IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 1306 of 2004(A)
1. CHERIAN JOSEPH, KOTTUKAPPALLIL
... Petitioner
2. ACHAMMA JOSEPH, W/O. CHERIAN JOSEPH,
3. SANJU JOSEPH, S/O. CHERIAN JOSEPH
Vs
1. THE TAHSILDAR, MEENACHIL TALUK.
... Respondent
2. THE REVENUE DIVISIONAL OFFICER, PALA.
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :GOVERNMENT PLEADER
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :12/07/2007
O R D E R
H.L. DATTU, C.J. & K.T. SANKARAN, J.
...................................................................................
W.A. No. 1306 OF 2004
...................................................................................
Dated this the 12th July, 2007
J U D G M E N T
H.L. Dattu, C.J.:
The appellants/petitioners before us are calling in question the
correctness or otherwise of the orders passed by the learned single Judge in
O.P. 38862 of 2002 dated 01.06.2004. The facts in nut shell are , as under:
2. The appellants claimed that they are the owners of three separate
independent buildings . However, the Tahsildar, who is the assessing
authority under the provisions of the Kerala Building Tax Act, 1975 had
treated the buildings in question as one block and had completed the
assessment.
2(a) Aggrieved by the orders passed by the assessing authority, the
assessees had carried the matter, by way of first appeal before the first
appellate authority. The first appellate authority, after inspecting the place,
had passed an order, setting aside the order of assessment passed by the
assessing authority and thereafter had remanded the matter to the assessing
authority to re-do the matter, in accordance with law , in the light of certain
observations made in the course of the order.
2(b) After such remand, the assessing authority had passed fresh
orders of assessment and those orders are produced by the
appellants/petitioners along with the memorandum of appeal as Ext. P3 .
2(c) The assessing authority, being of the opinion that there was an
error apparent on the face of the record and in the fresh orders of assessment
W.A. No. 1306 OF 2004
2
passed, had initiated proceedings to rectify the said mistakes, by issuing show
cause notice to the appellants/petitioners. After receipt of notice, the
appellants/petitioners had filed their objections, disputing the claim made in
the show cause notice and had further requested to drop the proceedings,
after considering the objections filed by them .
2(d) The assessing authority had passed orders under section 15 of
the Kerala Building Tax Act and thereafter had issued Exts. P5(3), P5(a)3 and
P5(b)3 notices, directing the appellants/petitioners to pay the enhanced
building tax. Aggrieved by the aforesaid notices, the appellants/petitioners
were before this court in O.P.No. 38862 of 2002. The learned single Judge
had disposed of the matter. Aggrieved by the orders passed by the learned
single Judge, the appellants/petitioners are before us in this appeal.
3. We do not intend to enter into the factual details for disposal of this
appeal. In our opinion, the impugned order passed by the assessing authority
in exercise of his powers under section 15 of the Kerala Building Tax Act was
the subject matter of the Original Petition.
4. In the normal course, the learned single Judge should have
relegated the appellants/petitioners to file appropriate appeals as provided
under section 11 of the Kerala Building Tax Act. Without doing so, the learned
single Judge had tried to decide the case on merits. In our opinion, the said
order passed by the learned single Judge cannot be sustained by us. In view
of the above, we pass the following order:
W.A. No. 1306 OF 2004
3
O R D E R
i) The order passed by the learned single Judge is set aside.
ii) The appellants/petitioners shall file appropriate appeals, if they
are aggrieved by the orders passed by the assessing authority in exercise of
his powers under section 15 of the Kerala Building Tax Act (Ext.P5) before the
appellate authority within a period of one month from today.
iii) If such appeals are filed, the appellate authority shall consider
the appeals on merits, without reference to the period of limitation.
iv) The appellate authority shall not be influenced by any one of the
observations made by the learned single Judge.
vi) Liberty is reserved to the appellants/petitioners to urge all such
contentions which are available to him, including the contentions raised in the
Original Petition as well as in the Writ Appeal.
vii) The interim order granted by this court will enure to the benefit
of the appellants/petitioners for a further period of one month from today.
Ordered accordingly.
H.L. DATTU,
CHIEF JUSTICE.
K.T. SANKARAN,
JUDGE.
lk