IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 WP(C).No. 29259 of 2010(F) --------------------------------------- PETITIONER(S): ------------------------ 1. SEBASTIAN JOSE (AGED 29) S/O JOSE, KOORAN KALLUKKARAN HOUSE, PEECHANIKKADU, PULIYANAM P.O., ANKAMALI VILLAGE, ALUVA TALUK, EKM DISTRICT, KERALA. 2. MARY JOSE (AGED 57) W/O JOSE, KOORAN KALLUKKARAN HOUSE, DO. DO. BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVT, SECRETARIAT, THIRUVANANTHAPURAM-PIN- 695 001. 2. THE DISTRICT COLLECTOR, ERNAKULAM-PIN- 682 030. 3. THE REVENUE DIVISIONAL OFFICER, FORTKOCHI-PIN- 682 001. 4. THE TAHSILDAR, TALUK OFFICE, ALUVA-PIN- 683 101. R1 TO R4 BY SENIOR GOVT PLEADER SRI.MATHEW GEORGE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 29259 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 18th day of October, 2010 JUDGMENT Petitioners are the owners of a commercial building situated in Angamali Village. Assessment under the Kerala Building Tax Act, 1975 was initially finalized against the petitioners, fixing liability to the tune of Rs.84,400/-. It is stated that, subsequently the 4th respondent had rectified some mistakes and revised the order, claiming an amount of Rs.1,67,400/-. Aggrieved by the rectified order of assessment, the petitioners had approached the appellate authority, the 3rd respondent herein. The appellate authority made a reference under section 12 of the Act to the District Court, since the said authority felt that a question of law is involved in the case. Ext.P2 is the order of reference. Even though the reference was made as early as in July, 2002, the District Court has not taken any decision on the reference, and the appellate authority has not disposed of the appeal. 2. Now, the 4th respondent had issued Ext.P3 notice, W.P.(C) No. 29259/2010 2 directing the petitioners to produce orders if any issued by the court, otherwise to make payment of the tax amount, within a period of one week form the date of receipt of such notice. On receipt of Ext.P3 notice, the petitioners had approached the District Collector, under Ext.P5, seeking direction to the 4th respondent to keep in abeyance the proceedings until the disposal of the reference or the appeal. Ext.P7 is a similar representation submitted to the appellate authority. Inspite of that, recovery steps were initiated at the behest of the 4th respondent and Ext.P8 notices were issued against the petitioner. Under such circumstances, the petitioners seek a direction to restrain the respondents from proceeding against the petitioners under the revenue recovery steps. 3. On a perusal of Ext.P2 order of reference issued by the 3rd respondent appellate authority, it is revealed that, the claim of the petitioners is for separate assessment on the basis that the ground floor and first floor of the building belong to the 2nd petitioner and the second floor and third W.P.(C) No. 29259/2010 3 floor of the building belong to the 1st petitioner According to the petitioners, the assessment made treating the entire building as a single unit and reckoning the entire plinth area is highly illegal and erroneous. It is further evident that, the petitioners have filed an application under section 12 of the Act along with the appeal, seeking reference of the questions as to whether the re-assessment (rectification) made and the joint assessment effected with respect to the entire building is sustainable or not. It is further noticed that the District Court has not taken any steps on the basis of Ext.P2 reference and the reference was not answered till date. 4. On a consideration of the contentions raised in the appeal as well as the order of reference issued by the appellate authority, I am of the view that there was no circumstances existed warranting such a reference, under section 12 of the Act. Going by section 12 of the Act it is evident that, a reference is warranted only in a case where decision on the appeal involves a question of law. It is W.P.(C) No. 29259/2010 4 further noticed that if the District Court is not satisfied that any such question of law arises for determination, that court should refer the case back to the appellate authority. In case if any question of law is raised, the District Court is bound to decide such question based on reasonings on which such decision is founded and should send a copy of such judgment under the seal of the Court to the appellate authority. 5. In the case at hand it is evident from Ext.P2 that the petitioners have raised a claim that the ground floor and first floor of the building belong to the 2nd petitioner, whereas as the second floor and third floor of the building belong to the 1st petitioner. It is contended that certificates were obtained by each of the petitioners in order to prove the above fact and the plinth area relating to the building owned by each of them ought to have been assessed separately. Further ground raised by the petitioners seem to be one relating to the rectification effected. Both the above grounds do not involve any question of law. On the W.P.(C) No. 29259/2010 5 other hand, whether the building is liable to be assessed separately is a matter which need be decided on the basis of factual aspects regrading separate usage, documents regarding separate ownership and also on the basis of evidence regarding expenditure of the cost of construction by each of the petitioners. So also, the question whether there existed any mistake apparent on the face of the record, which could have been rectified by invoking section 15 of the Act, also depends on purely factual aspects. Therefore, I am of the opinion that the reference made under section 12 of the Act was not at all necessary. 6. Under the above circumstances, I am of the considered opinion that the writ petition can be disposed of directing the appellate authority to take a decision on the appeal, after affording a reasonable opportunity to the petitioners to substantiate their case. 7. In the result, the writ petition is disposed of quashing Ext.P2 order. The appellate authority is directed to consider the appeal afresh and dispose of the same, after W.P.(C) No. 29259/2010 6 affording an opportunity to the petitioners for personal hearing and for production of documents if any in support of their claim. Fresh orders on the appeal shall be issued at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. 8. In view of the directions issued as above, I am of the opinion that till such time the appeal is disposed of, realization of the balance amount of tax, which is now initiated pursuant to Ext.P8 notice, shall be kept in abeyance. 9. Needless to say that amount of building tax already remitted shall be appropriated in accordance with the final outcome of the appeal. C. K. ABDUL REHIM, JUDGE. mn.