Dismissed

Muhammed Kunhi Thayyil v. District Collector

Kerala HC18 Nov 2022WP(C)/4109/2014

Case brief

AI extract

What is this about?

This writ petition challenged the assessment of a building under the Kerala Building Tax Act, 1975. The court held that the statutory authorities' factual findings regarding plinth area measurement were valid and the petitioner could not establish a case for interference.

What did the court decide?

The writ petition was dismissed; two months time granted to pay the balance tax amount.

Muhammed Kunhi Thayyil Vs District Collector — Property and Title | Kerala HC (2022)

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W.P.(C) No. 4109/2014

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: 1 :

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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 SHAJI P.CHALY

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FRIDAY, THE 18^TH DAY OF NOVEMBER 2022 / 27TH KARTHIKA, 1944

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WP(C) NO. 4109 OF 2014

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PETITIONER/S:

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MUHAMMED KUNHI THAYYIL

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AGED 60 YEARS, CHAIRMAN, PAYYANNUR PROPERTY DEVELOPERS PRIVATE LIMITED, REGIONAL OFFICE - C - 25 PMC XIX-549, GOVERNMENT HOSPITAL, ROAD PAYYANNUR, P.O. PAYYANNUR, KANNUR DISTRICT- 670 307.

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BY ADV SRI.M.V.AMARESAN

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RESPONDENT/S:

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1 DISTRICT COLLECTOR KANNUR - 670 001.

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2 VILLAGE OFFICER PAYYANNUR, KANNUR DISTRICT - 670 001.

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3 THE ASSESSING AUTHORITY, TAHSILDAR, TALIPARAMBA, KANNUR DISTRICT - 671 104.

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4 TAHSILDAR, TALIPARAMBA, KANNUR DISTRICT - 671 104.

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BY ADV GOVERNMENT PLEADER

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SMT. M.M. JASMINE, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No. 4109/2014 : 2 :

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SHAJI P. CHALY, J.

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--------------------------------------------------------W.P.(C). No. 4109 of 2014

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--------------------------------------------------------Dated this the 18^th day of November, 2022.

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JUDGMENT

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The subject matter for consideration in the writ petition is the assessment of a building consisting of four floors excluding cellar, constructed as per the building permit issued by the Payyannur Municipality, under the provisions of the Kerala Building Tax Act, 1975 ('Act, 1975' for short). Even though Exhibit P1 order of assessment dated 20.10.2011 issued by the Tahsildar, Taliparamba, Kannur District, was challenged in appeal before the Sub Collector, Thalassery and a revision before the District Collector, Kannur, they were dismissed as per Exhibits P4 and P7 orders. It is, thus, challenging the legality and correctness of the said orders, the writ petition is filed.

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According to the petitioner, after the construction of the building, the same was assessed by the Tahsildar, Taliparamba and found that the total plinth area is 9102 sq. meters and therefore, he was directed to pay an amount of Rs. 16,11,000/-. The case projected by the petitioner is that as per the building permit, the plinth area is 7719.03 sq. meters as is evident from Exhibit P2 building permit dated 27.06.2006. It is further submitted that the

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W.P.(C) No. 4109/2014 : 3 :

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Payyannur Municipality has also issued Exhibit P3 occupancy certificate dated 17.01.2011, wherein also the plinth area recorded is 7167.58 sq. meters. Therefore, according to the petitioner, the plinth area calculated by the authority under the Act 1975 is excessive, as the measurement was not done by a competent person, but by a Taluk Surveyor. That apart, it is contended that the portions of the buildings that are to be excluded for the assessment of the plinth area were not excluded.

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It is also contended that even though an appeal and a revision was preferred, they were not considered in accordance with law and therefore, the assessment done overlooking the plinth area as per the building permit and the occupancy certificate issued by the Municipality, cannot be sustained under law.

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The Tahsildar, Taliparamba, respondent No.4, has filed a detailed counter affidavit justifying its action inter alia stating that when the appeal was preferred by the petitioner, the Revenue Divisional Officer had deputed a team to inspect the building and verify the plinth area, and the team headed by the Junior Superintendent of the Revenue Divisional Office inspected the building and found that the plinth area available for assessment is 9065.75 sq. meters.

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It is also pointed out that the petitioner has remitted the

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W.P.(C) No. 4109/2014 : 4 :

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first and second instalments as per the assessment order. However, based on the enquiry report of the team, the Sub Collector ordered to issue a modified assessment order adopting the plinth area as 9065.75 square meters. When the revision was filed before the District Collector, the District Collector, after considering the inspection report of the Deputy Collector (RR) drawn as authorised by the District Collector, and hearing the petitioner directed the assessing authority to modify the plinth area as 9086.27 square meters.

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Accordingly, revised assessment orders were issued to the petitioner as per the order dated 30.12.2013 and the petitioner was directed to pay an amount of Rs.8,01,900/- after deducting two instalments already paid. However, the petitioner has not paid the said amount; instead, he filed the instant writ petition.

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In compliance with the order dated 01.07.2015, the learned Government Pleader has produced Annexure A measurement of the building conducted by the Assistant Engineer, PWD Building Section, Payyannur, along with a memo, from where it is clear that the plinth area liable to be assessed in each floor and the deduction made are clearly mentioned thereunder. Going through the same, it can be seen that the contention advanced by the petitioner is not at all true or correct.

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W.P.(C) No. 4109/2014

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: 5 :

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I have heard the learned counsel for the petitioner Sri. M.V Amaresan and the learned Government Pleader Smt. Jasmine M.M, and perused the pleadings and material on record.

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The sole question to be considered is whether any manner of interference is required to the order of assessment, and the orders in the appeal and the revision passed by the statutory authorities. One thing is clear that even at the stage of the appeal proceedings, the building was measured and the authority arrived at a different measurement of the plinth area.

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The expression ‘plinth area’ is defined under Section 2(k) of the Kerala Building Tax Act, 1975 to mean 'the area included in the floor of a building and where a building has more than one floor, the aggregate area included in all the floors together'. However, the proviso thereto makes it clear that in the case of a building referred to in the explanation 2 to clause (e), the plinth area shall be calculated separately. Therefore, it is evident that the plinth area that can be excluded is only, in the case of the buildings referred to in the proviso. Explanation 2 to clause (e) specifies that where a building consists of different apartments or flats owned by different persons, and the cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building.

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W.P.(C) No. 4109/2014 : 6 :

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On a conjoint reading of Section 2(k) and the explanation ll to clause (e) of Section (2), it is clear that the plinth area includes the entire area of the building in the floor of a building and the aggregate area included in all the floors together. So also, as per Section 6 of the Act 1975, the procedure for determining the plinth area is prescribed, wherein the manner in which the deductions are to be made is explained. Even though various contentions are raised by the petitioner with respect to the measurement, I am of the considered opinion that it is a factual finding rendered by the statutory authorities and at each stage, measurements were done on the request made by the petitioner and the conclusions were arrived at accordingly. In spite of all the above, as per a direction issued by this Court on 01.07.2015, the Assistant Engineer P.W.D, Payyannur, has carried out measurements of the building and submitted a report along with a memo dated 22^nd June 2016. It shows that after granting all deductions, the building has a floor area of 9438.21 sq. meter, which is higher than the area quantified by the assessing authority.

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Therefore, I am of the view that the petitioner has not established a case to interfere with the factual findings rendered by the assessing authority as well as the appellate and revisional authority. That being the situation, I do not think, the petitioner

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W.P.(C) No. 4109/2014 : 7 :

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has made out a case for interference in a proceeding under Article 226 of the Constitution of India. This I say because, the assessment was done and the orders in appeal and revision were passed by the statutory authorities after giving fullest opportunity to the petitioner to participate in the proceedings.

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Needless to say, the writ petition fails, and accordingly, it is dismissed. But at the request of the learned counsel for the petitioner , two months time is granted to pay the balance amount due.

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sd/- SHAJI P. CHALY, JUDGE.

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W.P.(C) No. 4109/2014 : 8 :

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APPENDIX OF WP(C) 4109/2014

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PETITIONER’S E	XHIBITS:
P1	EXHIBIT-P1-TRUE COPY OF THE ORDER BEARING NO. C1-31261/2011 DATED 20/10/2011 ISSUED BY THE 3RD RESPONDENT.
P2	EXHIBIT-P2-TRUE COPY OF THE BUILDING PERMIT ISSUED BY PAYYANNUR MUNICIPALITY BEARING NO.B.A 1375/2005-06 DATED 27/06/2006.
P3	EXHIBIT-P3-TRUE COPY OF THE OCCUPRANCY CERTIFICATE DATED 17/01/2011 ISSUED BY THE PAYYANNUR MUNICIPALITY.
P4	EXHIBIT-P4-TRUE COPY OF THE APPELLATE ORDER BEARING NO. 703/12F DATED 10/09/2012.
P5	EXHIBIT-P5-TRUE COPY OF THE JUDGMENT DATED 08/11/2012 IN W.P(C) 26434/2012
P6	EXHIBIT-P6-TRUE COPY OF THE REVISION PETITION DATED 16/11/2012 SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR, KANNUR.
P7	EXHIBIT-P7-TRUE COPY OF THE ORDER OF THE IST RESPONDENT BEARING NO. REF. G1/55921/2012 DATED 04/11/2013.
P8	EXHIBIT-P8-TRUE COPY OF THE FORM V OF ORDER OF ASSESSMENT UNDER RULE 9 (1) OF KERALA BUILDING TAX RULES, BEARING NO. C1-31261/11 DEECEMBER, 2013.
P8(@)	EXHIBIT-P8(A)-TRUE COPY OF THE DEMAND NOTICE IN FORM VI DATED DECEMBE, 2013.
P9	EXHIBIT-P9-TRUE COPY OF THE LETTER DATED 25/01/2014 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.
P10	EXHIBIT-P10-TRUE COPY OF THE DEMAND NOTICE BEARING TALUK FILE NO. C1-31261/11 DATED 25/01/2014 UNDER SECTION 7 OF REVENUE RECOVERY ACT ISSUED BY THE IST RESPONDENT.
P11	EXHIBIT-P11-TRUE COPY OF THE FORM 10- NOTICE DATED 25/01/2014 ISSUED BY THE IST RESPONDENT.

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RESPONDENTS’ EXHIBITS: NIL

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True Copy

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PS to Judge.

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Muhammed Kunhi Thayyil v. District Collector

Case brief

What is this about?

What did the court decide?

Muhammed Kunhi Thayyil v. District Collector

Case brief

What is this about?

What did the court decide?

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