Sri. Binny Itty vs State Of Kerala
2021 Latest Caselaw 809 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                 THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

           FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

                             WP(C).No.603 OF 2021


PETITIONER:

                 SRI. BINNY ITTY,
                 AGED 49 YEARS
                 S/O. ITY, MANAGING PARTNER, M/S. CRYSTAL DEPARTMENT, CSI
                 COMMERCIAL COMPLEX, BAKER JUNCTION, KOTTAYAM 686 001. NOW
                 RESIDING AT THANNIKKAL HOUSE, GOVINDAPURAM KARA, , KOTTAYAM
                 686 001.

                 BY ADVS.
                 SRI.J.JULIAN XAVIER
                 SRI.FIROZ K.ROBIN
                 SRI.PIOUS MATHEW
                 SRI.ROY JOSEPH
                 SMT.ANIES MATHEW
                 SRI.E.HARIDAS

RESPONDENTS:

       1         STATE OF KERALA
                 REPRESENTED BY ITS SECRETARY, REVENUE (S) DEPARTMENT,
                 SECRETARIAT, GOVERNMENT PRESS P.O.
                 THIRUVANANTHAPURAM 695 001.

       2         REVENUE DIVISIONAL OFFICER,
                 OFFICE OF THE ROAD, KOTTAYAM, SECOND FLOOR, MINI CIVIL
                 STATION, UNION CLUB ROAD, PUTHENANGADY, KOTTAYAM,
                  KERALA 686 001.

       3         THE TAHSILDAR,
                 TALUK OFFICE KOTTAYAM, FIRST FLOOR, MINI CIVIL STATION, UNION
                 CLUB ROAD, PUTHENANGADY, KOTTAYAM, KERALA 686 001.

       4         VILLAGE OFFICER,
                 OFFICE OF THE VILLAGE OFFICE KOTTAYAM, THIRUNAKARA,
                 KOTTAYAM P.O. KERALA 686001.


OTHER PRESENT:

                 SMT. THUSHARA JAMES - GP

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.603 OF 2021

                                     2




                              JUDGMENT

The petitioner has approached this Court impugning

Ext.P9 on various grounds, but primarily that he was not heard

before it was issued and that it has been framed in violation of

Explanation 2 to Section 2 (e) of the Kerala Building Tax Act.

2. In response to the afore submissions made on behalf

of the petitioner by his learned counsel, Sri.Julian Xavier, the

learned Government Pleader, Smt.Thushara James, pointed out

that, as is recorded in Ext.P9, even though the petitioner was

given sufficient opportunity by the Tahsildar for being heard, he

had refused to avail the same. She submitted that therefore, the

Tahsildar had no other option but to issue Ext.P9. As an

alternative submission, the learned Government Pleader

submitted that if this Court is inclined in favour of the

petitioner, then he may be directed to appear before the

Tahsildar, so that the said Authority can take a fresh decision as

per law without any avoidable delay.

3. On hearing Smt.Thushara James as afore, the

learned counsel for the petitioner, Sri.Julian Xavier, submitted

that his client is willing to appear before the Tahsildar on any WP(C).No.603 OF 2021

date that this Court may fix and that therefore, this writ petition

may be ordered setting aside Ext.P9 and directing the said

Authority to take a fresh decision on his claims.

4. When I consider the afore submissions, it is without

doubt that Ext.P9 records that the petitioner was offered at least

two opportunities of being heard but that he had not availed of

the same. Normally, therefore, this Court would not have been

inclined to grant any relief to the petitioner but since Sri.Julian

Xavier submits that Ext.P9 also suffers from statutory

infirmities, which can be pointed out by his client, I deem it

appropriate that the petitioner be given an opportunity of

impelling his contentions before the Tahsildar.

5. For the afore reasons, I order this writ petition and

set aside Ext.P9, not because I have found against it

affirmatively, but to pave way for a fresh consideration of the

assessment by the Tahsildar in terms of law, after hearing the

petitioner also.

Resultantly, I direct the petitioner to mark appearance in

the office of the 3rd respondent - Tahsildar at 11.00 a.m. on

19.01.2021, so that the said Authority can hear the petitioner on WP(C).No.603 OF 2021

that day or fix a suitable day for hearing, leading to an

appropriate fresh assessment in terms of the Kerala Building

Tax Act to be issued, as expeditiously as is possible.

Needless to say, since I have not considered any of the

contentions of the petitioner on its merits, the petitioner will be

at liberty to pursue all of them before the Tahsildar and the said

Authority will consider the same while issuing appropriate

orders in terms of these directions.

This writ petition is thus ordered.

SD/-

                                            DEVAN RAMACHANDRAN

rp                                                 JUDGE
 WP(C).No.603 OF 2021






                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 TRUE COPY CONSTRUCTION AGREEMENT DATED 4.8.2011.

EXHIBIT P2                 TRUE COPY OF THE ONE SUCH DEED EXECUTED BY THE

PETITIONER AND THE OWNERS OF THE PROPERTY IN THE NAME OF THAMPY CHERIYAN AND ESTHER THAMPY CHERIYAN DATED 23.3.2018.

EXHIBIT P3 TRUE COPY OF THE ORDER OF ASSESSMENT ISSUED IN FORM V UNDER KERALA BUILDING TAX ACT, DATED 24.3.2018 BY THE 3RD RESPONDENT TO THE LAND OWNERS WHEREIN CRYSTAL APARTMENTS VALE VIEW RESIDENCY SITUATES.

EXHIBIT P4 TRUE COPY OF THE NOTICE OF DEMAND DATED 24.3.2018 IN FORM NO. IV. ISSUED BY THE 3RD RESPONDENT TO THE LAND OWNERS.

EXHIBIT P5 TRUE COPY OF THE LETTER DATED 7.12.2018 ISSUED BY THE 3RD RESPONDENT TO THE LAND OWNERS.

EXHIBIT P6 TRUE COPY OF THE OBJECTION DATED 21.2.2019 FILED BY ONE OF THE LAND OWNERS BEFORE THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE LETTER DATED 21.1.2020 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 4.3.2020 IN WPC NO. 5869/2020.

EXHIBIT P9 COPY OF THE ORDER DATED 25.8.2020 ISSUED BY THE 3RD RESPONDENT.