IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 OP.No. 9651 of 2002(V) --------------------------------- PETITIONER(S): ------------------------ V.K.MOIDU HAJI, ROSE MAHAL,THIKKODI, C/O.KERALA ROADWAYS, KOVILVATTOM ROAD,ERNAKULAM, COCHIN-35. BY ADVS. MR.S.K.BRAHMANANDAN MR.G.SREENIVASA PRABHU MR.S.B.PREMACHANDRA PRABHU RESPONDENT(S): ------------------------- 1. THE DISTRICT COLLECTOR AND REVISIONAL AUTHORITY UNDER THE KERALA BUILDING TAX ACT, COLLECTORATE OFFICE, KAKKANAD, COCHIN-30. 2. THE REVENUE DIVISIONAL OFFICER & APPELLATE AUTHORITY UNDER THE KERALA BUILDING TAX ACT, FORT COCHIN, COCHIN-1. 3. TAHSILDAR & ASSESSING AUTHORITY UNDER THE KERALA BUILDING TAX ACT, KANAYANNUR TALUK, ERNAKULAM, COCHIN-11. GOVERNMENT PLEADER MR.K.P.PRADEEP (TAXES) THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.17256/2002 IN OP. NO.9651/2002 CLOSED 01.06.2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RETURN FILED BY THE PETITIONER DT. 27.6.96. P2:- COPY OF THE ASSESSMENT ORDER ISSUED BY THE 3RD RESPONDENT DT. 25.8.97. P3:- COPY OF THE APPEAL MEMO DT. 6.10.97 FILED BEFORE THE 2ND RESPONDENT. P4:- COPY OF THE ORDER OF THE 2ND RESPONDENT DT. 25.3.98. P5:- COPY OF THE ORDER OF THE IST RESPONDENT DT. 18.11.98. P6:- COPY OF THE APPEAL MEMO DT. 10.12.98 FILED BEFORE THE 2ND RESPONDENT. P7:- COPY OF THE ORDER OF THE 2ND RESPONDENT DT. 17.10.01. P8:- COPY OF THE ORDER OF THE IST RESPONDENT DT. 23.1.02. P9& P10:- COPY OF THE PROPERTY TAX ASSESSMENT ORDERS ISSUED BY THE CORPORATION OF COCHIN DT. 4.5.96. TRUE COPY P.A. TO JUDGE TSS V.K.MOHANAN, J. --------------------------------------------- O.P.No. 9651 of 2002 Y --------------------------------------------- Dated this the 1st day of June, 2009 J U D G M E N T Petitioner is the owner of a building in Sy.No.448/4 of the Ernakulam Village. According to the petitioner, the construction was completed during the month of April, 1996 and therefore, the rate applicable for fixing the tax is on the basis of the rate in force at the time of completion of the construction of the building. But, according to the petitioner, as per Ext.P2, tax was fixed on the basis of the revised tax which was brought into effect as per schedule under Act 23 of 1996. Hence, according to the petitioner, the amount quantified as per Ext.P2 is highly arbitrary and illegal. Therefore, he approached this Court by preferring the present writ petition with a prayer to quash Exts.P5,P7 and P8 orders. 2. On behalf of the respondents, a detailed counter affidavit is filed disputing all the averments taken by the petitioner in this writ petition. According to the counter affidavit, the plinth area of the building would come about 2199.35M² as per the report of the Revenue Inspector. Therefore, the third respondent issued Ext.P2 order dated OP NO.9651 OF 2002 :-2-: 25.8.1997 assessing the building tax as Rs.4,65,750/-. It is also the contention of the respondents that as per Ext.P4, the appeal preferred by the petitioner was disposed of observing that the only dispute on the assessment is about the calculation of the plinth area and therefore, the third respondent was directed to dispose of the case afresh after conducting re-measurement of the building in question with the help of the Revenue Inspector in the presence of the petitioner. It is also stated in the counter affidavit that the Revenue Inspector measured the building once again and Ext.P5 proceedings was issued by the third respondent reiterating the earlier assessment and demanding balance amount as there is no mistake or difference in the calculation of plinth area. According to the respondents, the petitioner did not produce any record or material to prove that he had constructed the building prior to 29.7.1996 and had sought for assessment prior to that date. It is also contended that no objection was taken by the petitioner at any point of time regarding the rate applicable. Thus, according to the respondents, regarding the date of completion of construction of the building, there is no evidence or material and therefore the assessment made as per Ext.P2 is correct and the petitioner has OP NO.9651 OF 2002 :-3-: to pay the amount. 3. I have carefully considered the contentions advanced by both the counsel for the petitioner as well as the learned Government Pleader and also the materials available on record. As on today, the main controversy is about the rate applicable for assessing the tax of the building constructed and owned by the petitioner. Regarding the plinth area, there was some dispute since as per Ext.P1 return, the plinth area was only 2125 M². As evidenced by Ext.P4, the Revenue Inspector reported that the plinth area of the building will come about 2199.35 M² (ground floor building and go down- 2125.30 M² and first floor 74.05M²) and the said assertion is admitted by the petitioner as evidenced by Ext.P4. Therefore, as per Ext.P4, regarding the plinth area, there is no dispute and the same will come only 2199.35M². 4. Therefore, the next question to be considered is about the rate applicable for assessing the tax for the above building having the plinth area of 2199.35M². In this juncture, it is relevant to note that when the respondents submit that there is no contra material or evidence to substantiate the contention of the petitioner that he had completed the construction of the building during the month of May,1996, even in Ext.P2, by which the OP NO.9651 OF 2002 :-4-: petitioner was directed to pay the building tax of Rs.4,65,750/-, it is stated that the construction was completed on 27.5.1996. None of the documents produced in this case or relied on by the respondents has effectively controverted to disprove the contention of the petitioner that the building in question was constructed and completed on 27.5.1996. Respondents admitted in Ext.P2 that the date of construction was on 27.5.1996 and in the absence of any other materials, I have to hold that the building in question was constructed on 27.5.1996. If that be so, the rate applicable for fixing the tax will have to be considered as per the schedule prior to the amendment made by Act 23 of 1996. Therefore, it cannot be said that the assessment of tax made as per Ext.P2 is in accordance with law and the rate applicable during the relevant time. Consequently, Exts.P5,P7 and P8 orders are liable to be quashed. In the result, this writ petition is allowed quashing EXts.P5,P7 and P8 and the respondents are directed to issue fresh assessment order on the basis of the rate prevailed as on 27.5.1996 considering the plinth area as 2199.35M² as stated in Exts.P2 and P4. The respondents are directed to issue fresh assessment order within one month from the date of production OP NO.9651 OF 2002 :-5-: of a copy of the certified copy of this judgment and the petitioner is directed to pay the balance amount of tax, on fixing the same as directed hereinbefore and after deducting the amount which he had already paid. V.K.Mohanan, Judge MBS/ OP NO.9651 OF 2002 :-6-: V.K.MOHANAN, JJ. -------------------------------------------- O.P.NO. 9651 OF 2002 -------------------------------------------- J U D G M E N T DATED: 1-6-2009 OP NO.9651 OF 2002 :-7-: