IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 WP(C).No. 34026 of 2004(A) ---------------------------------------- PETITIONER: -------------------- S.MOLY, M.T.HALL & CINEMA THEATRE, PAZHAKUTTY, NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF PANCHAYAT, THIRUVANANTHAPURAM. 3. ANAD GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, ANAD, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.SANTHOSH KUMAR K.C. FOR R1 AND 2 ADV. SRI.V.A.MUHAMMED FOR R3 SRI.K.E.HAMZA FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.34026/2004 A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTICE NO.A3-559/99 DTD. 2/05/2002. EXT.P2: COPY OF THE ORDER NO.A3.559/99 DTD. 15/05/2002. EXT.P3: COPY OF THE APPEAL FILED BEFORE THE PANCHAYAT COMMITTEE DTD. 14/06/2002. EXT.P4: COPY OF THE ORDER NO.C3-6225/2002 DTD. 9/08/2002. EXT.P5: COPY OF THE REVISION FILED BEFORE THE GOVERNMENT DTD. 30/08/202. EXT.P6: COPY OF THE ORDER NO.G.O.NO.3815/2004 DTD. 1/11/2004. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R.RAMACHANDRAN NAIR, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ W.P.(C). No.34026/2004-A ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 28th day of July, 2008 J U D G M E N T The petitioner is before this Court aggrieved by the orders, Exts.P2, P4 and P6, to the extent they are passed not in total compliance of the relevant Rule, i.e., Rule 6(4) of the Kerala Panchayat Raj (Building Tax and Surcharge thereon) Rules, 1996. The petitioner has constructed a Cinema Theatre and the said premises is being used as a Kalayana Mandapam also. Against the initial order of assessment, petitioner filed an appeal before the Deputy Director of Panchayat and after hearing the parties he directed the Panchayat to reconsider the assessment. Thereafter, Ext.P2 order was passed by the Secretary of the Grama Panchayat. In Ext.P2 the daily rent is fixed as Rs.5,000/- and it is presumed that the petitioner may be letting out this Kalyana Mandapam atleast for 150 days in a year and, accordingly, tax has been assessed at Rs.30,000/-. Against this an appeal was filed before the Panchayat which was dismissed and the appeal filed before the Deputy Director was also dismissed as per Ext.P4. Petitioner W.P.(C).NO.34026/2004-A -:2:- challenged this before the Government by filing Ext.P5 revision petition, which was disposed of by order Ext.P6. 2. The learned counsel for the petitioner invited my attention to Rule 6(4) of the relevant Rules which is extracted below:- “6.(4) The tax in respect of those establishments let out on daily rent like lodges, Kalyanamandapam, halls etc. shall be fixed on the basis of the amount collected as daily rent. In the case of such buildings, fifty percent of the total amount of rent collected shall be deducted towards electricity, furniture and service charge and tax shall be levied on the presumption that they are let out at least for one hundred days in a year.” 3. A reading of the said rule will show that the tax shall be levied on the presumption that they are let out at least 100 days in a year. Therefore, the petitioner will be liable to pay tax atleast by reckoning 100 days in a year but as far as any liability towards any number of days exceeding 100, unless there is a concrete evidence to that effect, the petitioner cannot be made liable merely on the basis of a guess work. Actually in Ext.P2, the sole reason stated for taking 150 days as the total number of days is that during W.P.(C).NO.34026/2004-A -:3:- 1999-2000 13 Hindu marriages were conducted there, in 2000- 2001 the said number stood at 39 and later in the subsequent year 2001-2002, 45 Hindu marriages were conducted and coupled with Christian and Muslim marriages which might have been conducted there, the total will be such. This is without any proper evidence to support it. In that view of the matter, the assessment on that basis cannot be sustained. In Ext.P6 order it is recorded that, during the hearing, the Secretary of the Panchayat submitted that the assessment was made by taking the number of days as 100 as provided in Rule 6(4) of the Rules. Therefore, plainly, the order Ext.P2 on that score also cannot be upheld. Hence, Exts.P2, P4 and P6 as far as it upholds the assessment of the tax by taking 150 days as the total number of days on which the premises was let out as Kalyana Mandapam are illegal and the assessment on that score is set aside. The Secretary of the Panchayat shall modify the assessment order under Rule 6(4) of the relevant Rules by taking the number of days as 100. The revised proceedings shall be passed within two months from the date of receipt of a copy of this judgment. Needless to submit that if actually there is evidence about letting out of the premises as Kalyana Mandapam in subsequent years, for any number of days in excess of 100, the W.P.(C).NO.34026/2004-A -:4:- Secretary can make an assessment on that ground in respect of those years. But, as far as the present proceedings is concerned, it will be limited to 100 days and any amount remitted in excess shall be adjusted/refunded to the petitioner. The writ petition is disposed of as above. No costs. T.R.RAMACHANDRAN NAIR, Judge ms