IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 WP(C).No. 38405 of 2010(A) ---------------------------------------- PETITIONER(S): ------------------------- DAVUDYASIN, S/O.MOIDEEN HAJI, AGED 36, RESIDING AT KUNDUPARAMBIL, VANIAMKULAM, OTTAPALAM, PALAKKAD. BY ADVS. SRI.SANTHEEP ANKARATH, SRI.V.C.MADHAVANKUTTY. RESPONDENT(S): --------------------------- 1. THE ASSESSING AUTHORITY, TAHSILDAR OF OTTAPALAM, OTTAPALAM-679 101. 2. THE REVENUE DIVISIONAL OFFICER, OTTAPALAM-679 101. 3. DEPUTY TAHSILDAR, REVENUE RECOVERY, TALUK OFFICE, OTTAPALAM-679 101. R1 TO R3 BY GOVERNMENT PLEADER SRI. BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.38405 of 2010 ------------------------------------------- Dated this the 24th day of January, 2011 J U D G M E N T ---------------------- The petitioner as well as his brothers and father are owners of specific extents of properties, which are lying contiguously. As per Ext.P1 deed of partition executed between the petitioner, his brothers and father, an extent of 2.4 cents of land comprised in Sy.No.15/5C of Vaniyamkulam Village was specifically assigned to him. 2. The petitioner was issued with Ext.P2 notice, through which the 1st respondent had intimated that the Taluk Surveyor along with other officials will be visiting the property in question, on a particular day, for re-fixation of the boundary of the building (separate portion of the building) owned by each persons. It is stated that the petitioner was present on the date of measurement and the boundaries of the building was demarcated. But, without issuing any further notice or steps on the basis of the measurement conducted, Ext.P3 notices were issued demanding payment of a sum of Rs.83,700/- towards arrears of Building Tax due with respect to the building in question. Ext.P3 notices were issued in the name of the petitioner, his brothers and father, for recovery of the said W.P.(C).38405/10 -2- amount, under Section 7 & 34 of the Kerala Revenue Recovery Act. It is contended that there is no assessment finalised against the petitioner nor the petitioner was served with any copy of the assessment or demand notice. Hence the recovery steps is challenged in this writ petition. 3. In a statement filed on behalf of respondents 1 and 3, it is mentioned that the assessment with respect to the building in question was completed under the Kerala Building Tax Act, as early as on 12.7.2002, imposing tax liability to the tune of Rs.83,700/-. The assessment was finalized against M/s.Muhammed Ashraf and Abdul Jaleel who were brothers of the petitioner. Such assessment was finalized after issuing notice to them and after hearing their father Sri.Moideen Haji. Against the order of assessment the brothers of the petitioner had filed appeal, mainly contending that the assessment was finalized without considering ownership of specific portions of the building by each of the land owners. But the appeal was rejected through an order of the Revenue Divisional Officer, dt.26.5.2003. Eventhough the parties filed revision petition against the order of the appellate authority, the same was rejected for want of remittance of 50% of the building tax assessed. Thereafter on the basis of a report submitted by the Village Officer, measurement of the property was conducted with W.P.(C).38405/10 -3- the help of the Taluk Surveyor. It is brought to notice that 2.40 cents of property is owned by the petitioner herein, and therefore notice demanding payment of the tax amount was issued to all of them including the petitioner. Annexure-R1(a) is the copy of the demand notice so issued. Since the parties have failed to remit the amount, steps were initiated and now the impugned notices are issued, is the contention. 4. From the facts and circumstances it is evident that there is no assessment completed against the petitioner. As such it could not be said that the petitioner is in any way liable for payment of the amount of tax. However, Government Pleader points out that the building against which the assessment was completed stands also in the property owned by the petitioner and such building is liable to be proceeded against for recovery of the building tax due, as per Section 19 of the Kerala Building Tax Act, 1975. 5. Even assuming that the building in question is liable to be assessed as a single unit, it is evident that a portion of the building stands in the name of the petitioner. Even for a joint assessment treating the building as a single unit, there should have been proper compliance of the procedure, after issuing notice to the petitioner. In the case at hand it is evident that there was no assessment completed against the petitioner. As W.P.(C).38405/10 -4- such, the portion of the building which is situated in the land exclusively owned by the petitioner, could not be proceeded against. It is pertinent to note that the respondents have no case that the portion of the building which is situated in the land owned by the petitioner, belongs to any other persons. 6. Under the above circumstances I am of the considered opinion that the revenue recovery steps now initiated against the petitioner is not legally sustainable. 7. Therefore the revenue recovery steps initiated against the petitioner pursuant to Ext.P3 notice is hereby quashed. It is made clear that the respondents will be free to proceed against the building in question to the extent of the portion which is situated in the land owned by the person against whom the assessment was completed. 8. It is further made clear that this will not prevent the respondents from proceeding with finalisation of any assessment against the petitioner, if he is found liable under the statute or in making any rectification of the order of assessment, if sustainable under law. C.K.ABDUL REHIM, JUDGE. okb