Allowed

K. Lakshmanan v. District Collector

Kerala HC13 Jun 2016WP(C)/1702/2014

Case brief

AI extract

What is this about?

Petitioner challenged an order imposing building tax on an extended area of a property. The Court held that since the petitioner proved an old structure existed before the statutory appointed date via a 1963 certificate, the authority failed to verify the play area. Consequently, the tax order applying Section 5(4) was set aside as bad in law.

What did the court decide?

Petition allowed; 3rd respondent directed to issue fresh assessment order excluding the old structure area under Section 5(3) of the Act.

K. Lakshmanan Vs District Collector — Land Acquisition | Kerala HC (2016)

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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 A.M.SHAFFIQUE

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MONDAY, THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938

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WP(C).No. 1702 of 2014 (K)

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PETITIONER(S):

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K. LAKSHMANAN, S/O. KUTTAPPAN ACHARI, AGED 74 YEARS, 'RATNA NIVAS', MULLACKAL, ALAPPUZHA-688 011.

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BY ADV. SRI.V.B.HARI NARAYANAN.

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RESPONDENT(S):

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1. DISTRICT COLLECTOR, ALAPPUZHA-688 001.

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2. REVENUE DIVISIONAL OFFICER , ALAPPUZHA-688 001.

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3. TAHSILDAR , AMBALAPPUZHA-688 001.

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BY GOVT. PLEADER SRI.BOBBY JOHN.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 1702 of 2014 (K)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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P1 : COPY OF THE DEMAND NOTICE DTD.30.04.1993 ISSUED BY THE 3RD RESPONDENT.

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P2 : COPY OF THE CERTIFICATE DTD.24.08.2009 ISSUED BY THE MUNICIPAL SECRETARY.

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P3 : COPY OF THE SANCTION DTD.29.08.2001 ISSUED BY THE MUNICIPAL SECRETARY.

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P4 : COPY OF THE DEMAND NOTICE DTD.28.02.2006 ISSUED BY THE 3RD RESPONDENT.

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P5 : COPY OF THE CERTIFICATE ISSUED BY THE MUNICIPAL SECRETARY.

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P6 : COPY OF THE ORDER DTD.09.06.2009 ISSUED BY THE 2ND RESPONDENT.

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P7 : COPY OF THE REVISION PETITION DTD.22.09.2009.

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P8 : COPY OF THE ORDER DTD.15.02.2010 ISSUED BY THE 1ST RESPONDENT.

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P9 : COPY OF THE JUDGMENT DTD.04.10.2013 IN WPC NO.7969/2010.

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P10: COPY OF THE ORDER DTD.11.12.2013 ISSUED BY THE 1ST RESPONDENT.

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P11: COPY OF THE APPROVED PLAN ISSUED BY THE SECRETARY, ALAPPUZHA DEVELOPMENT AUTHORITY.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

**A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.1702 of 2014

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Dated this the 13^th day of June 2016

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J U D G M E N T

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Petitioner challenges Ext.P10, an order passed by the Deputy Collector (RR) in a revision petition filed by the petitioner under the Kerala Building Tax Act, 1975.

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The issue projected by the petitioner is with reference to the liability to pay building tax for an area above 838 sq.meters. According to the petitioner, he had obtained a building permit for construction of an auditorium having an area of 838 sq.meters. There was a building in existence in the property prior to 01/04/1992. According to the petitioner, as per Ext.P2 issued by the local authority, the building had been assessed to tax since 1963. The new building is now attached to the old building. However, when tax has been assessed, the entire area of 1310 sq.meters was taken into consideration which included the old structure itself.

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After initial challenges, the matter received the attention of this Court when the petitioner filed W.P.C.No.7969/2010. By judgment dated 04/10/2013, this Court

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W.P.C.No.1702/2014

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directed the authorities to consider whether the plinth area of the petitioner's building has to be reckoned under Section 5(3) of the Act and whether the two structures which existed prior to the commencement of the Act shall not be reckoned are to be adverted to. It is pursuant to the aforesaid direction, that Ext.P10 order had been passed. Perusal of Ext.P10 would indicate that the revisional authority only conducted a further measurement of the entire structure and it was observed that the area would come to 1246.83 sq.meters and therefore Section 5(4) applies to the facts of the case.

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It is submitted by the learned counsel for the petitioner that when a building was in existence prior to the appointed day, that is 01/04/1992, assessment for building tax can be done for the additional structures only even in a case of renovation. Section 5(3) reads as under:

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“Where any major repair or improvement is made on or after the appointed day to a building constructed before the said date building tax shall be payable at the rate referred to in sub-section (1) on the additional plinth area of the building resulting from such

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W.P.C.No.1702/2014

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repair or improvement.”

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It is argued that Section 5(4) of the Act has no application. In order to apply Section 5(4), existing structure ought to have been constructed after 01/04/1992. In so far as the petitioner's old building was renovated or assessed to tax since 1963 and was in existence, the assessment is bad in law.

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The 3^rd respondent has filed a counter affidavit supporting the stand taken by them. It is contended that no materials were produced to indicate that the old structure was constructed prior to 01/04/1992.

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But, it is relevant to note that when a contention has been urged by the petitioner that the old structure was in existence even prior to 01/04/1992, it is for the assessing authority to verify the credentials of the said contentions. In fact, the petitioner produced Ext.P2 to indicate that the building was numbered as early as in 1963. Therefore, existence of the building cannot be doubted. In such instances, where there is doubt regarding the existence of the building prior to the appointed date, the assessing authority ought to have taken expert evidence in the matter. No such materials have been

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W.P.C.No.1702/2014

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relied upon to arrive at a finding that Section 5(4) applies to the facts of the case. Under such circumstances, I am of the view that the impugned orders are liable to be set aside. Accordingly, I do so.

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In the result,

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i) This writ petition is allowed.

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ii) The 3^rd respondent is directed to issue a fresh

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assessment order assessing the property of the petitioner in terms of Section 5(3) of the Act, excluding the area of the old structure.

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(sd/-)

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(A.M.SHAFFIQUE, JUDGE)

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jsr

K. Lakshmanan v. District Collector

Case brief

What is this about?

What did the court decide?

K. Lakshmanan v. District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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