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. 33740 of 2004(N) --------------------------------------- PETITIONERS: -------------------- 1. ANIL KUMAR S/O. JACOB, THARAPPATHU VEEDU, PULPALLY VILLAGE, SULTHAN BATHERY. 2. THRESIAMMA, W/O. DEVASSIA, THARAPPATHU VEEDU, PULPALLY VILLAGE, SULTHAN BATHERY. BY ADV. SRI.V.PHILIP MATHEW. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, MANANTHAVADY, WAYANAD. 3. THASILDAR, TALUK OFFICE, SULTHAN BATHERY. *ADDL.R4. N.U.PAULOSE, S/O. ULAHANAN, NIRAMTHANATHU, PULPALLY.P.O., SULTHAN BETHERY. *IMPLEADED AS ADDL.R4. AS PER THE ORDER DATED 23/11/2004 IN I.A. NO.16108/2004. GOVERNMENT PLEADER SRI. K.P. PRADEEP FOR R1 TO R3, ADV. SRI.MATHEW KURIAKOSE FOR R4. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.33740/2004-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SALE DEED NO. 256/1999 OF SUB REGISTRAR OFFICE, PULPALLY DT. 18/09/2004. EXT.P.2: COPY OF THE PARTITION DEED DTD. 03/01/1998 OF SUB REGISTRAR OFFICE, PULPALLY. EXT.P.3: COPY OF THE NOTICE OF DEMAND ISSUED BY R.3. DTD. 11/11/2003. EXT.P.4: COPY OF THE CERTIFICATE ISSUED BY SECRETARY OF PANCHAYAT, PULPALLY. EXT.P.5: COPY OF THE RECEIPT DTD. 06/08/04 SHOWING PETITIONERS HAVE PAID RS.9,900/-. EXT.P.6: COPY OF THE MEDICAL CERTIFICATE ISSUED BY MEDICAL OFFICER, GOVERNMENT AYURVEDA HOSPITAL, PULPALLY DTD. 20/08/2004. EXT.P.7: COPY OF THE APPEAL FILED BY THE PETITIONERS BEFORE R.3. DTD. 15/09/2004. EXT.P.8: COPY OF THE PETITION FILED BY PETITIONER TO RDO COURT. EXT.P.9: COPY OF THE PETITION BEFORE RDO COURT DTD. 28/09/2004. EXT.P.10: COPY OF THE ORDER REJECTING THE APPEAL DTD. 29/09/2004. EXT.P.11: COPY OF THE NOTICE UNDER SECTION 7 OF THE R.R. ACT DTD. 19/10/2005 ISSUED BY THE R.3. EXT.P.12: COPY OF THE NOTICE UNDER SECTION 33 OF THE R.R. ACT DTD. 19/10/2005 ISSUED BY THE R.3. RESPONDENTS' EXHIBITS: EXT.R4.A: COPY OF THE ORDERS PASSED BY R.3. DTD. 28/12/2001 IN C4 11224/01. EXT.R4.B: COPY OF THE ORDER PASSED BY R.3. DTD. 28/12/01 IN NO.C4-11224/2001/BT 113/C1/PLY. EXT.R4.C SERIES: COPY OF THE RECEIPTS DTD. 28/01/02, 29/04/02, 29/07/02 AND 28/10/02. W.P.(C). NO.33740/2004-N: EXT.R4.D: COPY OF THE ORDER PASSED BY R.3. IN C4-2392/03 DTD. 20/08/03. EXT.R4.E: COPY OF THE ORDER PASSED BY R.3. DTD. 20/08/03 IN C4- 2392/03/BT14/03/PLY. EXT.R4.F: COPY OF THE RECEIPT DTD. 13/10/03. EXT.R4.G: COPY OF THE ORDER PASSED BY R2. IN B1416/03/KBTA-30/2003 DTD. 27/10/03. //TRUE COPY// P.S. TO JUDGE. prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) NO.33740 of 2004-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July, 2008. JUDGMENT The petitioners are aggrieved by the assessment of building tax against them as per Ext.P3 and the dismissal of the appeal as per Ext.P10 on the ground of delay. The assessment is challenged on various grounds. 2. For the disposal of the case, some necessary facts have to be stated. The first petitioner is the owner of building bearing Nos. VII/396, VII/397, VII/398, VII/401, VII/404 & VII/405 of Pulpally town, Pulpally Village, Sulthan Bathery Taluk and the second petitioner is the owner in respect of building bearing Nos. VII/399, VII/400, VII/402, VII/403 of the same village. By Ext.P1, the right to make further construction on the top of the ground floor was sold to the additional 4th respondent along with the ownership of some of the shop rooms on the ground floor. Ext.P1 is the sale deed. Ext.P2 is the partition deed executed between 8 parties including the first petitioner and the vendor of the 4th respondent. The petitioners allege that the buildings in their ownership was constructed before 1972 and after 1.4.1973 they have not made any construction. It is also contended that prior to the issuance of Ext.P3, no enquiry was made by WPC 33740/2004 -2- the Tahsildar. Subsequently, they filed a written request dated 4.3.2004 explaining the details in respect of the portions of the building in their possession and ultimately a demand notice was issued to them therafter also. It is submitted that the appeal could not be filed in time because of certain unavoidable circumstances. 3. The additional 4th respondent has filed a counter affidavit wherein it is pointed out that as per Exts.R4(a) and R4(d) the Tahsildar, as assessing officer, has assessed building tax in respect of the first floor and second floor of the same building, against him. It is also stated that the 4th respondent has filed an appeal against Ext.R4(d) before the Revenue Divisional Officer. 4. In the counter affidavit filed by the third respondent, it is admitted in paragraph 5 that Shri N.U. Paulose who purchased the top portion of the building, was assessed to building tax separately. In the light of the above development, it is clear that the entire proceedings against the petitioners will have to be set aside. As the additional 4th respondent has been assessed separately for the first and second floors, the petitioners cannot be made liable for payment of building tax in respect of all the three floors. Therefore, the matter will have to be reconsidered by the Tahsildar in accordance with law. WPC 33740/2004 -3- 5. In the above view of the matter, I quash Exts.P3 and P10. There will be a direction to the third respondent to re-hear the parties, viz. petitioners and additional 4th respondent with sufficient opportunity for them to produce evidence in the matter and pass a fresh order. The same shall be done within a period of five months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/