IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20832 of 2005(E)
1. V.C.SUHARA, 12/1214. AL AMIN,
... Petitioner
Vs
1. THE DEPUTY SECRETARY. ZONAL OFFICE,
... Respondent
For Petitioner :SRI.C.A.CHACKO
For Respondent :SRI.N.M.MOHAMMED AYUB
The Hon'ble MR. Justice P.R.RAMAN
Dated :28/05/2008
O R D E R
sP.R.RAMAN, J.
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W.P.(C).No.20832 OF 2005
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Dated this the 28th day of May, 2008
JUDGMENT
Petitioner alleges that the buildings owned by her, namely VI/1561 to
1566 and V/131 of Cochin Corporation were very old and collapsed in the
year 1992. Despite the information being conveyed to the Corporation as
early as on 24/8/1992 and subsequently also. The intimation said to have
been given to the Corporation is marked as Ext.P1 and Ext.P2 is stated to be
the acknowledgement. Since the petitioner was under the bona fide belief
that in such circumstances the buildings are exempted from payment of tax,
no further action was taken in this behalf by the Corporation. But later in
June 2005 she received notices demanding building tax of Rs.43,785/- for
the years 1989-90 to 2004-05 in respect of the buildings VI/1561 to 1566
and Rs.41,126/- for the years 1987-88 to 2004-05 in respect of buildings
V/131. Ext.P3 series and Ext.P4 are the demand notices. It is the case of the
petitioner that the buildings are already collapsed and hence no building tax
has been paid by her.
2. In the counter affidavit filed by the Corporation it is denied that
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any such intimation was received from the petitioner like Ext.P1. They
averred that the acknowledgement is only a self-serving document and not
a postal acknowledegment and what is produced is Ext.P2
acknowledgement which does not contain the seal of the Corporation. The
petitioner has not produced any material to substantiate her contention
regarding the proof of service of Ext.P1 on the Corporation. But
admittedly, Ext.R1(a) is a letter requesting tax exemption said to have
been received by the Corporation from the petitioner. But the Corporation
informed the petitioner that her request for exemption will be considered
only if she remits the entire tax arrears as on date as contemplated by
rules. But the petitioner maintained her stand that since she has already
intimated by Ext.P1 that the buildings are not occupied, she cannot be
insisted to pay the arrears of tax. There is no acceptable evidence to show
the condition of the building. Though the petitioner would assail that she
has sent Ext.P1 letter, it is stoutly denied by the Corporation in their
counter affidavit. Ext.P2 acknowledgement admittedly is only a self
serving document. If the petitioner had delivered a letter to the
Corporation through any of her employees, she should have examined him
or filed an affidavit. But no such attempt is made. Though subsequently a
letter requesting tax exemption for the year 2005 onwards was given by
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the petitioner, that is not acted upon by the Corporation. In the factual
situation, the proper course open to this Court is to dispose of the writ
petition on the following lines:
If the petitioner remits 50% of the amount under demand within one
month from today, a competent Inspector of the Corporation shall be
deputed to inspect the condition of the building and report the same.
Petitioner shall be given an opportunity to prove that the building was not
occupied by adducing evidence in that regard. What type of evidence the
petitioner could adduce to prove that the building was not occupied is a
matter for him to decide. If the buildings were occupied by the tenants
earlier, the date on which the tenants got vacated, if there was any
electricity connection, having due regard to the condition of the building
whether electricity was dismantled, if there is any pipe connection,
whether the pipe connection was dismantled, whether there is any other
service to the buildings by any other statutory authorities and what is the
situation thereto are all matters which possibly one could adduce evidence
and convincingly prove the condition of the building. It can only be said
that such an opportunity be given to the petitioner and after considering
such evidence that may be adduced by the petitioner, the matter may be
decided by the Secretary of Cochin Corporation.
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If the petitioner does not comply with the above direction, it will be
open to the Corporation to proceed in accordance with law. The amount,
if paid as directed above, will however be adjustable against any tax, if
any, payable by the petitioner and will be subjected to the final orders to
be passed by the Secretary, Corporation of Cochin.
P.R.RAMAN,
Judge.
kcv.