into the question as to whether
it was proper on the part of the plaintiff to have approached
the civil court instead of availing the statutory remedies.
Since no rights of the Corporation, as such, are affected
and liberty is given to them to proceed in accordance with
law, it is felt that at this distance of time, interference is not
called for.
The result is that since no prejudice is, as such,
caused to the Corporation, this appeal is only to be
dismissed. It is accordingly dismissed. There will be no
order as to costs.
P.Bhavadasan, Judge
sta
SA No.16/99 8
SA No.16/99 9