Kerala High Court
P.M.Muhammed Shareef vs The Tahsildar on 15 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 15TH DAY OF JUNE 2021 / 25TH JYAISHTA, 1943
WA NO. 754 OF 2021
AGAINST THE ORDER IN WP(C) 5995/2021 DATED 09.03.2021 OF HIGH
COURT OF KERALA, ERNAKULAM
APPELLANT/PETITIONER IN WPC
P.M.MUHAMMED SHAREEF
AGED 57 YEARS
S/O.KUTTY HASSAN, PRABHATH RESIDENCY,
FORT ROAD, KANNUR - 670 001.
BY ADVS.
ABDUL RAOOF PALLIPATH
K.R.AVINASH (KUNNATH)
E.MOHAMMED SHAFI
RESPONDENT/S:
1 THE TAHSILDAR, KANNUR
TALUK OFFICE, SOUTH BAZAR, KANNUR - 670 001.
2 VILLAGE OFFICER
KANNUR, VILLAGE OFFICE, KANNUR -2.
3 EMAD BUILDERS (P) LTD. COMPANY
GLOBAL VILLAGE, BANK ROAD, KANNUR - 670 001,
REPRESENTED BY ITS MANAGING DIRECTOR.
SR GP MOHAMMED RAFIQ
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.06.2021, ALONG
WITH W.P.C NO.5995/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.754/2021 & W.P.(C).5995/2021 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 15TH DAY OF JUNE 2021 / 25TH JYAISHTA, 1943
WP(C) NO. 5995 OF 2021
PETITIONER/S:
P.M.MUHAMMED SHAREEF
AGED 57 YEARS
S/O. KUTTY HASSAN, PRABHATH RESIDENCY,
FORT ROAD, KANNUR 670 001.
BY ADVS.
ABDUL RAOOF PALLIPATH
SRI.K.R.AVINASH (KUNNATH)
RESPONDENT/S:
1 THE TAHSILDAR
KANNUR TALUK OFFICE, SOUTH BAZAR,
KANNUR 670 001.
2 THE VILLAGE OFFICER,
NEAR TALUK OFFICE, SOUTH BAZAR,
KANNUR 670 001.
3 EMAD BUILDERS (P) LIMITED COMPANY,
GOBAL VILLAGE, BANK ROAD, KANNUR 670 001.
REPRESENTED BY ITS MANAGING DIRECTOR.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.06.2021, ALONG WITH W.A.NO.754/2021,THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.A.754/2021 & W.P.(C).5995/2021 3
JUDGMENT
Murali Purushothaman, J.
The appellant is the Director of the 3rd respondent Company
which constructed a multi-storied commercial building pursuant to
a building permit issued by Kannur Municipality in the year 2010.
The total plinth area approved as per the building permit is 17386.73
meter square. After the completion of construction, the Municipality
issued occupancy certificate and the total plinth area for which the
occupancy certificate was issued is 17177.97 meter square. The 1 st
respondent Tahsildar, the assessing authority under the Building
Tax Act, 1975 ('Act' for short) assessed the building to Building Tax
as per ExtP1 order taking the plinth area as 17177.97 meter square
and assessed the building to tax amounting to Rs. 30,63,600/-. The
appellant had remitted the tax so assessed. However, after more
than 7 years of original assessment, the respondents 1 and 2
conducted joint physical verification of the building along with
revenue authorities on 21.01.2020 and issued Ext.P4 dated
18.12.2020, a composite notice under Sections 7 (3) and 9 (2) of the
W.A.754/2021 & W.P.(C).5995/2021 4
Act stating that the appellant had made addition to the existing
building and calling upon the appellant to furnish return within 30
days of service of notice or else the assessing authority shall assess
the amount of Building Tax to the best of its judgment. The appellant
received Ext. P4 notice only on 23.12.2020 and before the expiry of
the notice period and before the appellant could submit his
objections/reply, the 2nd respondent issued Ext.P5 fresh assessment
order demanding an amount of Rs.77,22,000/- as against the original
assessment of Rs.30,63,600/-. After giving credit to the tax already
levied and collected as per Ext.P1, the appellant is directed to pay an
amount of Rs.46,58,400/-, either in lump or in three installments of
Rs.15,52,800/-.
2. According to the appellant, no additional construction was
made to the building and they had only put up a temporary roofing
to protect the air conditioner equipment placed at the terrace from
the rain and exposure to sunlight and such structure cannot be
assessed to tax. The appellant further contends that he was not
given sufficient time to file his objection/reply to Ext.P4 notice and
W.A.754/2021 & W.P.(C).5995/2021 5
was not heard before passing Ext. P5. Exhibit.P5 assessment order is
impugned in the writ petition on various grounds and particularly
on ground of violation of principle of natural justice.
3. The learned Single Judge while admitting the writ petition
was pleased to stay the proceedings pursuant to Ext.P5 on condition
that the petitioner deposits half of the amount demanded in Ext.P5
with the respondents, subject to the result of the writ petition.
Aggrieved by the order dated 09.03.2021 in the above writ petition,
the writ appeal has been preferred.
4. When the writ appeal came up for consideration on
04.06.2021, this Court directed the Registry to post the writ petition
also along with the writ appeal and accordingly, both the writ appeal
as well as the writ petition are taken up for consideration today.
5. Heard Sri.K.R.Avinash learned Counsel for the appellant/writ
petitioner and Sri.Mohammed Rafeeq, the learned Senior
Government Pleader for respondents 1 and 2.
6. After perusing the notice, the order of assessment, and the
W.A.754/2021 & W.P.(C).5995/2021 6
inspection carried out by the Department on 21.01.2020, we are of
the view that the requirement of opportunity and fair hearing is said
to have not been complied with the peculiar circumstances of the
case. Very serious attempt has been made by the learned Senior
Government Pleader to convince us that the appellant ought to be
relegated to work out the remedy of statutory appeal for both in
form and substance, the order assailed in the appeal conforms to the
requirements of law. The objection is noted and prima facie for the
view we are proposing to take we notice that the respondents would
have done better by being more explicit in the content of notice and
also by granting reasonable time to the appellant to respond in
respect of the alleged additions or repairs which warrants payment
of building tax under the Act. The petitioner in our view has
suffered prejudice and a substantial amount is demanded as Building
tax without affording reasonable opportunity to state his case.
7. For the above reasons the assessment order is set aside, the
matter is remitted to 1st respondent assessing authority for
consideration and disposal afresh in accordance with law. Having
W.A.754/2021 & W.P.(C).5995/2021 7
taken note of the stage at which we are interdicting, we stipulate the
following schedule for the parties to strictly comply with in this
behalf:
(a) The appellant is given two weeks' time from today to file
objections/reply to notice in Ext.P4.
(b) The Officer affords an opportunity of hearing to the appellant
within two weeks thereafter and disposes of the matter within six
weeks from today.
The Writ Petition is allowed as indicated above. The Writ
Appeal is against an interim order, the Writ Appeal is disposed of as
infructuous.
Sd/-
S.V.BHATTI
JUDGE
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
jjj/SB
W.A.754/2021 & W.P.(C).5995/2021 8
APPENDIX OF WP(C) 5995/2021
PETITIONER ANNEXURE
EXHIBIT TRUE COPY OF THE ORDER OF ORIGINAL
P1 ASSESSMENT NO. C4-28625/2013(2) DATED
20.1.2014 ISSUED 1ST RESPONDENT.
EXHIBIT TRUE COPY OF THE MEASUREMENT CARRIED OUT
P2 BY THE 2ND RESPONDENT DATED 21.1.2020.
EXHIBIT TRUE PHOTOGRAPHS OF STRUCTURES,
P3 ADDITIONAL ROOFING FOR AIR CONDITIONERS
ETC ACCOMMODATED IN THE TERRACE PORTION.
EXHIBIT TRUE COPY OF THE HEARING NOTICE NO.
P4 C4/14085/2020 DATED 18.12.2020 ISSUED BY
THE 1ST RESPONDENT ALONG WITH ENGLISH
TRANSLATION.
EXHIBIT TRUE COPY OF THE OF ASSESSMENT ORDER NO.
P5 C4/14085/2020 DATED 21.1.2021 ISSUED BY
THE 1ST RESPONDENT ALONG WITH ENGLISH
TRANSLATION.
// true copy //
P.A to Judge
