IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 OP.No. 34775 of 2001(M) ----------------------- PETITIONER: ------------ E. SAROJINI AMMA, REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL INE, TRICHUR. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS RESPONDENTS: ------------- 1. STAE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL LINE, TRICHUR. 2. THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, CIVIL LINE, TRICHUR. 3. THE VILLAGE OFFICER, MINALUR VILLAGE, TALAPPILLY TALUK, TRICHUR DISTRICT. BY G.P. SHRI K.P. PRADEEP THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON 22/07/2008 DELIVERED THE FOLLOWING: ORDER ON CMP NO.57803/2001 DISMISSED. 22/7/2008 SD/- T.R. RAMACHANDRAN NAIR, JUDGE. APPENDIX EXT.P1-TRUE COPY OF GIFT DEED NO. 582/1999 DATED 17./2.99 EXT.P2- DO. NO.583/1999 DATED 17.2.99 EXT.P3-TRUE COPY OF RECEIPT NO.98 DATED 10.12.99 EXT.P4-TRUE COPY OF DO. NO.99 DATED 10.12.99 EXT.P5- DO. NO.81 DATED 22.3.2000 EXT.P6- TRUE COPY OF ORDER DATED 19.8.20000 ISSUED BY R2 EXT.P7- DO. ISSUED BY R3 DATED 16.2.2001 EXT.P8- DO. ISSUED BY R4 DATED 26.2.2001 EXT.P9- DO. ISSUED BY R2 DATED 17.10.2001 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.34775 of 2001-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of July, 2008. JUDGMENT The petitioner seeks to quash the order passed by the Tahsildar which is confirmed in appeal by the Revenue Divisional Officer in an assessment proceeding arising under the Kerala Building Tax Act. The original order of assessment was appealed against, which resulted in Ext.P6 order of remand by the Revenue Divisional Officer. The complaint is that while implementing the said order of remand, the directions contained therein have not been fully obeyed by the Tahsildar and in the subsequent order passed by the Revenue Divisional Officer also, the same method was adopted. 2. The petitioner was aggrieved by the assessment proceedings whereby tax for Rs.56,700/- was assessed for the building in Sy. No.742/3 of Minalur village, Talappilly Taluk. A reading of Ext.P6 shows that after referring to the contentions of the petitioner, it is recorded as follows: “ The second contention is regarding the parking area to be reduced as it is liable for exemption. This is accepted and the appeal is hereby allowed.” Accordingly, the matter was remanded back to the Tahsildar for fresh OP 34775/2001 -2- disposal after remeasuring and due hearing of the appellant. In Ext.P7, after referring to the remand order, it is stated that the parking area cannot be excluded from the assessment. The reason for the same is not made clear in Ext.P7. What was excluded as per Ext.P7 is an area of 77.25 meter square occupied by the structure which was constructed earlier for which assessment was made and the tax was paid. When the matter was taken up in appeal, it was disposed of by Ext.P9 order. Therein, the Revenue Divisional Officer has held that the parking area of the building is also liable to be assessed. But the reasons which prompted him to enter such a finding is also not clear from the said order. It is submitted that when in Ext.P6 it is recorded that the parking area has to be reduced, the subsequent orders have included that area also for assessment, which is not permissible. Learned counsel for the petitioner is right in submitting that Exts.P7 and P9 to that extent, have to be set aside and the matter has to be remitted back for fresh consideration. 3. Learned counsel for the petitioner has raised a further contention that actually the petitioner had executed settlement deeds, Exts.P1 and P2 whereby the structures in question were assigned to the daughters of the petitioner and that aspect of the matter is also not considered by the appellate authority and the assessing authority. A reading of the orders shows that such a contention was not raised before the authorities OP 34775/2001 -3- concerned. If actually that contention was raised in the objections and in the appeal memorandum, then while considering the matter afresh, the same will also be looked into by the authority concerned. 4. In that view of the matter, Exts.P7 and P9 are quashed. The Tahsildar will reconsider the matter and find out whether the assessment is to be modified by excluding the parking area that is claimed by the petitioner. Other points raised also will be considered along with it. Learned Govt. Pleader pointed out that going by the proviso to sub-section (5) of Section 5 of the Act, exclusion can be only in respect of plinth area of a residential building and herein it is a commercial complex. I am not finally pronouncing on that matter, since the entire issue is directed to be reconsidered by the assessing authority. 5. The assessing authority will reconsider the matter with notice to the petitioner and any other affected parties. The same shall be done within a period of four months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 34775/2001 -4- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.34775 of 2001-M - - - - -- - - - - - - - - - - - - - - - - - - - - JUDGMENT 22nd day of July, 2008.