IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 OP.No. 13032 of 1997(B) ----------------------- PETITIONER(S): --------------- 1. C.P. CHERIYAN, CHERUVANNOOR HOUSE, KUNNAKKAL P.O., MUVATTUPUZHA. 2. C.C. JOHNY, S/O. C.P. CHERIYAN, CHERUVANNOOR HOUSE, KUNNAKKAL P.O. BY ADV. SRI.K.S.MOHAMED HASHIM RESPONDENT(S): --------------- 1. THE TAHSILDAR, MUVATTUPUZHA. 2. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA. 3. THE DISTRICT COLLECTOR, ERNAKULAM. GOVERNMENT PLEADER SRI. K.J. MOHAMMED ANZAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: O.P. NO. 13032/1997. ------------------------------------------------------------------ EXT.P1 TRUE COPY OF RECEIPT. EXT.P2 PROCEEDING DT. 31-1-1994. EXT.P3 ORDER DT. 15-3-1997. EXT.P4 NOTICE DT. 24-4-1997. [TRUE COPY P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 13032 of 1997 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 12th January, 2009. J U D G M E N T The 1st petitioner constructed two floors of a building in the property belonging to him. Subsequently, he is alleged to have executed a gift deed in favour of one of his sons bequeathing part of the 2nd floor of the building. The 2nd petitioner is alleged to have constructed a building on that portion of the second floor. The first and second floors were earlier assessed to building tax under the Kerala Building Tax Act, which was paid by the 1st petitioner. Taking the additional construction on the second floor as an addition to the original building, the 1st respondent proceeded under Section 5(4) of the Act and by Ext. P2, assessed the building to building tax for the whole building and demanded building tax, after deducting the building tax already paid. The petitioner is stated to have challenged the same in an appeal before the 2nd respondent, which is stated to have been dismissed. Copy of that order has not been produced before me. Subsequently, the petitioner is stated to have filed a revision, which was also rejected by Ext. P3. Pursuant to Ext. P3, Ext. P4 demand has been issued by the Village Officer directing the petitioners to pay the balance amount due as per the said orders. The petitioners are challenging Exts.P2, P3 and P4 in this original petition. 2. The petitioners' contention is that the construction now made by the 2nd petitioner in that portion of the second floor gifted to the 2nd petitioner by the 1st petitioner is an independent construction made by the 2nd petitioner which has to be assessed as a new construction independent of the ground floor and the 1st floor of the building, which belongs to the 1st petitioner. According to the petitioners, therefore, the procedure of invoking Section 5(4) for the purpose of assessment of the building as a whole is illegal. 3. This is opposed by the learned Government Pleader, who O.P. No. 1032/1997 -: 2 :- would submit that the petitioners have not produced any evidence to show that the construction on the second floor was exclusively by the 2nd petitioner. Further, he would point out that if the contentions of the petitioners are accepted, then that would be an easy way of evading proceedings under Section 5(4) of the Act, which cannot be permitted under law. 4. I have considered the rival contentions in detail. 5. The petitioners have not produced any material whatsoever in the original petition except Ext. P1, which is only a receipt from the local authority assessing property tax on the building alleged to have been constructed by the 2nd petitioner. Ext. P1 would only prove that that portion of the 2nd floor has been assessed in the name of the 2nd petitioner by the local authority. That would not prove with any amount of certainty that the construction was exclusively made by the 2nd petitioner with his own funds. The petitioners have not cared to produce the gift deed. However, a copy of the same has been furnished to me for perusal. A reading of the said copy of the gift deed also supports the suspicion of the learned Government Pleader that the gift deed itself has been executed to overcome Section 5(4). In the same, what has been stated is that 1932 sq. ft. of building has been gifted to the 2nd petitioner and not any space for construction of any building. Nothing is mentioned about the right to construct a building over the first floor. The haphazard way the gift deed was executed itself lends credence to the contention of the learned Government Pleader. The petitioners have also not produced either copy of the appeal memorandum or the revision petition stated to O.P. No. 1032/1997 -: 3 :- have been filed by the petitioners to show that they had taken this particular contention in the appeal or in the revision petition. In the above circumstances, I am not inclined to entertain this original petition and accordingly, the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/