Kerala High Court
T.P.Varghese vs The Thahasildar
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934
WP(C).No. 16850 of 2007 (E)
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PETITIONER(S):
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1. T.P.VARGHESE, THOMPRA HOUSE,
KANDATHARA, ALLAPRA,PERUMBAVOOR
ERNAKULAM DISTRICT.
2. C.Y.MEERAN, CHENTHARA HOUSE,
KANDATHARA, ALLAPRA,PERUMBAVOOR
ERNAKULAM DISTRICT.
3. T.T.JOY, THOMPRA HOUSE,
PULLYVAZHY P.O.,PERUMBAVOOR, ERNAKULAM DISTRICT.
BY ADV. SRI.P.ALI
RESPONDENT(S):
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1. THE THAHASILDAR, KUNNATHUNADU TALUK,
PERUMBAVOOR.
2. THE R.D.O.,
MUVATTUPUZHA.
BY SPL.GOVERNMENT PLEADER (TAXES) D SEBASTIAN CHAMPAPPALLY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 16850 of 2007 (E)
APPENDIX
PETITIONERS EXHIBITS:
EXT.P1: A TRUE COPY OF THE POWER OF ATTORNEY HOLDER NO.33/10/1993
EXT.P2: A TRUE COPY OF THE POWER OF ATTORNEY HOLDER NO.30/10/1993
EXT.P3: A TRUE COPY OF THE POWER OF ATTORNEY HOLDER NO.35/10/1993
EXT.P4: A TRUE COPY OF THE SALE DEED NO. 470/1993
EXT.P5: A TRUE COPY OF THE SALE DEED NO. 450/93
EXT.P6: A TRUE COPY OF THE SALE DEED NO. 446/1993
EXT.P7: A TRUE COPY OF THE PLAN BEFORE THE PERUMBAVOOR
MUNICIPALITY AND THE GCDA.
EXT.P8: A TRUE COPY OF THE AGREEMENT FOR SALE DATED 15/7/93
EXT.P9: A TRUE COPY OF THE LABOUR CONTRACT AGREEMENT DT.30/7/93
EXT.P10: A TRUE COPY OF THE DETAILS OF BLOCK A
EXT.P11: A TRUE COPY OF THE DETAILS OF BLOCK D
EXT.P12: A TRUE COPY OF THE DETAILS OF BLOCK E
EXT.P13: A TRUE COPY OF THE SALE DEED NO.716/95
EXT.P14: A TRUE COPY OF THE RETURN.
EXT.P15: A TRUE COPY OF THE ASSESSMENT ORDER DATED 19/9/98
EXT.P16: A TRUE COPY OF THE APPELLATE ORDER OF THE 2ND RESPONDENT
DT.10/3/2000
EXT.P17: A TRUE COPY OF THE JUDGMENT O.P.NO.15090/2000 DT 5/10/2001
EXT.P18: A TRUE COPY OF THE ORDER DATED 15/5/2001
EXT.P19: ATRUE COPY OF THE JUDGMENT IN W.P. 16889/01.
EXT.P20: A TRUE COPY OF THE REPRESENTATION DTD.27/2/2007
EXT.P21: A TRUE COPY OF THE IMPUGNED ORDER DT.27/3/2007
EXT.P22: A TRUE COPY OF THE ACCOUNT BOOK D BLOCK
RESPONDENTS EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE.
dlk
P.R.RAMACHANDRA MENON, J.
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W.P.(c) No.16850 OF 2007
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Dated this the 5th day of June , 2012
JUDGMENT
Fixation of liability under the Kerala Building Tax Act is in dispute. The challenge is in respect of the assessment as a 'single unit', inspite of the fact that the building actually belongs to 56 different persons, for and on behalf of whom, the construction was allegedly effected, based on separate construction agreements.
2. The sum and substance of the case is that different persons concerned are entitled to have the benefit of Explanation 2 to Section 2
(e) of the Kerala Building Tax Act. The sequence of event shows that the petitioners herein, along with 11 other persons, by virtue of the power of attorney (Exts.P1 to P3) executed by the others in favour of the petitioners, purchased different extent of properties such as 11.750 cents, 15 cents and 11.70 cents respectively and applied for building permit to effect the construction. Ext.P1 is the plan approved by the Municipality and also by the GCDA. Ext.P8 is the specimen of sale agreement executed in favour of 56 persons as aforesaid. Ext.P9 is the WPC.No.16850/07 2 specimen copy of the labour contract, virtually, the construction agreement, wherein stipulations are separately given, particularly, with regard to the payment schedule and other liabilities to provide the construction materials and such other particulars. Exts.P10 to P12 show the details of the owners concerned. The undivided interest in the land has been conveyed to the persons concerned, by virtue of the sale deeds executed separately, a specimen copy of which is produced as Ext.P13. Ext.P14 is the return filed before the assessing authority. After considering the matter, Ext.P15 assessment order was passed, fixing a total liability to the tune of Rs. 2,46,600/-, treating the building as a 'single unit', instead of assessing the same separately. In the said circumstances, the petitioner preferred an appeal, which did not turn to be fruitful and the appeal was dismissed as per Ext.P16 judgment. This made the petitioner to approach this Court by filing O.P.No.13090/2000, which was disposed of as per Ext.P17 judgment, directing the first respondent to redo the assessment. It was accordingly, that Ext.P18 order was passed by the assessing officer on 15/05/2001, referring to the law declared by this Court in Lissy v. WPC.No.16850/07 3 Tahsildar (2000(3)KLT 497).
3. Since the above order was not in conformity with the statutory requirement and actual facts and figures, the petitioners again approached this Court by filing O.P.No.16839/2001, which led to Ext.P19 judgment, whereby the impugned order was set aside and the assessing officer was directed to pass a 'speaking order' in the manner as specified therein. The petitioners preferred Ext.P20 representation as well. After considering the nature and extent of relief sought for, the assessing authority passed Ext.P21 order on 27/03/2007, which almost follows the same course, fixing the liability reckoning the building as a 'single unit', observing that no valid proof was produced to establish that the funds were provided separately by the persons concerned. It is the said order, that is under challenge in this writ petition.
4. The learned counsel appearing for the petitioners submits that there are clear stipulations in the 'sale agreement' as well as in the 'construction agreement', to provide the funds separately and also to effect the construction by engaging independent contractors. The construction has been completed accordingly. It is also stated that all WPC.No.16850/07 4 the requisite materials were furnished before the assessing authority which, however, was not properly appreciated, while passing the impugned order.
5. The learned Special Government Pleader submits that even the materials produced before this Court do not establish that, the funds were separately procured and arranged by the persons concerned. It is however conceded that no separate notice was issued to the persons concerned, inspite of submitting particulars of different owners vide Exts.P10 to P12. At the same time, it is stated that, but for mentioning the names of the owners, no address particulars were there, so as to have issued notice to all the persons concerned and to arrive at a finding after collecting the necessary particulars.
6. The learned counsel for the petitioners submits that, the petitioners will definitely furnish all the details and address including the separate electricity connection, separate water connection, the separate property tax assessment details and such other particulars before the assessing authority, to have separate assessment and to have the benefit of Explanation 2 to Section 2(e) of the KBT Act. WPC.No.16850/07 5
7. In the above circumstances, in view of the disputed facts and figures and also in view of the law declared by this Court in Bavasons Constructions (P) Ltd. v. State of Kerala (2007(3)KLT 101, the matter has to be reconsidered following the procedure as stipulated therein. It is for the petitioners to furnish all the relevant particulars as assured and undertaken hereinbefore, so as to have a proper assessment and to pass a 'speaking order', to be in conformity with Ext.P19 judgment.
The writ petition is disposed of, giving one more chance to the petitioner to establish all the facts and figures by producing the relevant materials before the assessing authority within 'one month' from this date, on which event, the same shall be considered and disposed of following the procedure prescribed by this Court in Bavasons' case (cited supra). The proceedings as above shall be finalised at the earliest and, at any rate within 'three months' thereafter.
R.RAMACHANDRA MENON JUDGE sv.
WPC.No.16850/07 6 WPC.No.16850/07 7