Kerala High Court
M/S.Heera Construction Company (P) Ltd vs State Of Kerala on 31 March, 3006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
FRIDAY, THE 10TH DAY OF FEBRUARY 2012/21ST MAGHA 1933
WP(C).No. 34938 of 2011 (N)
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PETITIONER(S):
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1. M/S.HEERA CONSTRUCTION COMPANY (P) LTD.,
A PRIVATE LIMITED COMPANY REGISTERED UNDER THE
COMPANIES ACT 1956, HAVING ITS OFFICE AT HEERA PARK,
M.P.APPAN ROAD, VAZHUTHACAUD,THIRUVANANTHAPURAM
REPRESENTED BY ITS MANAGING DIRECTOR
MR.ABDUL RASHEED BABU ALIAS DR.A.R.BABU
S/O.LATE ALIYARU KUNJU
RESIDING AT CITADEL GOLF LINKS ROAD, KOWDIAR
THIRUVANANTHAPURAM.
2. MR.CHACKO JOSEPH
S/O.M.K.CHACKO,MANIMALA HOUSE
NEZHOOR PO, KOTTAYAM
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
MR.ABDUL RASHEED BABU ALIAS DR.A.R.BABU
S/O.LATE ALIYARU KUNJU
RESIDING AT CITADEL GOLF LINKS ROAD, KOWDIAR
THIRUVANANTHAPURAM.
BY ADVS.SRI.K.M.SATHYANATHA MENON
SRI.V.S.HARIKRISHNAN (VAZHUTHACAUD)
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT
SECRETARIAT,THIRUVANANTHAPURAM 695 001.
2. THE TAHSILDAR
TALUK OFFICE, KOTTAYAM, PIN 686 001.
R1 & R2 BY SR. GOVT. PLEADER SRI. NOBLE MATHEW
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 10-02-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Mn
...2/-
WP(C).No. 34938 of 2011 (N)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 : COPY OF THE AGREEMENT DATED 31.3.3006 EXECUTED BETWEEN
THE 1ST PETITIONER AND 2ND PETITIONER.
EXT.P2 : COPY OF THE POWER OF ATTORNEY DATED 31.3.2006 EXECUTED BY
THE 2ND PETITIONER IN FAVOUR OF THE 1ST PETITIONER.
EXT.P3 : COPY OF THE CONSTRUCTION AGREEMENT EXECUTED BY THE 1ST
PETITIONER.
EXT.P4 : COPY OF THE SALE DEED.
EXT.P5 : COPY OF THE LETTER DATED 18.10.2010 ISSUED BY THE 1ST
PETITIONER TO THE 2ND RESPONDENT.
EXT.P6 : COPY OF THE ORDER OF ASSESSMENT DATED 9.12.2010 ISSUED BY
THE 2ND RESPONDENT.
EXT.P7 : COPY OF THE DEMAND NOTICE DATED 9.12.2010 ISSUED BY THE
2ND RESPONDENT.
EXT.P8 : COPY OF THE REVIEW PETITION DATED 11.12.2010 SUBMITTED BY
THE PETITIONERS BEFORE THE 2ND RESPONDENT.
EXT.P9 : COPY OF THE LETTER DATED 10.1.2011 ISSUED BY THE 1ST
PETITIONER TO THE 2ND RESPONDENT.
EXT.P10 COPY OF THE BUILDING PERMIT.
EXT.P11 COPY OF THE JUDGMENT DATED 27.5.2011 IN WP(C)
NO. 6476/2011.
EXT.P12 COPY OF THE ORDER OF ASSESSMENT DATED 2.9.2011 ISSUED BY
THE 2ND RESPONDENT.
EXT.P13 COPY OF THE DEMAND NOTICE DATED 2.9.2011 ISSUED BY THE
2ND RESPONDENT.
EXT.P14 COPY OF THE ORDER DATED 14.9.2010 IN WP(C) NO. 1855/2010.
(Contd...)
WP(C).No. 34938 of 2011 (N)
EXT.P14 IN COPY OF THE AGREEMENT DATED 5.10.2009 EXECUTED BETWEEN
I.A. THE 1ST PETITIONER AND MR. V.J.BIJOY AND MRS. LEENA BIJOY
NO.728/2012
EXT.P15 IN COPY OF THE DETAILS OF PURCHASERS PREPARED BY THE
I.A. PETITIONERS.
NO.728/2012
EXT.P16 IN COPY OF THE PAYMENT DETAILS PREPARED BY THE PETITIONERS.
I.A.
NO.728/2012
RESPONDENT'S EXHIBITS : NIL
//TRUE COPY//
P.S. TO JUDGE
Mn
ANTONY DOMINIC, J.
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W.P.(C) NO.34938 OF 2011(N)
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Dated this the 10th day of February, 2012
J U D G M E N T
The first petitioner is a company engaged in the construction of residential apartment. According to the Ist petitioner on the basis of joint agreement with the 2nd petitioner they constructed multi storied apartments at Kottayam known as Heera Green Court. Earlier an order of assessment under the Kerala building tax was passed against the petitioner. That was challenged before this court in writ petition(c).No.6476/2011 and that writ petition was disposed of by Ext.P11 judgment. Subsequently, Ext.P12 order has been passed. It is this order which is under challenge in this writ petition.
2. Two contentions are raised. One is that contrary to the directions in Ext.P11 judgment, without issuing notice to the individual apartment owners, Ext.P12 order was passed. In view of this contention, the learned Government Pleader was directed to obtain instructions in the matter. According to the WPC.No. 34938/2011 :2 : Government Pleader notice issued to the individual owners of the apartments were received by one Mr. Nazarudeen and this has been reported by the Village Officer to the Tahsildar as per his report dated 24.6.2011. Files produced by the Government Pleader also shows that in the general body meeeting of the Heera Green Court Apartment Owners Association held on 25th of June, 2011 a resolution authorizing the President and Secretary to attend the hearing for settlement of the tax dispute under the Kerala Building Tax Act was also passed. It is on that basis President and Secretary of the Association appeared for hearing which was held prior to the passing of Ext.P12. This fact is also mentioned in the second page of Ext.P12 order. Therefore there is no substance in the plea of the counsel for the petitioners that an order was passed without issuing notice to the apartment owners and I reject the said plea.
3. The 2nd contention raised by the counsel for the petitioners is that in view of the judgment of this court in Bavasons Constructions(P) Ltd. V. State of Kerala (2007(3) KLT 101), the individual apartments should be separately assessed. However, such assessment is possible only if the WPC.No. 34938/2011 :3 : situations are as indicated in paragraph 9 of the said judgment. Contrary to such requirements, reading of this order shows that the petitioner did not produce any documents except the receipt of certain amounts. Therefore I cannot accept this plea also. In such circumstances I am not persuaded to think that this order calls for interference in a proceedings under Article 226 of the Constitution of India.
4. However, taking note of the fact that the writ petition was pending before this court I direct that it will be open to the petitioner to file his appeal and in the event which he filed within 3 weeks from today, the same will be entertained by the appellate authority as one within time. It is also clarified that appeal so filed shall be disposed of untrammeled by any of the observations in this judgment.
Writ petition is disposed of as above.
(ANTONY DOMINIC) JUDGE vi/ WPC.No. 34938/2011 :4 :