At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE A.K. JAYASANKARAN NAMBIAR
For the Petitioner: V.P. Seemanthini, Senior Advocate, M.R. Anison, P.A. Rinusa, Advocates. For the Respondents: M.K. Chandra Mohan Das, SC.
1. The challenge in the writ petition is against Ext.P5 order of the Tribunal for Local Self Government Institutions, whereby the Tribunal in a revision petition preferred by the petitioner against Ext.P4 demand notice for property tax, found that the petitioner's contention, that he was not liable to property tax in respect of a building constructed by him, for the period from 22.08.2006, the date on which the construction of the building was completed, till 16.06.2008 when an occupancy certificate in respect of the building was eventually granted to the petitioner, was not legally sustainable. The facts in the writ petition would i
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dicate that the petitioner had completed the construction of a commercial building on 22.08.2006. Although he had immediately applied for an occupancy certificate, the application was rejected by an order dated 10.11.2006. The petitioner, therefore, preferred an appeal before the Tribunal for Local Self Government Institutions, which by Ext.P1 order dated 12.07.2007, allowed the appeal and directed the respondent Municipality to issue an occupancy certificate to the petitioner so as to enable him to occupy the building. Although the Municipality challenged Ext.P1 order of the Tribunal before this Court through WP(C) No.30251 of 2006, the said writ petition was dismissed. The Municipality therefore, issued Ext.P3 occupancy certificate dated 16.06.2008 to the petitioner. Immediately thereafter, by Ext.P4 demand notice, the Municipality demanded property tax in respect of the building for the period from 22.08.2006, the date on which the petitioner had completed the construction of the building in question. Although the petitioner preferred a revision petition before the Tribunal for Local Self Government Institutions contending that he would not be liable to pay the property tax for the period between 22.08.2006 and 16.06.2008 when he obtained the occupancy certificate, the said contention was rejected by the Tribunal, which upheld the demand notice issued by the respondent Municipality. As already noted, in this writ petition Ext.P5 order of the Tribunal is impugned, inter alia, on the contention that although the Tribunal had, while passing Ext.P5 order relied upon the provisions of Section 241 of the Municipality Act as it then stood, the Tribunal overlooked the other significant provisions of the Act such as Section 233 and 239, which dealt with the levy of property tax as also the aspect of vacancy remission.2. I have heard the learned counsel appearing for the petitioner as also the learned Standing Counsel appearing for the respondents.3. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find from a perusal of the provisions of Sections 233, 239 and 241 of the Kerala Municipality Act, 1994 as they stood during the period prior to 07.10.2009, that while the statute contemplated a levy of property tax on buildings constructed within the territorial limits of the respective Municipalities, the levy of tax was to be based on the annual value of the buildings. The provisions of Section 239 dealing with vacancy remission contemplated that an owner of a building could apply to the Municipality concerned for remission of the tax payable in respect of the building if he give prior intimation to the Secretary to the effect that the building is vacant and unlet or that the building would be vacant and unlet from a specified date either in the half-year in which notice is delivered or in the succeeding half-year. The provisions also make it clear that every such notice would expire with the half-year succeeding the half-year, during which it was so delivered and would have no effect thereafter. Section 241 as it then stood, no doubt contemplated an obligation on the part of the owner of the building to give notice of the completion of construction so as to enable the Municipality concerned to commence the process of assessment to property tax of the building in question. The notice to be given by the owner had to be given within fifteen days from the date of completion or occupation of the building whichever is earlier. In my view, a conjoined reading of the above mentioned provisions as they then stood, clearly contemplated that while the charge of property tax accrued in respect of a building immediately on the completion of its construction, the liability to pay property tax depended entirely on whether the building was occupied or used for the purposes for which it was constructed. The vacancy remission provision under Section 239 of the Kerala Municipality Act 1994 would be rendered meaningless, if the construction to be placed on the charging provision is taken as intending a levy and collection of tax in respect of buildings with effect from the date of completion of construction, irrespective of whether they were occupied or not. In the instant case, the facts would indicate that it was within the knowledge of the respondent Municipality that, although the construction of the building was completed on 22.08.2006, the petitioner had not obtained an occupancy certificate for which he had applied, and that as a consequence thereto, the petitioner had not occupied the building for commercial purposes till 16.06.2008 on which date the occupancy certificate was eventually granted. Under the circumstances, I am of the view that, despite the petitioner not having strictly complied with the procedural requirements contemplated under Section 239 of issuing a prior notice to the respondent Municipality, the fact that the Municipality had refused the occupancy certificate pursuant to a request made for the same by the petitioner, would come to the aid of the petitioner in contending that the building was not used for the period from 22.08.2006 to 16.06.2008. I am therefore, of the view that, in the instant case, the liability of the petitioner to pay tax would arise only with effect from 16.06.2008, the date on which the occupancy certificate was issued to the petitioner. In arriving at the said conclusion I am fortified by the decision of this Court in M.C. George v. Moovattupuzha Municipality [1975 KLT 380].In the result, the writ petition is allowed by quashing Ext.P5 order, as also Exts.P6 and P7 consequential demand notices issued to the petitioner, to the extent they demand property tax from the petitioner for the period between 22.08.2016 and 16.06.2008.