M/S Salafi Timbers vs Thavanur Gramapanchyat
2022 Latest Caselaw 1184 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
         FRIDAY, THE 28TH DAY OF JANUARY 2022 / 8TH MAGHA, 1943
                          WP(C) NO. 22436 OF 2016
PETITIONER:

             M/S SALAFI TIMBERS,
             KOORADA, TRIKKANAPURAM P.O., THAVANUR (VIA), PONNANI
             TALUK, MALAPURAM DISTRICT, REPRESENTED BY ITS MANAGING
             PARTNER, P.SHOUKATH ALI.
             BY ADVS.
             SRI.G.HARIHARAN
             SMITHA PRAVEEN
             SMT.A.ANJANA
             SRI.PRAVEEN.H.
             SMT.T.T.SHANIBA


RESPONDENTS:

     1       THAVANUR GRAMAPANCHYAT
             AYANKALAM P.O., MALAPPURAM DISTRICT, REPRESENTED BY ITS
             SECRETARY, PIN - 679 573.
     2       THE DEPUTY DIRECTOR OF PANCHAYAT
             CIVIL STATION, MALAPPURAM - 676 505.
     3       STATE OF KERALA
             REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT,
             LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
             THIRUVANANTHAPURAM - 695 001.
              BY ADVS.
              R2 & R3 BY SRI.RIYAL DEVASSY, GOVERNMENT PLEADER
              R1 BY SRI.K.J.SAJI ISAAC




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   28.01.2022,    THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C) No.22436 of 2015                     2




                                       JUDGMENT

This writ petition is filed by the petitioner seeking the following reliefs:

i) Issue a writ of certiorari or any other appropriate writ or order quashing Exts.P6, P11 and P29 demand notices issued by the 1 st respondent ignoring Exts.P26, P27 and P28 notifications issued by the Government as well as by the 1st respondent Panchayat.

ii) Issue a writ of mandamus or any other appropriate writ or order directing the 1st respondent to issue revised in demand relating to the commercial establishment carried on by the petitioner at the rate applicable to Saw Mills as specified in Exhibit P27 and P28 notifications.

iii) Issue a writ of mandamus or any other appropriate writ or order commanding the 1st respondent to issue ownership certificate to the petitioner on the strength of Exhibit P19 application.

iv) Issue a writ of mandamus or any other appropriate writ or order commanding the 1st respondent to treat the licence of the petitioner as deemed to have been renewed under the provisions of Section 236(3) of the Kerala Panchayat Raj Act.

2. The The grievance highlighted by the petitioners is that the property tax

in respect of the property, wherein petitioner is conducting sawing and

manufacture & sale of timber, is increased from Rs.226/- per annum to

Rs.22,750/- per annum as per Exhibit P6 notice. It is also the case of the

petitioner that though the 1 st respondent has later reduced the tax to Rs.8516/-,

evident from Exhibit P12 intimation, the same was later withdrawn. Anyhow, it is

submitted that petitioner has submitted Exhibit P13 representation before the

Deputy Director of Panchayats, which was pending consideration.

3. Whatever that be, a counter affidavit is filed by the Panchayat

explaining the circumstances under which the tax was imposed and the reasons

for later modifications etc. It is also pointed out that now a fresh demand notice

is issued to the petitioner reducing the tax suitably, evident from Exhibit R1(a)

demand dated 21.11.2019.

4. In view of the above submission, I think it is only appropriate that the

material portion of the counter affidavit of the Panchayat is extracted:

"4. The petitioner was paying building tax on the basis of ARV. The

ARV method of assessment of tax was changed to assessment based on

plinth area. According to the petitioner in paragraph 5 of the petition, the

plinth area of the building is 586.28 square meter. The 1* respondent has

assessed the building of the petitioner on plinth area basis for the first time

in 2013 taking the plinth area as 452.513 square meter. Exhibit P28 was

issued in 2015 and hence is not applicable to the petitioner who has been

already assessed for the first time on plinth area basis as early as in 2013 at

Rs. 22,709/- fixing tax applicable as Rs.40/- per square meter. The allegation

of the petitioner in paragraph 22 of the writ petition that the increase should

not be made more than 100% of the existing tax is not applicable to the

petitioner. According to Exhibit P28, increase should not be made more than

100% when the building is first assessed on the basis of plinth area.

According to Exhibit P28, if there is additional construction, proportionate

excess tax is payable. Exhibit P6, demand notice was issued taking Rs. 40/-

per square meter as the applicable tax considering the petitioner as falling

within other commercial uses. The tax payable was hence assessed as Rs.

22709/- for one year. Thus Exhibit P6 was issued to the petitioner on the

basis of the assessment of tax at Rs.22,709/- for one year. 5. According to

Exhibit P26, the maximum basic tax that could be levied for timber mill is Rs.

20/- for one square meter. The said rates were made applicable to existing

tax payers from 01.04.2011. Later on the representation of the petitioner

that he falls within the category of timber mill, the tax was revised fixing the

rate at Rs.15/- per square meter and hence a revised demand was issued to

the petitioner on 16.02.2016 fixing the rate of tax at Rs.6349/- for one year.

The service charge has been waived by the 1st respondent from 1.4.2019 and

hence the tax payable by the petitioner from 1.4.2019 for one year is now

Rs.5181/- for one year. True copy of the demand notice dated 21.11.2019

issued by the 1st respondent to the petitioner is produced herewith and

marked as Exhibit R1(a)."

5. Learned counsel for petitioner also submitted that petitioner would be

satisfied, if an opportunity is given to file an objection to Exhibit R1(a), now

produced by the Grama Panchayat and an order is passed accordingly.

6. In that view of the matter and taking into account the facts and

circumstances deliberated above, the writ petition is disposed of, granting liberty

to the petitioner to file suitable objection to Exhibit R1(a) demand notice dated

21.11.2019 issued by the Secretary of the 1 st respondent Grama Panchayat,

within three weeks from the date of receipt of a copy of this judgment and the

Secretary of the Grama Panchayat is directed to finalise the proceedings within

three weeks thereafter.

7. When the matter came up for admission on 25.7.2016, the following

interim order was passed:

"Admit.

Issue notice to the 1st respondent.

The learned Government Pleader takes notice for respondents 2 and 3. There shall be an interim stay of Exts.P6 and P29, however the petitioner shall be liable to pay tax as it existed prior to the revision effected, subject to the result of the writ petition."

Therefore, till such time the proceedings are finalised as directed above,

the interim order will continue to be in force.

Sd/-

                                                             SHAJI P. CHALY
smv                                                              JUDGE





                           APPENDIX OF WP(C) 22436/2016

PETITIONER'S EXHIBITS
P1                           TRUE COPY OF THE REGISTRATION CERTIFICATE

ISSUED BY THE INDUSTRIES DEPARTMENT VIZ. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, MALAPPURAM ON 20.08.1992.

P2 TRUE COPY OF THE LICENCE FOR SAW MILL ISSUED BY THE DIVISIONAL FOREST OFFICE, NILAMBUR SOUTH DIVISION ON 25.01.2014.

P3 TRUE COPY OF THE RENEWED CERTIFICATE OF REGISTRATION ISSUED BY THE COMMERCIAL TAX DEPARTMENT THROUGH THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE, MALAPURAM ON 29.06.2016.

P4 TRUE COPY OF THE CERTIFICATE DATED 06.03.2007 IN THE NAME OF THE PETITIONER FOR FUNCTIONING OF THE SAW MILL AT THE PREMISES.

P5 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 06.04.2013 FOR RS.226/- EVIDENCING PAYMENT OFPROPERTY TAX FOR THE HALF YEAR ENDING ON 2012-13 SECOND HALF.

P6 TRUE COPY OF THE DEMAND NOTICE DATED 16.09.2014 ISSUED BY THE 1ST RESPONDENT. P7 TRUE COPY OF THE OBJECTION DATED 17.01.2015 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

P8 TRUE COPY OF THE ACKNOWLEDGEMENT ISSUED BY THE 1ST RESPONDENT'S OFFICE EVIDENCING RECEIPT OF EXHIBIT P7.

P9 TRUE COPY OF THE REMINDER DATED 22.01.2016 SUBMITTED BY THE PETITIONER IN CONTINUATION TO EXHIIT P.7 OBJECTION.

P10 TRUE COPY OF THE ACKKNOWLEDGEMENT ISSUED BY THE 1ST RESPONDENT'S OFFICE EVIDENCING RECEIPT OF EXHIBIT P9.

P11 TRUE COPY OF THE PROCEEDINGS DATED 16.02.2016 SENT BY THE 1ST RESPONDENT ADDRESSED TO THE PETITIONER.

P12 TRUE COPY OF THE DETAILS OF REVISION OF PROPERTY TAX RELATING TO BUILDING NO.VIII/536 OWNED BY THE PETITIONER.

P13 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 25.02.2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

P14 TRUE COPY OF ACKNOWLEDGEMENT ISSUED BY THE 2ND RESPONDENT'S OFFICE EVIDENCING RECEIPT OF EXHIBIT P13 APPEAL ON 25.02.2016.

P15 TRUE COPY OF THE APPLICATION DATED 08.02.2016 MADE BY THE PETITIONER BEFORE THE 1ST RESPONDENT FOR RENEWAL OF LICENCE FOR THE PERIOD 2016-17.

P16 TRUE COPY OF ACKNOWLEDGEMENT DATED 08.02.2016 ISSUED BY THE 1ST RESPONDENT'S OFFICE EVIDENCING FOR FILING THE APPEAL.

P17 TRUE COPY OF THE REQUEST DATED 30.03.2016 MADE BY THE PETITIONER REQUESTING TO 1ST RESPONDENT TO RECEIVE 50% OF THE AMOUNT DEMANDED AS A PRECONDITION FOR FILING THE APPEAL.

P18 TRUE COPY OF ACKNOWLEDGEMENT DATED 30.03.2016 ISSUED BY THE 1ST RESPONDENT'S OFFICE EVIDENCING RECEIPT OF EXHIBIT P17.

P19 TRUE COPY OF THE APPLICATION DATED 21.04.2016 MADE BY THE PETITIONER BEFORE THE 1ST RESPONDENT FOR THE ISSUANCE OF OWNERSHIP CERTIFICATE ALONG WITH THE COPY OF THE BASIC TAX RECEIPT EVIDENCING PAYMENT OF TAX FOR THE BUILDING IN QUESTION.

P20 TRUE COPY OF ACKNOWLEDGEMENT DATED 21.04.2016 ISSUED BY THE 1ST RESPONDENT'S OFFICE EVIDENCING RECEIPT OF EXHIBIT P19.

P21 TRUE COPY OF THE COMMUNICATION DATED 03.05.2016 ISSUED BY THE 1ST RESPONDENT IN RESPONSE EXHIBIT P19 APPLICATION.

P22 TRUE COPY OF THE APPLICATION DATED 22.02.2016 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT UNDER THE RIGHT TO INFORMATION ACT.

P23 TRUE COPY OF ACKNOWLEDGEMENT DATED 22.02.2016 ISSUED BY THE 1ST RESPONDENT'S OFFICE EVIDENCING RECEIPT OF EXHIBIT P22.

P24 TRUE COPY OF THE REPLY DATED 19.03.2016 ISSUED BY THE 1ST RESPONDENT IN RESPONSE TO EXHIBIT P22 APPLICATION.

P25 TRUE COPY OF THE PROCEEDINGS DATED 31.05.2016 ISSUED BY THE 2ND RESPONDENT ALLOWING THE APPEAL FILED BY THE PETITIONER AGAINST EXHIBIT P24.

P26 TRUE COPY OF THE NOTIFICATION NO.G.O.NO.19/2011/LSGD DATED 14.01.2011 ISSUED BY THE GOVERNMENT OF KERALA.

P27 TRUE COPY OF THE NOTIFICATION DATED 21.11.2011 PUBLISHED BY THE 1ST RESPONDENT PANCHAYAT FOLLOWING ISSUANCE OF EXHIBIT P6 NOTIFICATION.

P28 TRUE COPY OF THE NOTIFICATION NO.144/2015/LSGD DATED 27.04.2015 ISSUED BY THE 3RD RESPONDENT.

P29 TRUE COPY OF THE NOTICE DATED 22.06.2016 DEMANDING A SUM OF RS.99,706/- + EXPENSES OF RS.26/- TOTALLING TO RS.99,731/- TO BE PAID TO THE 1ST RESPONDENT.

RESPONDENT EXHIBITS EXHIBIT R1 TRUE COPY OF THE DEMAND NOTICE DATED 21/11/2019 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER