IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 OP.No. 7312 of 2003(U) ---------------------- PETITIONER: ------------ 1. E.P.SAMUEL,S/O.E.V.PAILY, EDACHERIL HOUSE, ANGAMALY. 2. VIJU PAILY, S/O.E.V.PAILY, EDACHERI HOUSE, ANGAMALLY. BY ADV. SRI.GEORGE ABRAHAM RESPONDENTS: ------------- 1. THE TAHSILDAR, ALUVA. 2. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM. 3. THE DISTRICT COLLECTOR, ERNAKULAM. 4. STATE OF KERALA, REPRESENTED BY ITS CHEIEF SECRETARY, SECRETARIAT, TRIVANDRUM. BY SHRI.K.P.PRADEEP, GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO. 7312/2003 ORDER ON CMP NO.12722/2003 IN O.P.NO. 7312/2003 DISMISSED. 09/01/2008 SD/- (C.N.RAMACHANDRAN NAIR, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF LEASE DEED DATED 02/11/1968. P2 : COPY OF COVERING LETTER NO.AD-14/71-72/4 DATED 14/07/1972 ISSUED BY ACCOUNTS OFFICER, DIVISIONAL ENGINEER, TELEGRAPHS. P3 : COPY OF BUILDING TAX RECEIPT DATED 30/03/70. P4 : COY OF BUILDING TAX RECEIPT DATED 17/04/70. P5 : COPY OF BUILDING TAX RECEIPT DATED 20/03/72. P6 : COPY OF BUILDING TAX RECEIPT DATED 29/03/73. P7 : COPY OF PERMIT ISSUED BY THE ANGAMALLY MUNIPALITY ORDER NO.B.A.9/78-79 DATED 24/05/1978. P8 : COPY OF ORDER PASSED BY 1ST RESPONDENT NO.C3-17662/79 DATED 02/03/95. P9 : COPY OF ORDER NO.14 DIS.52326/96/310 DATED 17/9/97 PASSED BY 3RD RESPONDENT. P10 : COPY OF ARGUMENT NOTE SUBMITTED BY PETITIONERS BEFORE 3RD RESPONDENT. P11 : COPY OF ORDER PASSED BY 3RD RESPONDENT DATED 30/12/2002. P12 : COPY OF FORM OF LEASE ENTERED BETWEEN THE PARTIES. P13 : COPY OF REGISTERED DOCUMENT BETWEEN THE PETITIONER AND DIVISION ENGINEER, TELEGRAPH DEPARTMENT, THRISSUR DIVISION. // TRUE COPY // PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR, J. ----------------------------------- O.P. No. 7312 of 2003 ------------------------- Dated, this the 9th day of January, 2008 J U D G M E N T Petitioners are before this Court the 3rd round challenging building tax assessment in respect of building. Though two contentions are raised, the first one, i.e., separate assessment for portions of the building in the names of the petitioners was granted by this Court in first round of original petition itself. Therefore, this issue does not survive for re-consideration, though agitated by petitioners. However, so far as petitioners' contention that the present building is an extension of the old building is concerned, the claim was rejected for want of evidence. Learned counsel for petitioners relied on Ext.P12, which is a certified copy of the lease deed executed by petitioners in 1968 leasing out 100 sq.m. of old building to the telegraph department for running the post office. Besides this, petitioners have stated that other shop rooms that were constructed before commencement of the Building Tax Act were lying vacant for long period and there is no evidence to prove the construction of that portion with the petitioners. Petitioners have produced tax receipts issued, which show that the demand is not for 100 sq.m. let out. Another important document produced by petitioners before the lower authorities and before this Court is the permit obtained from O.P.NO. 7312/2003 -2- Angamaly Municipality for additional construction, which is produced as Ext.P7 in the original petition. It is clear from Ext.P7 that the plan approved is for extension of shop building and the additional area for construction in the ground floor is 128.94 sq.m. The revisional authority under the Building Tax Act rejected petitioners' claim on the ground that there is no sufficient evidence for accepting petitioners' contention. I do not think the revisional order can be sustained because it is very clear from Ext.P7 that what is approved is not for construction of a new building but for extension of an existing shop building. The lease deed produced by petitioners proves beyond doubt that there was an existing building leased out. It is conceded that ground floor of the building comprised of 405 sq.m. Since the additional construction approved in the ground floor under Ext.P7 is 128.94 sq.m, it is proved beyond doubt that the existing building was with plinth area of 276.6 sq.m. In the circumstances, this original petition is allowed in part directing Tahsildar to revise the assessment by excluding 276.6 sq.m. from the total constructed area but with direction to assess the entire building as a single unit in the name of the petitioners together and recover the tax. (C.N.RAMACHANDRAN NAIR, JUDGE.) jg