Allowed

Joy v.K., v. State of Kerala

Kerala HC17 Jul 2024WP(C)/30079/2019

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition regarding building tax assessment. Finding the lower authority failed to prove the petitioner was heard before the impugned order, the judge quashed it. The order was treated as a notice, and the respondents were directed to pass fresh orders after giving a hearing.

What did the court decide?

Ext.P1 order set aside. Petitioners granted liberty to file objections within three weeks. Respondents directed to pass appropriate orders within two months after affording opportunity of hearing.

Joy v.K., Vs State of Kerala — Service and Employment | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 17TH DAY OF JULY 2024 / 26TH ASHADHA, 1946
WP(C) NO. 30079 OF 2019

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PETITIONERS :-

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1JOY V.K., AGED 56 YEARS
S/O PAILO, VALAPPI HOUSE , KORATTY P.O,
PIN- 680 308, CHALAKKUDY VIA, THRISSUR DISTRICT.

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2BEENAMMA JOY
AGED 54 YEARS
W/O JOY V.K , VALAPPI HOUSE, KORATTY PO, PIN - 680
308, CHALAKKUDY VIA, THRISSUR DISTRICT.

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BY ADVS.
K.NARAYANAN (PARUR)
SMT.LISHA K.R.

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RESPONDENTS :-

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY DEPARTMENT OF REVENUE , GOVT SECRETARIAT, THIRUVANANTHAPURAM - 695 001

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2 THE DISTRICT COLLECTOR COLLECTORATE , TRICHUR, PIN 680003

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3 THE REVENUE DIVISIONAL OFFICER CHALAKKUDY, PIN- 680 307

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4 THE TAHSILDAR TALUK OFFICE , CHALAKUDY,PIN TRICHUR, PIN-680307

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5 THE VILLAGE OFFICER MURINGOOR THEKKUMURI VILLAGE OFFICE, PIN- 680307

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SRI. SAYED M. THANGAL -GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO.30079 OF 2019

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JUDGMENT

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This writ petition is filed with the following prayers :-

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“(i) issue a writ of certiorari or any other appropriate writ order or direction to be issued quashing Exhibit P1 and directions to be issued to the 2^nd respondent onwards not to collect the impugned tax pursuant to the Exhibit P1 order of assessment;

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(ii) grant such other and further reliefs as this Hon’ble Court deems fit and proper in the circumstances of this case.”

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2. The facts of the case are as follows:

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The case of the petitioners is that different buildings belonging to petitioners 1 and 2 are assessed as a single unit. Earlier Ext.P3 assessment order was passed by the 4^th respondent, assessing the building owned by the 2^nd petitioner separately and Ext.P2 demand notice was also raised. Thereafter, as per Ext.P1 an amount of Rs.5,76,000/- was demanded from the petitioner, treating the entire building as a single unit.

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WP(C) NO.30079 OF 2019

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Aggrieved by the same, the petitioners have approached this Court with the above writ petition.

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The 4^th respondent has filed counter affidavit contending that adjacent to the building of the first petitioner, which was assessed in the year 2004, a building was constructed by the second petitioner as an extension of the said building in Sy.No,453/5 of Muringoor Thekkemuri Village. The 5^th respondent submitted a report in respect of the said building constructed categorizing the same as other buildings with plinth area of 590.31 m² . Thereafter the fourth respondent, Tahsildar issued notice to the petitioner and after hearing the petitioner, further inspection was conducted by the charge officer of the Taluk office who reported that the plinth area of the building was found to be 670.03 sq.metres. Ext.P3 assessment order dated 02.02.2018 was passed demanding an amount of RS.93,600/-. Against Ext.P3, the 2^nd petitioner filed an appeal before the 3^rd respondent. The 3^rd respondent as per letter dated 21.03.2019 directed the 4^th respondent to inspect the building and report regarding the physical utilization of the entire building and also to verify whether the entire building is utilized as a single unit or

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WP(C) NO.30079 OF 2019

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not and to proceed under Section 5(4) of the Building Tax Act, 1975 if it is found that the entire building is being used as a single unit.

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Pursuant to the inspection conducted on receipt of the report from the 5^th respondent, a notice was issued to the petitioner for hearing on 30.08.2019. It was contended that the petitioners appeared and stated that they are ready to pay the building tax if both buildings are assessed separately. Thereafter, the fourth respondent after verifying the reports and the documents produced by the petitioners completed the assessment as per Ext.P1, treating the said building as a single unit without any separation, with a total area of 1751.385 sq.metres and assessed tax to the tune of Rs.5,76,000/-. After deducting the amount already paid, an amount of Rs.4,39,200/was demanded. It is further contended that the petitioners have an alternative remedy by way of appeal to challenge the impugned demand. Accordingly, the writ petition is to be dismissed.

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Heard the learned counsel for the petitioners and the learned Government Pleader.

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WP(C) NO.30079 OF 2019

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The main grievance of the petitioners is that before passing Ext.P1 order, no notice or opportunity of hearing was granted to the petitioners and Ext. P1 was passed unilaterally by the 4^th respondent. It was further submitted that the measurement was done by the charge officer without notice to the petitioners. Hence, there is violation of principles of natural justice.

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Per Contra the learned Government Pleader submitted that in the counter affidavit, it is stated that notice dated 30.08.2019 was issued to the petitioners for hearing and the petitioners appeared and submitted that they are ready and willing to pay the building tax if both buildings are assessed separately. The learned Government Pleader further submitted on the basis of the report in Ext.R4(a), it is found that the properties possessed by the petitioners are not separated with boundaries and the building is constructed in the properties of the petitioners lying contiguously without any separation.

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I have considered the rival contentions raised on both sides. On a perusal of Ext. P1 order, the references noted in the order therein do not reflect the notice dated 30.08.2019

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WP(C) NO.30079 OF 2019

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mentioned in the counter affidavit filed by the 4^th respondent, nor in Ext.P1 order does not disclose whether the petitioners were afforded an opportunity of hearing. The petitioner asserts that they were not heard. The respondents have not produced the notice dated 30.08.2019 along with the counter affidavit. In the counter affidavit it is stated that the demand was raised solely on the basis of the report of the charge officer and the village officer. Since the respondents failed to prove that the petitioner was heard before passing ext.P1 order, I find that there was violation of principles of natural justice. Therefore, this writ petition is to be allowed, setting aside Ext.P1 order and granting the petitioners further opportunities to present their case.

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Accordingly, the writ petition is disposed of as follows:

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Ext.P1 order passed by the 4^th respondent is set aside. However, Ext.P1 shall be treated as a notice and the petitioners are at liberty to file objections, if any, to Ext.P1 within three weeks from the date of receipt of a certified copy of this judgment. The 4^th respondent shall pass appropriate orders, in accordance with law, within a period of two months thereafter, after affording the petitioners an opportunity of hearing. The petitioners shall produce a certified copy of this

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WP(C) NO.30079 OF 2019

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judgment along with the writ petition before the 4^th respondent for compliance.

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The petitioners are directed to appear before the 4^th

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respondent on 08.08.2024 at 11.00 am.

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Sd/-

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SHOBA ANNAMMA EAPEN JUDGE

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SMA

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WP(C) NO.30079 OF 2019

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APPENDIX OF WP(C) 30079/2019

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PETITIONER EXHIBITS :-

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EXHIBIT P1TRUE COPY OF THE ORDER OF THE TAHSILDAR G3-
10486/2014 DATED 9.10.2019.

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EXHIBIT P2TRUE COPY OF THE DEMAND NOTICE DATED
2.2.2018 SHOWING THE PLINTH AREA AS 670.03.

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EXHIBIT P3TRUE COPY OF THE ORDER OF ASSESSMENT DATED
02.02.2018 ISSUED BY THE 4TH RESPONDENT
TAHSILDAR CHALAKKUDY.

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EXHIBIT P4THE APPROVED PLAN OF THE NON-RESIDENTIAL
BUILDING PREPARED BY THE 4TH RESPONDENT.

Joy v.K., v. State of Kerala

Case brief

What is this about?

What did the court decide?

Joy v.K., v. State of Kerala

Case brief

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What did the court decide?

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