Kerala High Court
M.L. Kurian And Anr. vs Kunnamkulam Municipality, ... on 25 June, 1997
Equivalent citations: AIR1998KER5, AIR 1998 KERALA 5, ILR(KER) 1998 (1) KER 529 (1997) 2 KER LT 125, (1997) 2 KER LT 125
ORDER P.A. Mohammed, J.
1. The petitioners are the owners of the land having an extent of 88 cents in survey number 791/1 of Kunnamkulam village. They filed Ex. P8 appeal against the levy of property tax in respect of the above property by the second respondent as per Ext. P7. That appeal was rejected as per Ext. P9. Ext. P9 order dated 14-2-1994 is under challenge.
2. Heard counsel for the petitioners and the Standing Counsel for the respondents.
3. The first question that arises for decision is whether the rejection of the appeal on the ground that the petitioner has not complied with Rule 27(b) of the Taxation and Finance Rules under Schedule II of the Kerala Municipalities Act, 1960. Rule 27 is as follows :
"27. No appeal to the council shall be heard --
(a) unless it be presented at the municipal office --
(i) within fifteen days from the service of the notice referred to in Section 122, or
(ii) within fifteen days from the date upon which the tax becomes payable under Section 104 or under Rule 18 :
Provided that the council may admit an appeal within fifteen days after the time prescribed in this rule, if cause be shown to its satisfaction for not preferring it within the prescribed time; and
(b) Unless (except when the commissioner otherwise directs on the ground of poverty) the tax "based on the assessment prevailing in the year previous to the year in question" has been deposited at the municipal office within the period specified in Sub-clause (i) or (ii) of Clause (a), as the case may be, or where an appeal is presented for admission under the proviso to the said clause on or before the day upon which the appeal is preferred."
What the above rule contains are the circumstances which prevent the council from hearing the appeal. Under Rule 24 an appeal to council is provided against an order of the Commissioner under Rule 14 upon a revision petition. What is provided in Rule 27 is not the requirement to be complied with while filing the appeal. An appeal may be entertained or admitted even without the compliance of the requirements' specified in Rule 27. The bar under this rule is only against the hearing of the appeal by the council. Clause (a) of Rule 27 relates to the limitation for filing an appeal. Clause (b) contains the condition of the deposit of tax based on the previous year's assessment. Under Rule 27(b) no appeal to the council shall be heard unless the tax "based on the assessment prevailing in the year previous to the year in question" has been deposited at the municipal office within a period of fifteen days from the service of the notice referred to in Section 122 or within a period of fifteen days from the date upon which the tax becomes payable under Section 104 or under Rule 18. The effect of this rule is that the requirement provided in Clause (b) must be complied with within the time specified before the council takes up the appeal for hearing.
4. It is an admitted case that before rejecting Ext. P8 appeal no notice had been issued to the petitioners. Rule 27 does not prescribe issue of any notice before rejecting an appeal as not maintainable on the ground that the condition prescribed under Clause (b) had not been complied with. The case of the petitioners is that the tax at the rate for previous year 1991-1992 had been deposited. How could they establish this case in the absence of an opportunity? If the appeal is posted for hearing the petitioner will get an opportunity to establish his case. It is likely to have dispute as to the manner of the deposit of tax at the pre-revised rate. The question may also arise whether the tax deposited is correct or the deposit is made within the time specified in that behalf. Therefore, according to me a notice shall be issued to the appellant before an appeal is rejected as not maintainable either on the ground of non-deposit of the tax or on the ground of limitation. In such situation, the appellant will get an opportunity to explain his case. Thus the issue of notice is a requirement in the observance of principles of natural justice.
5. In this case there is no decision on Ext. P8 appeal on merits. The learned Standing Counsel submitted that the appeal filed by the petitioners is not maintainable. His further case is that the assessment for the period from 1-4-1979 to 31-3-1991 has become final. I do not propose to pronounce finally on this aspect. These are all matters which can very well be taken note of by the council. What this Court concerned here is the entertainment of appeal filed by the petitioners. It is averred in paragraph 5 of the writ petition that for the five year period from 1-4-1974 to 31-3-1979, the property tax levied in respect of 88 cents of land was Rs. 26/- per half year. Of course, the above statement has been disputed by the respondents. However, Ext. P2 shows that a sum of Rs. 30.04 has been, paid by the petitioners as tax in respect of the land in question. Since there is a dispute with regard to the period in relation to which the appeal has been filed, I direct the petitioners to deposit a sum of Rs. 1,000/- as a condition for hearing the appeal. If the petitioners deposit the above amount within a period of one month from today, the appeal shall be heard on merits. The first respondent shall also decide the question as to the maintainability of Ext. P8 appeal. In view of the above direction, Ext. P 9 order is set aside.
6. If the amount specified above is not deposited within the time specified, the appeal shall not be entertained on file. The first respondent is further directed to dispose of the appeal as expeditiously as possible, at any rate, within a period of two months from the date of entertainment of the appeal on file. If any steps had been taken against the petitioners for recovery of the tax arrears, the same shall be kept in abeyance till the final disposal of Ext. P8 appeal by the first respondent as directed above. The original petition is disposed of as above.