Kerala High Court
M.D.Joseph vs The State Of Kerala on 3 October, 2024
2024:KER:73374
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
WP(C) NO. 29679 OF 2017
PETITIONER:
M.D.JOSEPH
AGED 76 YEARS
S/O.DEVASIA, RESIDING AT MATTATHIL (H),
MARANGATTUPALLY KARA, KURICHITHANAM VILLAGE, MENACHIL
THALUK, KOTTAYAM - 686 635.
BY ADVS.
MANUEL KACHIRAMATTAM
MERRY GEORGE
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DISTRICT COLLECTOR
KOTTAYAM, COLLECTORATE, KOTTAYAM- 686 001.
3 THE REVENUE DIVISIONAL OFFICER
PALA/APPELLATE AUTHORITY, REVENUE DIVISIONAL OFFICE,
MINI CIVIL STATION, PALA, KOTTAYAM - 686 575.
4 THE TAHSILDAR
MEENACHIL ASSESSING AUTHORITY, THALUK OFFICE, MEENACHIL,
PALA, KOTTAYAM 686575
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5 THE VILLAGE OFFICER
KURICHITHANAM VILLAGE, KOTTAYAM- 686 634.
6 SUNNY MATHEW
S/O.MATHAI, RESIDING AT CHANDIKKALAYIL (H), POTHI KARA,
VAIKOM THALUK, MITTAYIKUNNU PO, KOTTAYAM 686 605 (FOR
COMMUNICATION, MATTATHIL (H), MARANGATTUPALLY KARA,
KURICHITHANAM VILLAGE, MEENACHIL THALUK,
KOTTAYAM- 686 635
BY ADV. SAYD M THANGAL- SENIOR GOVERNMENT PLEADER.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.10.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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HARISANKAR V. MENON, J.
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W.P.(C) No.29679 of 2017
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Dated this the 3rd day of October, 2024
JUDGMENT
The petitioner and the 6th respondent are the co- owners of the residential building bearing No.4/85 of Marangattupally Grama Panchayat. By Ext.P1, issued under the provisions of the Kerala Building Tax Act, 1975, (for short, 'the Act') luxury tax was demanded from the petitioner with respect to a residential building constructed by him. Though, an appeal was presented, pointing out that a shed behind the residential house and the truss work area in the terrace of the building ought not to have been taken into account for the purpose of WP(C) NO. 29679 OF 2017 : 4 : 2024:KER:73374 imposition of luxury tax, by Ext.P3 order issued by the 3rd respondent, it was found that as regards the truss work area on the terrace portion, the petitioner has liability to pay tax and as regards the out house behind the residential house, the same need not be taken into account for the purpose of imposition of luxury tax.
2. Against Ext.P1, the petitioner preferred a revision petition under Section 9 of the Act before the 2nd respondent, District Collector. Pending the above revision petition, the appellate order at Ext.P3 stood implemented by Ext.P8 order dated 22.06.2016 by reducing the plinth area of the house, for the purpose of imposition of luxury tax.
3. The revision petition filed as above is rejected by Ext.P7 issued by the 2nd respondent, on the ground WP(C) NO. 29679 OF 2017 : 5 : 2024:KER:73374 that the revision petition is barred by limitation since the appellate order was served on 21.06.2016 and the revision petition was filed only on 19.08.2016.
4. Against the revised assessment order of Ext.P8, though a further appeal is presented, the 3 rd respondent, by Ext.P9 communication, informed the petitioner that there is no provision by which a fresh appeal can be filed against the revised assessment order.
5. Against Ext.P9, a further revision petition is preferred by the petitioner before the 2 nd respondent District Collector as Ext.P14.
6. It is in the above situation that the present writ petition is filed by the petitioner challenging the findings in Ext.P7 as well as Ext.P9 issued by the 2 nd and 3rd respondents respectively.
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7. I have heard Sri. Manuel Kachiramattam, the learned Counsel for the petitioner and Sri.Sayd M Thangal, the learned Government Pleader for the respondents.
8. The dispute in this writ petition is against Ext.P7 order issued by the 2nd respondent and Ext.P9 communication issued by the 3rd respondent.
9. As regards the findings in Ext.P7, it is to be straight away noticed that in the counter affidavit filed by the 2nd respondent, it has been specifically pointed out that Ext.P3 order against which the revision petition was filed was in fact served on 21.06.2016 and not on 22.07.2016 as pointed out in Ext.P4 revision petition. The said averment has not been controverted by the petitioner by filing a reply affidavit. In such WP(C) NO. 29679 OF 2017 : 7 : 2024:KER:73374 circumstances, the findings contained in Ext.P7 to the effect that the revision petition is filed out of time cannot be said to be incorrect.
10. The next dispute is with respect to Ext.P9 communication issued by the 3rd respondent. The petitioner has filed the appeal before the 3 rd respondent against the revised assessment order at Ext.P10. The 3rd respondent in Ext.P9 has taken the view that there is no provision by which a second round of appeal can be presented against the revised assessment order issued implementing the directions earlier issued by the appellate authority.
11. The said finding of the 3rd respondent does not appear to be the correct position of law.
12. This Court in W.P.(C).No.10414/2019 has WP(C) NO. 29679 OF 2017 : 8 : 2024:KER:73374 considered the very same issue and has found as under:-
"12. It is on account of the said illegality that the petitioners have filed the fresh appeal before the 2nd respondent in the second round of litigation. Unfortunately, this Court notices that the 2nd respondent, while issuing Ext.P4 order, has taken a rather interesting stand that, insofar as he has already issued an order in the earlier round, there cannot be a further appeal in the second round. It is under the provisions of Section 11 of the Act that an appeal is provided against an assessment order. Section 11 of the Act reads as under;
"11. Appeals. - (1) Any assessee objecting to the amount of building tax assessed under section 9 or denying his liability to be assessed under this Act or objecting to any order of the assessing authority under this Act may appeal to the appellate authority against the assessment or against such order.
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13. A reading of the above provision would indicate that an appeal is prescribed against the fixation of building tax under the statute by an "order". Section 11 nowhere states that against a revised assessment order, there cannot be a further appeal. There may be instances where, while issuing the revised assessment, the assessing authority can go wrong. This is one such instance. When that be so, the petitioners were perfectly justified in filing an appeal against the order at Ext.P3 before the 2nd respondent. The rejection of such appeal by Ext.P4 order is without any justification and arbitrary."
13. In the light of the above, the findings in Ext.P9 issued by the 3rd respondent cannot be sustained.
14. In such circumstances I order this writ petition as under:-
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(i) The challenge against Ext.P7 issued by the 2nd respondent is rejected.
(ii) Ext.P9 communication issued by the 3 rd respondent is set aside.
(iii) The 3rd respondent is directed to consider the appeal dated 20.08.2016 filed by the petitioner, on merit, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment.
(iv) The petitioner to be granted an opportunity of being heard while disposing the appeal as above.
(v) The coercive steps pursuant to the revised assessment order at Ext.P8, will be kept in WP(C) NO. 29679 OF 2017 : 11 : 2024:KER:73374 abeyance, till such time the 3rd respondent decides the appeal.
Sd/-
HARISANKAR V. MENON JUDGE SRJ WP(C) NO. 29679 OF 2017 : 12 : 2024:KER:73374 APPENDIX OF WP(C) 29679/2017 PETITIONER'S EXHIBITS EXHIBIT P1 THE TRUE PHOTOCOPY OF THE PROCEEDING BEING NO. B8-1768/13 DATED 27.02.2013 OF THE 4TH RESPONDENT.
EXHIBIT P2 THE TRUE PHOTOCOPY OF THE APPEAL BEING NO.
L1(D)946/14 SUBMITTED BEFORE THE 3RD RESPONDENT BY THE PETITIONER.
EXHIBIT P3 THE TRUE PHOTOCOPY OF THE ORDER DATED 15.04.2016 IN APPEAL BEING NO. L1 (D) 946/13 PASSED BY THE 3RD RESPONDENT.
EXHIBIT P4 THE TRUE PHOTOCOPY OF THE REVISION PETITION FILED AS DCKTM/5468/2016-B10 (1), BEFORE THE 2ND RESPONDENT.
EXHIBIT P5 THE TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 14.12.2016 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P6 THE TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 20.03.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7 THE TRUE PHOTOCOPY OF THE ORDER DATED 29.7.2017, BEARING NO.DCKTM/5468/2016-B10(1) ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P8 THE TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 22.06.2016 BEARING NO. B8-1768/13 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P9 THE TRUE PHOTOCOPY OF THE ORDER DATED 01.10.2016 BEARING NO. 2505/16/5.DIS ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P10 THE TRUE PHOTOCOPY OF THE REVIEW PETITION DATED 24.10.2016 FILED BY THE PETITIONER. EXHIBIT P10 (a) THE TRUE PHOTOCOPY OF THE POSTAL RECEIPT DATED WP(C) NO. 29679 OF 2017 : 13 : 2024:KER:73374 27.10.2016.
EXHIBIT P11 THE TRUE PHOTOCOPY OF THE APPROVED PLAN FOR THE BUILDING.
EXHIBIT P12 THE TRUE PHOTOCOPY OF THE BUILDING TAX RECEIPT DATED 28.02.2015 TOWARDS THE BUILDING BEARING NO. 4/85.
EXHIBIT P12 (a) THE TRUE PHOTOCOPY OF THE BUILDING TAX RECEIPT DATED 28.02.2015 TOWARDS THE BUILDING BEARING NO. 4/85 A. EXHIBIT P13 THE TRUE COLOUR PHOTOS PRINT OF THE BUILDING OF THE PETITIONER.
EXHIBIT P14 THE TRUE PHOTOCOPY OF THE REVISION DATED 18.9.2020 FILED BEFORE THE 2ND RESPONDENT. EXHIBIT P15 THE TRUE PHOTOCOPY OF THE POSTAL RECEIPT 18.9.2020.
Exhibit P16 THE TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 4.1.2021 OF THE 2ND RESPONDENT