Disposed

Hassainar M. v. the District Collector

Kerala HC3 Jan 2017WP(C)/41042/2016

Case brief

AI extract

What is this about?

The Court affirmed an assessment under Section 5A of the Kerala Building Tax Act for the current year due to limited judicial review scope after existing remedies. The Court directed the authorities to issue a notice and conduct a measurement inspection for the 2018-19 assessment year.

What did the court decide?

The assessment for 2016-17 affirmed. Notice to be issued for 2018-19 measurement with opportunity to be heard.

Hassainar M. Vs the District Collector — Writ and Judicial Review | Kerala HC (2017)

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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 K.VINOD CHANDRAN

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TUESDAY, THE 3RD DAY OF JANUARY 2017/13TH POUSHA, 1938

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WP(C).No. 41042 of 2016 (E)

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PETITIONER:

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HASSAINAR M., AGED 44 YEARS, S/O.MOHAMMED, RESIDING NEAR P.B.M. SCHOOL, NELLIKATTA, PADI VILLAGE, EDNEER PO, KASARAGOD TALUK AND DISTRICT, PIN - 671 541.

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BY ADVS.SRI.T.R.RAVI

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SRI.JAWAHAR JOSE SRI.V.VINAY MENON SMT.CISSY MATHEWS SRI.BINISH MATHEW

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RESPONDENT(S):

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1. THE DISTRICT COLLECTOR, CIVIL STATION, VIDYANAGAR PO, KASARAGOD, PIN - 671123.

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2. THE SUB COLLECTOR, KASARAGOD AT KANHANGAD, KANHANGAD PO, KASARAGOD DISTRICT, PIN - 671 315.

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3. THE TAHSILDAR, TALUK HEADQUARTERS, KASARAGOD, PIN - 671121.

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BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDEEN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 41042 of 2016 (E)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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P1 : TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE 3RD RESPONDENT DATED 17.9.2008.

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P2 : TRUE COPY OF THE MEMORANDUM OF APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

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P3 : TRUE COPY OF THE APPELLATE ORDER ISSUED BY THE 2ND RESPONDENT DATED 17.11.2014.

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P4 : TRUE COPY OF THE MEMORANDUM OF REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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P5 : TRUE COPY OF THE INTERLOCUTORY APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT FOR MEASURING THE BUILDING.

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P6 : TRUE COPY F THE PLAN PREPARED BY THE PETITIONER THROUGH A LICENSED ENGINEER.

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P7 : TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 1.7.2016.

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RESPONDENT(S)' EXHIBITS: NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

K.VINOD CHANDRAN, J

W.P(C) No.41042 of 2016 E

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Dated this the 03^rd day of January, 2017

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J U D G M E N T

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The petitioner has filed the above writ petition

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after availing statutory remedy against the order levying

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Building Tax under the Kerala Building Tax Act, 1975.

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The assessment has been made under Section 5A of the

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Act, which speaks of luxury tax, a recurring liability which

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is to be paid every year. Such liability arises only in respect

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of buildings having more than a plinth area of 278.7

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Square meter.

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The assessment has been made as per Ext.P1

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finding the petitioner's building to have a plinth area of

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300.45 square meter. The appeal filed was rejected by

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WP(C).41042/2016

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Ext.P3 and a further revision was filed which also stands rejected. All of which are impugned in the above writ

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petition.

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The petitioner contends that even originally

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the plinth area of the petitioner's building was below the limit prescribed in the Act and that when the statutory remedies were availed of, the petitioner had demolished a portion of the building; that is a portion of the car shed which in any event, cannot be brought under coverage of

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the Building Tax Act.

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The contention of the petitioner is evidenced

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from Exts.P4and P5. An application was filed at Ext.P5 for

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local inspection contending that the total plinth area of the

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WP(C).41042/2016

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petitioner is 272 Square meters and that the revision petitioner demolished a portion of his building, further reducing the plinth area during the pendency of the appeal.

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As of now, three authorities have looked into

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the matter and found the assessment to be proper. In such circumstances, the scope of judicial review under Article 226 of the Constitution of India is limited and this Court

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would not venture to interfere with the assessment made.

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However, it is to be noticed that Section 5A is a recurring liability and the petitioner would have a remedy to approach the assessing authority on a successive year as has been declared in 2014 (4) KLT 272 (Ahamed v. District Collector). In such circumstances, the petitioner would be

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WP(C).41042/2016

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entitled to approach the original authority for measurement

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of the property with notice to the petitioner.

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The assessment of the petitioner under Section

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5A as confirmed by the appellate authority till 2016-17 would stand affirmed. With respect to the assessment year 2018-19, the petitioner shall be issued with a notice by the 3^rd respondent within a period of two weeks from the date of receipt of a certified copy of this judgment and an inspection and measurement conducted in the presence of the petitioner. The petitioner shall, then be issued with a written order showing the exact measurement and assessment under Section 5A of the Act, if the plinth area is in excess of the limit as provided under the Act. The

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WP(C).41042/2016

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petitioner would be entitled to challenge the same also.

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Writ petition would stand disposed of with the

above observations.

Sd/-

K.VINOD CHANDRAN,

Judge

jma

//true copy//

P.A to Judge

Hassainar M. v. the District Collector

Case brief

What is this about?

What did the court decide?

Hassainar M. v. the District Collector

Case brief

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