IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 25068 of 2005(H)
1. CHANDRALEKHA REGHUNATHAN,
... Petitioner
Vs
1. THE CANTONMENT BOARD,
... Respondent
For Petitioner :SRI.V.R.KESAVA KAIMAL
For Respondent :SRI.BOBBY MATHEW, CGC
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :29/06/2007
O R D E R
PIUS C. KURIAKOSE,J.
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W.P.(C) No.25068 of 2005
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Dated: 29th June, 2007
JUDGMENT
In this Writ Petition under Article 227 of the Constitution the
petitioner challenges Ext.P3 judgment of the District Judge,
Thalassery in an appeal preferred by the petitioner under Section 84
of the Cantonment Act, 1924. The appeal was directed against Ext.P1
property tax assessment made by the respondent- the Cantonment
Board, Kannur. Under Ext.P1 the petitioner’s house having door
No.90-E in R.S.No.539 situated within the limits Kannur Cantonment
governed by the provisions of the Cantonment Act, 1924 was
assessed to an annual tax of Rs.3000/- on the basis of the
determination of the annual rental value as Rs.13,636/-. In fact, in
the first instance annual rental value was determined as Rs.29,049/-
and tax was fixed as Rs.6391/- and the fixation under Ext.P1 was
actually a refixation. The case of the petitioner is that even the
refixation under Ext.P1 is highly exhorbitant when compared to
assessment of similar buildings and that Ext.P1 was passed without
considering the objections filed by the petitioner and without hearing
the petitioner personally. C.M.A.No.50/98 was filed by the petitioner
before the District Court, Thalassery. The court allowed an application
W.P.C.No.25068/05 – 2 –
filed by the petitioner for a direction to the respondent to produce
documents relating to the property tax assessment as well as
approved plans pertaining to similar buildings. But the respondent did
not produce the documents instead Ext.P2 a very vague affidavit
stating that the documents are misplaced was filed by the
respondent. The learned District Judge however dismissed the appeal
and Ext.P3 is copy of the judgment.
2. Assailing Ext.P1 on various grounds the petitioner contends
that the court below ought to have drawn adverse inference against
the respondent for not producing the documents called for in spite of
an order in that regard. The non-production of the documents will
justify drawal of an adverse inference that if the documents are
produced they will be against the respondent.
3. Referring to Section 61 of the Cantonment Act, 1924, the
petitioner contends that rate of tax has to be published and it is
alleged that it is not even stated that the prevailing rate was 22% of
the annual rental values. It is under Section 64(a) of the Act that the
assessment has been done while the correct provision under which
the petitioner’s building which is a residential building ought to have
been assessed is Section 64(b). The learned District Judge has not
W.P.C.No.25068/05 – 3 –
considered this aspect of the matter. Referring to Sections 68(2) and
68(3) of the Act, the petitioner urges that it was necessary that an
opportunity was given to the petitioner for filing written obections in
the matter of assessment and for a personal hearing. According to
the petitioner, no opportunity was given for filing written objections
and much less for a personal hearing. Principles of natural justice
have been blatantly violated and therefore the order of the District
Judge and Ext.P1 are liable to be set aside.
4. I have heard the submissions of Mr.V.R.K.Kaimal, learned
counsel for the petitioner and also those of Mr.M.Ramesh Chander,
Standing Counsel for the respondent.
5. In fact the hearing of this case was taken up by me along
with a batch of Writ Petitions filed by the respondent-Board wherein
judgments of the learned District Judge interfering with the
assessment orders made by the respondent-Board were impugned.
Mr.V.R.K.Kaimal would make submissions mainly on the basis of the
grounds raised in the Writ Petition. According to him, unlike the cases
covered by other writ petitions in the present case the disputed tax
has already been paid by the petitioner and therefore the appeals
preferred before the District Court was perfectly maintainable. The
W.P.C.No.25068/05 – 4 –
petitioner will be able to produce documents which will show that the
assessment made under Ext.P1 is exhorbitant in comparison to
assessment of similar buildings made by the respondent itself.
Mr.Ramesh Chander also did not have any serious objection in the
matter of the respondent being directed to take a fresh decision on
the issue on the basis of documents which may be placed on record
by the petitioner.
6. Under the above circumstances, the Writ Petition will stand
allowed. Ext.P3 judgment of the District Judge as well as Ext.P1 order
of assessment are set aside. The respondent is directed to take a
fresh decision on the issue on the basis of the documents which may
be placed on record before the respondent by the petitioner. Fresh
decision as directed above will be taken at the earliest and at any
rate within three months of receiving copy of the judgment after
giving due credit to all deposits and payments which have been made
by the petitioner and after hearing the petitioner.
srd PIUS C.KURIAKOSE, JUDGE