Allowed

Xavier J. Ponnezhath v. State of Kerala

Kerala HC20 Nov 2020WP(C)/25557/2020

Case brief

AI extract

What is this about?

Petitioners sought to quash an order passed by the Revenue Divisional Officer in contravention of a High Court judgment directing the Assessing Authority to reconsider the matter. The Court set aside the impugned order and directed the Assessing Authority to reconsider the matter.

What did the court decide?

Ext.P9 order dated 21.10.2020 set aside; direction to 3rd respondent Assessing Authority to reconsider matter with notice to petitioners.

Xavier J. Ponnezhath Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2020)

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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 ANIL K.NARENDRAN

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FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942

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WP(C).No.25557 OF 2020(T)

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PETITIONERS:

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1 XAVIER J. PONNEZHATH,AGED 49 YEARS S/O. LATE P.V.JOSEPH, PONNEZHATH HOUSE, VAYALAR JUNCTION, PATTANAKAD P.O., CHERTHALA, ALAPPUZHA, PIN-686531.

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2 JOSE J.PONNEZHATH,AGED 56 YEARS S/O. LATE P.V.JOSPEH, PONNEZHATH HOUSE, CMC11, CHERTHALA P.O., ALAPPUZHA DISTRICT, PIN688524.

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BY ADVS. SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER SMT.MEERA P. SMT.B.ANUSREE

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.

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2 THE REVENUE DIVISIONAL OFFICER AND SUB COLLECTOR, DISTRICT COURT WAY ROAD, KIDANGAMPARAMP, THONDANKULANGARA, THATHAMPALLY, ALAPPUZHA688013.

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3 THE TAHASILDAR, CHERTHALA TALUK OFFICE, CHERTHALA, PIN-688524.

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WP(C).No.25557 OF 2020(T)

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4 THE ADDL. TAHASILDAR, CHERTHALA TALUK OFFICE, CHERTHALA, PIN688524.

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R BY SMT TUSHARA JAMES - GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.25557 OF 2020(T)

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JUDGMENT

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The petitioners, who have constructed a commercial building in Survey No.265/3-2 and 265/3-4 of Cherthala North Village on the strength of building permit No.BA-42/08-09 issued by the Cherthala Municipality covered by Ext.P1 occupancy certificate dated 15.11.2015, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 order dated 21.10.2020 issued by the 2^nd respondent Revenue Divisional Officer.

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Ext.P9 order is one passed pursuant to the direction of this Court in Ext.P7 judgment dated 07.06.2018 in W.P.(C)No.9660 of 2018. By that judgment, Ext.P6 assessment order dated 01.03.2018 issued by the 3^rd respondent Tahsildar was set aside and the said respondent was directed to pass fresh orders, after affording an opportunity of being heard to the petitioners. It is thereafter that Ext.P9 order is passed by the 2^nd respondent Revenue Divisional Officer.

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WP(C).No.25557 OF 2020(T)

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During the course of arguments, the submission made by the learned counsel for the petitioners is that, in Ext.P7 judgment, the 3^rd respondent, who is the Assessing Authority, was directed to reconsider the matter and now Ext.P9 order is passed by the 2^nd respondent, who is the Appellate Authority, which is contrary to the directions contained in Ext.P7 judgment. When an order of assessment is set aside by this Court on account of procedural irregularity and directed the Assessing Authority to reconsider the matter, with notice to the petitioners, such exercise has to be undertaken by the Assessing Authority himself and not by the Appellate Authority.

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Heard the learned counsel for the petitioners and also the learned Government Pleader appearing for the respondents.

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The learned Government Pleader would submit that Ext.P9 order is one passed by the 2^nd respondent, who is the Appellate Authority, though the direction in Ext.P7 is against

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WP(C).No.25557 OF 2020(T)

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the 3^rd respondent, who is the Assessing Authority.

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Having considered the submissions made by the learned counsel for the petitioners and also the learned Government Pleader, this Court finds that Ext.P9 order dated 21.10.2020 of the 2^nd respondent cannot be sustained in law, for the sole reason that it is one passed contrary to the direction contained in Ext.P7 judgment.

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In the result, this writ petition is allowed by setting aside Ext.P9 order dated 21.10.2020 of the 2^nd respondent and by directing the 3^rd respondent Assessing Authority to reconsider the matter, as directed in Ext.P7 judgment, with notice to the petitioners and after affording them a reasonable opportunity of being heard.

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Sd/-

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ANIL K.NARENDRAN, JUDGE

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AV/20/11

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WP(C).No.25557 OF 2020(T)

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT	P1 TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY CHERTHALA MUNICIPALITY.
EXHIBIT	P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 1.1.2016.
EXHIBIT	P3 TRUE COPY OF THE CHALAN RECEIPT ISSUED FROM THE TREASURY BANK DATED 14.1.2016.
EXHIBIT	P4 TRUE COPY OF THE PERMIT DATED 6.5.2016.
EXHIBIT	P5 TRUE COPY OF THE APPROVED SITE PLAN.
EXHIBIT	P6 TRUE COPY OF THE PROCEEDING NO.G2- 23661/15/G2 DATED 1.3.2018 ISSUED BY RESPONDENT NO.2 AND FORM V ORDER OF ASSESSMENT DATED 1.3.2018.
EXHIBIT	P7 TRUE COPY OF THE JUDGMENT, DATED 7.6.2018, IN WP(C)NO.9660 OF 2018.
EXHIBIT	P8 TRUE COPY OF THE APPEAL, DATED 7.4.2018, SUBMITTED BEFORE RESPONDENT NO.2.
EXHIBIT	P9 TRUE COPY OF ORDER NO.K-2189/18, DATED
	21.10.2020, ISSUED BY RESPONDENT NO.2.

Xavier J. Ponnezhath v. State of Kerala

Case brief

What is this about?

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Xavier J. Ponnezhath v. State of Kerala

Case brief

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