IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 WP(C).No. 11915 of 2005(R) -------------------------- PETITIONER: --------------- P.VIJAYASENAN, VIJAYA VILASOM, KARINGANOOR P.O., OYOOR, KOLLAM DISTRICT. BY ADV. DR.K.P.SATHEESAN MR. K.K.GOPINATHAN NAIR MR. M.R.JAYAPRASAD MR. K.K.RAJEEV MR. T.K.KAMALJITH RESPONDENTS: --------------- 1. THE DEPUTY DIRECTOR OFK PANCHAYATS, KOLLAM. 2. VELINALLOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VELINALLOOR, KOLLAM DISTRICT. R1 BY GOVERNMENT PLEADER MS. T. B. RAMANI R2 BY ADV. MR. V.N.ACHUTHA KURUP, SENIOR ADVOCATE MS. BINDU SREEKUMAR MR. K.G.RENGANATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP (C) NO. 11915 OF 2005 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF THE OWNERSHIP CERTIFICATE NO. 45/80/2000 DATED 5.3.2001 GIVEN BY THE 2ND RESPONDENT EXT.P2 : TRUE COPY OF THE LAST BILL DATED 18.3.2005 GIVEN TO THE PETITIONER BY K.S.E.B. EXT.P3 : TRUE COPY OF THE RECEIPT DATED 12.11.03 SHOWING THE REMITTANCE OF TAX IN 3RD INSTALMENT. EXT.P4 : TRUE COPY OF THE RECEIPT DATED 1.9.2004 SHOWING THE REMITTENCE OF TAX IN 4TH INSTALMENT. EXT.P5 : TRUE COPY OF THE REPRESENTATION DATED 17.3.2005 FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P6 (a) : TRUE COPY OF THE PHOTOGRAPH EXT.P6 (b) : TRUE COPY OF THE PHOTOGRAPH EXT.P6 (c) : TRUE COPY OF THE PHOTOGRAPH SECOND RESPONDENT'S EXHIBITS : EXT. R2 (1) : TRUE COPY OF LOCATION MAP PREPARED BY THE VILLAGE OFFICER, VELINALLOOR ON 23.05.05 /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No. 11915 of 2005 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 10th day of September, 2009 JUDGMENT The petitioner is the owner of 21.5 cents of land situated on the side of Ayur - Oyur road, in the second respondent Panchayath and he constructed a residential building-cum-shopping complex in the year 2001. The building was numbered by the second respondent as VP IV/291A and Ext.P1 ownership certificate was given for enabling the petitioner to obtain electric connection to the said building. Pursuant to the numbering of the building as above and producing all the requisite materials, including ownership certificate and also on complying with the prescribed formalities, the Electricity Board provided power supply to the said building. Ext.P2 is one of the bills issued by the Kerala State Electricity Board in this regard. 2. The building was assessed by the authority under the Kerala Building Tax Act 1975 and a total sum of Rs.10,000/- was fixed as the tax payable, which was directed to be paid by way of 4 equal installments of Rs. 2,250/- as provided under the Statute. Exts. P3 and P4 are the receipts issued to the petitioner regarding the clearance of the third and final installments in this regard. The grievance of the petitioner is that, in spite of the actual facts and figures as above, the second respondent Panchayath has not so far chosen to finalize the W.P. (C) No. 11915 of 2005 : 2 : assessment of tax in respect of the building offering some or other lame excuses, making the petitioner to run from the pillar to post in this regard. Met with the said circumstances, the petitioner has brought up his grievance before the first respondent by filing Ext.P5 representation. 3. The first respondent has filed counter affidavit stating that, the grievance projected by the petitioner in the Writ Petition seeking for a direction to effect assessment of tax in respect of the building is not correct or sustainable for the reason that there is clear violation of the statutory prescription in so far as the requisite document has not been maintained by the petitioner while effecting the construction, which hence is contrary to the mandate under Section 220 (b) of the Kerala Panchayath Raj Act. Receipt of Ext.P5 representation is also conceded in the counter affidavit stating that, the petitioner has already informed that the said representation will be considered in accordance with law on disposal of the Writ Petition. 4. The second respondent Panchayath has also filed counter affidavit, stating that, numbering of the building effected by the Panchayath was only 'provisional', pursuant to the application preferred by the petitioner immediately after the construction of 'ground floor', so as to enable him to get the electric connection. It is asserted in paragraph 2 of the counter affidavit that, the up-stair portion was constructed only thereafter; simultaneously adding that 'it' is W.P. (C) No. 11915 of 2005 : 3 : constructed violating Section 220 (b) of the Kerala Panchayath Raj Act. It is also stated that, the defect was pointed out to the petitioner (when he requested to assess the tax in respect of the building) and was directed to rectify the same, which however was paid only scant regards by the petitioner. Referring to Ext. R2(1) representation submitted by the Village Officer, it is pointed out that, the building is abutting the purmabokke land. In so far as the cellar portion is concerned it is not in the registered holding and is projecting to the road. 5. The learned counsel for the petitioner submits that, the averments and allegations raised by the second respondent have been controverted by filing a reply affidavit, also furnishing the 'lie and location' of the building. The learned counsel further submits that, the ground floor/cellar of building has virtually rendered impossible to be used, in view of the fact that, the road in front of the building/property has been raised to much a higher level and as such there is no electric connection, even on the date of filing of reply affidavit, to the ground floor/cellar and the power connection is confined only to the residential portion. Ext. R2(i) location map issued by the Village Officer and produced by the second respondent shows that the cellar portion partially protrudes to the road purambokke, which accordingly has been relied on in the counter affidavit filed by the 1st respondent to contend W.P. (C) No. 11915 of 2005 : 4 : that there is violation of Section 220 (b) of the Kerala Panchayath Raj Act and to deny the request to assess the tax in respect of the building. 6. The learned counsel for the second respondent Panchayath submits that, Ext.P1 ownership certificate was issued of course after inspection of the building; however adding that, at the time of such inspection and issuance of Ext.P1 certificate dated 5.3.01, only the 'ground floor' had been completed and that the construction of the first floor was effected only much thereafter. This does not tally with the actual facts and figures, in so far as the alleged protrusion/encroachment as reported by the Village Officer vide Ext. R2 (i) is mainly with regard to the 'cellar portion' of the building and not in connection with the 'first floor'. If the cellar portion had actually encroached into the road, such encroachment was very much in existence at the time of inspection by the Secretary of the Panchayath before issuance of Ext.P1. But as on the date of issuance of Ext.P1, the Pachayath has no such case. It appears that, it is for this reason that the respondents have set up a case in the counter affidavit that construction of the 'first floor' was completed only after issuance of Ext.P1. Construction of the 'first floor' is no way connected with the encroachment/protrusion of the 'cellar portion' to the road purambokke, so as to justify the denial of the request of the petitioner to assess the tax in respect of the building. Absolutely, no satisfactory explanation is W.P. (C) No. 11915 of 2005 : 5 : forthcoming from the part of the respondent so as to reconcile with the admitted facts and figures. 6. In the above circumstances, the second respondent is hereby directed to asses the tax payable by the petitioner in respect of the building in question and to have it appropriated, particularly in view of the fact that, the revenue obtainable to the second respondent need not be kept in abeyance. However, the assessment or collection of such tax in respect of the building will not bar the way of the second respondent or such other competent authority in proceeding with appropriate steps against the petitioner, if there is any encroachment to the road/purambokke in any manner and the situation can very much be remedied by resorting to appropriate proceedings in accordance with law. The Writ Petition is allowed to the above extent. No cost. P. R. RAMACHANDRA MENON, JUDGE kmd