Tellichery Co-Operative Hospital ... vs State Of Kerala
2024 Latest Caselaw 29415 Ker

Kerala High Court

Tellichery Co-Operative Hospital ... vs State Of Kerala on 17 October, 2024

Author: P Gopinath

Bench: P Gopinath

                                                          2024:KER:77093

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE GOPINATH P.

    THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946

                       WP(C) NO. 14571 OF 2020

PETITIONER:

          TELLICHERY CO-OPERATIVE HOSPITAL SOCIETY LTD.,
          NO.C-1021, CO-OPERATIVE HOSPITAL JUNCTION, THALASSERI -
          670101, KANNUR DISTRICT, REPRESENTED BY ITS GENERAL
          MANAGER, MITHUN LAL E. M., AGED 32 YEARS, S/O.
          BHARGAVAN, VIPANCHIKA, ANCHARAKANDI P.O., KANNUR
          DISTRICT.


          BY ADVS.
          K.MOHANAKANNAN
          A.R.PRAVITHA
          THUSHARA D.S.
          H.PRAVEEN (KOTTARAKARA)
          T.S.NEJIMUDDIN
          T.V.NEEMA




RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
          REVENUE DEPARTMENT, THIRUVANANTHAPURAM - 695001.

    2     THE DISTRICT COLLECTOR,
          COLLECTORATE, CIVIL STATION, KANNUR-670101.

    3     THE SUB COLLECTOR,
          O/O. THE SUB COLLECTOR, THALASSERY,
          KANNUR DISTRICT-670101.
 WP(C) NO. 14571 OF 2020

                              2


                                               2024:KER:77093

    4      THE TAHSILDAR,
           TALUK OFFICE, THALASSERY, KANNUR DISTRICT-670101.


           SMT. JASMIN M M (GP)


      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 17.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO. 14571 OF 2020

                                     3


                                                            2024:KER:77093

                               JUDGMENT

The petitioner has approached this Court challenging the

assessment of Building Tax in respect of a hospital building belonging to

the petitioner. It is the case of the petitioner that the building was

constructed in the year 1998 and was assessed to Building Tax at that

point of time. It is stated that thereafter when the petitioner effected

additional constructions mainly to prevent leaks etc, the Assessing

Authority under the Kerala Building Tax Act, 1975 (hereinafter referred to

as '1975 Act') completed assessment of the entire building including the

newly constructed area at the revised rates applicable at the relevant time

and gave credit only for the amount paid at the time of initial assessment.

The petitioner challenged the assessment by filing an appeal, which was

dismissed by Ext.P3 order. The petitioner filed a Revision against Ext.P3

order. However that Revision Petition was also dismissed by Ext.P5 order.

2. The learned counsel appearing for the petitioner

would submit with reference to the provisions of the 1975 Act that there

was no occasion to assess the entire building for the reason that an

additional construction had been made in order to prevent leaks etc in the

existing building. It is submitted that if at all there can be any demand for

building tax, the same can only be for the additional area of 461 square

meters and there cannot be any demand for the area which was already WP(C) NO. 14571 OF 2020

2024:KER:77093

assessed the building tax in the year 1998 at the time when the building

was originally assessed to building tax.

3. The learned Government Pleader refers to the

provisions of Section 5 and also to the definition of the term 'Appointed

Day' in the 1975 Act. It is submitted that the appointed date is 10.02.1992.

It is submitted that since the building of the petitioner, which was

originally assessed to building tax is admittedly constructed after the

appointed date, the assessment of the petitioner can be completed only

with reference to the provisions of sub-section (4) of Section 5 of the 1975

Act and not with reference to the provisions of sub-section (3) of Section 5

of the 1975 Act. It is submitted that when the building of the petitioner is

assessed with reference to the provisions of sub-section (4) of Section 5 of

the 1975 Act, the Assessing Authority has to assess the building tax

applicable for the entire building including the additional construction at

the revised rates applicable at the time of assessment and thereafter give

credit to the building tax already paid. It is submitted that in such

circumstances, there is no illegality in the order of assessment or in the

order of the appellate authority or in the order of the revisional authority.

It is submitted that no ground has been made out for interference under

Article 226 of the Constitution of India.

4. Having heard the learned counsel appearing for the

petitioner and the learned Government Pleader, I am of the view that the WP(C) NO. 14571 OF 2020

2024:KER:77093

petitioner has not made out any case for interference with the impugned

orders. Section 5 of the 1975 Act reads thus:-

"5. Charge of building tax .― (1) Subject to the other provisions contained in this Act, there shall be charged a tax (hereinafter referred to as "building tax") based on the plinth area at the rate specified in the Schedule on every building the construction of which is completed on or after the appointed day.

(2) In the case of any building, the construction of which is completed prior to the appointed day but the assessment of which has not been initiated or completed or against which appeal or revision has been filed, building tax shall be assessed on the basis of the plinth area at the rate specified in the Schedule.

(3) Where any major repair or improvement is made on or after the appointed day to a building constructed before the said date building tax shall be payable at the rate referred to in sub-section (1) on the additional plinth area of the building resulting from such repair or improvement. (4) Where the plinth area of the building, the construction of which is completed after the appointed day is subsequently increased by new extensions or major repair or improvement, building tax shall be computed on the total plinth area of the building including that of the new extension or repair or improvement and credit shall be given to the tax already levied and collected, if any, in respect of the building before such extension, or repair or improvement.

(5) Where there are out-houses, garages or other structures appurtenant to the building for the more convenient enjoyment of the building, the plinth area of WP(C) NO. 14571 OF 2020

2024:KER:77093

such structure shall be added on to the plinth area of the main building and the building tax assessed accordingly:

[Provided that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for the purpose of storage of firewood or for any non- residential purpose shall not be added on the plinth area of that building.] (6) The building tax shall be payable by the owner of the building.

Explanation.- For the purposes of this Act, the construction of a building shall be deemed to have been completed when it is ready for occupation or has been actually occupied, whichever is earlier."

5. A reading of sub-section (3) of Section 5 of the 1975

Act indicates that in respect of buildings constructed prior to the

appointed date (10.02.1992), if any additional construction is made, the

building tax at the revised rates will be demanded only in respect of the

additional construction. However, where the building has been

constructed after the appointed date, any additional construction will be

assessed together with the area of the original building and thereafter the

amount (if any) already paid as building tax will be given credit to. Since it

is not disputed that the building of the petitioner was constructed after the

appointed date, the proceedings of the Assessing Authority in determining

the building tax at the revised rates for the entire building and giving

credit to the amount of building tax already paid cannot be found fault WP(C) NO. 14571 OF 2020

2024:KER:77093

with.

6. The learned counsel appearing for the petitioner has

submitted that 50% of the demanded amount has already been paid by

paying 25% at the appellate stage and another 25% at the stage of revision.

Taking this submission into consideration, it is directed that if the

petitioner pays the balance amount in 10 equal monthly installments

commencing from 01.11.2024, no further demand shall be made on the

petitioner.

Sd/-

GOPINATH P. JUDGE DK WP(C) NO. 14571 OF 2020

2024:KER:77093

APPENDIX OF WP(C) 14571/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE ORDER NO.C1-6956/18 DATED 10.05.2018.

EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 17.05.2018.

EXHIBIT P3            TRUE COPY OF THE ORDER NO.RDO
                      TLY/690/2018-F/K.DIS DATED 31.12.2018
                      OF 3RD RESPONDENT.

EXHIBIT P4            TRUE COPY OF THE REVISION PETITION
                      DATED 02.02.2019 SUBMITTED BEFORE THE
                      2ND RESPONDENT.

EXHIBIT P5            TRUE COPY OF THE ORDER NO.DC

KNR/1569/2019/G1/D.DIS DATED 20.01.2020 OF 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE CIRCULAR NO.6625/SC1/2015/REV DATED 01.09.2015.

EXHIBIT P7 TRUE COPY OF THE RECEIPT DATED 4.6.2018 AND 23.1.2019.

RESPONDENT EXHIBITS

EXHIBIT R1A TRUE COPY OF THE KERALA FINANCE ACT