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. 24222 of 2002(H) --------------------------------- PETITIONER: ----------------- PAUL JOSE KATTOOKARAN, SAKTHAN APARTMENTS, THRISSUR. BY ADV. SRI.ANIL D. NAIR RESPONDENTS: ---------------------- 1. TAHSILDAR, THRISSUR. 2. REVENUE DIVISIONAL OFFICER, THRISSUR. 3. STATE OF KERALA, CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.K.P.PRADEEP FOR R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.24222/2002 ORDER ON CMP. NO.41022/2002 IN OP. NO.24222/2002 DISMISSED 22.07.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ASSESSMENT ORDER ISSUED BY THE IST RESPONDENT TO THE PETITIONER DT. 31.7.2001. EXT.P2:- COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE REVENUE MINISTER DT. 17.12.2001. EXT.P3:- COPY OF THE LETTER DT. 11.7.02 ISSUED BY THE UNDER SECRETARY FOR REVENUE (G) DEPT. TO THE PETITIONER. EXT.P4:- COPY OF THE LETTER DT. 1.1.2002 ISSUED BY THE SECRETARY TO GOVERNMENT TO THE DISTRICT COLLECTOR. EXT.P5:- COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT DT. 7.8.02 BY THE PETITIONER. EXT.P6:- COPY OF THE ORDER DT. 14.8.02 TO THE PETITIONER BY THE 2ND RESPONDENT. EXT.P7:- COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE IST RESPONDENT TO THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P. No.24222/2002-H ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 22nd day of July, 2008 J U D G M E N T The petitioner is aggrieved by the non consideration of the Ext.P5 statutory appeal filed by him before the Revenue Divisional Officer. The bare facts required for the disposal of this case are the following: The petitioner is the Director of a Company named Kapkattoos Real Estates Private Limited. The company entered into an agreement with the owners of the land to develop a property. Pursuant to the agreement entered into by the land owners and the company, the company entered into agreement with the prospective flat purchasers for sale of the undivided share of the land, and the flat owners constructed the building on the said land through the company. It is stated that there are 36 apartments in the said building. 2. The apartment owners filed separate returns in Form No.II as contemplated under the Building Tax Act and Rules. But, finally, the assessment order was served on the petitioner, which is cited as Ext.P1 here. It appears that the petitioner has been moving the Government for getting the order vacated and, ultimately, he was directed to file an appeal against the order of assessment. The direction as referred to O.P..NO.24222/2002-H -:2:- earlier is produced herein as Ext.P4, dated 11/07/2002. Thereafter, the petitioner filed Ext.P5 appeal in the prescribed form. But the same has been returned stating that it is not in the prescribed form and it is not accompanied by the remittance receipt of the first instalment of the building tax. 3. The learned counsel for the petitioner has mainly contended that going by Explanation 2 to the definition of buildings in Section 2(e) of the Building Tax Act, it is only the flat owners who are liable to pay the building tax and the petitioner is not having any such liability. It is also submitted that Ext.P5 appeal is in the proper form, i.e. Form VII, provided as per Rule 10(1) of the Building Tax Rules. 4. The learned counsel for the petitioner has brought to my notice the recent decisions of this Court in Bavasons Constructions (P) Ltd. v. State of Kerala [2007(3)KLT 101], wherein this Court has considered in detail the ambit of Explanation 2 to Section 2(e) of the Building Tax Act and has laid down the procedure to be followed in the matter of assessment of tax. Any way, this is a matter for the petitioner to agitate before the appellate authority. 5. As regards the first instalment of tax payable by the petitioner, he shall make necessary payment within a period of one month from today. If such payment (i.e. Rs.3,27,938/- shown in Ext.P1) is made, the appellate authority will restore the appeal, Ext.P5, and O.P..NO.24222/2002-H -:3:- dispose of the matter on merits after hearing the petitioner and the owners of the flat, since the petitioner contends that they alone are liable to pay the building tax. The same shall be done within a further period of six months. Original petition is disposed of as above. No costs. T.R.RAMACHANDRAN NAIR, Judge ms O.P..NO.24222/2002-H -:4:- T.R.RAMACHANDRAN NAIR, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P. No.24222/2002-H ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J U D G M E N T 22 22ND ND JULY, 2008 JULY, 2008