M/s. Leader Properties and Estates Private Limited vs Corporation of Kochi and Others

Manjula Chellur, C.J.—The appellant herein is the writ petitioner before the learned Single Judge. He approached the learned Single Judge for a writ of mandamus seeking directions to the respondent authorities to consider his application for regularisation of construction of 13 storeyed apartments. During the course of arguments, it is also brought on record by the writ petitioner/appellant that though a show cause notice came to be issued in the name of the writ petitioner/appellant by the Corporation as per Ext. P6, ultimately, assessment and other further proceedings were done in the name of M/s. Bency & Company who was the architect of the writ petitioner''s firm. In other words, according to the appellant, the property was sold by one Geetha Janardhanan to a third party from whom the present appellant/writ petitioner purchased the same. In other words, according to the appellant, M/s. Bency & Company has nothing to do with the ownership of the property except that they are the architect for the construction of the apartment. There seems to be some exchange of notices between the Corporation and the appellant so far as regularisation of the construction and simultaneously there was exchange of notices regarding assessment of property tax and recovery of taxes on the building.

Unfortunately, all those notices were addressed to M/s. Bency & Company, the architect. Ultimately, though assessment came to be made as per Ext. P8 series it was all done in the name of M/s. Bency & Company, the architect and not the owner of the property. This has led to the confusion.

So far as assessment, the learned Single Judge gave liberty to the writ petitioner to adjudicate the same in appropriate proceedings and so far as regularisation, the respondent authorities were directed to consider the same and pass necessary orders. Challenging the judgment in the writ petition, the present appeal is filed reiterating the stand that assessment was wrongly done in the name of the architect company instead of the present appellant.

So far as W.P. (C) No. 16305 of 2012 is concerned, this is filed by the architect aggrieved by Ext. P5 series, the notices for assessment of property tax, contending that they are not the actual owner of the property; but they are only the architect of the property in question. There is no inter se dispute between the appellant-M/s. Leader Properties and Estates Private Limited and the present writ petitioner- M/s. Bency & Company, as it is the stand of both parties that for M/s. Leader Properties, M/s. Bency & Company is the architect.

Though the Corporation was prosecuting regularisation proceedings against M/s. Leader Properties, so far as assessment of the property tax, all the time they issued notices to M/s. Bency & Company and this could be a mistake on account of M/s. Bency & Company tendering the property tax at some point of time.

Now learned Standing Counsel for the respondent Corporation brings to our notice that only in the month of March, 2012 all necessary documents supporting the ownership of the property in the name of M/s. Leader Properties are brought to the notice of the Corporation and necessary orders would be passed.

Having regard to the assessment being made in the name of a wrong party i.e. M/s. Bency & Company, the entire problem arose as stated above.

The best course open to the respondent Corporation is to review the assessment already made in the name of M/s. Bency & Company and pass necessary assessment orders in the name of the actual owner i.e. M/s. Leader Properties after giving them a fair opportunity of being heard. It is needles to say that the Corporation has to proceed in accordance with the procedure contemplated under Article 265 of the Constitution taking into account who is the actual owner of the property in question. In the light of the above observations, we are of the opinion, the assessment orders passed in the name of M/s. Bency & Company deserve to be set aside. Accordingly, we set aside the assessment orders with a direction to the Corporation to proceed further in the light of the above observations in accordance with law. If any amount is already paid either by M/s. Bency & Company or by M/s. Leader Properties, the same shall be adjusted towards the tax on the property in question.

The Writ Appeal and the Writ Petition are disposed of accordingly.