BY AD vs K.N.SIVASANKARAN

BY ADV D.G.VIPIN SRI.D.G.VIPIN,SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)No.35768 of 2016 2 J U D G M E N T (Dated this the 19th day of March, 2025) The writ petition is preferred by a firm who is a developer being aggrieved by the issuance of Ext.P5 series of demand notices demanding property tax from the petitioner.

2. It is the case of the petitioner that, the petitioner has constructed 39 apartments in the apartment complex named as ‘Chakolas Lakeside’. That was on a mutual agreement with the property owners in a property having extent of 31.75 Ares comprised in Survey No.200/1, 200/3, 200/6, 1503, 1576, 1577, Edakochi Village in Kochi Taluk, belonging to Shibu Mathai, Renu Mathew, Abdul Rahiman Ponnambath, Babu Varghese and Anitha Varghese respectively.

3. While the construction was nearing completion as per Ext.P1 building permit, Ext.P2 notice was issued on the background that there was a violation as the petitioner has not produced the clearance of Costal Zone Regulation Notification, 2011 and NOC from the Pollution Control Board. However, the petitioner had preferred WP(C)No. 1325/2014 against Ext.P2 stop memo. Thereafter, the WP(C)No.35768 of 2016 petitioner has completed the construction and the 3 respective apartments were transferred as per Ext.P3 list. One of the of title deeds is produced as Ext.P4. Thereafter, on the information received from the Revenue Inspector, Ext.P5 series of demand notices were issued to 39 apartments. Against which, it is contended by the petitioner that, since occupancy certificate is not issued, the numbering of building is unauthorized thus demanding of tax from the petitioner is against the provisions of the Building Tax Act. This is the circumstance in which the petitioner had preferred this writ petition challenging Ext.P5 series of demand notices.

4. During the pendency of the writ petition, further notice was issued, raising the disputes with respect to the plinth areas, i.e.,produced as Ext.P7 series. Now, the petitioner seeks for a direction to the 1st respondent Corporation to reassess the building, in accordance with its occupancy as well as the date of occupancy as the entire 39 apartments have not been occupied by respective owners.

5. In response to the contentions, the learned Standing Counsel appearing for the respondent Corporation submitted that, it is on the report submitted WP(C)No.35768 of 2016 by the Revenue Inspector, tax has been imposed as per 4 Ext.P5 series. The claim of the petitioner that, though the building was completed, it is admitted that the occupancy certificate was not issued because of the pendency of the proceedings against the building, in the light of Ext.P2 stop memo. Only because certain apartments were occupied, the respondent has issued the demand raising property tax from the developer.

6. In reply to the said contention, the learned Counsel for the petitioner submitted that, such assessments were made without issuing notice to the petitioner. In fact, the petitioner is no more the owner because the property is handed-over to the respective owners, as evident from Ext.P3. Under such circumstances, the respondent Corporation will have to issue a separate notice to the respective owners and assess the property separately, in accordance with its plinth and date of occupancy.

7. I have heard Sri. Sunil Shankar, the learned Counsel for the petitioner and Sri. D.G Vipin, the learned Standing Counsel for the Corporation.

8. Going by the averments made, it appears that, the construction was stopped by issuing Ext.P2 stop WP(C)No.35768 of 2016 memo by the Corporation on the background that, no 5 clearance certificate is submitted by the petitioner from the Costal Zone Management Authority as well as no NOC from the Pollution Control Board as per Rule 33(2) of the Kerala Building Rules, 1999. That proceedings were taken under challenge before this Court as per the writ petition, which has now been ordered. The order in the writ petition is taken in appeal, which is pending for consideration. However, the issue remaining is with respect to the assessment of the buildings which had already been completed and handed over to the respective owners as evident from Ext.P3. However, going by the contention, it appears that, Ext.P5 series of demand was raised without issuing proper notice and without accepting the returns from the respective owners, which appears to be in violation of the principles of natural justice as well as the Kerala Municipality (Property Tax, Cess and Surcharge ) Rules, 2010.

9. Under such circumstances, I deem it appropriate to set aside Ext.P5 series of demand and direct the petitioner to produce the respective sale deeds as evident in Ext.P3. On the basis of Ext.P3, the respondent Corporation shall issue notices to the WP(C)No.35768 of 2016 respective property owners and assess the building 6 separately in accordance with their occupancy as well as the plinth area of the respective properties and raise appropriate demands in accordance with the occupancy of respective apartments. The issue with respect to Ext.P2 stop memo is left open. Accordingly, the writ petition is disposed of. AKH Sd/- P.M. MANOJ JUDGE WP(C)No.35768 of 2016 7 APPENDIX OF WP(C) 35768/2016 PETITIONER EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 TRUE COPY OF THE BUILDING PERMIT DTD 17/9/2009 TRUE COPY OF THE STOP MEMO DTD 29/11/2013 ISSUED BY THE RESPONDENT. THE LIST OF THE PURCHASERS , CORRESPONDING SALE DEEDS AND OTHER DETAILS TRUE COPY OF SALE DEED NO 4375/2012, KOCHI SRO TRUE COPIES OF THE DEMAND NOTICE ISSUED BY THE RESPONDENT EXHIBIT P5(A) TRUE COPIES OF THE DEMAND NOTICES ISSUED BY THE RESPONDENT.