Thomas John vs State Of Kerala
2023 Latest Caselaw 6669 Ker

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WP(C) No.19355 of 2023


               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                    THE HONOURABLE MR.JUSTICE C.S.DIAS
     TUESDAY, THE 20TH DAY OF JUNE 2023 / 30TH JYAISHTA, 1945
                           WP(C) NO. 19355 OF 2023
PETITIONER/S:

              THOMAS JOHN,
              AGED 61 YEARS
              S/O. T. V. THOMAS, THENMADATHIL HOUSE, PAZHAVANGADI
              P.O., RANNI, PATHANAMTHITTA- 689673

              BY ADVS.
              LEO LUKOSE
              ENOCH DAVID SIMON JOEL
              S.SREEDEV
              RONY JOSE
              KAROL MATHEWS SEBASTIAN ALENCHERRY
              DERICK MATHAI SAJI

RESPONDENT/S:

      1       STATE OF KERALA,REPRESENTED BY THE SECRETARY, DEPARTMENT
              OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-
              695001

      2       THE DISTRICT COLLECTOR,CIVIL STATION, COLLECTORATE RD,
              CHITTOOR, PATHANAMTHITTA, PIN - 689645

      3       THE SUB-COLLECTOR,THIRUVALLA, PATHANAMTHITTA., PIN -
              689101

      4       THE TAHSILDHAR,,(ASSESSING AUTHORITY)TALUK OFFICE,RANNI,
              PATHANAMTHITTA., PIN - 689672

      5       THE DEPUTY TAHSILDAR,(REVENUE RECOVERY)TALUK
              OFFICE,RANNI, PATHANAMTHITTA., PIN - 689672

              SMT.THUSHARA JAMES, SENIOR GOVERNMENT PLEADER



       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   20.06.2023,         THE   COURT    ON       THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
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WP(C) No.19355 of 2023


                          C.S DIAS,J.
                       ---------------------------
                  WP(C) No.19355 of 2023
                      -----------------------------
              Dated this the 20th day of June, 2023 .

                          JUDGMENT

The writ petition is filed to quash Exts P2

assessment order, P5 appellate order and P9 demand

notice.

2. The relevant facts for the determination of the

writ petition are:

(i) The petitioner's father Late T.V Thomas had

constructed a double storey building in the year 1963.

As per Ext P1 (a) certificate, the building is at least 50

years old. Though the construction of the building was

completed in the year 1963, it was assessed to tax only

in 1975.

WP(C) No.19355 of 2023

(ii) In 2002, the petitioner's father died. The

following year, the petitioner decided to construct an

additional floor. Accordingly, he obtained a building

permit, but was unable to complete the construction.

(iii). Shockingly in 2020, the fourth respondent

conducted an inspection and directed the petitioner to

produce the building tax receipts. Unfortunately, the

documents pertaining to the building tax were

irrevocably lost in the 2018 floods.

(iv). The petitioner apprised the fourth respondent

that other than for the improvements made in the year

2003 and the un-constructed floor, the entire building

was assessed to building tax.

WP(C) No.19355 of 2023

(v). To the petitioner's dismay, the fourth

respondent has issued Ext P2 assessment order,

demanding Rs.3,60,000/- as one time building tax.

(vi).It is relevant to state, no notice under Sec.7(3)

of the Kerala Building Tax Act, 1975 (in short, 'Act')

was served on the petitioner or in the name of his

father. Ext P2 order has been mechanically passed,

without any application of mind.

(vii). Immediately on receipt of Ext P2 order, the

petitioner submitted Exts P3 and P4 letters before the

respondents 4 and 3, respectively.

(viii). The third respondent had treated Ext P4

letter as an appeal filed under the provisions of the Act

and has passed Ext P5 order, upholding Ext P2

assessment order.

WP(C) No.19355 of 2023

(ix). Unfortunately, due to the COVID-19

pandemic, the petitioner was unable to challenge Ext

P5 order in revision before the second respondent or

before this Court. Moreover, the petitioner is going

through severe financial crisis.

(x). Consequent to Ext P5 order, the fourth

respondent has issued Ext P6 notice threatening to take

coercive steps against the petitioner. Immediately, the

petitioner deposited Rs.90,000/- towards the first

instalment and has submitted an application to

reconsider the appeal preferred by him.

(xi). The petitioner has also submitted Ext P8

representation before the second respondent, to direct

the third respondent to reconsider his appeal on merits.

However, there has been no response from the

WP(C) No.19355 of 2023

respondents yet. Now, the fifth respondent has issued

Ext P9 demand notice, threatening to initiate revenue

recovery proceedings. Exts P2, P5 and P9 are patently

illegal, arbitrary and unjustifiable. Hence, the writ

petition.

3. Heard: Sri.Leo Lukose, the learned Counsel

appearing for the petitioner and Smt.Thushara James,

the learned Senior Government Pleader appearing for

the respondents.

4. Sri.Leo Lukose vehemently argued that the

entire proceedings leading to Exts P2, P5 and P9 are

unsustainable in law because the fourth respondent has

not issued a notice under Sec.7(3) of the Act, which is

mandatory in the light of the law laid down by this

Court in Provincial Superior, Franciscan Chlarist

WP(C) No.19355 of 2023

Congregation of Nuns vs. State of Kerala and ors

[2009 (1) KLT 582]. The learned counsel also

contended that the impugned orders and demand are a

nullity as it is passed against a dead man. The law is

well settled in Dharamraj vs. Income Tax Officer

[MANU/DE/0204/2022] by the Delhi High Court. He

canvassed the position that even though this Court does

not ordinarily exercise its powers under Article 226 of

the Constitution of India, in case of an alternative

statutory remedy, in the case on hand as there is a

violation of principles of natural justice, certainly this

Court can step in and set aside the orders. He also

placed reliance on the decision of this Court in S.N

Govinda Prabhu and Bros. vs. Additional Sales Tax

Officer [1984 KLT Case No.92]. He prayed that Exts

WP(C) No.19355 of 2023

P2, P5 and P9 may be set aside and the fourth

respondent be directed to reconsider the entire matter

afresh.

5. Smt.Thushara James strenuously countered the

above submission by contending that writ petition is

bad for suppression of material facts. She handed over

a notice dated 11.2.2017 issued by the fourth

respondent, under Sec.7(3) of the Act, to the petitioner,

calling upon him to furnish returns in respect of his

building within thirty days, failing which orders would

be passed under Sec.9(5) of the Act. She also handed

over the proceedings of the fourth respondent dated

6.3.2017 to substantiate that the petitioner had appeared

for a hearing before the fourth respondent. She further

drew the attention of this Court to Ext P4 appeal

WP(C) No.19355 of 2023

submitted by the petitioner before the third respondent,

wherein the petitioner has in unambiguous terms

admitted that he had ventured to construct an additional

floor and has sought time to pay the demand in

instalments. She argued that the contentions raised by

the learned counsel for the petitioner are all untenable.

The petitioner is only attempting to protract the

inevitable through the present writ petition, which is

experimental in nature. Hence, the writ petition may be

dismissed.

6. The pleadings in the writ petition substantiate

that the petitioner's father died in the year 2002. The

petitioner admits that he had submitted an application

in the year 2003, seeking permission to construct an

additional floor. Admittedly, a building permit was

WP(C) No.19355 of 2023

issued. Nonetheless, the petitioner asserts that the

construction of the additional floor is incomplete, even

after two decades.

7. The above admissions disprove the petitioner's

allegation that the building only belongs to his father

and, therefore, the respondents have to proceed against

his father.

8. Indisputably, it was the petitioner who

obtained the building permit to construct the additional

floor on the existing building, which in turn establishes

that he is the owner and in occupation of the said

building. In addition to the above, the notice dated

11.2.2017 was served on the petitioner and he appeared

for hearing before the fourth respondent. Thus, the

WP(C) No.19355 of 2023

petitioner's contention that he did not receive notice is

incorrect.

9. Furthermore, on receipt of Ext P2 order, the

petitioner filed Ext P4 appeal admitting that he has

carried out a construction, but the work is incomplete.

Yet, he volunteered to pay off the demand in

instalments.

10. The above sequence of events prove beyond

any doubt that there is no violation of principles of

natural justice, as alleged in the writ petition. It is after

the petitioner exhausted his statutory remedy in the

year 2020, after nearly three years that he has filed the

instant writ petition raising all the above untenable

contentions, which are disputed questions of fact. After

venturing into statutory remedy and suffering an

WP(C) No.19355 of 2023

adverse order, the petitioner cannot at his whims and

caprice approach this Court under Article 226 of the

Constitution of India, on the perception that the doors

of the Constitutional Court are wide open. There is no

illegality, perversity or irrationality in the action of the

respondents. This Court does not find any error to

quash Exts P2, P5 and P9. Nonetheless, as an act of

indulgence and exercising the discretion of this Court,

the petitioner is permitted to pay the demand in

instalments.

Resultantly, the writ petition is dismissed, but by

permitting the petitioner to submit a representation

before the fourth respondent for permission to pay off

the demand covered by Ext P9 notice, in instalments

and subject to condition that the petitioner deposits an

WP(C) No.19355 of 2023

amount of Rs.75,000/- along with the representation

within three weeks from today. If the petitioner

complies with the said condition, the fourth respondent

shall sympathetically consider the petitioner's

representation and permit him to pay the outstanding

amount in equated monthly instalments to be fixed by

the fourth respondent.

SD/-

Sks/20.6.2023                        C.S.DIAS, JUDGE

WP(C) No.19355 of 2023


                         APPENDIX OF WP(C) 19355/2023

PETITIONER EXHIBITS

Exhibit P1                 A TRUE COPY OF THE LETTER DATED 30.11.2020

NUMBERED NIL ISSUED BY THE FEDERAL BANK .

Exhibit P1(a) TRUE COPY OF THE CERTIFICATE DATED 27.01.2021 ISSUED BY THE ASSISTANT ENGINEER, PWD BUILDING SECTION, RANNI .

Exhibit P2 A TRUE COPY OF THE ORDER OF ASSESSMENT NO.

KBT 693/14/PDY DATED 25.08.2020 ISSUED BY THE 4TH RESPONDENT ALONG WITH A NOTICE OF DEMAND .ALONG WITH READABLE COPY.

Exhibit P3 A TRUE COPY OF THE LETTER DATED 08.09.2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT .

Exhibit P4 A TRUE COPY OF THE LETTER DATED 11.09.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

Exhibit P5 A TRUE COPY OF THE ORDER DATED 29.09.2020 NUMBERED A2-2783/2020 ISSUED BY THE 3RD RESPONDENT .

Exhibit P6 A TRUE COPY OF THE NOTICE DATED 02.12.2022 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER .

Exhibit P7 A TRUE COPY OF THE CHALLAN DATED 06.03.2023 NUMBERED KL029812190202223M.

Exhibit P8 A TRUE COPY OF THE REPRESENTATION DATED 04.03.2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT .

Exhibit P9 A TRUE COPY OF THE DEMAND NOTICE DATED 17.02.2023 NUMBERED RRC NO. 2023/1484/03 ISSUED BY THE 5TH RESPONDENT .