N.J.Sebastian vs Revenue Divisional Officer
2021 Latest Caselaw 20791 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
  WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                       WP(C) NO. 14238 OF 2014
PETITIONER

             N.J.SEBASTIAN, AGED 62 YEARS
             S/O.LATE JOSEPH,R/AT NEDUMPATHALIL HOUSE,
             KALLORKULAM.P.O,CHENGLAM EAST VILLAGE,    KOTTAYAM
             DISTRICT,PIN-686503.
             BY ADVS.
             SRI.TOM JOSE
             SMT.GEETHA JOB OZHUKAYIL


RESPONDENTS:

    1        THE DISTRICT COLLECTOR
             KOTTAYAM DISTRICT COLLECTORATE,
             KOTTAYAM,PIN-686002.
    2        THE REVENUE DIVISIONAL OFFICER
             REVENUE DIVISIONAL OFFICE,KOTTAYAM,PIN-686002.
    3        THE TAHSILDAR
             TALUK OFFICE,KOTTAYAM,PIN-686002.
             BY GOVERNMENT PLEADER SRI.K.M.FAISAL



     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.09.2021, THE COURT ON 06.10.2021 DELIVERED THE FOLLOWING:
 W.P.(C) 14238-2014                       2


                                                                         'C.R'

                                     JUDGMENT

The petitioner is the owner in occupation and

enjoyment of 24.420 cents of landed property having a

residential building, in Sy. No.254/6A/4/24 of Chengalam

East Village of Kottayam Taluk, obtained as per Ext. P1 sale

deed.

2. The residential building was rebuilt and the

construction was completed in the year 2009-2010.

According to the petitioner, the building is having a plinth

area of 276.57 Square meter (sq. m.).

3. As per Section 5 of the Kerala Building Tax Act, 1975

(hereinafter referred to as the 'Act'), building tax shall be

charged on every building based on the plinth area at the

rate specified in the Schedule to the Act. Section 5A of the

Act (as it stood prior to 01.04.2014) provides that buildings

having a plinth area of 278.7 sq. m. or more and completed

on or after 01/04/1999 are liable to be levied with luxury tax

of Rs.2,000/- per annum.

4. The petitioner states that, appurtenant to the said

residential building, there is a temporary shed with sheet

roofing and wire mesh walls for storing rubber sheets,

manure and plastic covers for the use in the rubber nursery

run by him.

5. The Assessing Authority, the Taluk Tahsildar,

Kottayam, the 3rd respondent, passed Ext.P2 order of

assessment of tax for the building under Section 9 of the

Act under residential category, showing a plinth area of

301.57 sq. m. followed by Ext.P3 demand notice under

Section 10 levying a building tax of Rs.6,000/-. The

Assessing Authority also imposed a luxury tax of Rs.2,000/-

per annum for the building under Section 5A of the Act, as

per Ext. P4 proceedings.

6. Against Exts. P2, P3 and P4, the petitioner preferred

an appeal before the 2nd respondent, the Revenue Divisional

Officer (RDO), under Section 11 of the Act. In the appeal,

the petitioner contended that the Assessing Authority went

wrong in determining the plinth area of the building by

taking into account the temporary shed appurtenant to the

petitioner's residential building. The RDO, by Ext. P7 order,

rejected the appeal.

7. Against Ext.P7 order, the petitioner preferred a

revision petition before the District Collector, the 1 st

respondent, under Section 13 of the Act. Since the

petitioner could not file the revision petition within the

period of 30 days stipulated under Section 13(3) of the Act,

an application for condoning delay in filing the revision

petition was also filed with medical certificates to show

sufficient cause for not filing the revision petition within

time. The District Collector, without going into the merits,

rejected the revision petition by Ext.P9 order stating that

the petitioner has not shown sufficient cause for not filing

the revision petition within the period provided under

Section 13 of the Act. The District Collector found that,

though there is a delay of one year in filing the revision

petition, the petitioner has explained the delay of 4½

months only and there is no proper explanation for the

delay occurred thereafter.

8. Exts.P2, P3, P4, P7 and Ext.P9 order of the District

Collector are challenged in the writ petition. Direction is also

sought to reconsider the revision petition on merits and to

direct the assessing authority to make fresh assessment as

per the statutory mandates.

9. A Counter Affidavit is filed by the 3rd respondent

stating that the disputed construction is part of usage area

and cannot be exempted for building tax assessment. It is

further averred that the revision petition was dismissed as

no sufficient reason was given for condoning the delay. It is

also stated that the petitioner has remitted the entire

building tax and the luxury tax was remitted upto 2012-13.

10. Heard Sri.Tom Jose, the learned counsel for the

petitioner and Sri. K.M. Faisal, the learned Government

Pleader for the respondents.

11. The petitioner contends that the temporary shed

appurtenant to his residential building is not liable to be

taken into consideration for determining the plinth area of

the building for assessment of building tax as per the

proviso to Section 6 of the Act and the District Collector

ought to have considered the revision petition on merits as

there is sufficient cause for condoning the delay in filing the

revision.

12. Before I proceed to consider the question as to

whether the petitioner has shown sufficient cause for

condoning the delay, it has to be examined whether the

District Collector has power to condone the delay in filing

revision petition.

13. Section 13 of the Building Tax Act, 1975 reads as

under:

"13. Power of revision of the District Collector. - (1) The

District Collector may, either suo motu or on application by

any person aggrieved, call for and examine the record of any

order passed by the appellate authority or the assessing

authority and may pass such order in reference thereto as he

thinks fit:

Provided that no such order shall be passed under this

sub-section without notice to the party who may be affected

by the order:

Provided further that the District Collector shall not

call for and examine the record of any order passed by the

assessing authority.

(a) if the period of thirty days specified for

presentation of appeal under sub-section (3) of

Sectionl 11 has not expired; or

(b) if an appeal against that order is pending before

the appellate authority:

Provided also that no order passed on the basis of a

reference under Section 12 to the extent covered by the

answer to such reference shall be subject to revision by the

District Collector.

(2) The District Collector shall not suo motu revise an

order under sub-section (1) if that order has been passed

more than three months previously.

(3) An application under sub-section (1) by an

aggrieved party shall be made before the expiry of thirty

days from the date on which the order in question was

communicated to him."

(4) No application for revision under sub-section (1) by

an aggrieved party shall lie unless fifty per cent of the

building tax has been paid."

(emphasis supplied)

Sub-section (3) of Section 13 of the Act provides that an

application under sub-section (1) of Section 13 by an

aggrieved party shall be made before the expiry of 30 days

from the date on which the order in question was

communicated to him. There is no provision which confers

power on the District Collector to extend the time to admit

or entertain the revision petition after the expiration of the

said period.

14. With regard to an appeal filed against the order of

assessment under Section 11 of the Act, sub-Section (3)

thereof provides that the appeal shall be presented within a

period of thirty days from the date of service of the notice

of demand relating to the assessment or the date of service

of the order, as the case may be, but the appellate

authority may admit an appeal presented after the

expiration of the said period if it is satisfied that the

appellant had sufficient cause for not presenting it within

the said period, provided however that no such appeal shall

be admitted after a period of six months from the date of

service of the notice of demand relating to the assessment

or the date of service of the order, as the case may be.

Under Section 11, the appellate authority may admit an

appeal presented after the expiration of 30 days, if it is

satisfied that the appellant had sufficient cause for not

presenting it within the said period and the period can be

further extended by another six months from the date of

service of the notice of demand/order, but not thereafter.

However, there is no provision under Section 13 which

empowers the revisional authority to condone delay if the

revision petition is presented by an aggrieved party after

the period of 30 days from the date on which the order of

the assessment authority/appellate authority is

communicated to him.

15. Section 4 of the Act provides that the Government

may, by notification in the Gazette, appoint assessing

authorities and appellate authorities for the purposes of the

Act. The revisional power has been conferred on the District

Collector by the primary legislation viz., Section 13. Being

an authority created under the Statute to exercise revisional

jurisdiction, the District Collector can only act in terms of

the powers vested in him under the Statute. Though the

assessing authority, the appellate authority and the

revisional authority have been conferred with certain

specified powers of the Civil Court under Section 17 of the

Act, the proceedings concerning the assessment of building

tax are quasi judicial and the authorities under the Act are

performing quasi judicial functions. Limitation Act will apply

only to Courts and not to quasi judicial authorities. Section 5

of the Limitation Act, 1963, cannot, therefore, be invoked

for condoning the delay in filing the revision. In Ganesan v.

Commissioner, Tamil Nadu Hindu Religious and

Charitable Endowments Board (2019 KHC 6530: 2019

(2) KLT 925: (2019) 7 SCC 108: AIR 2019 SC 2343), the

Apex Court considered the question whether the

Commissioner, Tamil Nadu Hindu Religious Endowment

Board while hearing an appeal under Section 69 of the Tamil

Nadu Hindu Religious and Charitable Endowments Act, 1959

is a 'Court' and whether Section 29(2) of Limitation Act

would apply to such authorities. Referring to Sections 6(7),

69 and 70 of the Tamil Nadu Hindu Religious and Charitable

Endowments Act, 1959, the Apex Court held that, the mere

fact that a statutory authority is empowered to follow the

procedure as nearly may be in accordance with procedure

under C.P.C. to the trial of suits or hearing of appeals, the

statutory authority shall not become a Court and the

Commissioner is not a Court within the meaning of Section

6(7) of the Tamil Nadu Hindu Religious and Charitable

Endowments Act, 1959 and the Commissioner while hearing

the appeal under Section 69 of the Act, 1959 is not entitled

to condone the delay in filing appeal, since, provision of

Section 5 of the Limitation Act shall not be attracted by

strength of Section 29(2) of the Act. After a survey of

various decisions, the Apex Court held:-

"54. The ratio which can be culled from above noted

judgments, especially judgment of three-Judge Benches, as

noted above, is as follows:

(1) The suits, appeals and applications referred to in the

Limitation Act, 1963 are suits, appeals and applications

which are to be filed in a Court.

(2) The suits, appeals and applications referred to in the

Limitation Act are not the suits, appeals and applications

which are to be filed before a statutory authority like

Commissioner under Act, 1959.

(3) Operation of Section 29(2) of the Limitation Act is

confined to the suits, appeals and applications referred to in

a special or local law to be filed in Court and not before

statutory authorities like Commissioner under Act, 1959.

(4) However, special or local law vide statutory scheme can

make applicable any provision of the Limitation Act or

exclude applicability of any provision of Limitation Act

which can be decided only after looking into the scheme of

particular, special or local law.

55. We, thus, answer question Nos.2 and 3 in the following

manner:

(i) The applicability of Section 29(2) of the Limitation Act is

with regard to different limitations prescribed for any suit,

appeal or application when to be filed in a Court.

(ii) Section 29(2) cannot be pressed in service with regard

to filing of suits, appeals and applications before the

statutory authorities and tribunals provided in a special or

local law. The Commissioner while hearing of the appeal

under Section 69 of the Act,1959 is not entitled to condone

the delay in filing appeal, since, provision of Section 5 shall

not be attracted by strength of Section 29(2) of the Act."

16. The Statute has not conferred power on the District

Collector to entertain a revision petition which is not

presented before the expiry of 30 days from the date on

which the order of the assessment authority/appellate

authority was communicated to him. The District Collector

cannot admit or entertain a revision petition presented

beyond the said period even if sufficient cause is shown for

not presenting the same within that period. The District

Collector is not empowered to entertain a revision petition

after condoning the delay on equitable grounds. In Popat

Bahiru Govardhane and Others v. Special Land

Acquisition Officer and Another [2013 (10) SCC 765:

2013 KHC 4651], the Hon'ble Supreme Court held that it is

not permissible to extend the period of limitation on

equitable grounds if Statute does not permit the same.

17. The upshot of the above discussions is that the

revision petition filed by the petitioner before the District

Collector is not maintainable as the same is filed beyond

the period provided by the Statute. In the light of Section

13(3) of the Act, even if sufficient cause is shown for not

presenting the appeal within the stipulated period of 30

days, the District Collector could not have admitted and

entertained the revision petition.

18. It is stated by the assessing authority that the

petitioner has already paid the entire building tax as

assessed and demanded. It is also stated that the luxury tax

was remitted upto 2012-13. The building tax is a one time

liability, whereas the luxury tax is a recurring liability,

payable every year if the residential building is having a

plinth area of 278.7 sq. m. or more and completed on or

after 01/04/1999. This Court, in Mohamad Sadik v.

Tahsildar [2006 (3) KLT 271: 2006 KHC 845] held that,

even if the assessee had suffered the payment of luxury tax

for earlier years, he is still entitled to challenge the order of

demand for levy of luxury tax under Section 5A of the

Kerala Building Tax Act, 1975 for the subsequent years. This

Court clarified that the finding of the assessing authority

concerning the plinth area of the building for assessment of

building tax will not operate as res judicata to challenge the

order of demand for levy of luxury tax.

19. The Constitution Bench of the Apex Court, in

Instalment Supply (Private) Ltd and another v. Union

of India others [AIR 1962 SC 53: 1962 KHC 420] has

held that, in matters of taxation, there is no question of res

judicata because each year's assessment is final only for

that year and does not govern later years, because it

determines only the tax for a particular period.

20. Relying on the decision in Mohamad Sadik case

(supra), this Court, in Namboorikandi Ahammed v.

District Collector [2014 (4) KHC 608: 2014 (4) KLT

272: 2014 (4) KLJ 307: ILR 2014 (4) Ker. 499] held that,

an erroneous determination of plinth area for the purposes

of building tax, that has already been completed on an

assessee, cannot be the sole basis for the levy of luxury tax

for all time to come in the future and it would be open to

the assessee to challenge the collection of such an illegal

tax by invoking his rights under Article 265 of the

Constitution of India.

21. Though the statutory remedy of revision against

the assessment of building tax stood foreclosed by the

period prescribed thereunder, it will be open to the

petitioner to challenge the determination of plinth area

even at a subsequent stage when faced with a demand of

luxury tax based on the plinth area of the building in

question. The specific case of the petitioner before the

statutory authorities was that the structure appurtenant to

his residential building is not liable to be taken into

consideration for determining the plinth area. This

contention of the petitioner has not received due

consideration at the hands of the assessing authorities. As

held by this Court in Namboorikandi Ahammed case

(supra), an erroneous determination of plinth area for the

purposes of building tax, that has already been completed

on an assessee, cannot be the sole basis for the levy of

luxury tax for all time to come in the future. Accordingly, I

quash Ext.P4 order of the 3rd respondent under Section 5A

levying luxury tax on the residential building of the

petitioner. The 3rd respondent shall consider the factual and

legal contention of the petitioner that the structure

appurtenant to his residential building is not liable to be

taken into consideration for determining the plinth area,

with notice to the petitioner. This shall be done within a

period of three months from the date of receipt of a certified

copy of this judgment and untrammeled by Ext.P2

assessment order levying building tax under Section 9 of

the Act which has become final. The liability of the

petitioner to luxury tax in terms of Section 5A shall be

determined based on the findings of the 3rd respondent.

Such determination by the 3rd respondent will govern the

luxury tax liability of the petitioner, if any, for the periods

from 2009-2010 onwards, till such time as changed

circumstances warrant fresh assessment. If the assessing

authority finds that the building is not exigible to luxury tax,

the luxury tax so far remitted by the petitioner shall be

refunded.

The writ petition is disposed of as above. No order as to

costs.

Sd/-

MURALI PURUSHOTHAMAN JUDGE

APPENDIX OF WP(C) 14238/2014

PETITIONER'S EXHIBITS EXT.P1: COPY OF THE SALE DEED NO.176/2007 OF KOZHUVANAL SUB REGISTRY DATED 01/03/2007 IN FAVOUR OF THE PETITIONER EXT.P2: COPY OF THE ASSESSMENT ORDER OF THE ASSESSMENT AUTHORITY UNDER FORM V OF THE KERALA BUILDING TAX ACT AS D2 6484/O9 DATED 31/12/2009.

EXT.P3: COPY OF THE DEMAND NOTICE ISSUED BY THE 3RD RESPONDENT AS PER FORM VI OF KERALA BUILDING TAX ACT AND RULES VIDE D2 6484/09 DATED 31/12/2009 LEVYING A TAX OF RS.6,000/- EXT.P4: COPY OF THE PROCEEDINGS OF THE TAHSILDAR KOTTAYAM DATED 30/12/2009 EXT.P5: COPY OF THE TAX RECEIPT REGARDING REMITTANCE OF BUILDING TAX BEFORE THE VILLAGE OFFICER,CHENGALAM EAST VILLAGE EXT.P6: COPY OF THE TAX RECEIPT SHOWING PAYMENT OF LUXURY TAX BEFORE THE VILLAGE OFFICER CHENGALAM EAST VILLAGE DATED 06.2.2013 EXT.P7: COPY OF THE ORDER OF HE RDO/2ND RESPONDENT DATED 21/01/2012 VIDE PROCEEDINGS NO:D.613/10/K.DIS. EXT.P8: COPY OF THE MEDICAL CERTIFICATE OF THE PETITIONER DATED 28/01/2013 OF CARITAS HOSPITAL,KOTTAYAM EXT.P9: COPY OF THE ORDER OFTHE IST RESPONDENT VIDE PROCEEDINGS NO:B 10(1)-2013/10346/5 DATED 18/10/2013 IN THE REVISION PETITION DISMISSING THE SAME ON TECHNICALITIES.

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