IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 WP(C).No. 22811 of 2007(N) ------------------------------------- PETITIONER : --------------------- MUMTHAZ HANEEF, D/O. ABDUL SHEKKUR, KARIYADAN HOUSE, VALAPPAKATH CHERIYATH, MEHFEZ, KACHERI VILLAGE, KOZHIKODE, REPRESENTED BY HER POWER OF ATTORNEY, MUHAMMED RAFI.C.K., S/O. K.A. KADER, RESIDING AT 2/136, KARAPARAMBA, KOZHIKODE. BY ADV. SRI. C.P. MOHAMMED NIAS. RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOZHIKODE. 3. THE TAHSILDAR, KOZHIKODE TALUK, KOZHIKODE. 4. THE TAHSILDAR (REVENUE RECOVERY), KOZHIKODE. R1 TO R4 BY GOVERNMENT PLEADER SRI. NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- WP(C).No. 22811 of 2007(N) APPENDIX PETITIONER'S EXHIBITS: EXT P1 : CERTIFICATE OF EXEMPTION ISSUED BY THE 3RD RESPONDENT RECEIVED BY THE PETITIONER ON 17.10.1994. EXT P2 : COPY OF THE ASSESSMENT ORDER PASSED BY THE 3RD RESPONDENT ON 09.06.2003. EXT P3 : COPY OF THE REVISED ASSESSMENT ORDER PASSED BY THE 3RD RESPONDENT ON 18.10.2003. EXT P4 : COPY OF THE COVERING LETTER AND THE CHEQUE ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 09.08.2003. EXT P5 : COPY OF THE ORDER DATED 23.02.2005 PASSED BY THE DISTRICT COLLECTOR, KOZHIKODE. EXT P6 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 30.03.2005 IN W.P.(C) NO.10607/05. EXT P7 : COPY OF THE COVERING LETTER AND CHEQUE ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT ON 04.04.2005. EXT P8 : COPY OF THE ORDER PASSED BY THE GOVERNMENT AS G.O.(Rt) NO.1159/07/RD DATED 15.03.2007. RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE DSV/- S.SIRI JAGAN, J. ================== W.P.(C).No. 22811 of 2007 ================== Dated this the 10th day of November, 2011 J U D G M E N T The petitioner is the owner of a building. Originally the petitioner constructed only one floor. The petitioner claimed and the Government granted exemption to that building from payment of building tax under Section 3(1) of the Kerala Building Tax Act. Subsequently, the petitioner constructed two additional floors, which were assessed by the 3rd respondent for building tax under the Act. The petitioner paid that amount. Building tax was assessed on the additional construction, which was also paid. Subsequently the Tahsildar initiated proceedings for cancellation of the exemption granted to the ground floor and demanded payment of an amount of ` 78,104/- with penal interest as building tax under the Act for the ground floor also. The petitioner was directed to pay tax of ` 78,104/- and penal interest of ` 68,850/-. Pursuant to the same, the petitioner paid ` 36,350/- and filed an appeal before the Revenue Divisional Officer, Kozhikode, who rejected the same. The petitioner challenged the same in W.P.(C).No. 10607/2005, which was disposed of relegating the petitioner to the alternate remedy available under the Act. The petitioner filed a petition before the Government pointing out that the ground floor is used as a food processing unit on lease basis and, therefore, it is liable to be w.p.c.22811/07 - : 2 :- exempted under Section 3(1)(b) of the Building tax. By Ext.P8, the Government rejected the contention of the petitioner and held that the petitioner is not entitled to exemption under Section 3(1)(b) of the Act. The petitioner is challenging Ext.P8 order seeking the following reliefs: “a) Call for the records leading up to Exts.P2, P3, P5 and P8 and to quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction; b) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents not to insist for any further payment by the petitioner as building tax pursuant to Exts.P2, P3, P5 and P8.” 2. The 1st respondent has filed a counter affidavit supporting the impugned orders. 3. I have considered the rival contentions in detail. 4. The petitioner has no case that the petitioner was actually using the building as any factory or workshop as provided under Section 3(1)(b) of the Act. The only contention is that she leased out the building to somebody, who used it as a food processing unit. As such, the petitioner is not eligible for the exemption claimed. In the above circumstances, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner to interfere with the impugned orders. Accordingly, this writ petition is dismissed. But I am of opinion that insofar as the Government originally exempted the building from payment of building tax, the petitioner shall not be visited with the liability to pay interest w.p.c.22811/07 - : 3 :- on the said amount. Accordingly, the impugned orders are upheld with the modification that the petitioner shall not be made liable to pay interest on the tax assessed on the ground floor. The petitioner would contend that as directed in Ext.P6 judgment, the petitioner has paid an amount of ` 78,104/- assessed as building tax on the ground floor. If that is correct, the petitioner shall not be asked to pay any further amount. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge