IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 WP(C).No. 30535 of 2010(N) -------------------------- PETITIONER(S): --------------- K.V.ALIAS,AGED 40 YEARS,S/O.VARGHESE, KAVALAKKAL HOUSE,KALLUPALAM NAGAR 87(A), ANGAMALY (PO),ERNAKULAM DISTRICT,PIN 683 572. BY ADV. SRI.V.C.JAMES SRI.GEORGE MECHERIL RESPONDENT(S): --------------- 1. THE TAHSILDAR, ALUVA,ERNAKULAM DISTRICT - 683 507 2. THE VILLAGE OFFICER,ANGAMALY, ERNAKULAM DISTRICT - 683 572 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.30535 of 2010-N ---------------------------------------- Dated this the 9th day of December, 2010. J U D G M E N T The petitioner is the partner of a firm which constructed a shopping complex in a property owned by the firm. The building in question was constructed in three floors. According to the petitioner, after completion of the ground and first floor, the firm had sold the shop rooms to outsiders and the purchasers were permitted to construct rooms in the second floor. Exts.P1 and P2 are the sale deeds through which the said transaction was effected. 2. The building in question was assessed under the provisions of the Kerala Building Tax Act 1975, through Ext.P3 order, treating the entire building as a single unit having plinth area of 2973.32 Sq.M. The amount assessed was directed to be paid in four quarterly instalments of Rs.1,26,900/- each. Consequent to failure in payment of the amount by the firm, recovery steps were initiated against the petitioner and Ext.P4 notice were issued. W.P(C) No.30535 of 2010-N 2 3. According to the petitioner the assessment order is totally unsustainable because the entire building was not constructed by the firm in which the petitioner is a partner. It is also contended that the calculation of the plinth area is not true and correct. Hence the petitioner is challenging Ext.P3 assessment and the consequential recovery steps initiated. 4. In a statement filed on behalf of the 1st respondent it is mentioned that the firm M/s.Surya Builders which constructed the building was having three partner including the petitioner and that the assessment was completed after affording an opportunity of hearing, on issuing notice dated 8.2.2007, to which none of them have responded. It is stated that the assessment was completed on 18.9.2007 and that revenue recovery steps was initiated since none of the partners have remitted any amount. It is mentioned that after initiation of revenue recovery proceedings, wife of a deceased partner, Smt.Santha, W/o.Stensilavos had remitted a sum of Rs.2,53,800/- being half of the building tax demanded. Yet another partner Mr.T.P.Paul had filed a W.P(C) No.30535 of 2010-N 3 statement to the effect that he is not a partner of the firm and produced a copy of the partnership deed in support of such contentions. It is stated that the recovery steps is now being pursued for realisation of the balance 50% amount. 5. According to the 1st respondent when steps of recovery was initiated against the building in question, the owners of each shop rooms had raised objections to the effect that the petitioner is liable to pay building tax and that they are not in any way liable for payment of any amount. It is mentioned in the statement that under Section 19(2) of the Act, there is a charge on the building. But inspite, further steps against the building was not initiated in view of the objections. On the other hand it is stated that since the petitioner is having immovable properties in his ownership and possession, coercive steps of recovery was pursued against such properties. In the statement it is mentioned that since the sale was effected after completion of construction of building, purchasers are not liable for payment of the tax. 6. Considering the rival contentions, I am of the view W.P(C) No.30535 of 2010-N 4 that, sustainability of the assessment could not be considered in this writ petition. The contentions now raised by the petitioner disputing correctness of the plinth area as well as disputing liability on the ground that the second floor was constructed by the purchasers, could not be resolved in this writ petition. The statute provides effective alternative remedy by way of appeal and further by way of revision, against assessment if any finalised. Inspite of the fact that the assessment was completed in the year 2007, the petitioner had not chosen to avail any such remedies. Therefore the contentions raised could not be considered at this point of time. 7. Contention of the petitioner is that the purchasers are also liable for payment of the amount of building tax, since they have purchased the building partly completed and had effected further constructions. Going by the provisions contained in Section 19(2), it is evident that the tax amount assessed is a charge on the building with respect to which such assessment is made. Therefore, the statement made by the 1st respondent that the purchasers W.P(C) No.30535 of 2010-N 5 are not liable for payment of any amount since such purchase was effected after completion of the construction, seems to be prima facie unsustainable. It is always left open to the 1st respondent to proceed against the building despite the fact that the ownership is now vested with any person other than the person who had completed the construction. At the same time I notice that the petitioner had failed to make payment of the amount assessed which had attained finality. Therefore the personal property of the petitioner is also liable to be proceeded against for recovery of the amount. 8. Under such circumstances, contentions raised in this writ petition does not deserve merit, and the writ petition is dismissed directing the 1st respondent to proceed with further steps of recovery taking note of the above observations. C.K.ABDUL REHIM JUDGE ab