IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 WP(C).No. 5710 of 2007(D) ------------------------- PETITIONER(S): --------------- K.P. HUSSAIN, NIZAM MANZIL, GANDHI NAGAR P.O., KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): --------------- 1. KUMARANALLOOR GRAMA PANCHAYATH, KOTTAYAM, REP. BY ITS SECRETARY (SPL.GRADE). 2. VILLAGE OFFICER, PERUMBAIKADU VILLAGE, KOTTAYAM. 3. TAHSILDAR, KOTTAYAM. 4. REVENUE DIVISIONAL OFFICER, KOTTAYAM. 5. DISTRICT COLLECTOR, KOTTAYAM. ADV. SRI.MATHEW PHILIP EDAPPALLIL FOR R1 GOVERNMENT PLEADER SRI.K.P.PRADEEP FOR R2 TO R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).5710/07 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:-TRUE COPY OF CERTIFICATE DT.2.12.03 ISSUED BY R1 EXT.P2:-TRUE COPY OF CERTIFICATE ISSUED BY R1 REGARDING PAYMENT OF PROPERTY TAX FROM 1978-79 TILL 05-06 EXT.P3:-TRUE COPY OF ASSESSMENT ORDER BEARING NUMBER B8(3)8521/03 DT.12.11.03 ISSUED BY R3 EXT.P4:-TRUE COPY OF ORDER NO.B8(3)8521/03 DT.20.11.07 BY R3 EXT.P5:-TRUE COPY OF ORDER DT.20.3.04 OF R4 EXT.P6:-TRUE COPY OF REVISION FILED DT.9.8.04 BEFORE R5 RESPONDENT'S EXHIBITS:- EXT.R3(A):- COPY OF REPORT SUBMITTED BY R2 okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No.5710 OF 2007 ------------------------------ Dated this the 9th day of July, 2009 J U D G M E N T ---------------------- 1. The challenge in this writ petition is against Ext.P3 assessment of Building Tax, which is confirmed through Ext.P5 appellate order and further through Ext.P7 revisional order. According to the petitioner, the building in question along with the land in which it is situated was purchased by him from one Sri.Chacko S/o. Ouseph, during the year 1976. Thereafter the petitioner constructed first floor on the existing single-storied building, after obtaining Building Permit from the Grama Panchayat concerned, vide Permit No.A4-331/2000-01 dt: 23.1.2001. The additional construction was completed during the year 2002. In the year 2003, the 3rd respondent made Ext.P3 assessment calculating the entire plinth area, including the existing construction as well as the new construction, and further imposed luxury tax for the building under Section 5A of the Kerala Buildings Tax Act (hereinafter referred to as the Act). Contention of the petitioner is that since the original construction was made prior to commencement of the Kerala Building Tax Act 1975, the area of additional construction alone is assessible to tax, and in such case there is also no liability for W.P.(C).5710/07 2 Luxury Tax under Section 5A, because the additional construction alone will not come within the limit of area stipulated in Section 5A. In support, the petitioner relies on a Division Bench ruling of this Court in Joy Joseph Vs. District Collector (2009 (2) KLT 348). 2. In order to substantiate the factual situation the petitioner had produced Exts.P1 and P2 certificates issued by the Grama Panchayat concerned. From Ext.P1 it is evident that as per the Assessment Register of the Panchayat the building bearing No.IV/422 was seen assessed with property tax for the periods from 1973-74 to 1977-78 in the name of Sri. Joseph Chacko (vendor of the petitioner) and mutation was effected subsequent to purchase of the building by the petitioner. Ext.P2 is a statement showing details regarding payment of property tax of the building from the year 1978-79 onwards till 2005-06. But the building number is seen varied periodically. I am not entering upon any findings at this stage regarding veracity of these documents. 3. The appellate authority had dismissed appeal filed by the petitioner, through Ext.P5 order, assigning the reason that the petitioner has not produced any evidence to show that tax has been paid with respect to the existing portion of the building, and therefore it is assessible under Section 5(2) of the Act. But W.P.(C).5710/07 3 Section 5(2) of the Act no more stand valid, as struck down by this Court in Sherly Vs. State of Kerala (2006 (2) KLT 306). 4. The petitioner preferred Ext.P6 revision before the District Collector producing all the relevant documents. But the revision was rejected through Ext.P7 assigning the reason that it was filed beyond the time limit prescribed. According to the petitioner the impugned order of the appellate authority was received by him only on 26.7.2004 and therefore the appeal filed on 9.8.2004 was within time. But the learned Government Pleader on instructions submitted that it is evident from the records that the appellate order was served on the petitioner as early as on 13.4.2009 and hence the findings of the revisional authority that the revision is filed beyond the time limit prescribed, is true and correct. However, I am not intending to arrive at any finding on this dispute, because of reasons hereinafter set forth. 5. It is evident from Ext.P5 order of the appellate authority that the contentions of the petitioner was rejected holding that the assessing authority was right in assessing the building as a whole in view of the provisions contained in Section 5(2). But as stated above, this Court had already held that Section 5(2) is ultra vires. Therefore it is evident that the assessment made under Section 5(2) is purely illegal and W.P.(C).5710/07 4 unsustainable. Under such circumstances in order to meet the ends of justice, I feel that Ext.P5 order is liable to be set aside and the matter needs re-consideration at the hands of the appellate authority, notwithstanding the rejection of revision petition as time barred. The question whether the entire plinth area of the building is liable to be assessed at the current rate on the date of assessment, along with luxury tax under Section 5A, is a question which needs examination based on the genuinity and acceptability of the documents produced in order to establish the factual position, and on examining other incidental records and evidences, with a reference to the provisions of the Act and the settled legal precedents. 6. Under the above circumstances the writ petition is allowed quashing Ext.P5 order of the appellate authority and Ext.P7 order by which the revision petition is rejected. The matter is hereby remanded to the 4th respondent for fresh consideration of the appeal. The petitioner shall be afforded with opportunity to produce documentary evidence and opportunity of personal hearing. The 4th respondent shall take note of all such documents and shall verify its genuineness and acceptability, if necessary based on evidence to be collected from the office of the Grama Panchayat and Village Officer concerned. Needless to say that the 4th respondent shall take W.P.(C).5710/07 5 note of the legal position as settled by this Court in various rulings, and observations made in this Judgment, while disposing the appeal. 7. It is submitted that the petitioner had already remitted 50% of the Building Tax and the whole amount of Luxury Tax as demanded in Exts.P3 and P4. Therefore the respondents are directed to keep in abeyance recovery and collection of the balance amount till disposal of the appeal, and the amount already paid shall be appropriated in accordance with the outcome of the appeal. 8. The petitioner shall produce a copy of this Judgment before the 4th respondent and the appeal shall be disposed of by the 4th respondent as early as possible, at any rate within 3 months from the date of receipt of a copy of this Judgment. C.K.ABDUL REHIM, JUDGE. okb