Kerala High Court
K.I.Rajappan vs The Revenue Divisional Officer on 24 February, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
FRIDAY, THE 25TH DAY OF MAY 2012/4TH JYAISHTA 1934
WP(C).No. 10854 of 2012 (F)
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PETITIONER(S):
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K.I.RAJAPPAN,
AGED 55 YEARS,
S/O. LATE ITTIYATHI,
KUNNUMPURATH HOUSE, PALLOM POST,
NATTAKOM VILLAGE, KOTTAYAM DISTRICT.
BY ADV. SRI.P.KURUVILLA JACOB
RESPONDENT(S):
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1. THE REVENUE DIVISIONAL OFFICER,
KOTTAYAM-686 001.
2. THE TAHSILDAR,
TALUK OFFICE, KOTTAYAM-686 001.
3. THE DEPUTY TAHSILDAR,
REVENUE RECOVERY, PWD COMPOUND, T.B.ROAD,
KOTTAYAM-686 001.
4. THE VILLAGE OFFICER,
NATTAKOM VILLAGE, MARIYAPPALLY POST,
KOTTAYAM TALUK-686 001.
R1, TO R4 BY ADV.SMT.P.A.RAZIYA, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DG
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WP(C).No. 10854 of 2012 (F)
APPENDIX
PETITIONER(S) EXHIBITS:
EXHIBIT P1: COPY OF SECOND RESPONDENT'S PROCEEDING NO. D/8622/06 DATED
24-02-2007 ISSUED TO PETITIONER IMPOSING LUXURY TAX OF RS.
2000/- TO HIS RESIDENTIAL HOUSE FOR THE ASSESSMENT YEAR
2006-07.
EXHIBIT P2: COPY OF ORDER DATED 18-06-2008 OF FIRST RESPONDENT
COMMUNICATED TO PETITIONER.
EXHIBIT P3: COPY OF PETITIONER'S COMPLAINT DATED 28-08-2008 LODGED TO
FIRST RESPONDENT.
EXHIBIT P4: COPY OF JUDGMENT DATED 11-06-2001 IN WPC NO. 11336/2010 OF
THE HONOURABLE HIGH COURT.
EXHIBIT P5: COPY OF 2ND RESPONDENT'S ORDER DATED 24-09-2010
COMMUNICATED TO PETITIONER ON 29-09-2010.
EXHIBIT P6: COPY OF REPORT DATED 09-11-2010 PREPARED BY SRI. ANIL
MATHEW P. LICENSED SUPERVISOR WITH B CERTIFICATE,
PARAKUNNUMPURATH HOUSE, OLESHA POST, KOTTAYAM, INDICATING
THE TOTAL PLINTH AREA OF PETITIONER'S RESIDENTIAL HOUSE
AFTER EXCLUDING LAWFUL DEDUCTIONS.
EXHIBIT P7: COPY OF PETITIONER'S APPEAL DATE 09-11-2010 SUBMITTED
BEFORE FIRST RESPONDENT THROUGH COUNSEL.
EXHIBIT P8: COPY OF 3RD RESPONDENT'S DEMAND NOTICE DATDF 05-08-2011
ISSUED TO PETITIONER ON 16-09-2011 UNDER SECTION 34 OF THE
KRR ACT.
EXHIBIT P8A: COPY OF 3RD RESPONDENT'S DEMAND NOTICE DATED 05-08-2011
ISSUED TO PETITIONER ON 16-09-2011 UNDER SECTION-7 OF THE
KRR ACT.
EXHIBIT P9: COPY OF PETITIONER'S OBJECTION DATED 20-09-2011 SENT TO
3RD RESPONDENT BY COURIER.
EXHIBIT P10: COPY OF JUDGMENT DATED 28-09-2011 IN WPC NO. 25785 OF
2011 OF THE HONOURABLE HIGH COURT.
EXHIBIT P11: COPY OF LETTER DATD 27-02-2012 OF THE ASSESSING OFFICER
UNDER THE BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE
CESS ACT ASKING PETITIONER TO APPEAR FOR THE CASES ADALATH
SCHEDULED ON 17-03-2012 IN THE OFFICE OF THE DLO KOTTAYAM.
EXHIBIT P12: COPY OF LAWYER NOTICE DATED 20-03-2012 SENT TO 1ST
RESPONDENT AT THE CONSTRUCTION OF PETITIONER.
EXHIBIT P13: COPY OF ORDER DATED 31-03-2012 OF 1ST RESPONDENT
COMMUNICATED TO PETITIONER DURING THE MIDDLE OF LAST MONTH
INFORMING PETITIONER THAT EXCT. P7 APPEAL HAS BEEN
DISMISSED.
DG
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WP(C).No. 10854 of 2012 (F)
EXHIBIT P14: COPY OF ORDER OF ASSESSMENT DATED 30.04.2012 PASSED BY
2ND RESPONDENT UNDER THE KERALA BUILDING TAX ACT AND
COMMUNICATED TO PETITIONER DURING LAST WEEK.
EXHIBIT P15: COPY OF DEMAND NOTICE DATED 30.04.2012 ISSUED BY SECOND
RESPONDENT AND COMMUNICATED TO PETITIONER DURING LAST
WEEK.
RESPONDENTS' EXHIBITS - NIL
//TRUE COPY//
P.A TO JUDGE
DG
P.R. RAMACHANDRA MENON J.
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W.P(C) No. 10854 of 2012
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Dated, this the 25th day of May, 2012
JUDGMENT
The assessment of Building tax/Luxury tax under Section 5/5A of the Kerala Building Tax Act, particularly, with reference to fixation of plinth area, as defined under Section 2
(k) of the Act is under challenge.
2. The case has got a long history. The liability of the petitioner was originally fixed by the assessing authority, who is the second respondent, much earlier, reckoning the total plinth area as 306.07 M2, based on which, the liability was also imposed under Section 5A to satisfy the luxury tax, the plinth area being above the specified extent of 278.7 M2. This order was subjected to challenge by filing an appeal before the first respondent, who set aside the order, observing that, there was some apparent mistake in fixing the plinth area and remanded the matter for re-fixation, after re-measurement to be effected in presence of the assessee. But contending that W.P.(C) No. 10854 of 2012 : 2 : proper notice was never served to the petitioner and no measurement whatsoever was conducted in the presence of the assessee, further proceedings were sought to be challenged by filing W.P.(C) No. 11336 of 2010. It was also the case of the petitioner that the 'car porch' as well as the 'terrace portion with tin roof without side walls' were not liable to be reckoned as part of plinth area. After hearing both the sides, this Court, placing reliance on the decisions reported in Subhashchandrababu Vs. State of Kerala (2006 (2) KLT
189) and Padmanabhan Vs. State of Kerala (2009 (1) KLT 295), observed that thee matter required to be reconsidered and the assessing authority was directed to reconsider the matter, effecting re-measurement with proper notice to all concerned and to pass fresh orders in the light of the observations made therein.
3. Pursuant to the above judgment, the matter was reconsidered by the second respondent, who issued notice to the petitioner and conducted re-measurement in the presence W.P.(C) No. 10854 of 2012 : 3 : of the petitioner. After excluding the area, which are not liable to be reckoned in the light of the law declared by this Court, the actual plinth area of the building was fixed as '285.52 M2' and the building was re-assessed accordingly, giving reduction to the said extent, with regard to the liability already fixed. However, since the plinth area was still above the limit of 278.7 M2. , the liability to satisfy 'luxury tax' under Section 5A was sustained.
4. It appears from the pleadings and proceedings that, in spite of finalization of the proceedings as above, the petitioner wanted to pursue the matter further, who accordingly engaged an 'independent person' to conduct measurement of the building, who inspected the premises on 30.10.2010 and gave certificate as borne by Ext. P6 dated 09.11.2010, opining that the total plinth area was only 250.24 M2.. Placing reliance on the said certificate, the petitioner preferred Ext. P7 appeal dated the same date, before the first respondent, along with a petition for stay of revenue recovery W.P.(C) No. 10854 of 2012 : 4 : proceedings already initiated as borne by Exts. P8/P8(a). Because of the compelling circumstances, the petitioner approached this Court by filing W.P.(C) No. 25785 of 2011, which was disposed of as per Ext. P10 judgment, directing the first respondent to consider the I.A. for stay and pass appropriate orders in accordance with law within one month.
5. It is seen that, the appellate authority/first respondent considered Ext. P7 appeal on merits and the same was dismissed as per Ext. P13 order dated 30.01.2012, which is under challenge in this writ petition, seeking for re-fixation of the plinth area in the light of Ext. P6 and to grant necessary relief accordingly.
6. During the pendency of the above writ petition, pursuant to the observations/directions of the first respondent in the last paragraph of Ext. P13 order, re-assessment has been made by the second respondent on 30.04.2012 as per Ext. P14 order, whereby the plinth area has been further enhanced to 317.12 M2. issuing Ext. P15 demand to satisfy W.P.(C) No. 10854 of 2012 : 5 : differential tax under Section 5 (Exts. P14 and P15 produced along with I.A. No. 6357 of 2012). The learned counsel submits that the proceedings are per se wrong and illegal in all respects and hence under challenge.
7. Heard the learned Government Pleader as well.
8. Going by the undisputed facts and figures, the only issue before this Court earlier was with regard to the measurement conducted by the concerned authority without giving proper notice to the petitioner. The building was sought to be re-measured in the presence of the petitioner, which relief was granted by giving necessary directions as per Ext. P4 judgment, also accepting the contentions of the petitioner that the area covered by the 'car porch' as well as 'tin roof terrace' without walls were not liable to be reckoned for the purpose of fixation. It was accordingly, that the re- measurement was conducted in presence of the petitioner, whereby necessary exclusions were given fixing the plinth area as 285.52 M2. as per Ext. P5 and the liability was reduced W.P.(C) No. 10854 of 2012 : 6 : with regard to Section 5. But still, since the said extent was above 278.7 M2. it attracted 'luxury tax' under Section 5A. This Court does not find any fault with the finding arrived at by the first respondent vide Ext. P5 and the challenge against the same cannot be entertained.
9. With regard to the prayer of the petitioner, with reference to Ext. P6, this Court finds it difficult to accept the said document, which appears to be a 'tailor-made' one, so as to suit the requirements of the petitioner. The authenticity of the said document is not established, nor is there anything as to the manner and procedure of fixation and also as to whether the person (who is a total stranger) who issued said certificate had let known the inspection to the assessing authority as well. On challenging Ext. P5 order, by availing statutory remedy by way of Ext. P7, the entire sequence of events has been considered by the first respondent, particularly, taking note of mandate given by this Court as per the subsequent judgment vide Ext. P10. It was accordingly, W.P.(C) No. 10854 of 2012 : 7 : that the challenge as to Ext. P5 was held as not sustainable vide Ext. P13 order passed on 31.03.2012. This being the position, this Court accepts the said finding and reasoning in so far as it rejects the challenge against Ext. P5.
10. However, it also remains a fact that there is a reference to the report dated 01.12.2011 of the second respondent, whereby it was reported that the extent of plinth area was re-fixed as 317.02 M2. pursuant to re-inspection in the presence of the petitioner. Under what circumstance such re-inspection was conducted is not clearly discernible, though a reference is made by the second respondent, in the top most paragraph of the second page of Ext. P13, observing that, as per Ext.P10 judgment in W.P.(C) No. 25785 of 2011 ( referred to as item No. 7 therein), there was direction to effect the re-measurement of the building. On going through Ext. P10 verdict, it is seen that the only direction given by this Court was to the appellate authority i.e. first respondent, to consider and pass appropriate order in W.P.(C) No. 10854 of 2012 : 8 : I.A. for stay, which was pending consideration along with appeal. There was no direction at all to conduct any re- measurement of the building in Ext. P10 and as such, the idea and understanding of the first respondent as to the scope of the said judgment is thoroughly wrong and misconceived. As a natural consequence the finding arrived in the last paragraph directing the second respondent/assessing authority to re-fix the plinth area on the basis of the said report of the Tahasildar and the subsequent proceedings leading to Exts. P14 and P15 (produced along with I.A. No. 6357 of 2012) are not correct or sustainable.
11. In the said circumstances, while sustaining Ext. P13 order with regard to the challenge against Ext. P5 dismissing Ext. P7 appeal, the direction contained in the last paragraph to cause re-fixation of the liability with reference to the misconceived mandate in Ext. P10 judgment and the consequential proceedings by way of Exts. P14 and P15 are set aside. However, this will not preclude the second W.P.(C) No. 10854 of 2012 : 9 : respondent to refix the liability, if petitioner has actually effected any construction in addition to the plinth area, after the re-measurement conducted pursuant to the direction of this Court as per Ext. P4 judgment, leading to Ext. P5 order. If the second respondent finds it necessary in this regard, it is open for the second respondent to issue notice to the petitioner and to proceed with proper steps for fixation of any additional liability, in connection with such additional construction in tune with sub Section (4) of Section 5 of the Kerala Building Tax Act.
The Writ Petition is disposed of.
Sd/-
P. R. RAMACHANDRA MENON, (JUDGE) kmd