Kerala High Court
M.D.Joseph vs The State Of Kerala on 3 October, 2024
2024:KER:73374
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
WP(C) NO. 29679 OF 2017
PETITIONER:
M.D.JOSEPH
AGED 76 YEARS
S/O.DEVASIA, RESIDING AT MATTATHIL (H),
MARANGATTUPALLY KARA, KURICHITHANAM VILLAGE, MENACHIL
THALUK, KOTTAYAM - 686 635.
BY ADVS.
MANUEL KACHIRAMATTAM
MERRY GEORGE
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DISTRICT COLLECTOR
KOTTAYAM, COLLECTORATE, KOTTAYAM- 686 001.
3 THE REVENUE DIVISIONAL OFFICER
PALA/APPELLATE AUTHORITY, REVENUE DIVISIONAL OFFICE,
MINI CIVIL STATION, PALA, KOTTAYAM - 686 575.
4 THE TAHSILDAR
MEENACHIL ASSESSING AUTHORITY, THALUK OFFICE, MEENACHIL,
PALA, KOTTAYAM 686575
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5 THE VILLAGE OFFICER
KURICHITHANAM VILLAGE, KOTTAYAM- 686 634.
6 SUNNY MATHEW
S/O.MATHAI, RESIDING AT CHANDIKKALAYIL (H), POTHI KARA,
VAIKOM THALUK, MITTAYIKUNNU PO, KOTTAYAM 686 605 (FOR
COMMUNICATION, MATTATHIL (H), MARANGATTUPALLY KARA,
KURICHITHANAM VILLAGE, MEENACHIL THALUK,
KOTTAYAM- 686 635
BY ADV. SAYD M THANGAL- SENIOR GOVERNMENT PLEADER.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.10.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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HARISANKAR V. MENON, J.
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W.P.(C) No.29679 of 2017
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Dated this the 3rd day of October, 2024
JUDGMENT
The petitioner and the 6th respondent are the co-
owners of the residential building bearing No.4/85 of
Marangattupally Grama Panchayat. By Ext.P1, issued
under the provisions of the Kerala Building Tax Act,
1975, (for short, 'the Act') luxury tax was demanded
from the petitioner with respect to a residential building
constructed by him. Though, an appeal was presented,
pointing out that a shed behind the residential house and
the truss work area in the terrace of the building ought
not to have been taken into account for the purpose of
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imposition of luxury tax, by Ext.P3 order issued by the
3rd respondent, it was found that as regards the truss
work area on the terrace portion, the petitioner has
liability to pay tax and as regards the out house behind
the residential house, the same need not be taken into
account for the purpose of imposition of luxury tax.
2. Against Ext.P1, the petitioner preferred a
revision petition under Section 9 of the Act before the
2nd respondent, District Collector. Pending the above
revision petition, the appellate order at Ext.P3 stood
implemented by Ext.P8 order dated 22.06.2016 by
reducing the plinth area of the house, for the purpose
of imposition of luxury tax.
3. The revision petition filed as above is rejected
by Ext.P7 issued by the 2nd respondent, on the ground
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that the revision petition is barred by limitation since the
appellate order was served on 21.06.2016 and the
revision petition was filed only on 19.08.2016.
4. Against the revised assessment order of Ext.P8,
though a further appeal is presented, the 3 rd respondent,
by Ext.P9 communication, informed the petitioner that
there is no provision by which a fresh appeal can be
filed against the revised assessment order.
5. Against Ext.P9, a further revision petition is
preferred by the petitioner before the 2 nd respondent
District Collector as Ext.P14.
6. It is in the above situation that the present writ
petition is filed by the petitioner challenging the findings
in Ext.P7 as well as Ext.P9 issued by the 2 nd and 3rd
respondents respectively.
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7. I have heard Sri. Manuel Kachiramattam, the
learned Counsel for the petitioner and Sri.Sayd M
Thangal, the learned Government Pleader for the
respondents.
8. The dispute in this writ petition is against
Ext.P7 order issued by the 2nd respondent and Ext.P9
communication issued by the 3rd respondent.
9. As regards the findings in Ext.P7, it is to be
straight away noticed that in the counter affidavit filed
by the 2nd respondent, it has been specifically pointed
out that Ext.P3 order against which the revision petition
was filed was in fact served on 21.06.2016 and not on
22.07.2016 as pointed out in Ext.P4 revision petition.
The said averment has not been controverted by the
petitioner by filing a reply affidavit. In such
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circumstances, the findings contained in Ext.P7 to the
effect that the revision petition is filed out of time
cannot be said to be incorrect.
10. The next dispute is with respect to Ext.P9
communication issued by the 3rd respondent. The
petitioner has filed the appeal before the 3 rd respondent
against the revised assessment order at Ext.P10. The 3rd
respondent in Ext.P9 has taken the view that there is no
provision by which a second round of appeal can be
presented against the revised assessment order issued
implementing the directions earlier issued by the
appellate authority.
11. The said finding of the 3rd respondent does not
appear to be the correct position of law.
12. This Court in W.P.(C).No.10414/2019 has
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considered the very same issue and has found as under:-
"12. It is on account of the said illegality
that the petitioners have filed the fresh
appeal before the 2nd respondent in the
second round of litigation. Unfortunately, this
Court notices that the 2nd respondent, while
issuing Ext.P4 order, has taken a rather
interesting stand that, insofar as he has
already issued an order in the earlier round,
there cannot be a further appeal in the
second round. It is under the provisions of
Section 11 of the Act that an appeal is
provided against an assessment order. Section
11 of the Act reads as under;
"11. Appeals. - (1) Any assessee objecting
to the amount of building tax assessed under
section 9 or denying his liability to be
assessed under this Act or objecting to any
order of the assessing authority under this
Act may appeal to the appellate authority
against the assessment or against such order.
(underline supplied)
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13. A reading of the above provision would
indicate that an appeal is prescribed against
the fixation of building tax under the
statute by an "order". Section 11 nowhere
states that against a revised assessment
order, there cannot be a further appeal.
There may be instances where, while
issuing the revised assessment, the assessing
authority can go wrong. This is one such
instance. When that be so, the petitioners
were perfectly justified in filing an appeal
against the order at Ext.P3 before the 2nd
respondent. The rejection of such appeal by
Ext.P4 order is without any justification
and arbitrary."
13. In the light of the above, the findings in Ext.P9
issued by the 3rd respondent cannot be sustained.
14. In such circumstances I order this writ petition
as under:-
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(i) The challenge against Ext.P7 issued by the
2nd respondent is rejected.
(ii) Ext.P9 communication issued by the 3 rd
respondent is set aside.
(iii) The 3rd respondent is directed to consider
the appeal dated 20.08.2016 filed by the
petitioner, on merit, as expeditiously as
possible, at any rate, within a period of
three months from the date of receipt of a
certified copy of this judgment.
(iv) The petitioner to be granted an opportunity
of being heard while disposing the appeal
as above.
(v) The coercive steps pursuant to the revised
assessment order at Ext.P8, will be kept in
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abeyance, till such time the 3rd respondent
decides the appeal.
Sd/-
HARISANKAR V. MENON
JUDGE
SRJ
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APPENDIX OF WP(C) 29679/2017
PETITIONER'S EXHIBITS
EXHIBIT P1 THE TRUE PHOTOCOPY OF THE PROCEEDING BEING
NO. B8-1768/13 DATED 27.02.2013 OF THE 4TH
RESPONDENT.
EXHIBIT P2 THE TRUE PHOTOCOPY OF THE APPEAL BEING NO.
L1(D)946/14 SUBMITTED BEFORE THE 3RD RESPONDENT
BY THE PETITIONER.
EXHIBIT P3 THE TRUE PHOTOCOPY OF THE ORDER DATED
15.04.2016 IN APPEAL BEING NO. L1 (D) 946/13 PASSED
BY THE 3RD RESPONDENT.
EXHIBIT P4 THE TRUE PHOTOCOPY OF THE REVISION PETITION
FILED AS DCKTM/5468/2016-B10 (1), BEFORE THE 2ND
RESPONDENT.
EXHIBIT P5 THE TRUE PHOTOCOPY OF THE PROCEEDINGS DATED
14.12.2016 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P6 THE TRUE PHOTOCOPY OF THE PROCEEDINGS DATED
20.03.2017 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P7 THE TRUE PHOTOCOPY OF THE ORDER DATED
29.7.2017, BEARING NO.DCKTM/5468/2016-B10(1) ISSUED
BY THE 2ND RESPONDENT.
EXHIBIT P8 THE TRUE PHOTOCOPY OF THE PROCEEDINGS DATED
22.06.2016 BEARING NO. B8-1768/13 ISSUED BY THE
4TH RESPONDENT.
EXHIBIT P9 THE TRUE PHOTOCOPY OF THE ORDER DATED
01.10.2016 BEARING NO. 2505/16/5.DIS ISSUED BY THE
3RD RESPONDENT.
EXHIBIT P10 THE TRUE PHOTOCOPY OF THE REVIEW PETITION
DATED 24.10.2016 FILED BY THE PETITIONER.
EXHIBIT P10 (a) THE TRUE PHOTOCOPY OF THE POSTAL RECEIPT DATED
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27.10.2016.
EXHIBIT P11 THE TRUE PHOTOCOPY OF THE APPROVED PLAN FOR
THE BUILDING.
EXHIBIT P12 THE TRUE PHOTOCOPY OF THE BUILDING TAX RECEIPT
DATED 28.02.2015 TOWARDS THE BUILDING BEARING
NO. 4/85.
EXHIBIT P12 (a) THE TRUE PHOTOCOPY OF THE BUILDING TAX RECEIPT
DATED 28.02.2015 TOWARDS THE BUILDING BEARING
NO. 4/85 A.
EXHIBIT P13 THE TRUE COLOUR PHOTOS PRINT OF THE BUILDING
OF THE PETITIONER.
EXHIBIT P14 THE TRUE PHOTOCOPY OF THE REVISION DATED
18.9.2020 FILED BEFORE THE 2ND RESPONDENT.
EXHIBIT P15 THE TRUE PHOTOCOPY OF THE POSTAL RECEIPT
18.9.2020.
Exhibit P16 THE TRUE PHOTOCOPY OF THE PROCEEDINGS DATED
4.1.2021 OF THE 2ND RESPONDENT
