Kerala High Court
Shameela Fazal vs State Of Kerala on 21 November, 2024
Author: P Gopinath
Bench: P Gopinath
2024:KER:87239
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA, 1946
WP(C) NO. 37016 OF 2022
PETITIONER:
SHAMEELA FAZAL,
AGED 59 YEARS,
W/O .FAZAL GAFOOR, PROPRIETOR OF SHAFAZ THEATRE, DOOR
NO. 7/181, CHENDAMANGALAM JUNCTION, NORTH PARAVUR,
ERNAKULAM DISTRICT - 683 513.
BY ADVS.
M.A.ZOHRA
SHREEJI R. NAIR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
2 THE PARAVUR MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, NORTH PARAVUR
MUNICIPALITY, NORTH PARAVUR,
ERNAKULAM DISTRICT, PIN - 683513.
3 THE TAHSILDAR,
TALUK OFFICE, NORTH PARAVUR, ERNAKULAM DISTRICT,
PIN - 683513.
4 THE DEPUTY TAHSILDAR (BUILDING TAX),
TALUK OFFICE, NORTH PARAVUR, ERNAKULAM DISTRICT,
PIN - 683513.
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5 THE VILLAGE OFFICER,
THE NORTH PARAVUR VILLAGE OFFICE, NORTH
PARAVUR, ERNAKULAM DISTRICT, PIN - 683513.
BY ADVS.
SHRI.ANOOP V.NAIR, SC, NORTH PARAVUR
MUNICIPALITY
SMT.THUSHARA JAMES, SENIOR G.P
ANOOP V.NAIR
E.ADITHYAN
ROHAN MAMMEN ROY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
The petitioner has approached this Court being aggrieved
by the demand for One Time Building Tax under the provisions of
the Kerala Building Tax Act, 1975, on a building which was
purchased by the petitioner in the year 1992 as per Ext.P1
document registered at the SRO, North Paravur. It is the case of
the petitioner that the building in question is a Cinema Theatre
that was functioning since 1979. It is submitted that going by the
terms of Ext.P1 document, all taxes and other dues on the building
had already been remitted by the previous owner. It is submitted
that the petitioner obtained a Building Permit from the respondent
Municipality only to carry out internal modification without any
change in the plinth area and therefore, there cannot be a further
demand for payment of building tax on the petitioner. It is
submitted that the petitioner did not get any opportunity to
contest the proposed assessment and no notice had been issued to
the petitioner prior to the finalization of the demand for building
tax.
2. The learned Senior Government Pleader
appearing for the official respondents would submit that a notice
had been issued to the petitioner and the petitioner had failed to
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appear pursuant to the notice. It is submitted that no documents
were also produced by the petitioner to show that 1) that there was
no increase in the plinth area and 2) that the building had already
been assessed to building tax. It is submitted that in such
circumstances, the Assessing Authority had no option but to
complete the assessment ex-parte. It is submitted that if the
petitioner has any grievance against the present assessment, it is
for the petitioner to file an appeal before the Appellate Authority
and no ground has been made out for interference with Exts.P5
and P6 in exercise of writ jurisdiction under Article 226 of the
Constitution of India.
3. Having heard the learned counsel for the
petitioner, the learned Senior Government Pleader and the learned
Standing Counsel appearing for the respondent Municipality, I am
of the view that in the facts and circumstances of this case and
taking into consideration the assertion of the petitioner that
building tax under the Kerala Building Tax Act, 1975 had already
been remitted immediately after the building was constructed in
the year 1979, the petitioner can be given one more opportunity to
contest the assessment before the Assessing Authority. Though
the petitioner asserts that no notice of the assessment was given to
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the petitioner, the counter affidavit filed by the Assessing
Authority indicates that such notice was actually given to the
petitioner. However, in order to give the petitioner a further
opportunity to contest the assessment before the Original
Authority, I am of the opinion that Exts.P5 and P6 can be set aside
and the petitioner can be directed to appear before the Assessing
Authority to complete the assessment in accordance with the law.
Accordingly, this writ petition is allowed. Exts.P5 and P6
will stand quashed. The petitioner shall appear before the
Assessing Authority (3rd respondent) at 11.00 A.M on 06.12.2024
and thereafter, the matter shall be reconsidered and fresh orders
shall be passed, after affording to the petitioner an opportunity of
being heard. I make it clear that I have not expressed any opinion
on the merits of the matter and it will be open to the 3 rd
respondent to consider the matter, in accordance with the law and
if necessary, after carrying out inspection to consider whether
there has been any change in the plinth area of the building
following constructions effected on the strength of Ext.P2 Building
Permit.
Sd/-
GOPINATH P.
JUDGE
DK
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APPENDIX OF WP(C) 37016/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SALE DEED NO.
3249/1992 OF THE S.R.O, PARAVUR
Exhibit P2 TRUE COPY OF THE BUILDING PERMIT
ISSUED BY THE PARAVUR MUNICIPALITY
Exhibit P3 TRUE COPY OF THE PLAN SHOWING THE
COMPLETED CONVERSION OF THE SHAFAZ
THEATRE BALCONY AS MINI THEATRE AT
Exhibit P4 TRUE COPY OF THE CERTIFICATE OF
APPROVAL ISSUED BY THE DEPARTMENT OF
FIRE AND RESCUE SERVICES, GOVERNMENT
OF KERALA DATED 02.11.2018
Exhibit P5 TRUE COPY OF THE ORDER OF ASSESSMENT
ISSUED BY THE 4TH RESPONDENT BEARING
THE DATE AS 05.01.2022
Exhibit P6 TRUE COPY OF THE DEMAND NOTICE ISSUED
BY THE 4TH RESPONDENT BEARING THE DATE
AS 05.01.2022
Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED
11.02.2022 MADE BY THE PETITIONER TO
THE 4TH RESPONDENT
RESPONDENT EXHIBITS
EXHIBIT R3 [A] A TRUE COPY OF THE NOTICE AND ITS
ACKNOWLEDGEMENT DATED 05.12.2019.
