IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31173 of 2008(J)
1. VARGHESE THOMAS
... Petitioner
Vs
1. SECRETARY, THIRUVALLA MUNICIPALITY
... Respondent
For Petitioner :SRI.N.N.SUGUNAPALAN (SR.)
For Respondent :SRI.S.SUBHASH CHAND, SC.THIRUVALLA MUNC
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :06/07/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).Nos.31173 OF 2008 &
17758 OF 2009
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Dated this the 6th day of July, 2009
JUDGMENT
1.The petitioner in these matters owns a building within the
jurisdiction of Thiruvalla Municipality. Issues arose between
him and the Municipality regarding payment of property tax
and also regarding numbering of the building and issuance of
ownership certificate. After hearing counsel for parties and
following earlier interim orders, this Court issued a further
interim order in W.P(C).31173/08, on 25.11.2008, directing
the Municipality to issue occupation (occupancy) certificate
and to make regular assessments of property tax. In respect
of assessments purportedly made under Section 242 of the
Kerala Municipality Act, 1994, hereinafter, the “Act”, the
petitioner was relegated to file an appeal before the Tribunal
for Local Self Government Institutions.
WPC.31173/08 & 17758/09
Page numbers
2. Following the aforesaid, the petitioner filed an appeal to the
Tribunal and that has been returned with an endorsement that
he has to remit the amounts covered by the demand impugned
in the appeal. This led to the institution of W.P(C).17758/09.
3. From the aforesaid, it is clear that there are two issues
between the parties; one relatable to regular assessments
made pursuant to the interim order in W.P(C).31173/08 and
the other relatable to the purported invocation of Section 242
of the Act and assessments thereunder. The latter among the
two, though is a matter on which the petitioner was relegated
to the Tribunal, is essentially one on which an appeal would lie
before the appropriate standing committee and not before the
Tribunal. The condition precedent to be satisfied to sustain
that appeal is deposit. With the passage of time, deposit has
been made in terms of the appeal presented before the
Tribunal. Obviously therefore, that has to be reckoned as a
deposit made for the purpose of the appeal before the standing
committee and taking into consideration the pendency of these
WPC.31173/08 & 17758/09
Page numbers
writ petitions and the exercise carried out by the petitioner
before the Tribunal, it is directed that in so far as the
purported levy under Section 242 of the Act is concerned, the
standing committee shall entertain an appeal from the
petitioner on that issue and decide thereon in accordance with
law, provided such appeal is filed within a period of two weeks
from the date of receipt of a copy of this judgment.
4. In so far as it relates to the regular assessment, Ext.P7 in W.P
(C).17758/09 is issued notifying the petitioner of the amounts
assessed as yearly tax and payables thereon. While the
counsel for the Municipality may be justified, on the terms of
the statute, in saying that such an assessment admits for, only
the institution of an appeal against it to the standing
committee, which again would be conditional on the deposit of
the disputed amount, a reading of Ext.P7 would show that it
contains the grant of an opportunity of pre-decisional hearing
since it is stated therein that if the petitioner has any
objections to the fixation of the tax as shown therein, he would
WPC.31173/08 & 17758/09
Page numbers
be entitled to file objections. He has accordingly filed
objections, which is Ext.P8 in W.P(C).17758/09. Having been
afforded such an opportunity by the statutory authority,
though that might not have been mandatory, it is inappropriate
to deny him such an opportunity. This is because, even in the
absence of a rule of hearing being statutorily prescribed, an
opportunity of hearing could be extended except in cases
where it is prohibited by express or inexcusably implied
exclusion of the natural justice. Under such circumstances, it
is directed that the proposal made as per Ext.P7 will stand
provisional, obliging the Secretary of the Municipality to hear
the petitioner on his objections and to issue a final order of
assessment in terms of law. Let that be done within a period
of two months, in accordance with law.
5. As a consequence of the above, further enforcement of
Exts.P9 and P10 in W.P(C).17758/09 will be held back,
awaiting decision as aforesaid. The occupancy certificate and
ownership certificate issued by the Municipality in terms of
WPC.31173/08 & 17758/09
Page numbers
the interim orders would stand provisional, to be regulated by
what follows the procedures directed above.
The writ petitions are disposed of accordingly.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.7/7.