BIJU MATHEW Vs. CORPORATION OF COCHIN

JUDGEMENT

(1.) The matter arises under the Kerala Municipality Act, 1994 (hereinafter referred to as 'the Act'). The issue relates to the grant of vacancy remission under S.239 of the Act. The petitioner is the Managing Director of a company, inter alia, engaged in the business of construction of buildings and their sale. The company constructed a building having 61 shops/offices out of which 59 were given door numbers by the first respondent. Accordingly to the petitioner, due to the recession in the real estate market the sale of a majority of the shops/offices did not fructify and are still laying vacant. The first respondent has assessed the said buildings to property tax as per Ext. P1 and similar notices. Since the petitioner was unable to sell or let out the newly constructed shops/offices, he issued notices under S.239 to both the respondents stating that the buildings are vacant and requested for remission of property tax. One such intimation is produced as Ext. P2. It is also stated that the petitioner had preferred another letter dated 27.3.1998 pointing out that they do not expect to let out or sell/the building at least till 30.9.1998. During the pendency of the said applications (Ext. P2 and P3) the petitioner filed Writ Petition, O. P. No. 6614 of 1998 and this Court by judgment dated 2.4.1998 directed the Secretary of the first respondent Corporation to dispose of the same in accordance with law. Accordingly the Secretary of the Corporation by Ext. P4 order disposed of Exts. P2 and P3 applications. The claim for vacancy remission was rejected stating that the provisions of S.239 of the Act did not apply to the case of the petitioner. It is this order which is challenged in this Original Petition.

(2.) The reason stated by Secretary of the first respondent Corporation for rejecting the request made in Exts. P2 and P3 is that vacancy remission under S.239 of the Act can be granted only to a building which is ordinarily let or occupied by the owner himself which falls vacant and unlet for a period of six months and that in the instant case the building with respect to which the petitioner has claimed vacancy remission had never been let out or occupied by the owner and therefore S.239 of the Act did not apply.

(3.) A counter affidavit is filed on behalf of the respondent. It is stated therein that in order to attract the provisions of S.239 of the Act, it should be one ordinarily let or occupied by the owner and should become vacant for any half year or part thereof. According to the respondents, the premises under reference did not belong to the class of buildings ordinarily let or occupied by the owner and consequently did not attract the said provisions of law. It is in those circumstances the petitioner's claim for vacancy remission of tax was found to be inadmissible under S.239 of the Act. It is also stated that the petitioner has got an alternate remedy under S.58 of the Act.