Kerala High Court
Cresent Builders vs The Thahsildar on 11 November, 2019
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 11TH DAY OF NOVEMBER 2019/20TH KARTHIKA, 1941
W.P(C).No.7466 OF 2019(G)
PETITIONERS:
1 CRESENT BUILDERS,
RBG A RCADE 1ST FLOOR, 6/1200 S, OPP.GANDHI PARK,
CHEROOTY ROAD, CALICUT 673 032.
2 HASEEB AHAMED,
AGED 49 YEARS
S/O. KUNHAMMED KOYA,
RESIDING AT KOYAPPATHODY BUNGALOW P.O.,
MALAPARAMBA, CALICUT 673 009
(MANAGING PARTNER OF M/S. CRESCENT BUILDERS.
BY ADVS.SRI.M.P.SHAMEEM AHAMED
SRI.CYRIAC TOM
RESPONDENTS:
1 THE THAHSILDAR,
KOZHIKKODE 673 001.
2 STATE OF KERALA,
REPRESENTED BY SECRETARY, REVENUE DEPARTMENT,
THIRUVANANTHAPURAM 695 001.
BY SMT.THUSHARA JAMES, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11.11.2019 ALONG WITH W.P(C).NO.14395/2019(Y), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 11TH DAY OF NOVEMBER 2019/20TH KARTHIKA, 1941
W.P(C).No.14395 OF 2019(Y)
PETITIONERS:
1 CRESCENT BUILDERS
RBG A RCADE. 1ST FLOOR, 6/1200 S, OPP. GANDHI PARK,
CHEROOTY ROAD, CALICUT-673 032.
(REPRESENTED BY ITS MANAGING PARTNER MR.HASEEB AHAMED).
2 HASEEB AHAMED
AGED 49 YEARS
S/O.KUNHAMMED KOYA, RESIDING AT KOYAPPATHODY BUNGALOW,
P.O.MALAPARAMBA, CALICUT-673009
(MANAGING PARTNER OF M/S.CRESCENT BUILDERS)
BY ADV. SRI.M.P.SHAMEEM AHAMED
RESPONDENTS:
1 THE THAHSILDAR,
KOZHIKKODE-673001.
2 STATE OF KERALA,
(REPRESENTED BY SECRETARY, REVENUE DEPARTMENT),
THIRUVANANTHAPURAM, PIN-695001.
BY SMT.THUSHARA JAMES, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11.11.2019 ALONG WITH W.P(C).NO.7466/2019(G), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).Nos.7466
& 14395/2019 : 3 :
JUDGMENT
The challenge in both these writ petitions is against Ext.P7 assessment orders, passed against the petitioner under the Kerala Building Tax Act. Although various contentions are raised in the writ petitions, in their challenge against Ext.P7 orders, I do not find Ext.P7 orders to be vitiated by any jurisdictional error or violation of the rules of natural justice so as to warrant an interference with the same in these proceedings under Article 226 of the Constitution of India. This is more so, when admittedly the petitioner has an effective alternate remedy by way of an appeal before the Appellate Authority under the Building Tax Act. The apprehension of the petitioner is currently with regard to the liability to deposit one instalment of the tax confirmed against him as a condition for preferring the appeal against the assessment orders. It is stated that in W.P.(C).No.7466/2019, the petitioner has already deposited an amount of Rs.2 lakhs towards the tax liability, and this should suffice for the purposes of entertaining the appeals against both the assessment orders covered by these writ petitions.
W.P.(C).Nos.7466 & 14395/2019 : 4 :
2. I have heard the learned counsel for the petitioner in both the writ petitions as also the learned Government Pleader for the respondents.
3. On a consideration of the facts and circumstances of the case as also the submissions made across the bar and taking note of the fact that this Court had granted a stay against recovery proceedings on condition of the petitioner remitting Rs.2 lakhs before 25.3.2019, and the petitioner has since complied with the said direction, I direct that if the petitioner prefers appeals against Ext.P7 assessment orders, before the Appellate Authority, without making any further pre-deposit of the tax amounts confirmed against him, within three weeks from the date of receipt of a copy of this judgment, then the Appellate Authority shall proceed to consider the appeals and pass orders thereon, after hearing the petitioner, within two months thereafter. It is made clear that the stay against recovery proceedings, that was granted by this Court, shall continue to enure in favour of the petitioner in both the appeals to be preferred, till such time as orders are passed by the Appellate Authority in the appeals, as directed, and the orders W.P.(C).Nos.7466 & 14395/2019 : 5 :
communicated to the petitioner. It is further made clear that if the petitioner does not approach the Appellate Authority, as directed, within the period of three weeks granted in this judgment, then he will lose the benefit of the stay against recovery proceedings, and the respondents will be free to proceed with the recovery steps from the stage at which they presently stand.
The writ petitions are disposed as above. The petitioners shall produce copies of the writ petitions, and a copy of this judgment before the Appellate Authority, along with the appeals, for further action.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
prp/11/11/19
W.P.(C).Nos.7466
& 14395/2019 : 6 :
APPENDIX OF W.P(C).NO.7466/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE JOINT DEVELOPMENT AGREEMENT
DATED 9.5.2012.
EXHIBIT P2 COPY OF BUILDING PERMIT NO. E/TP/3/77435/12
DATED 29.12.2012.
EXHIBIT P2 (A) COPY OF OCCUPANCY CERTIFICATE DATED
18.8.2016.
EXHIBIT P3 COPY OF SAMPLE AGREEMENT FOR SALE.
EXHIBIT P3 A COPY OF SAMPLE SALE DEED.
EXHIBIT P4 DETAILS OF UNITS IN THE RESIDENTIAL
COMPLEX.
EXHIBIT P5 COPY OF SAMPLE ASSIGNMENT DEED.
EXHIBIT P6 COPY OF DEPARTMENTAL CIRCULAR O. 17451/SC/
(1)/05/RD DATED 1.6.2015.
EXHIBIT P7 COPY OF ASSESSMENT ORDER DATED 27.12.2018.
EXHIBIT P8 DETAILS OF 46 FLATS ASSESSED IN THE NAME OF
THE PETITIONER.
RESPONDENTS EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
APPENDIX OF W.P(C).NO.14395/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 A COPY OF THE LAND DEVELOPMENT AGREEMENT DATED
13.4.2012.
EXHIBIT P2 COPY OF THE BUILDING PERMIT NO.E/TP9/48217/2012
DATED 13.9.2012.
EXHIBIT P2 A COPY OF OCCUPANCY CERTIFICATE DATED 1.9.2014.
EXHIBIT P3 COPY OF SAMPLE AGREEMENT FOR CONSTRUCTION.
EXHIBIT P4 COPY OF SAMPLE SALE DEED.
EXHIBIT P5 DETAILS OF THE VARIOUS SELF CONTAINED FLATS IN
"CRESCENT IRIS"
EXHIBIT P6 COPY OF DEPARTMENTAL CIRCULAR
NO.17451/SC(1)/05/RD DATED 1.6.2005.
EXHIBIT P7 COPY OF THE ASSESSMENT ORDER DATED 6.3.2019. EXHIBIT P7 A ENGLISH TRANSLATION OF ASSESSMENT ORDER DATED 6.3.2019.
EXHIBIT P8 SAMPLE COPY OF THE ASSIGNMENT DEED DATED 23.6.2016.
EXHIBIT P9 COPY OF INTERIM ORDER DATED 15.3.2019 IN WP.7466/2019.
RESPONDENTS EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE