Allowed

Reji Joseph v. the Tahsildar, Thiruvananthapuram

Kerala HC6 Jan 2016WP(C)/3019/2013

Case brief

AI extract

What is this about?

Petitioner challenged an order by the District Collector reiterating a revisionary decision that reviewed earlier assessment orders. The Court quashed the order holding the District Collector lacked jurisdiction because the review was initiated beyond the three-month period of limitation prescribed under Section 13(2) of the Kerala Building Tax Act. Writ petition allowed.

What did the court decide?

Impugned Ext.P18 order and underlying Ext.P11 order quashed; writ petition allowed with consequential reliefs.

Reji Joseph Vs the Tahsildar, Thiruvananthapuram — Property and Title | 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.K.JAYASANKARAN NAMBIAR

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WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937

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WP(C).No. 3019 of 2013 (B)

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PETITIONER:

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REJI JOSEPH, EASWARANKUDIYIL HOUSE, T.C.8/1172(1), MAVARTHALAKONAM ROAD, CHENTHI, THIRUVANANTHAURAM.

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BY SRI.BABU VARGHESE (SENIOR ADVOCATE) ADV. SRI.DAVID JOSEPH

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RESPONDENT(S):

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1. THE TAHSILDAR, THIRUVANANTHAPURAM - 695 001.

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2. THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM - 695 001.

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3. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM - 695 001.

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BY GOVERNMENT PLEADER SRI.LIJU V.STEPHEN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 3019 of 2013 (B)

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APPENDIX

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PETITIONER(S) EXHIBITS:

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EXHIBIT P1: TRUE COPY OF THE ASSESSMENT ORDER NO.D1-23317/03/D.DIS DATED 15.4.2005 OF THE TAHSILDAR, THIRUVANANTHAPURAM.

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EXHIBIT P2: TRUE COPY OF THE PERMIT DATED 2.7.2001 ISSUED BY SECRETARY THIRUVANANTHAPURAM CORPORATION.

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EXHIBIT P3: TRUE COPY OF THE PROPERTY TAX INDEX SHEET DATED 14.2.2003. EXT.P3(A): TRUE COPY OF THE CERTIFICATE DATED 17.1.13 ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM SPECIFYING THE PLINTH AREA OWNED BY SRI. REJI JOSEPH HAVING T.C.NO.8/1172(1).

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EXHIBIT P4: TRUE COPY OF REVISED BUILDING PERMIT NO.ZU 3/1628/01 DATED 2.7.2001/29.4.2002.

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EXHIBIT P5: TRUE COPY OF THE TITLE DEED 769/2004 EXECUTED BY THE PETITIONER ON 28.02.2004 OF THE CORPORATION OF THIRUVANANTHAPURAM.

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EXT P5(A): TRUE COPY OF THE OWNERSHIP CERTIFICATE NO.23871 DATED 7.4.2004 OF THE CORPORATION OF THIRUVANANTHAPURAM.

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EXT P5(B): TRUE COPY OF THE CERTIFICATE DATED 7.1.2013 RECENTLY ISSUED BY THE CORPORTION OF THIRUVANANTHAPURAM SPECIFYING THE PLINTH AREA OWNED BY SMT. JOSNA SUSAN JOY HAVING T.C.NO.8/1172(2).

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EXHIBIT P6: TRUE COPY OF JUDGMENT DATED 4TH APRIL 2008 IN WPC NO.18786/2006.

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EXT P6(A): TRUE COPY OF THE LETTER NO.D1-15872/06 DATED 11.6.2009 ISSUED BY THE 1ST RESPONDENT.

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EXHIBIT P7: TRUE COPY OF THE REPORT DATED 26.2.2011 SUBMITTED BY THE IST RESPONDENT.

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EXHIBIT P8: TRUE COPY OF THE RE-ASSESSMENT ORDER NO.D1-15872/06/D.DIS DATED 2.6.2008 OF THE TAHSILDAR, THIRUVANANTHAPURAM.

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EXHIBIT P9: TRUE COPY OF THE RE-ASSESSMENT ORDER NO.D1-15872/06(2)/D.DIS DATED 2.6.2008 OF THE TAHSILDAR, THIRUVANANTHAPURAM.

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EXHIBIT P10: TRUE COPY OF THE REQUEST FOR THE REFUND OF EXCESS BUILDING TAX AND LUXURY TAX AND COLLECTED DATED 21.8.2008.

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EXHIBIT P11: TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 30.7.2012.

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EXHIBIT P12: TRUE COPY OF THE ORDER DATED 14.9.2012 ISSUED BY THE FIRST RESPONDENT.

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--2--

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--2--

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WP(C).No. 3019 of 2013 (B)

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EXHIBTI P13: TRUE COPY OF THE DETAILED REPRESENTATION DATED 27.8.2012 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

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EXHIBIT P14: TRUE COPY OF THE NOTICE NO.D1-23317.03 DATED 26.9.2012 ISSUED BY THE VILLAGE OFFICER ULLOOR.

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EXHIBIT P15: TRUE COPY OF THE LETTER DATED 1.6.2005 BY THE PRINCIPAL SECRETARY TO GOVERNMENT .

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EXHIBIT P16: TRUE COPY OF THE JUDGMENT DATED 17.10.2012 IN WPC NO.23325 OF 2012.

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EXHIBIT P17: TRUE COPY OF THE 'ARGUMENT NOTE' SUBMITTED BY THE PETITIONER DATED 1ST DECEMBER, 2012.

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EXHIBIT P18: TRUE COPY OF THE PROCEEDINGS DATED 27.12.2012 OF THE 3RD RESPONDENT.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.S. TO JUDGE

mbr/

A.K.JAYASANKARAN NAMBIAR, J.

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W.P.(C). No. 3019 of 2013

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===================================================== Dated this the 6^th day of January, 2016

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JUDGMENT

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The petitioner and his wife had jointly constructed a two storied residential building comprising of two separate flats. The said building, however was assessed as a single unit for the purposes of building tax and luxury tax. The building was first assessed as per Ext.P1 order dated 15.04.2005. The assessment order was challenged by the petitioner through a writ petition, which resulted in Ext.P6 judgment, that set aside the assessment order and directed the assessing authority to reconsider the matter after examining whether the buildings could be treated as separate units for the purposes of taxation. Pursuant to Ext.P6 judgment, the assessing authority passed fresh assessment orders namely Exts.P8 and P9, assessing the separate portions of the building as separate units in the names of the petitioner and his wife. Exts.P8 and P9 assessment orders were not the subject matter of any appeal or revision preferred by the petitioners or by the respondents. By Ext.P11 order dated 30.07.2012 however, the 3^rd respondent reviewed Exts.P8 and P9 orders and directed the assessing authority to treat the assessment as completed as per Ext.P1 order, which order was earlier set aside by this Court in Ext.P6 judgment. As a consequence, the 1^st respondent passed

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W.P.(C). No. 3019 of 2013

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Ext.P12 consequential order completing the assessment in the manner contemplated in Ext.P1 order. While the petitioner challenged Ext.P11 order in WP(C) No.23325 of 2012, the said writ petition was disposed by Ext.P16 judgment, quashing Ext.P11 order and directing the District Collector to pass a fresh order after hearing the petitioner. It is relevant to note that Ext.P16 judgment was rendered in the wake of a contention by the petitioner that he was not heard prior to the passing of Ext.P11 order. In the hearing that was scheduled pursuant to Ext.P16 judgment, the petitioner appeared before the 3^rd respondent and submitted Ext.P17 argument notes. The 3^rd respondent however, by Ext.P18 order reiterated the findings in Ext.P11 order. Ext.P18 order is impugned in this writ petition.

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A counter affidavit has been filed on behalf of the 3^rd respondent wherein Ext.P18 order is sought to be justified on the grounds stated therein. The petitioner has also filed a reply affidavit to the said counter affidavit filed on behalf of the 3^rd respondent.

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I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for the respondents.

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W.P.(C). No. 3019 of 2013

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On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that the issue that arises for consideration in this writ petition falls in a very narrow compass. It is unnecessary to go into the merits of the assessment that is impugned in the instant case. There is an issue with regard to the jurisdiction of the 3^rd respondent in passing Ext.P11 order, which had the effect of reviewing Exts.P8 and P9 orders that were passed by the assessing authority in favour of the petitioner and his wife. The powers of the 3^rd respondent, if any, to modify an order passed by the assessing authority can only be traced to Section 13 of the Kerala Building Tax Act, which deals with the power of revision of the District Collector. As per the said provision, the District Collector may either suo motu or on application by any person aggrieved call for and examine the record of any order passed by the appellate authority or by the assessing authority and may pass such order in reference thereto as he thinks fit. The proviso to the said section makes it clear that no order can be passed without notice to the parties who may be effected by the order. More importantly, sub section 2 of section 13 makes it clear that the District Collector shall not suo motu revise an order under sub section 1, if that order has been passed more than three months previously. In this

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W.P.(C). No. 3019 of 2013

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connection, it is relevant to note that Exts.P8 and P9 assessment orders are dated 02.06.2008, and Ext.P11 order of the 3^rd respondent which reviews Exts.P8 and P9 orders, is dated 30.07.2012. It is apparent therefore that Ext.P11 order was passed beyond the period of limitation prescribed under Section 13(2) of the Kerala Building Tax Act. The said order of the 3^rd respondent was therefore, clearly illegal for the 3^rd respondent did not have a jurisdiction to pass such an order, after the expiry of three months from the date of the assessment order. It follows, as a necessary consequence, that Ext.P18 order of the 3^rd respondent, which reiterates the stand in Ext.P11 order, must also necessarily be seen as illegal and legally unsustainable. I therefore, quash Ext.P18 order impugned in the writ petition and allow this writ petition with consequential reliefs to the petitioners.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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das /07.01.2016

Reji Joseph v. the Tahsildar, Thiruvananthapuram

Case brief

What is this about?

What did the court decide?

Reji Joseph v. the Tahsildar, Thiruvananthapuram

Case brief

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What did the court decide?

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