Malathi Kongassery vs The Tahsildar
2022 Latest Caselaw 6273 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
        FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                        WP(C) NO. 15327 OF 2022
PETITIONER:

            MALATHI KONGASSERY
            AGED 75 YEARS, W/O. SANKARA NARAYANAN NAIR, MANGAT
            HOUSE, MAMMIYUR, GURUVAYOOR P. O., PIN - 680101,
            THRISSUR DISTRICT.

            BY ADV K.K.MOHAMED RAVUF



RESPONDENTS:

    1       THE TAHSILDAR
            TALUK OFFICE, CHAVAKKAD, THRISSUR - 680 506.

    2       THE VILLAGE OFFICER
            VILLAGE OFFICE, GURUVAYOOR, THRISSUR - 680101.


OTHER PRESENT:

            ADV. DR. THUSHARA JAMES (SR .GP)




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P (C) No.15327/2022                    -2-

                                 JUDGMENT

The petitioner has approached this court being aggrieved by Exts.P4 & P5

assessment orders. Exhibit P4 is an assessment order in respect of building tax

under the Kerala Building Tax Act and Ext. P5 is a demand for payment of luxury

tax under the provisions of the same enactment. The learned counsel appearing for

the petitioner would submit that a residential apartment consisting of different

apartments belong to different persons have been assessed as a single unit contrary

to various judgments of court. It is also submitted that if assessed individually the

apartments being less than 1000 sq.ft., each will not be liable to building tax/luxury

tax. It is submitted that Ext.P5 order demanding luxury tax is also bad as the said

demand is also based on the fact that the entire building has been taken as one unit.

It is pointed out that prior to Exts.P4 and P5 no notice was issued to the petitioner.

It is submitted that a notice was admitted by issued only to the husband of the

petitioner who expired on 29-04-2021.

2. The learned Government Pleader submits that the petitioner cannot

contend that she was not served with a notice as admittedly there was a notice

issued to her husband. It is submitted that the petitioner has an effective and

alternative remedy against ExtsP4 & P5 and she cannot be heard to contend that

she can challenge Exts.P4 & P5 under Article 226 without availing the statutory

remedy.

3. Having heard the learned counsel for the petitioner and the learned

Senior Government Pleader and having regard to the facts and circumstances of the

case and considering the fact that Exts.P4 and P5 are issued without notice to the

petitioner, Exts.P4 and P5 will stand quashed with a direction to the 1 st respondent

to complete the assessment proceedings with notice to the petitioner. It is open to

the petitioner to raise all her contentions before the 1 st respondent. The 1st

respondent shall endeavour to complete the proceedings with notice to the

petitioner within a period of 3 months from the date of receipt of a copy of this

judgment.

Sd/-

GOPINATH P.

JUDGE

AMG

APPENDIX OF WP(C) 15327/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE PHOTOCOPY OF THE BUILDING PERMIT FROM THE CHAVAKKAD MUNICIPALITY.

Exhibit P2 TRUE PHOTOCOPY OF THE TRIPARTITE AGREEMENT BETWEEN THE LANDOWNER, PURCHASER RAVEENDRANATH AND THE BUILDER.

Exhibit P3 TRUE PHOTOCOPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, GURUVAYOOR.

Exhibit P4 TRUE PHOTOCOPY OF THE ASSESSMENT ORDER NO.BT1/51999/2021 DATED 30.03.2022.

Exhibit P5 TRUE PHOTOCOPY OF THE ASSESSMENT ORDER OF LUXURY TAX FOR RS.12,500/- FOR THE YEARS 2020-21, 2021-22, 2022-23, BT1/51999/2021 DATED 30.03.2022 OF THE 1ST RESPONDENT.

Exhibit P6 TRUE PHOTOCOPY OF THE ASSESSMENT ORDER NO.BT1/51999/2021 DATED 17.12.2021.

Exhibit P7 TRUE PHOTOCOPY OF THE DEATH CERTIFICATE OF THE HUSBAND OF THE PETITIONER.

Exhibit P8 TRUE PHOTOCOPY OF THE JUDGMENT DATED 12.01.2022 IN WP(C) NO.27236/2021 OF THIS HON'BLE COURT.