IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 WP(C).No. 24696 of 2010(J) -------------------------------------- PETITIONERS: --------------------- 1. ABDUL KAREEM,PANACHIKKAL HOUSE, B M C P.O.,THRIKKAKARA. 2. DENY PHILIP, PUSHPAMANGALAM, PUTHIYA ROAD JUNCTION,VYTTILA ROAD, PALARIVATTOM. BY ADV. SRI.P.DEEPAK. RESPONDENTS: ------------------------ 1. THE TAHSILDAR, KANAYANNUR TALUK. 2. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI. R1 & R2 BY GOVERNMENT PLEADER SRI. BIJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 24696 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 8th day of September, 2010 JUDGMENT Ext.P7 assessment finalized under the provisions of the Kerala Buildings Tax Act, 1975 is under challenge in this writ petition. 2. The petitioners are adjacent land owners, who had constructed buildings in their respective plots, after obtaining separate building permits from the local authority. It is stated that cost of construction of the buildings were met separately by the petitioners. It is also stated that on completion of construction separate building numbers were assigned by the local authority. 3. Assessment under the Kerala Building Tax Act was completed by the 1st respondent on issuing Ext.P3 order, treating both the buildings as a single unit, on the basis of the finding that the building is situated as a single unit W.P.(C) No. 24696/2010 2 without any separation and it is being used as a single unit by occupying both portions together by the same tenant. 4. Against Ext.P3 assessment, an appeal was filed by the petitioners, which culminated in Ext.P5 order. The appellate authority remanded the matter to the 1st respondent with a direction to take a fresh decision in the matter, after considering the documents and other records. Ext.P7 is the consequential order issued by the 1st respondent. It is mentioned in Ext.P7 that a further opportunity of hearing was afforded to the petitioners. The petitioners contended before the 1st respondent that the buildings are owned separately by the petitioners and the buildings are constructed on the basis of separate permits and separate building numbers were allotted to each of the buildings. It is further contended that there is separate lifts, separate staircases, separate water meters etc. and the letting of each building is made separately. But the 1st respondent observed that on the basis of inspection report dated 27-8-2008 (which is an inspection conducted before W.P.(C) No. 24696/2010 3 finalizing the assessment at the first stage) and on the basis of a decisions of this Court reported in Balan V. Assistant Collector (1990(3) ILR 1045) and K.G.Muraleedharan V. District Collector, Ernakulam (O.P. No.5479/2001) the buildings need be treated as a single unit and hence completed the assessment again in the joint name of the petitioners. 5. It is the contention of the petitioners that after remand of the matter by the appellate authority, the 1st respondent had not conducted any personal hearing. On the other hand, when the petitioners appeared on the date of hearing only scrutiny of the documents were conducted by a Superintendent attached to the office of the 1st respondent. It is further alleged that the Superintendent had assured that the 1st respondent will conduct a fresh hearing. But no such hearing was conducted and the impugned order is issued without any verification of the documents and without conducting any proper enquiry. It is also contended that Ext.P7 order does not reflect any application of mind, with W.P.(C) No. 24696/2010 4 respect to the specific contentions raised. 6. In a statement field on behalf of the 1st respondent it is mentioned that on the basis of directions contained in the order of the appellate authority, a hearing was conducted and one of the petitioners appeared. It is further stated that on a site inspection it was seen that the building was constructed as a single unit without any barrier in between. It is a building constructed as a single unit having no separate wall, is the contention. 7. Learned Government Pleader contended that the order impugned in this writ petition is appealable and the petitioners had approached this Court bye-passing such remedies. Therefore, the very maintainability of the writ petition itself was challenged. 8. The question to be considered is as to whether the 1st respondent had issued Ext.P7 order with due advertence to the contention raised by the petitioners on the basis of the records produce, on a proper application of mind, with proper bearing to the observations contained in the W.P.(C) No. 24696/2010 5 appellate order. It is evident that the appellate authority had remitted the matter for a specific consideration of the issue based on the contentions raised by the petitioners and also based on documents which need be verified. But the impugned order does not reflect any reference to any of the documents, on the basis of which the matter was remanded. Hence, I am of the opinion that the impugned order does not satisfy the requirements of a proper exercise of a quasi judicial function. 9. It is brought to my notice that the petitioners have already remitted a sum of Rs.1,61,100/- and further an amount of Rs.1,20,825/-. 10. Under the above circumstances, the writ petition is allowed and Ext.P7 assessment is hereby quashed. The 1st respondent is directed to reconsider the matter afresh, in view of the remand made by the appellate authority (Ext.P5). He shall advert to the claim made by the petitioners with reference to all the documents produced. Further opportunity of hearing shall be afforded to them W.P.(C) No. 24696/2010 6 before finalizing the matter. The 1st respondent shall pass a speaking order meeting all the contentions raised by the petitioners. 11. A fresh assessment in this regard shall be completed as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. 12. Needless to say that recovery of balance amount can be proceeded only subject to finalization of assessment as directed above. C. K. ABDUL REHIM, JUDGE. mn.