Dismissed

Ahamed Thazhe Chalikal, v. the Tahsildar

Kerala HC15 Sept 2023WP(C)/3074/2020

Case brief

AI extract

What is this about?

Petitioner challenged a building tax assessment order under Article 226 regarding plinth area additions. The Court dismissed the writ petition, holding it was not maintainable as a statutory appeal under Section 11 existed. It was further held that plinth area determination is a disputed question of fact not suitable for writ jurisdiction.

What did the court decide?

The writ petition under Article 226 of the Constitution of India was dismissed as not maintainable.

Ahamed Thazhe Chalikal, Vs the Tahsildar — Land Acquisition | Kerala HC (2023)

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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 DINESH KUMAR SINGH

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FRIDAY, THE 15TH DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945
WP(C) NO. 3074 OF 2020

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PETITIONER:

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AHMED THAZHE CHALIKAL,
AGED 60 YEARS, S/O. ABDULLA,
LESLY VILLAS, HOUSE NO.1,
KARAPARAMBA P. O., KOZHIKODE-673 010.

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BY ADVS.
 SRI. G. SANTHOSH KUMAR
 SRI. V. R. SASSIDHARAN

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RESPONDENTS:

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1THE TAHSILDAR (ASSESSING AUTHORITY),
TALUK OFFICE, CIVIL STATION P. O.,
KOZHIKODE - 673 020.

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2DEPUTY TAHSILDAR,
CIVIL STATION P. O.,
KOZHIKODE-673 020.

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BY ADV.
 SMT. RESHMITA RAMACHANDRAN - GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 3074 OF 2020

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DINESH KUMAR SINGH, J.

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W.P.(C) No.3074 of 2020

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Dated this the 15^th day of September, 2023

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JUDGMENT

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The present writ petition under Article 226 of the Constitution of India has been filed questioning the demand notice Exhibit P-6 as well as the assessment order Exhibit P-8.

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Petitioner is the owner of a commercial building having plinth area of 5437.39M² situated in Sy. No.100/2C, 100/6, 7 and 9 of Nellikode Village within the limits of Kozhikode district. Petitioner had let out the said building to M/s. Kalyan Silks which is being used as its showroom. Exhibit P-1 assessment order in respect of the building was passed on 30.12.2010 assessing the tax liability at Rs.11,94,163/- (Rupees Eleven lakh ninety four thousand one hundred and sixty three only).

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The petitioner filed an appeal against Exhibit P-1 assessment order dated 30.12.2010 under the provisions of the Kerala Building Tax Act, 1975 (The Act for short). The said appeal was dismissed and the petitioner had paid the tax assessed for the said building. Exhibit P-2 fresh assessment order dated 27.09.2017

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WP(C) NO. 3074 OF 2020

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was served upon the petitioner directing him to pay another Rs. 25,29,000/- (Rupees Twenty five lakh twenty nine thousand only) as building tax in respect of the said building of the petitioner. The assessing authority had found that the petitioner has made additional some more construction to the terrace of the building and the plinth area of the building would come up to 5758.31 m² .

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The petitioner challenged the said assessment order dated 27.09.2017 before this Court by filing W.P.(C) No.12153 of 2018 and this Court vide Exhibit P-5 Judgment dated 22.05.2018 allowed the writ petition and Exhibit P-2 order came to be set aside. This Court vide the aforesaid Judgment held that under Sub Rule (3) of Rule 9 of the Kerala Building Tax (Plinth Area) Rules, 1992, the assessing authority indicates the order on the basis of the assessment. This Court was of the opinion that the assessment order was passed without affording an opportunity of of hearing to the petitioner and, therefore, there was violation of the principles of natural justice. The matter was remanded back to the assessing authority to pass fresh assessment order after affording an opportunity of hearing to the petitioner.

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On remand, the petitioner was issued notice dated 30.09.2019 fixing the date of appearance before the 1^st

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WP(C) NO. 3074 OF 2020

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respondent as 09.10.2019. After service of the said notice, the petitioner had sought for some time to furnish evidence. However, the petitioner failed to produce any evidence within the time sought by him. When the petitioner failed to produce any evidence in support of his contentions, the 1^st respondent passed Exhibit P-8 order dated 05.12.2019 assessing the building tax for an amount of Rs.13,34,837/- (Rupees Thirteen lakh thirty four thousand eight hundred and thirty seven only) because of the constructions made in the building.

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Learned Counsel for the petitioner submits that the additions made in the building are only for the purposes enhancing beauty of the building and the same has been made on the roof top which is being used for dumping excessive carter by M/s. Kalyan Silks, tenant of the petitioner. The said portion cannot be added to the plinth area of the building of the petitioner for the purposes of imposing building tax.

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This Court finds little substance in the submissions of the Learned Counsel for the petitioner. Plinth area of the building which is a question of facts and evidences and it cannot be decided in the writ jurisdiction. If the petitioner is aggrieved by Exhibit P-2 order, he ought to have filed a statutory appeal under

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WP(C) NO. 3074 OF 2020

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the provisions of the Kerala Building Tax Act. The petitioner instead of filing statutory appeal approached this Court under Article 226 of the Constitution of India. This Court finds no ground for bypassing the statutory remedy of appeal in filing the present writ petition before this Court against the assessment order passed under the Kerala Building Tax Act, 1975. In view thereof, this Court finds that this writ petition is not maintainable for the reasons that there is statutory remedy of appeal under Section 11 provided under the Act and further the question involved in the writ petition is a disputed question of fact. Therefore, the writ petition is hereby dismissed.

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Sd/-

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DINESH KUMAR SINGH JUDGE

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Svn

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WP(C) NO. 3074 OF 2020

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APPENDIX OF WP(C) 3074/2020

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PETITIONER’S EXHIBITS

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EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED
30.12.2010 ISSUED BY THE 1ST RESPONDENT

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EXHIBIT P2TRUE COPY OF THE ASSESSMENT ORDER DATED
27.9.2017 ISSUED BY THE 1ST RESPONDENT

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EXHIBIT P3 PHOTOGRAPH OF THE TRUSS WORK DONE BY THE PETITIONER IN THE FRONT OF THE BUILDING

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EXHIBIT P4TRUE COPY OF THE REPRESENTATION DATED
6.11.2017 PREFERRED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT

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EXHIBIT P5TRUE COPY OF THE JUDGMENT DATED
22.5.2018 IN WPC NO 12153/2018 OF THIS
HON'BLE COURT
EXHIBIT P6TRUE COPY OF THE DEMAND NOTICE BEFORE
ATTACHMENT DATED 9.8.2019 ISSUED BY THE
2ND RESPONDENT
EXHIBIT P7TRUE COPY OF THE NOTICE DATED 30.9.2019
ISSUED BY THE 1ST RESPONDENT TO THE
PETITIONER

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EXHIBIT P8TRUE COPY OF THE ORDER DATED 5.12.2019
ISSUED BY THE 1ST RESPONDENT TO THE
PETITIONER
EXHIBIT P9TRUE COPY OF THE DEMAND NOTICE ALONG
WITH NOTICE BEFORE ATTACHMENT OF
PROPERTY DATED 12.03.2021 ISSUED BY THE
2ND RESPONDENTS

Ahamed Thazhe Chalikal, v. the Tahsildar

Case brief

What is this about?

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Ahamed Thazhe Chalikal, v. the Tahsildar

Case brief

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