IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WP(C).No. 4140 of 2008(P) -------------------------------------- PETITIONER(S): ----------------------- K.T. NICHOLAS, AGED 56 YEARS, S/O.K.T. THOMAS, KARIMPANAL ARCADE, EAST FORT, THIRUVANANTHAPURAM. BY ADV. MR.JOHN JOSEPH VETTIKAD, MR.C.JOSEPH JOHNY. RESPONDENT(S): -------------------------- 1. THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE TAXATION APPEALS STANDING COMMITTEE OF THIRUVANANTHAPURAM CORPORATION, REPRESENTED BY ITS CHAIRMAN. R1 & R2 BY MR.N.NANDAKUMARA MENON, SENIOR ADVOCATE, ADV. MR.P.K.MANOJKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 4140/2008-P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 31/01/2006. EXT.P2: COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF INSTITUTIONS THIRUVANANTHAPURAM, IN R.P.59/2006. EXT.P3: COPY OF THE NOTICE DATED 02/02/2007 ISSUED TO PETITIONER. EXT.P4: COPY OF THE ORDER NO.ZR1/2119/06 DATED 25/11/2006 IN RESPECT OF M/S.ATTUKAL SHOPPING COMPLEX. EXT.P5: COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF INSTITUTIONS THIRUVANANTHAPURAM, IN R.P.4/2005. EXT.P6: COPY OF THE OFFICE NOTE GIVEN TO THE PETITIONER BY THE RESPONDENT. EXT.P7: COPY OF THE JUDGMENT IN WP(C) NO. 35928/2007 DATED 05/12/2007. EXT.P8: COPY OF THE ORDER OF THE 2ND RESPONDENT NO.APL/ZR.1/6953/07 DATED 06/12/2007. EXT.P9: COPY OF THE REPRESENTATION DATED 08/02/2008 ALONG WITH THE CALCULATION STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE CORPORATION. EXT.P10: COPY OF THE REPRESENTATION DATED 26/02/2008 SUBMITTED BY THE PETITIONER BEFORE THE CORPORATION. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.4140 OF 2008(P) -------------------------------------------------- Dated this the 25th day of February, 2010 J U D G M E N T Petitioner submits that he has constructed a five storied building in his property situated in East Fort, Thiruvananthapuram. The building was constructed in three phases. The first three floors were constructed in 1989-1990. Three floors on the rear side was constructed during 1993-1994 and the upper two floors were constructed during the year 2001-2002. In this writ petition the dispute is regarding the property tax payable in respect of the upper two floors constructed during 2001-2002. 2. Initially, property tax was assessed at the rate of Rs.90/- per square meter. Appeal was filed to the 2nd respondent and that was rejected. Petitioner challenged those orders before the Tribunal for Local Self Government Institutions in revision petition No. 90/2005. Ext.P1 is the order passed by the Tribunal disposing of the revision petition. In that order it was held that the Tribunal was unable to sustain the orders for the reason that the Corporation had not disclosed the materials on which reliance was placed for levying WPC.No.4140 /08 :2 : tax on the petitioner. 3. Accordingly, the matter was remanded to the Appeal Committee to pass a reasoned order on the appeal filed by the petitioner disclosing the materials and the data relied on for its decision. On remand as above, the matter was reconsidered by the 2nd respondent and tax was revised and fixed at Rs.72/- per square meter. The order so passed was the subject matter of Revision No.59/2006 before the Tribunal. 4. By Ext.P2 order, the Tribunal again remanded the matter for reconsideration. Paragraph 4 of Ext.P2 order shows that according to the Tribunal the rent assessed for the area and the annual value fixed for the assessment of the similar buildings and other matters specified in Section 234 of the Kerala Municipality Act are relevant for fixing annual rental value of the building for property tax assessment. Tribunal held that both parties did not adduce any evidence regarding the rent prevailing in the area and the annual value fixed for the assessment of similar buildings. It was in that view of the matter the Tribunal remanded the case for a second time. WPC.No.4140 /08 :3 : 5. The 2nd respondent there upon issued Ext.P3 notice to the petitioner and according to the petitioner he appeared and produced Exts.P4, P5 and P6 orders. It is stated that Ext.P4, concerns a building known as Attukal Shopping Complex, which according to the petitioner is situated on the opposite side of the same building and it was constructed during 2004-2005. In respect of that building, tax was levied at Rs.15/- per square meter. Ext.P6 concerns yet another building in respect of which Rs.10/- per square meter is levied as tax. Although the petitioner was heard and documents were produced, orders were not passed by the 2nd respondent. Complaining of the above, the petitioner approached this court by filing WP(c).No.35928/07. That writ petition was disposed of by Ext.P7 judgment directing that final order will be passed in the manner as directed therein. 6. Accordingly Ext.P8 order has been passed, revising the tax. In this order, in so far as 3rd floor is concerned, Rs.40/- per square meter has been fixed and in so far as the 4th floor is concerned Rs.36/- per square meter has been levied. It is challenging Ext.P8 that the writ petition is filed. WPC.No.4140 /08 :4 : 7. Counsel contends that Ext.P8 order is passed in violation of the directions of both the Tribunal and this court. It is also contended that the order is also discriminatory in as much as when in respect of a building on the opposite side of the road Rs.15/- has been levied as the tax, exorbitant amount has been levied on the petitioner. 8. The Corporation in its counter affidavit contends that levy of tax depends upon the zone where it is constructed, the nature of construction, amenities provided, plinth area and rent that is likely to be fetched. It is stated that having regard to all these factors they have assessed the tax in respect of the building of the petitioner and it was therefore Ext.P8 was issued. It was also contended that against Ext.P8 an alternate remedy of revision is available and that the writ petition ought not be entertained. 9. I have considered the submissions made. In so far as the plea of learned counsel appearing for the respondent Corporation that an alternate remedy of revision is available against Ext.P8 is concerned, it should be held that the Statute provides a right of revision to the petitioner and such revision is maintainable before WPC.No.4140 /08 :5 : Tribunal for Local Self Government Institutions. However, challenging Est.P8 this writ petition was presented on 4.2.2008. The writ petition was admitted and interim order has been passed on the basis of which petitioner has paid tax at the rate of Rs.20/- per square meter. Parties have filed counter affidavit. By now the time for filing revision is expired and at this distance of time the delay is beyond the condonable limit. For these reasons and also for the reason that parties have filed their pleadings and arguments were raised on the merits of the controversy, I do not think it just or appropriate to relegate the petitioner to pursue the statutory remedy of revision. 10. As far as the levy of tax at the rate of Rs.36/- and Rs.40/- per square meter as per Ext.P8 is concerned, initially when tax was levied at the rate of Rs.90/- per square meter, that was set aside by the Tribunal in Ext.P1. The reason stated in the order was that materials and data on the basis of which reliance was placed was not disclosed by the 2nd respondent. Again when tax was levied at the rate of Rs.72/- per square meter, that was set aside by the Tribunal in Ext.P2 passed in R.P.No.59/2008. Paragraph 4 of the WPC.No.4140 /08 :6 : order being relevant reads as under. “The rent prevailing in the area and the annual value fixed for the assessment of similar and similarly situated buildings and other matters specified in Section 234 of the Kerala Municipality Act are relevant for arriving at a conclusion regarding the annual value of a building for property tax assessment. Neither the petitioner nor the counter petitioners adduced any evidence regarding the rent prevailing in the area or the annual value fixed for the assessment of similar and similarly situated buildings and in that circumstance this Tribunal is not in a position to fix the annual value of the petitioner's building and is forced to make a second remand to the Taxation Appeals Sanding Committee to take fresh decision in compliance with the direction in Ext.P2 order.” 11. Thus the Tribunal had indicated that the rent of similarly situated buildings and other matters specified in Section 234 of the Municipalities Act are relevant for property tax assessment. It was in view of the aforesaid observation of the Tribunal that the petitioner has produced Exts.P4, P5 and P6 . The specific averment in paragraph 10 of the writ petition and also Ext.P5 shows that the building mentioned therein was constructed during 2004-2005 and that the building is situated within the same Zone and just on the opposite side of the road. If as a matter of fact the zone where the building is situated is one and if the buildings are situated in WPC.No.4140 /08 :7 : adjacent plots, I see no reason for such a vide disparity in the matter of tax. In Ext.P8 order passed by the 2nd respondent, the reason stated by the 2nd respondent for brushing aside Exts.P4 to P6 is that the buildings in the neighborhood were constructed during 2000-2001 and that the yardsticks for levying property tax has undergone change. This stand of the 2nd respondent is belied by the averment in paragraph 10 of the writ petition and the contents of Ext.P5, which shows that the building mentioned therein was constructed in 2004-2005. There is no material in so far as the building mentioned in Ext.P6 is concerned. Therefore, at least in so far as Ext.P4 is concerned, that certainly was a valid and relevant document, which ought not have been ignored by the 2nd respondent, while matter was reconsidered pursuant to Ext.P7 judgment rendered by this court. In that view of the matter, I am inclined to set aside Ext.P8. 12. Accordingly, Ext.P8 is set aside and the 2nd respondent is directed to re-assess the tax due from the petitioner adopting the standards applied in respect of the building mentioned in Ext.P4. Tax shall be levied on that basis and after appropriating the amount WPC.No.4140 /08 :8 : remitted by the petitioner in pursuance to the interim order passed by this court, if any further amount is due, it is for the Corporation to demand further amount from the petitioner as expeditiously as possible and at any rate within 2 months from the date of production of a copy of the judgment. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/