Vijayasree Eye Hospital, (Post Graduate Institute for Training & Research) v. Thrissur Corporation, Represented By Secretary
2023-10-03
BECHU KURIAN THOMAS
body2023
DigiLaw.ai
JUDGMENT : The first petitioner is an eye hospital at Thrissur, which has been functioning from 1982 onwards under the name “Vijayasree Eye Hospital”. The main challenge in this writ petition is against the rejection of the trade license, stating that the nature of occupancy of the building remains residential instead of commercial. 2. M/s. Vijayasree Eye Hospital is a registered partnership firm. The said name was changed to 'Vijayasree Eye Hospital (Post Graduate Institution for Training and Research)' with effect from 16.10.1990, as is seen from the extract of the Registrar of Firms. The firm had purchased a property in its name in the year 1982 and has been conducting the hospital in the said property till date. In the meantime, due to the death of the partners/Managing Partners, there was a reconstitution of the firm and later, by an agreement dated 31.08.2022, the hospital was leased to the second petitioner. There are presently three buildings which were reconstructed in 1991 and again in 2006. The buildings bear the numbers 37/1757, 37/1758 and 37/1759. 3. The assessment register maintained by the Corporation showed the name of the Managing Partner as the owner of the property instead of the partnership firm. In the meantime, the partnership was reconstituted twice due to the death of the partners. In 2022, the business of the partnership was leased out to the second petitioner to carry on the hospital in the same name as the first petitioner. When it was realised that the assessment register showed the name of the deceased partners as owners of the property, a request was made to change the said name in the assessment register and to incorporate the name of the firm as the owner. The Corporation demanded the production of the legal heirship certificate of the deceased partners and consent from all the other partners, apart from the affidavit of the legal heirs for effecting the change. While producing the required documents sought for by the Corporation, petitioners contended that those were not essential since the firm continues to remain the owner of the property. However, the Corporation failed to take a decision. 4. In the meantime, petitioners approached this Court in W.P. (C) No.8092 of 2023.
While producing the required documents sought for by the Corporation, petitioners contended that those were not essential since the firm continues to remain the owner of the property. However, the Corporation failed to take a decision. 4. In the meantime, petitioners approached this Court in W.P. (C) No.8092 of 2023. By judgment dated 15.03.2023, a learned single Judge of this Court directed the Corporation to consider the application for effecting changes in the assessment register and to pass orders having regard to the deeds of reconstitution of the partnership. This Court also directed the application for renewal of the license submitted by the second petitioner to be considered and appropriate orders passed renewing the license without insisting on final orders on the application for change of name in the assessment register. 5. When the order as directed by this Court in W.P.(C) No.8092 of 2023 was not issued, a contempt petition was filed as Contempt Case (C) No.838 of 2023 and thereafter, things took a different turn. An order was issued by the first respondent on 01.04.2023 stating that the building was assessed in its register as a residential building and that since a hospital is being run there, the occupancy has to be changed to commercial occupancy, without which the license cannot be renewed. 6. Petitioners allege that the hospital has been running since 1982 in the very same building, and till date, there has been no objection regarding the occupancy. It was further submitted that a permit was granted for an additional construction in 1996 and again for reconstruction in 2006 wherein the occupancy was shown as the hospital. Even when notice was issued on the application of the second petitioner for grant of license on 20.01.2023, the respondents did not have a case that the occupancy was residential. According to the petitioners, the reason now stated for refusing the license is only because of the contempt initiated against the Secretary by the petitioners and that the same is manifestly for extraneous reasons. Hence, they seek to quash Ext.P9. 7. I have heard Sri. R. Parthasarathy, the learned counsel for the petitioners as well as Sri. Santhosh Pothuval, the learned Standing Counsel for the respondents. 8. Three buildings are situated on the property purchased by the partnership firm M/s.Vijayasree Eye Hospital.
Hence, they seek to quash Ext.P9. 7. I have heard Sri. R. Parthasarathy, the learned counsel for the petitioners as well as Sri. Santhosh Pothuval, the learned Standing Counsel for the respondents. 8. Three buildings are situated on the property purchased by the partnership firm M/s.Vijayasree Eye Hospital. The title of the property is evident from the sale deed dated 27.04.1982 bearing No.2210 of 1982 of the Sub Registry Office, Thrissur. Though a partnership firm is only a compendious term for the partners constituting it, a partnership can hold property on its own. When a property is acquired by the firm or is brought in as an asset of the firm, such property will be that of the partnership. Irrespective of any change in the partners of the firm, the property will continue to remain in the name of the firm. Section 14 of the Indian Partnership Act, 1932 is the statutory recognition of the above proposition. 9. Section 233 of the Kerala Municipality Act, 1994 (for short, 'the Act') provides for the assessment of tax. The owner of the building is liable to submit a return under section 233(11) of the Act, based on which the tax has to be assessed. The liability for tax due on the building is on the owner. The term owner is defined in section 2(26) of the Act as including the person entitled to receive the rent of the building. It is an inclusive definition. In the instant case, the partnership firm is the actual owner of the property and the buildings and is also the person entitled to receive rent. Therefore, only the firm could have been assessed as the owner of the building. When a legal person entitled to hold property in its name is the owner, the Statutory Authorities, including the Municipality, must show that legal entity as the owner in its records. The individual who manages the legal entity can only be shown as representing that entity. Death or change of the person representing the legal entity does not result in a change of ownership. 10. The Corporation had erroneously assessed the building in the name of the Managing Partner of the firm instead of the firm. For an erroneous entry in the assessment register of the Corporation, that too of the nature mentioned above, petitioners cannot be faulted.
10. The Corporation had erroneously assessed the building in the name of the Managing Partner of the firm instead of the firm. For an erroneous entry in the assessment register of the Corporation, that too of the nature mentioned above, petitioners cannot be faulted. The Corporation ought to have incorporated the name of the partnership firm in its assessment register as the owner of the property instead of the Managing Partner. 11. As observed earlier, when the property is assessed in the name of the partnership firm, the reconstitution or change in partners cannot affect the assessment. Therefore, on realising that the assessment register reflects the name of the earlier managing partner as the owner, the Corporation ought to have corrected the said mistaken entry on its own. At least when this Court directed in W.P.(C) No. 8092 of 2023 to take up the deeds of the reconstitution of partnership and the other documents submitted by the petitioners for effecting changes in the assessment register, the Corporation ought to have carried out the change without any delay. The said change directed to be carried out is not on account of any mistake or default committed by the petitioners but solely on account of an incorrect application of the principles of law by the Corporation and its failure to identify who the owner of the property is. Since the Managing Partner is only a representative of the firm and when the ownership of the property lies with the firm, irrespective of any change in the constitution of the firm or death of the partners, the assessment register must reflect the name of the partnership as the owner of the property, in the absence of any agreement to the contrary. 12. On 20.01.2023, as is evident from Ext.P10, the Corporation noticed certain defects like differences in the person who gave the consent for lease, failure to attest the consent for lease by a Notary, and absence of the PCB and Image Certificates. No other defect was pointed out. However, when contempt proceedings were initiated, the Corporation came up with a new defect about the nature of occupancy and directed the petitioners to regularise the occupancy by converting it from residential to commercial.
No other defect was pointed out. However, when contempt proceedings were initiated, the Corporation came up with a new defect about the nature of occupancy and directed the petitioners to regularise the occupancy by converting it from residential to commercial. In this context, it is relevant to notice that as per Ext.P11, when the petitioners applied for a building permit in 2006, it was specifically mentioned that it is a hospital building, and permission was granted to reconstruct the hospital building. Even prior to that, as is evident from Ext.P12, permission was granted for the construction of a hospital building. Thus, in 1991 as well as in 2006, permission was granted by the Corporation to the petitioners to construct a hospital building. Therefore, it fails all comprehension as to how the records of the Corporation continue to maintain the building as residential when they themselves had granted permission to construct a hospital building. 13. Viewed in the above perspective, the observation of the Corporation in Ext.P7 that the petitioners must regularise the occupancy and only thereafter the application for a trade license can be considered is, to say the least, an attempt to evade from complying with the directions issued by this Court in W.P.(C) No.8092 of 2023. Of course, if the records of the Corporation continue to show the property as residential occupancy, it has to be varied and certainly, the Corporation will be entitled to change the said assessment. However, that by itself is not a reason to deny renewing the trade license. In this context, this Court bears in mind the submission of the learned Standing Counsel for the Corporation that the occupancy has not been shown as commercial because the first petitioner had not submitted a completion certificate pursuant to the building permit. Even in such a scenario, nothing prevented the Corporation from demanding change of occupancy. 14. In view of the above, the first petitioner will be at liberty to apply for regularisation of the building in accordance with law by requesting to change the nature of occupancy. In the meantime, the application filed by the second petitioner for the grant of a trade license will be considered within two weeks from the date of receipt of a copy of the judgment, and the trade license shall be renewed in her name immediately.
In the meantime, the application filed by the second petitioner for the grant of a trade license will be considered within two weeks from the date of receipt of a copy of the judgment, and the trade license shall be renewed in her name immediately. The assessment register for the building shall be corrected by incorporating the name of the first petitioner -the partnership firm, as the owner by carrying out the necessary changes without any further application by the petitioners. The nature of occupancy shall also be changed to commercial as required by law, for which purpose the first petitioner shall make an application. The first respondent is directed to assess the tax in the name of the first petitioner after the change is effected in the register. If in case any amounts are due, the Corporation can make appropriate demands, and the first petitioner will be bound to pay the amounts legally due. 15. Since the petitioners have undertaken to pay the amount legally due from them, the renewal of the license shall not be made dependent upon such assessment. It is clarified that if the petitioners object to the amount of tax demanded from them after the change of occupancy, they will be entitled to challenge it in accordance with law. The writ petition is disposed of as above.