A pending case is not a reason to issue ownership certificate

2021 ICO 158 High Court of Kerala Decided on 10-02-2021 Chief Justice S Manikumar, Justice Shaji P Chaly Corporation of Cochin Vs. Lourdes Hospital

Case Numbers : W.A. No.272 of 2021

Equivalents : 2021 (2) KLT 95 :: 2021 (2) KLJ 348

For Petitioner: Praveen K Joy (Adv.)

For Respondent : Enoch David Simon Joel (Adv.), S Sreedev (Adv.), Rony Jose (Adv.)

Headnotes

A. Constitution of India, 1950 - Article 226 - Denial of ownership certificate – Merely because a dispute is pending consideration in respect of the property tax, that will not take away the absolute right of the building owner to seek issuance of the ownership certificate before the Corporation. (Para 6)

B. Constitution of India, 1950 - Article 226 and Kerala High Court Act, 1958 - Section 5 - Intra-court appeal – When corporation has not made out any case of jurisdictional error or other illegalities committed by the learned single Judge while passing the judgment in favour of the writ petitioner, then there is no justification to interfere in an intra-court appeal. (Para 8)

UDGMENT

Shaji P. Chaly, J.

1. The appeal is preferred by respondents 1 and 2 in W.P.(C) No.1407 of 2021 challenging the judgment of the learned single Judge dated 21.01.2021, whereby the following directions were issued:

“3. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I am of the view that inasmuch as the issue regarding liability of the petitioner to property tax for the period prior to the date of issuance of the Occupancy Certificate is currently decided in favour of the petitioner by the judgment of the Single Judge referred above, although, the said judgment is stated to be in appeal before the Division Bench, the dispute regarding liability to property tax cannot, now be cited by the respondent Corporation as a reason for not acting on the application for Ownership Certificate and issuing the same to the petitioner, if the facts necessary for the same are established before the Corporation.

Accordingly, I dispose the Writ Petition with a direction to the respondent Corporation to accept the property tax as offered by the petitioner in Ext.P11 communication and issue to it an Ownership Certificate pursuant to Ext.P10 application, if the petitioner is found to satisfy the requirements therefor, without insisting on payment of the differential property tax demanded by the respondent Corporation, within an outer time limit of three weeks from the date of receipt of a copy of this judgment. It is made clear that the issuance of the Ownership Certificate by the respondent Corporation shall be without prejudice to its contentions as regards the liability of the petitioner to the differential property tax claimed by it. The petitioner shall produce a copy of this judgment together with a copy of the Writ Petition before the respondent Corporation for further action.”

It is thus, challenging the legality and correctness of the said judgment, this appeal is preferred.

2. Basic facts for the disposal of the appeal, as is discernible from the Writ Petition, are as follows:

The writ petitioner is said to be a non profit charitable hospital set up and managed by the Lourdes Society for Health Care and Research run by priests and nuns of the 97 Christian religious faith. In the year 2001, the writ petitioner started certain constructions of additional buildings in the premises in which a hospital is existing. However, the construction could not be completed on account of certain financial constraints and finally, the works were completed during March, 2012. Pursuant to the completion of the construction, occupancy certificate was sought for by the writ petitioner. While so, in the year 2011, a notice of assessment was issued by the Secretary of the Corporation purporting to assess the property tax on the new constructions made by the petitioner for the period 2008-2012. Anyhow, after completing the procedural requirements, assessment was completed as per Ext.P1 order dated 07.08.2012, culminated in the filing of the Writ Petitions challenging the same, and that the said dispute is apparently pending consideration before a Division Bench of this Court consequent to the judgment rendered by a learned single Judge in favour of the writ petitioner.

3. The basic issue raised in the Writ Petition in question is that the writ petitioner has applied for an ownership certificate, evident from Ext.P10 dated 01.12.2020. However, the said application was not considered. According to the writ petitioner, the attempt of the appellants to delay the issuance of the ownership certificate is causing innumerable difficulties to it. It was significantly contended in the Writ Petition that a dispute pertaining to property tax is pending cannot be a ground for denial of ownership certificate. It was in the said background, the Writ Petition was filed and consequently, the directions extracted above were issued by the learned single Judge.

4. The paramount contention advanced by the Corporation and the Secretary in this appeal is that the judgment rendered by the learned single Judge is illegal, since the issue in respect of imposition of property tax is under consideration before a Division Bench of this Court in W.A.No.1756 of 2020 and further that the dictum laid down by this Court in Sheela v. Kollam Municipal Corporation 2017 (4) KLT 887 :: 2017 ICO 1975 that a building owner is not liable to pay property tax in respect of the period prior to the date of issuance of the occupancy certificate, will not apply to the facts of this case, since the building is granted with an unauthorised number as the construction was carried out in violation of the Building Rules. However, we do not propose to go into the said aspect, since that is the subject matter of consideration before a Division Bench in Writ Appeal.

5. The facts discussed above would make it clear that the subject issue raised by the writ petitioner in the Writ Petition was that there was failure or considerable delay on the part of the appellants to decide the application submitted by the writ petitioner seeking ownership certificate.

6. Merely because a dispute is pending consideration in respect of the property tax, that will not take away the absolute right of the building owner to seek issuance of the ownership certificate before the appellants. Anyhow, it is an admitted fact that 98 the issue with respect to the property tax was held in favour of the building owner and being aggrieved, the appellants have preferred an appeal before the Division Bench of this Court, which is pending consideration.

7. The appellants are not having a case that the writ petitioner is not the owner of the property and the building constructed therein. We are also informed that even though the initial construction was held to be an unauthorised one, subsequently, constructions were regularised and provided with regular building number. Therefore, by any stretch of imagination, it cannot be said that merely because a dispute is pending by and between the parties in regard to the property tax to be paid, that will not enable the appellants to withhold the issuance of an ownership certificate as is sought for by the writ petitioner.

8. After having heard the learned counsel for the appellant, Sri.Praveen K.Joy and learned counsel appearing for the respondent Sri.Rony Jose and perusing the pleadings and materials on record, we are of the considered opinion that the appellants have not made out any case of jurisdictional error or other illegalities committed by the learned single Judge while passing the judgment in favour of the writ petitioner, justifying interference in an intra-court appeal.

Needless to say, the appeal fails and accordingly, it is dismissed.