IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 WP(C).No. 28916 of 2005(P) --------------------------------------- PETITIONER: ---------------- PANAKKATH ABDUL RAHIM, S/O.KOYA MUHAMMED HAJI, CHEROOR, KANNAMANGALAM, MALAPPURAM DISTRICT. BY ADVS. SRI.BABU S. NAIR, SRI.P.A.RAJESH. RESPONDENTS: -------------------- 1. THE DISTRICT COLLECTOR, MALAPPURAM. 2. THE REVENUE DIVISIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT. 3. THE TAHSILDAR, THIROORANGADI, MALAPPURAM DISTRICT. 4. THE SECRETARY, VENGARA GRAMA PANCHAYATH, MALAPPURAM DISTRICT. R1 TO R3 BY GOVT. PLEADER SRI. V.K. SHAMSUDEEN, R4 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, ADV. SRI.HARISH R. MENON. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.28916/2005-P: APPENDIX PETITIONER'S EXHIBITS: EXT.P.1: COPY OF THE DEMAND NOTICE ISSUED TO THE PETITIONER BY THE R.3. DTD. 25/09/2001. EXT.P.2: COPY OF THE CERTIFICATE ISSUED BY THE VENGARA GRAMA PANCHAYATH AS NO.41/2003 DTD. 14/01/2003. EXT.P.3: COPY OF THE ORDER OF THE R.2. DTD. 19/05/2003 AS NO. KDS/408/03/H. EXT.P.4: COPY OF THE JUDGMENT DTD. 17/12/2004 IN W.P.(C). NO.36698/2004 OF THIS HON'BLE COURT. EXT.P.5: COPY OF THE ORDER DTD. 13/07/2005 AS NO. 10170/2005 PASSED BY THE R.1. EXT.P.6: COPY OF THE BUILDING TAX RECEIPT ISSUED BY THE R.4. DTD. 14/08/2001. RESPONDENTS' ANNEXURE: ANNEXURE R2.(A): COPY OF THE RETURN IN FORM NO. II BEFORE THE TAHSILDAR, TIRURANGADI. //TRUE COPY// P.A. TO JUDGE. Prv. P.R.RAMACHANDRA MENON, J. ------------------------------------------- W.P.(C) No.28916 of 2005 ------------------------------------ Dated this the 5th day of August 2011 J U D G M E N T The issue involved in this case relates to the imposition of 'luxury tax' in respect of the building constructed by the petitioner, now situated in the 'Vengara Panchayath', under Sec.5A of the Kerala Building Tax Act. 2. The case of the petitioner is that the concerned building was constructed by the petitioner way back in 1997; that the completion certificate was obtained and the building was got numbered accordingly as VP IX/665 of the Vengara Grama Panchayath. Even though the petitioner had satisfied the tax payable to the local authority from 1996 onwards, the 3rd respondent sought to impose luxury tax under Sec.5A of the Kerala Building Tax Act as well; besides the liability to pay the building tax under Sec.5 of the said Act. Ext.P1 is the order imposing luxury tax under W.P.(C) No.28916 of 2005 -: 2 :- Sec.5A of the Act, along with the demand notice. The case of the petitioner is that the building was constructed in 1997 and as such, there cannot be any liability to satisfy 'luxury tax' under Sec.5A, which provision was brought into existence only with effect from 1.4.1999. 3. Imposition of luxury tax under Sec.5A was sought to be challenged by filing an appeal before the 2nd respondent. After considering the matter, the appeal was rejected as per Ext.P3, observing that no evidence was produced by the petitioner to substantiate the completion of the construction of the building before the relevant date, ie; 1.4.1999. The petitioner preferred a revision petition before the first respondent being aggrieved by Ext.P3 and since the revenue recovery proceedings were initiated in the meanwhile, under the R.R.Act, the petitioner approached this Court by filing W.P.(C)No.36698 of 2004 which culminated in Ext.P4 judgment directing the revisional authority to consider the revision and pass final W.P.(C) No.28916 of 2005 -: 3 :- orders thereon within a period of two months from that date. The revenue recovery proceedings were ordered to be kept in abeyance, on condition that the petitioner remitted an amount of Rs.2,500/- within a period of two weeks, which is stated as complied with. 4. The first respondent/revisional authority considered the revision petition and passed Ext.P5 order on 13.7.2005 confirming the order passed by the appellate authority; observing that no satisfactory evidence was produced before the said authority to sustain the contention raised by the revision petitioner; which is under challenge in this writ petition. 5. Heard the learned counsel appearing for the petitioner as well as the learned Government Pleader appearing for the respondents. 6. Learned counsel for the petitioner submits that it is discernible from Ext.P5 that the factum of completion of construction of the building is not proved by the petitioner W.P.(C) No.28916 of 2005 -: 4 :- and no sufficient documents were produced in this regard. Petitioner produced Ext.P6, a copy of the building tax receipt issued by the 4th respondent Panchayath collecting building tax in respect of the building 9/665 for the period of 1998-'99 and 1999-2000. It is stated that though the said certificate was produced before the appellate authority, ie; the 2nd respondent, as referred to in Ext.P1, the same was not accepted and the appeal was rejected, which is stated as an arbitrary exercise of power. In spite of pointing out the factual position, the same was not considered by the revisional authority while passing Ext.P5 order, which is sought to be interfered. The learned counsel also referred to Ext.P6 receipt issued by the local authority, as to the remittance of tax for the building IX/665, in respect of the years 1998-'99 and 1999-2000. 7. The learned Government Pleader appearing for the respondents 1 to 3 submits that there is absolutely no merit in the writ petition and that the assessment was W.P.(C) No.28916 of 2005 -: 5 :- finalised in respect of the plinth area of 292.18 sq.m. of the building, based on the return filed by the petitioner. A copy of the return has also been produced as Annexure R2(a). It is specifically stated therein that the 'completion' of the building in question was in the year '2001' and the date of occupation is also given as 2001. In view of the admitted fact that the building was constructed in the year 2001 no interference is warranted. This Court finds that no reply affidavit has been filed by the petitioner rebutting the specific averments raised by the 2nd respondent in the statement and also as to Annexure R2(a). Admitted fact does not require to be proved. That apart, it is to be noted that in Annexure R2(a) return, the petitioner has stated the building number as “KP 6/322” and the concerned Panchayath as “Kannamangalam”. In response to the query made by this Court, the learned counsel for the petitioner, the learned Government Pleader and the learned Standing Counsel for the 4th respondent Panchayath submitted that W.P.(C) No.28916 of 2005 -: 6 :- the 4th respondent Panchayath got bifurcated also giving rise to 'Kannamangalam Panchayath' as well and Annexure R2(a) return was obviously filed before the 'Kannamangalam Panchayath' and not before the 4th respondent (Vengara Panchayath). When 'Kannamangalam Panchayath' came into existence as early as in the year 2001, the records pertaining to the said building must be in the custody of the said Panchayath. As such, there was no chance, necessity or occasion for the 4th respondent- k'Vengara Panchayath' to have issued Ext.P2 certificate dated '14.1.2003' referring to the alleged collection of tax in respect of the building bearing No.'VP IX/665' for the year 1997-98. This is for the plain reason that, on that day, the 4th respondent (Vengara Panchayath) cannot be said as having any valid record in connection with the building situated in the 'Kannamangalam' Panchayath, as the building is situated in the latter Panchayath and not within the area and jurisdiction of the 4th respondent Panchayath. W.P.(C) No.28916 of 2005 -: 7 :- Further, 'Kannamangalam Panchayath' before whom Annexure R2(a) return was filed is not included as a party to this writ petition; which hence is bad for non-joinder of necessary party as well. 8. This being the position, the reliance placed on Ext.P2 certificate issued by the Vengara Panchayath is quite wrong and unfounded. Ext.P3 order passed by the 2nd respondent and Ext.P5 order passed by the revisional authority, ie; the first respondent do not call for any interference. There is no merit or bonafides in the writ petition and the same is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. Jvt