M. BAIJU Vs. SECRETARY

JUDGEMENT

(1.) This writ petition is filed under Sec. 226 of the Constitution of India impugning the demand notices, Exts.P4 to P10. The facts of the writ petition are not in dispute. The building for which the impugned demand notices have been issued is a multi storied apartment constructed by the petitioner. The completion certificate was issued in respect of the said building on 19/2/2015. However, the occupancy certificate was issued only on 1/2/2017 by the respondent Municipal Corporation. The impugned demand notices are in respect of the property tax for the period from 1/10/2014 to 28/2/2017.

(2.) Learned Counsel for the petitioner submits that the petitioner is not liable to pay the property tax before issuance of the occupancy certificate, which is on 1/2/2017. He further submits that only on issuance of the occupancy certificate, the building is numbered, and electricity, water and gas connections are provided, and thereafter, the building can be used for residential purposes. He further submits that Sec. 233 of the Kerala Municipality Act and Rules, 1994, provide for levy of property tax by every Council of the Municipality under the provisions of the said Act and the Rules made thereunder. He further submits that Subsection (2) of Sec. 233 of the Kerala Municipality Act, defines the buildings on which the property tax can be levied. Subsection (2) of Sec. 233 of the Kerala Municipality Act says that the building should be used for residential purpose or used for industrial purpose or used for a school or hospital or other purposes as defined.

(3.) The case of the learned Counsel for the petitioner is that the building can be used for residential purpose only when it is numbered and water and electricity connections are provided. He also submits that this Sec. does not define the purpose for which the building is capable of being used. But subsection (2) of Sec. 233 would mean that the building is actually used or becomes fit for use for residential purposes or other purposes as defined in Subsection (2). He, therefore, submits that until the occupancy certificate is issued, the building does not become fit for use for residential purpose and, therefore, levying the tax prior to the issuance of the occupancy certificate defeats the scheme of the Act itself. He further submits that, the State Government itself has issued circular dtd. 3/5/2020 clarifying Rule 24 of the Kerala Municipality (Property Tax and Service Tax and Surcharge) Rules, 2011 to say that levy of property tax should be from the date of issuance of occupancy certificate.