IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1482 of 2010(I)
1. SANTHARAM SHENOY P., S/O.N..SHENOY,
... Petitioner
2. S.SREEKALA, W/O.SANTHARAM SHENOY P.,
Vs
1. THE R.D.O., FORT KOCHI, KOCHI.
... Respondent
2. TAHSILDAR, KOCHI TALUK, FORT KOCHI.
3. DISTRICT COLLECTOR, ERNAKULAM,
4. STATE OF KERALA, REPRESENTED BY IT'S
For Petitioner :SRI.G.KRISHNAKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :01/12/2010
O R D E R
P.R. RAMACHANDRA MENON J.
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W.P (C) No. 1482 OF 2010
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Dated, this the 01st day of December, 2010
JUDGMENT
The petitioners, who are husband and wife, are aggrieved of the
assessment finalized by the concerned authorities under the relevant
provisions of the Kerala Building Tax Act, particularly with regard to the
assessment under Section 5 imposing the building tax and also the
consequential proceedings under Section 5 A.
2. The specific case of the petitioners is that, the buildings
concerned are two separate structures situated in two different premises
owned by the husband and wife separately, which ought not to have been
reckoned as ‘single unit’ for the propose of assessment under any
circumstances. It is stated that the husband purchased the property as per
the settlement deed No. 2407/03, wherein no building was there at the time
of purchase and the husband constructed the building in the year 2004. In
the case of the other property owned by the wife of the first petitioner i.e.
second petitioner, it was obtained as per the title deed bearing No 5139 of
2004, wherein a building was already in existence bearing door No. CC
8/601 and this building was there right from 1973 onwards. With regard to
the construction of the first petitioner’s building, the same has been
effected on the basis of Ext. P1 plan obtained in the name of the first
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petitioner himself and Ext. P2 occupancy certificate has been issued clearly
pointing out that it is having only an extent of 182.52 sq.m. The said
building has been constructed by the first petitioner in such a manner that
it is placed so close to the existing building in the name of the second
petitioner/wife in the property covered by document No. 5139 of 2004,
which does not tilt the balance in any manner so as to classify the two
buildings as a ‘single unit’. It is contended that, since the buildings are
owned by the petitioners separately, in the two different properties owned,
possessed and enjoyed by them, they cannot be treated and assessed as
a ‘single unit’ and that the assessment has to be finalized treating them
separately. In spite of the factual position as above, the assessment
authority finalized the assessment, imposing a huge liability, treating the
two buildings as ‘single unit’, against which statutory appeal was preferred
by the petitioner.
3. In the course of the proceedings pending before the appellate
authority, the petitioner produced all the relevant documents to substantiate
the contentions. However without any proper regard to the facts and
figures, the appellate authority declined interference, which made the
petitioner to approach this Court by filing the present Writ Petition.
4. Heard the learned Government Pleader as well, who submits,
with reference to the materials on record, that, in the course of the
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proceedings, the nature of the building was actually got verified by the
concerned Tahasildar, who conducted a spot inspection, when it was
revealed that the building was a ‘single unit’ and that the plan for
constructing the building was in the name of the first petitioner. However,
the specific averments raised from the part of the petitioner that the
buildings were having two separate door numbers, two separate access
and such other vital particulars have not been chosen to be rebutted, but
for the observations made in Ext. P10 that the building has been
constructed as a ‘single unit’. Even going by Ext. P10, it is seen that some
confusion was there with regard to the nature of the building, in so far as
the appellate authority/first respondent has referred to the building as a
“flat”, when nobody has a case that the petitioners constructed any flat in
the property concerned. The learned Government Pleader also submits
that if the petitioners are actually aggrieved of the verdict passed by the
first respondent, there is a further remedy by way of revision as
contemplated under Section 13 of the Act, by approaching the District
Collector.
5. Considering the fact that there is a serious dispute with regard to
the factual particulars and more so in view of the wrong reference made by
the first appellate authority to the building as a ‘flat’ in Ext. P10, this Court
finds it necessary to have the matter considered by the statutory authority.
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Since the matter was admitted by this Court on 15.01.2010, also granting
interim order of ‘status quo’, this Court finds that, the petitioner can be
relegated to file a revision petition under Section 13 and if any such
revision petition is filed within ‘one month’ from the date of receipt of a copy
of the judgment, the same shall considered as valid and proper revision
petition and it shall be dealt with and decided on merits, after causing a re-
inspection/verification of the nature of the building by the revisional
authority i.e. 3rd respondent. The petitioners shall produce all the relevant
documents in support of the contentions before the revision authority; on
which event, the same shall be considered and the matter shall be finalized
as above, within a period of three months.
Taking note of the fact that, the petitioner has satisfied a sum of `
8,000/-, pursuant to the interim order passed by this Court on 15.01.10, the
third respondent shall consider whether any further amount is liable to be
paid, to top up the figure, for meeting the statutory deposit of 50 % of the
disputed liability, to entertain the revision petition as provided under the Act
and if any deficit is there, the petitioner shall be given an opportunity to
have it rectified/satisfied accordingly.
The Writ Petition is disposed of.
P. R. RAMACHANDRA MENON, JUDGE
kmd
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