Disposed

Pioneer Nirman Pvt.Ltd. v. the Secretary, Cochin Corporation

Kerala HC11 Jul 2012WP(C)/11096/2007

Case brief

AI extract

What is this about?

Petitioner sought to quash property tax assessment demanding refund after settling liability under One Time Settlement Scheme. Court held that while petitioner failed to prove sale of areas on production of evidence, assessment is reopened for future pending complete proof of conveyance.

What did the court decide?

Petitioner directed to make comprehensive representation with supporting materials to prove sale of car parking area for re-examination of future tax liability; petition disposed of.

Pioneer Nirman Pvt.Ltd. Vs the Secretary… — Civil Procedure and Limitation | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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WEDNESDAY, THE 11TH DAY OF JULY 2012/20TH ASHADHA 1934

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WP(C).No. 11096 of 2007 (U)

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PETITIONER(S):

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PIONEER NIRMAN PVT.LTD., PLOT NO.1, MARINE DRIVE, COCHIN-682 031, REPRESENTED BY ITS MANAGING DIRECTOR.

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BY ADVS.SRI.K.P.VIJAYAN

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SMT.KRIPA ELIZABETH MATHEWS SMT.C.B.SUMA DEVI SMT.A.RAJESWARI SRI.V.M.SYAM KUMAR

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RESPONDENT(S):

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1. THE SECRETARY, CORPORATION OF KOCHI, CORPORATION OFFICE, P.B.NO.1018, ERNAKULAM, COCHIN-682 011.

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2. THE CORPORATION OF KOCHI,

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CORPORATION OFFICE, P.B.NO.1018, ERNAKULAM, COCHIN-682 011, REPRESENTED BY ITS SECRETARY.

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3. STATE OF KERALA, REPRESENTED BY

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THE PRINCIPAL SECRETARY TO THE MINISTRY OF

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LOCAL ADMINISTRATION, SECRETARIAT,

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THIRUVANANTHAPURAM.

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R1 & R2 BY SRI.RAJU JOSEPH ,SENIOR ADVOCATE

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ADVS. SRI.S.RAMESH BABU S.C,KOCHI CORPN SMT.M.K.PUSHPALATHA,SC,COCHIN CORPORATION SRI.P.K.SOYUZ,SC,COCHIN CORPORATION R3 BY SPL.GOVERNMENT PLEADER SRI.B.JAYASANKAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C)NO.11096/2007

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE LIST OF ALL THE PERSONS WHO PURCHASED THE UNDIVIDED SHARES OF THE LEASEHOLD RIGHTS ALONG WITH RIGHT FOR USE OF THE COMMON AREA WITH OR WITHOUT RIGHTS TO PARK THEIR VEHILCES IN THE SPECIFIED AREA IN THE BASEMENT.

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P2 COPY OF THE SALE DEED DATED 22/11/2004 REGISTERED AS DOCUMENT NO.6834 OF 2004 OF THE SRO ERNAKULAM EXECUTED BY THE SRI.P.S.BIJU AND THE PETITIONER WITH RESPECT TO THE SALE OF THE SHOP ROOM/OFFICE NO.F-108 OWNED BY SRI.P.S.BIJU

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P3 COPY OF THE SALE DEED DATED 16/10/1997 OF THE UNDIVIDED SHARE OF THE LEASEHOLD RIGHTS REGISTERED AS DOCUMENT NO.3984 OF 1997 DATED 16/10/1997 OF THE SRO ERNAKULAM EXECUTED BETWEEN THE PETITIONER AND MR.MITESH K.PATEL WITH RESPECT TO THE FLAT BEARING NO.1105.

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P4 COPY OF THE SALE DEED DATED 3/7/1997 WITH RESPECT TO THE UNDIVIDED AREA PURCHASED BY M/S.MIHIR STEEL REGISTERED AS DOCUMENT NO.3209/97 OF THE SRO ERNAKULAM TO CONSTRUCT THE FLAT NO.901

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P5 COPY OF THE SPECIAL NOTICE BEARING NO.37365 DATED 14/7/97 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

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P6 COPY OF THE OBJECTION BEARING NO.4855/2150/FIN/97/PSC DATED 9/9/97 FILED BY THE PETITIONER.

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P7 COPY OF THE SPECIAL NOTICE BEARING NO.NIL DATED 19/12/01.

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P8 COPY OF THE OBJECTION BEARING NO.6301/3444/GEN/2001/PSC DATED 18/12/01 PREFERRED BY THE PETITIONER TO THE 1ST RESPONDENT.

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P9 COPY OF THE OP NO.2323 OF 2002 DATED 18/1/2002 FILED BEFORE THE HON'BLE HIGH COURT OF KERALA.

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P10 COPY OF THE JUDGMENT DATED 18/1/2001 IN OP NO.2323 OF 2002 PASSED BY THE HON'BLE HIGH COURT OF KERALA.

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P11 COPY OF THE RECEIPT DATED 2/2/02 ISSUED BY THE 1ST RESPONDENT.

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P12 COPY OF THE COMMUNICATION BEARING NO.C.E.R.3(A) 10982/05 DATED 17/6/2005 SENT BY THE REVENUE OFFICER OF THE 2ND RESPONDENT TO THE PETITIONER.

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P13 COPY OF THE ORDER BEARING NO.C.E.R.3(A) 6144/02 DATED 20/6/05 ISSUED BY THE 1ST RESPONDENT.

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P14 COPY OF THE COMMUNICATION DATED 24/3/2006 ISSUED TO THE 1ST RESPONDENT BY THE PETITIONER.

2/-

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WP(C)NO.11096/2007

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P15 COPY OF THE REPRESENTATION DATED 10/8/2006 SENT TO THE 1ST RESPONDENT BY THE PETITIONER.

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P16 COPY OF THE GOVERNMENT ORDER BEARING NO.G.O.(MS)36/07/LSGE DATED 2/2/2007

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P17 COPY OF THE INTIMATION DATED 9/2/07 OF THE REVENUE OFFICER SENT TO THE PETITIONER.

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P18 COPY OF THE ORDER BEARING NO.C.E.R.3A/10952/05 DATED 26/2/2007 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

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P19 COPY OF THE COMMUNICATION DATED 28/2/2007 SENT BY THE PETITIONER TO THE 1ST RESPONDENT.

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P20 COPY OF THE ACKNOWLEDGMENT FOR PAYMENT ISSUED BY THE CORPORATION.

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P21 COPY OF THE SALE DEED DATED 25/3/1999 OF THE UNDIVIDED SHARE OF THE LEASEHOLD RIGHTS, WHICH IS REGISTERED AS DOCUMENT NO.1286 OF 1999 OF THE SRO ERNAKULAM,EXECUTED BETWEEN THE PETITIONER AND DEEPAK JOSE PARAYANKEN WITH RESPECT TO THE APARTMENT/PENTHOUSE NOS.1107 & 1108

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P22 COPY OF THE PLAN OF THE BASEMENT/CELLAR AREA APPROVED BY THE GCDA AS WELL AS THE CORPORATION ON 3/5/97.

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RESPONDENT'S EXHIBITS: NIL

/TRUE COPY/

P.A.TO.JUDGE

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ANTONY DOMINIC,J

W.P.(C)No.11096 of 2007

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Dated this the 11^th day of July, 2012

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JUDGMENT

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The main prayer in the writ petition is to quash Exts.P13 and P18. Petitioner also seeks a direction to respondents 1 and 2 to refund Rs.5,85,270/- paid by them towards property tax with respect to building No.40/1802 along with the sum of Rs.50,000/- paid in pursuance to Ext.P10 judgment. Further, petitioner also seeks an order prohibiting the respondents from initiating any action against them for realizing property tax in respect of the building in question.

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The controversy in this writ petition pertains to the levy of property tax with respect to the basement floor of the building known as 'Pioneer Towers' constructed by the petitioner. The building has been assigned No.40/1802. According to the petitioner, they have obtained the land on long time lease basis from the Greater Cochin Development Authority, where, after obtaining necessary permit, they constructed the building which has 102 shop rooms and 73 residential flats. Ext.P1 is a list of

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purchasers of the shop rooms and flats. The basement floor, houses, 14 shop rooms, 28 car parking and common facilities such as electrical installation etc. Petitioner alleges that the car parking areas in the basement floor have already been sold to the persons who have purchased flats or shop rooms. They have produced Exts.P2, P3 and P4 sale deeds to substantiate this plea.

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It is stated that the property tax with respect to the car parking area already sold was demanded with effect from 01.04.1994, which was objected by the petitioner contending that the respective owners are liable for the same. However, after affording them an opportunity of hearing, the objections were rejected and assessment was completed against the petitioner. An appeal was filed to the standing committee which also confirmed the levy but held that the liability of petitioner will be from 01.10.1995. This was subsequently revised and made it with effect from 01.04.1997. Following this, they were issued Ext.P5 notice demanding half yearly payment of Rs.27,870/- with effect from 01.04.1997. Again objection was filed and finally they were issued Ext.P7 notice requiring

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W.P.(C).No.11096/2007

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payment of Rs.3,66,770/- for the period from 1997-1998 to 2001-2002. This was also objected by filing Ext.P8.

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At that stage, O.P.No.2323/2002 was filed by the Pioneer Towers Premises Owners Welfare Trust seeking to quash the aforesaid demand. In the original petition filed, it was interalia stated thus:

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“This portion houses the essential service fitments for the flats such as the Electrical section, water supply, air conditioning, fire control mechanisms as also the parking facility for the flat owners. In short, this is the vital region that supplies the basis requirements for all the routine activities in the building. The petitioner renders the said service.”

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The writ petition was disposed of by Ext.P10 judgment, directing consideration of the objections raised and on payment of Rs.50,000/-, which was paid.

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It appears that at that stage, petitioner also made an application for assigning separate building number to the car parking area. To that request, Ext.P12 reply was issued informing the petitioner that they should pay the arrears of Rs.4,73,790/- to consider their request. Subsequently, notices

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W.P.(C).No.11096/2007

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were issued demanding half yearly tax of Rs.27,870/-. However, even on receipt of this notice, petitioner continued to represent for individual assessment of the car parking area in the name of the respective owners.

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According to the petitioner, while matters stood thus, Ext.P16 Government order was issued introducing a One Time Settlement Scheme and that was conveyed to the petitioner by Ext.P17 letter. Meanwhile, Ext.P15 request made by the petitioner for separate assessment in the name of owners of the individual units was turned down by Ext.P18 order of the Corporation. At that stage, according to the petitioner to avoid coercive action, he availed of the benefit of Ext.P16 One Time Settlement Scheme and paid Rs.5,85,270/- under protest as per Ext.P19. It is thereafter that this writ petition has been filed.

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The main contention of the petitioner is that the shop rooms, car park area and the other common facilities in the basement floor have already been sold by them and that therefore, there was no justification for assessing the property tax in their name. The fact that they sold the car park area to

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the purchasers of shops or flats in the building is sought to be

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W.P.(C).No.11096/2007

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substantiated by relying on Exts.P2, P3, P4 and P21.

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Counter affidavit has been filed by the respondent on

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behalf of the Corporation. According to the Corporation, there was no evidence produced by the petitioner substantiating their contention that the car parking area, in respect of which the assessment has been completed, was actually sold to the allottees of individual units in the building. It is also stated that in all the documents produced by the petitioner, plinth area of each of the flats or shops are mentioned and that at the same time the specifications of the car parking area allotted and utilized by the flat or shop owners are not given. It is stated that therefore, even if it is a fact that the car parking area is being used by the allottee, there is no document evidencing conveyance of title of such area to the allottee or the user. According to the respondents, tax cannot be assessed in such a situation and therefore, they justify the assessment in the name of the petitioner. Further, they also contend that the petitioner has already settled the liability by availing of the One Time Settlement Scheme and that therefore, it is not open to the petitioner to raise any dispute on their liability.

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W.P.(C).No.11096/2007

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I have considered the submissions made by both sides.

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The property tax is the liability of the owner. Therefore, if the petitioner has not sold the car parking area to anyone, liability will be that of theirs and if so, the respondents cannot be faulted for having completed assessment in the name of the petitioner. However, the specific case of the petitioner is that the car parking area has been sold and in support of this contention they rely on Exts.P2 to P4 and P21, specimen of the documents executed by them. Therefore, if as a matter of fact, the car parking area has already been sold, petitioner could not have been saddled with that liability.

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However, the question as to whether the property has been sold by the petitioner, who admittedly built the building, is a question of fact and the onus of proving such a fact is entirely on the petitioner. Therefore, if he has a case that the car parking area has been sold, it was for him to have proved that fact before the Corporation. Even in this writ petition, the only material that the petitioner has produced to substantiate its

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W.P.(C).No.11096/2007

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case of conveyance of the car parking area is Exts.P2 to P4 and P21. Even in these documents, the schedule to Exts.P2 and P3

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alone mentions car parking area. However, apart from including the car parking facility also in the schedule, the specifications of the area are conspicuously absent. Only if such details are available to the respondents, they could have identified the area and quantified the plinth area and assessed tax on that basis.

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Therefore, on the material available before the Corporation, the Corporation could not be faulted for the view that it has taken. Further, it is also seen that the petitioner has settled the liability due under Ext.P19, availing of the benefit of Ext.P16, the One Time Settlement Scheme. In such circumstances, I do not find any justification to reopen the settled controversy and that too on account of dearth of materials to safely conclude the issue in favour of the petitioner.

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However, the fact that an assessment has been completed and does not mean that the petitioner should be liable for all years to come. Therefore, if the petitioner is able to satisfy the respondents that the liability has to be that of the

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W.P.(C).No.11096/2007

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owners of the individual apartments, at least for the period subsequent to Ext.P19, there is no reason why the respondents should not re-examine the matter. However, such a reexamination is possible only if the petitioner produces materials justifying such an exercise.

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Therefore, I direct that it would be open to the petitioner to make a comprehensive representation to the first respondent producing materials indicating the conveyance of the car parking area in the basement floor of the building and if

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such a representation is made with supporting materials, the first respondent will re-examine the assessment in the name of the petitioner with notice to the persons, who are likely to be affected by any order to be passed on the representation. On that basis, assessment will be completed and fresh demands will be made. However, if the petitioner fails to do so, they will continue to be assessed as already done by the Corporation.

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With this direction, the writ petition is disposed of.

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ANTONY DOMINIC, JUDGE

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Pioneer Nirman Pvt.Ltd. v. the Secretary, Cochin Corporation

Case brief

What is this about?

What did the court decide?

Pioneer Nirman Pvt.Ltd. v. the Secretary, Cochin Corporation

Case brief

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What did the court decide?

What the court decided

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