A. Siyavudeen, K.A. Abdul Razack, and N.M. Jayaraman v. State of Kerala and others

**C.R.** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** **THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR** **& THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 11TH DAY OF JANUARY 2012/21ST POUSHA 1933** **W.A.No.1458 of 2011** **-----------------------AGAINST THE JUDGMENT IN W.P.(C).No.25073/2011 DATED 22-09-2011** **----------** ## **APPELLANTS/PETITIONERS:-** ## **-------------------------** **1. A.SIYAVUDEEN,S/O.LATE ALI AKBER, AGED 64 YEARS, 36/972 A, UNITY APARTMENTS, LISSY HOSPITAL ROAD, ERNAKULAM, KOCHI-682018.** **2. K.A.ABDUL RAZACK, S/O.LATE K.K.ABDUL KHADER, AGED 58 YEARS, 36/972 B, UNITY APARTMENTS, LISSY HOSPITAL ROAD, ERNAKULAM, KOCHI-682018** **3. N.M.JAYARAMAN, S/O.LATE N.N.MADHAVA SHENOY,AGED 52, 36/972.C, UNITY APARTMENTS, LISSY HOSPITAL ROAD, ERNAKULAM, KOCHI-682018** **BY ADVS.SRI.SHAJI P.CHALY SRI.S.GOPAKUMAR SMT.S.K.SREEKALA** ## **RESPONDENTS/RESPONDENTS:-** **-------------------------** **1. STATE OF KERALA, REPRESENTEDBY PRINCIPAL SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1.** **2. DISTRICT COLLECTOR, ERNAKULAM DISTRICT COLLECTORATE, CIVIL STATION, ERNAKULAM - 682 030.** **3. TAHSILDAR, ASSESSING AUTHORITY(BUILDING TAX), KANAYANNUR TALUK, ERNAKULAM-682011** **4. THE VILLAGE OFFICER, EDAPPALLY SOUTH VILLAGE, ERNAKULAM-682024.** - **R1 TO R4 By SENIOR GOVERNMENT PLEADER SRI.BOBBY JOHN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-** ## C.N.Ramachandran Nair & K.Vinod Chandran, JJ. -------------------------------------- ## W.A.No.1458 of 2011 --------------------------------------Dated this, the 11[th] day of January, 2012 ## JUDGMENT ## K.Vinod Chandran,J. The appellants, who are the petitioners, filed the writ petition challenging the assessment of the building comprising of the flats constructed by them individually; as a single building. The learned Single Judge dismissed the writ petition on the ground that the petitioners having not filed an appeal as provided under the Kerala Building Tax Act within the period or the extended period provided therein, the petitioners cannot seek resurrection of a time barred cause of action under Article 226 of the Constitution of India. 2. The Kerala Building Tax Act has provided a period of limitation of thirty days for the filing of an appeal and has provided a further extended period of six months for entertaining a belated appeal with sufficient cause for the delay. The delay of limitation having run out, a Division Bench of this Court in _**Assistant Commissioner of Central Excise v. Krishna Poduval**_ [2005 (4) KLT 947] has held that the discretionary remedy under Article 226 cannot be invoked against express statutory provisions, however harsh the effect of the W.A.No.1458 of 2011 - 2 - provisions may be on an assessee or litigant. The said proposition of lay cannot be doubted and the Supreme Court has also consistently held so. However, the learned counsel for the appellant would urge that the respondents in the instant case has exercised their authority in excess of the jurisdiction conferred under the Kerala Building Tax Act and has issued orders beyond the scope of the Act. 3. The appellants would contend that they separately own three apartments in the building, the plan of which is produced as Exhibit P1. Exhibits P3, P5 and P7 are the sale deeds in respect of the three appellants, which would show separate title, possession and enjoyment of three apartments in the said building. The appellants have also produced other documents evidencing the construction by their own funds, which we are at present not inclined to look into. However, the appellants contend that immediately after the construction was over, the appellants were served with individual notices, Exhibits P14, P15 and P16, in Form III of the Kerala Building Tax Rules, calling upon them to file returns with respect to the individual apartments owned by them. In pursuance of the notice, the appellants had filed Exhibits P17, P18 and P19 returns, declaring the area covered by each of the apartments, specifically admitting the liability under the Act. In pursuance of the return, the appellants were issued with individual notices, Exhibits P19(A), P19(B) and P19(C) W.A.No.1458 of 2011 - 3 - notifying inspection of the site on 12.7.2006 as also specifying that the records are to be produced. The assessees contend that without the inspection as notified in Exhibits P19(A), P19(B) and P19(c) and without a hearing, an order of assessment under the Act was passed in Form V by Exhibit P20, assessing the building as one single unit and computing the tax for the entire plinth area. The order of assessment was issued citing the name of all the owners in the same order. A consequential demand notice was also issued, which is produced as Exhibit P21. Exhibits P22 to P26 are the various representations filed by the appellants before the authorities under the Act and also the concerned Minister. 4. The appellants' contention is that the separate apartments were constructed individually and is possessed and enjoyed separately by each of the owners. We notice that the notice issued under the Act was to each of the individual owners with respect to the flats in which they have title and the returns were also filed by the individual owners. Even in pursuance of the returns, notice of inspection was also served on the individual owners separately. However without any inspection or further verification of the records, a single assessment order was passed taking the entire plinth area for a single assessment under the Act taking the apartment building as a single unit for the purpose of assessment W.A.No.1458 of 2011 - 4 - under the Act. We also notice that the Form III notices as also the inspection notices contained separate building numbers of each of the appellants. The representation made by the appellants to the Tahsildar who passed Exhibit P20 order also would show that there was no inspection as notified under Exhibits P19(A), P19(B) and P19 (C) and the order Exhibit P20 was passed without verification of the documents sought for by the assessing authority and kept ready by the appellants. 5. The appellants' counsel would take us through the judgment rendered by one of us (C.N.Ramachandran Nair,J.) in Tharu v. Tahsildar [2003 (1) KLT 219], wherein the procedure for assessment as contemplated under the Building Tax Act, 1975 was elaborately considered. In the said judgment, it was held that only when an assessment is completed in terms of the return and the assessing authority finds the return incorrect in all respects and passes an order in terms of the return, assessing the building and demanding the tax; the assessment could be passed in Form V in terms of Section 9(1) of the Act. In circumstances where the owner of the building does not file a return or if the return filed is found to be incorrect, then, it was held that, the assessing officer was bound to issue notice under Section 9(2) calling upon the assessee to file return, if no return is filed; and if return is filed, to furnish evidence in W.A.No.1458 of 2011 - 5 - support of the return. Sub-section (3) of Section 9 was also held to provide an opportunity to the assessee in case of invocation of Section 9(2). In such circumstances, it was held that it is necessary that the assessing officer passes an order giving reasons for the same. It is only in a case where the return is accepted, that the assessing officer merely computes the tax on the basis of the plinth area and issues an order in Form V. We are in full agreement with the said proposition of law laid down in the said decision. 6. As noticed earlier, the initiation of the proceedings by Form III was separate and distinct against the three appellants and the returns were also so filed. The notice for site inspection was also separate and then the assessing officer made a volte-face and passed Exhibit P20 order assessing the building as one single unit without carrying on the inspection as notified in Exhibits P19(A), P19 (B) and P19(C) and without verifying the records or hearing the appellants. Exhibit P20 also does not reveal any reasons for this change of opinion and cannot be considered as a valid order passed under Section 9(2) of the Building Tax Act. True, the appellants failed to avail the statutory remedies within the time prescribed. But, however, we notice that immediately on service of Exhibit P20 order and Exhibit P21 demand, the appellants moved separate applications before the authority who passed Exhibits P20 and P21, pointing out W.A.No.1458 of 2011 - 6 - the clear mistake committed by the authority, which is evidenced by Exhibit P22 to P24. We also notice that Section 15 of the Building Tax Act provides for rectification of mistakes by an assessing authority within three years from the date of passing of an order on its own motion or on such mistake having been brought to its notice by an assessee. Since the assessee has not invoked the statutory remedy of appeal as provided under the Act, we are in perfect agreement with the learned Single Judge that Article 226 cannot be invoked to resurrect a remedy barred under the provisions of the Act. However, it has to be noticed that this is a fit case in which the authority ought to have invoked Section 15 of the Building Tax Act to correct the obvious and patent error it committed. We are not for a moment expressing any opinion on the manner in which the assessment has to be made, which would necessarily depend upon the documents to be produced by the assessee before the assessing officer. Rectification of mistakes, no doubt, can be only of mistakes or error apparent on the face of the record. By suggesting that Exhibits P22, P23 and P24 were to be treated as applications for rectification under Section 15 of the Act, we are not for a moment suggesting that the actual computation of the assessing officer results in a mistake or error. However, the records having revealed that independent returns were filed, there could not be a joint W.A.No.1458 of 2011 - 7 - assessment as a single unit of assessment, without further notice and opportunity; as also without specific reasons recorded for change of opinion. The assessing authority on receipt of the returns should have proceeded to issue notice on the change of opinion proposed; lack of which is a mistake or error apparent from the record. We have been considerably influenced by the fact that the authority under the Act itself has issued separate notices to each of the assessees for their respective apartments, but we desist from going into the merits to avoid the evil of pre-empting an officer under the Act from exercising the original jurisdiction and authority conferred on him. 7. Ordinarily we should have directed the assessing officer to consider the representations under Section 15 of the Act, deeming the same to be rectification applications. But the procedural errors going to the root of the matter, we are constrained to set aside Exhibit P20 order of assessment for reasons of violation of principles of natural justice and total lack of reasons for rejecting the returns filed. Consequentially, Exhibit P21 demand is also set aside. There will be a direction to the assessing authority, the 3[rd] respondent, to consider the returns filed by the individual appellants, viz., Exhibits P17, P18 and P19, and in the event of non-satisfaction, issue fresh notice to the assessees for proceeding to assess under the Act. The W.A.No.1458 of 2011 - 8 - 3[rd] respondent shall consider the returns within a period of two weeks from the date of receipt of a certified copy of this judgment and in the event of non-satisfaction, issue separate notices to the appellants. The appellants shall co-operate with the 3[rd] respondent and the proceedings shall be completed expeditiously, at any rate, within three months from the date of hearing of the appellants. The amounts paid by the appellants in compliance of the interim direction issued by this Court shall be retained by the authority and refund or further demand shall be made in accordance with law and in accordance with the orders passed by the assessing authority. The Writ Appeal is allowed in the above terms with no costs. Sd/C.N.Ramachandran Nair, Judge Sd/- vku/- K.Vinod Chandran, Judge. - true copy -