High Court of KeralaSingle Judge2014-09-30Writ petition disposed; Exhibit P14 quashed; fr...

Eapen Chacko and Aliemma Chacko v. Tahsildar, Kottayam Taluk and State of Kerala

Case / Petition Number:WP(C).No. 13705 of 2009 (G)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.K. Jayasankaran Nambiar
Judgment Date: 2014-09-30
Court Decision / Holding: Exhibit P14 cannot be legally sustained. The 1st respondent Tahsildar shall pass fresh orders in the matter within two months from the date of receipt of a copy of this judgment, taking note of the decisions in Padmanabhan v. State of Kerala and State of Kerala & Ors. v. Southern Fisheries Corporation, and ascertain the actual plinth area by excluding areas mentioned in those judgments. Fresh orders may levy building tax again in the event of any additions or alterations; the writ petition is disposed accordingly.
Final Disposition: Writ petition disposed; Exhibit P14 quashed; fresh orders to be passed by Tahsildar within two months, following controlling precedents; rights preserved for levy of tax on additions/alterations.

Parties to the Case

Appellants / Petitioners

Eapen Chacko
Aliemma Chacko

Respondents

The Tahsildar, Kottayam Taluk
State of Kerala, rep by the Special Secretary, Revenue and Taxes, Secretariat, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Sri Reji George
• Sri Mohan Pulikkal
• Smt. A. Amrutha Vidyadharan

Counsels for Respondents

• Sri Liju V. Stephen

Case Synopsis & Summary

Exhibit P14, an assessment order levying building tax on the petitioners’ building, is challenged in a Kerala High Court writ petition (WP(C) 13705/2009). Petitioners Eapen Chacko and Aliemma Chacko contend that the building, which had earlier been assessed in 2005, already reflected modifications (tin roofing to prevent water seepage) and that the 2008 notice under Section 7(3) of the Kerala Building Tax Act, 1975 demanded fresh returns for alleged additional construction without details. The Tahsildar, after hearing none of their objections, passed Exhibit P11 (02.06.2008) fixing tax at ₹2,21,400, which was quashed by this Court in a related proceeding (W.P. No. 20743/2008) with directions to reconsider after considering objections (Exhibit P13). Exhibit P14 purports to rely on Padmanabhan v. State of Kerala (Supra) to distinguish residential from commercial buildings for plinth area. The petitioners argue that the subsequent Division Bench decision in State of Kerala & Ors. v. Southern Fisheries Corporation (Supra) held there could be no such distinction, and thus P14 is legally unsustainable. The Court agrees with the petitioners, quashes Exhibit P14, and directs fresh orders consistent with Padmanabhan and Southern Fisheries, calculating actual plinth area and excluding portions mentioned in those judgments, while preserving rights to levy tax if alterations occur.

Provisions of Law Cited

Kerala Building Tax Act, 1975, Section 7(3)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend Exhibit P14 is legally unsustainable as it relies on an interpretation distinguishing residential from commercial structures for plinth area. They point out that the 2008 notice under Section 7(3) lacked details of the claimed 'additional construction' and that the 2005 assessment already reflected modifications (tin roofing) rather than a new construction. They argue that the Tahsildar did not hear the petitioners and failed to consider Exhibit P13 objections; the reliance on Padmanabhan v. State of Kerala (Supra) is misplaced, as the later Division Bench decision in Southern Fisheries Corporation (Supra) held no such residential-commercial distinction for plinth area. They urge quashing Exhibit P14 and directing fresh orders after applying the controlling precedents and calculating the correct plinth area, with freedom to levy tax if additions occur as per Section 7(3).

Contentions of Respondents

The respondents contend Exhibit P14 represents a valid exercise under Section 7(3) to determine revised building tax in light of alleged additional construction and the building’s residential-cum-commercial use. They assert the Tahsildar may consider fresh assessments and that the earlier decisions on residential vs commercial should be read in context; they emphasize the need to protect revenue and permit reassessment where legitimate additions or alterations have occurred. They request that, subject to the court’s directions, the assessment be maintained or adjusted through proper proceedings.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Padmanabhan v. State of Kerala	2009 (1) KLT 295	Positive	The judgment is cited to support the view that there should be no distinction between residential and commercial for determining plinth area in building tax; this proposition was affirmed by the Division Bench in the Southern Fisheries Corporation case.
State of Kerala & Ors. v. Southern Fisheries Corporation	2011 (1) KLJ 719	Positive	Division Bench held there could be no difference in plinth area calculation for building tax between residential and commercial buildings, affirming Padmanabhan’s approach; relied upon to justify quashing Exhibit P14 and directing a recalculation consistent with no such distinction.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 30TH DAY OF SEPTEMBER 2014/8TH ASWINA, 1936 WP(C).No. 13705 of 2009 (G) ---------------------------- PETITIONERS : ------------- 1. EAPEN CHACKO,S/O.CHACKO, EZHAMALIYIL HOUSE, PERUMBAIKADAVU P.O., KOTTAYAM. 2. ALIEMMA CHACKO,W/O.EAPEN CHACKO, EZHAMALIYIL HOUSE, PERUMBAIKADAVU P.O., KOTTAYAM. BY ADVS.SRI.REJI GEORGE SRI.MOHAN PULIKKAL SMT.A.AMRUTHA VIDYADHARAN RESPONDENTS : ------------- 1. THE TAHSILDAR, KOTTAYAM TALUK. 2. STATE OF KERALA, REP.BY THE SPECIAL SECRETARY, REVENUE AND TAXES, SECRETARIAT, THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SRI.LIJU V. STEPHEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13705 of 2009 (G) ## APPENDIX PETITIONERS’ EXHIBTIS : P1 COPY OF THE AGREEMENT DT.07.09.1998 EXECUTED BY THE PETITIONERS IN FAVOUR OF KUMARANELLOOR GRAMA PANCHAYATH. P2 COPY OF ASSESSMENT ORDER NO.B8(1)1963/99 DT.22.10.2002 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS. P3 COPY OF ORDER NO.D4670/02 DATED 11.10.2004 PASSED BY THE RDO, KOTTAYAM. P4 TWO PHOTOGRAPHS SHOWING THE CRACKS DEVELOPED ON THE ROOF SLAB OF PETITIONERS’ BUILDING DUE TO EARTHQUAKE. P5 A PHOTOGRAPH SHOWING THE PROTECTIVE ROOFING CONSTRUCTED ON THE ROOF SLAB OF THE BUILDING BY THE PETITIONERS. P6 COPY OF THE NOTICE DT.07.10.2002 ISSUED BY THE KUMARANELLOOR GRAMA PANCHAYATH TO THE PETITIONERS. P7 COPY OF THE REPLY DT.09.10.2002 SUBMITTED BY THE PETITIONERS TO THE SECRETARY, KUMARANELLOOR GRAMA PANCHAYATH. P8 COPY OF NOTICE NO.B8 (3)1963/99 DT.02.11.2004 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS. P9 COPY OF PROCEEDINGS NO.B8(1)1963/99 DT.10.01.2005 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONERS. P9(A) COPY OF THE REVISED ASSESSMENT ORDER NO.B8(1)1963/99 DATED NIL ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS. P10 COPY OF NOTICE NO.D2-5132/2008 DT.20.05.2008 IN FORM III ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS. P11 COPY OF RE-ASSESSMENT ORDER DT.03.06.2008 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS. P12 COPY OF JUDGMENT DATED 18.07.2008 IN W.P.(C) NO.20743/2008. P13 COPY OF OBJECTION DATED 08.08.2008 FILED BY THE PETITIONERS EXCLUDING THE EXHIBITS. P14 COPY OF RE-ASSESSMENT ORDER NO.D2-5232/08 DATED 02.03.2009 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS. RESPONDENTS’ EXHIBITS : NIL // True Copy // DSV/04/10 P.A. To Judge **A.K.JAYASANKARAN NAMBIAR, J. ---------------------------------------W.P.(C).No.13705 of 2009** **---------------------------------------Dated this the 30[th] day of September, 2014** ## **J U D G M E N T** Exhibit P14 assessment order passed by the 1[st] respondent, levying building tax on the building constructed by the petitioners, is impugned in the writ petition. It is the case of the petitioners that the building in question was originally assessed for building tax in the year 2005. While completing the assessment in 2005, the assessing authority had taken into consideration the building as it then stood which, according to the petitioners, also contained the modifications that had been effected to the building by the petitioners, in the form of a tin roofing, on top of the building, so as to prevent water seepage during monsoon through cracks that had developed in the ceiling of the building. 2. Exhibits P9 and P9(a) are the assessment order and demand notice that were issued to the petitioners in connection with the assessment that was conducted in W.P.(C)No.13705/2009 2 2005. It is the case of the petitioners that thereafter, by Exhibit P10, notice dated 20.05.2008, issued under Section 7(3) of the Kerala Building Tax Act, 1975, they were asked to submit fresh returns in respect of an alleged additional construction that was effected by them. It is pointed out that there were no details furnished in the said notice issued to them, with regard to the additional construction which, according to the respondents, had been effected by the petitioners. Under these circumstances, the petitioners were not able to furnish any revised return to the 1[st] respondent Tahsildar. The 1[st] respondent Tahsildar, therefore, proceeded to pass Exhibit P11 order dated 03.06.2008, fixing the building tax on the building belonging to the petitioners at an amount of `2,21,400/-. As Exhibit P11 order had been passed without hearing the petitioners, and without considering any of the objections that they proposed to file, the petitioners approached this Court through W.P. (C)No.20743 of 2008 impugning the said order. By W.P.(C)No.13705/2009 3 Exhibit P12 judgment, Exhibit P11 order of the 1[st] respondent Tahsildar was quashed and the Tahsildar was directed to reconsider the matter after considering Exhibit P13 objection preferred by the petitioners against the assessment that was proposed. It is thereafter, that Exhibit P14 order dated 02.03.2009 was passed by the 1[st] respondent Tahsildar. In Exhibit P14 order, the Tahsildar takes a stand that the building in question being one that was residential cum commercial, and the decision relied on by the petitioners namely **Padmanabhan v. State of Kerala [2009 (1) KLT 295]** , having been rendered in a case that involved a residential building, could not be applied to the case of the petitioners and hence confirmed the proposal to levy the building tax at the amount of `2,59,200/-. Exhibit P14 order is impugned in the writ petition inter alia on the ground that the distinction sought to be made by the 1[st] respondent Tahsildar, in connection with the applicability of the decision of this Court in **Padmanabhan’s case (Supra)** W.P.(C)No.13705/2009 4 is one that does not survive in view of the later pronouncement of the Division Bench of this Court in **State of Kerala & Ors. v. Southern Fisheries Corporation [2011 (1) KLJ 719]** . 3. I have heard Sri.Reji George, the learned counsel for the petitioners and also Sri.Liju V. Stephen, the learned Senior Government Pleader appearing on behalf of the respondents. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I am of the view that Exhibit P14 cannot be legally sustained. On a perusal of Exhibit P14 order, it is apparent that while it does not expressly take into account the objections raised by the petitioners with regard to the liability to pay building tax in respect of the building, on the contention that there was no additional construction that was effected by the petitioners, the 1[st] respondent Tahsildar, in the said order, also erred in not following the decision of this Court in **Padmanabhan’s** W.P.(C)No.13705/2009 5 **case (Supra).** As already noted, the decision of the Single Judge in **Padmanabhan’s case (Supra)** was since affirmed by the Division Bench in **State of Kerala & Ors.’s case (Supra)** , wherein the specific contention of the Government Pleader, that the earlier decision was rendered in the context of a residential building, whereas the case before the Division Bench involved a commercial building, was rejected by the Court, by observing that in so far as the levy of building tax was concerned, there could not be a difference between residential buildings and commercial buildings for the purpose of determination of the plinth area. In that view of the matter, I feel Exhibit P14 cannot be legally sustained. Resultantly, I quash Exhibit P14 as legally unsustainable. The 1[st] respondent Tahsildar shall pass fresh orders in the matter taking note of the decisions of this Court referred to above and ascertaining the actual plinth area of the building in question, by excluding the W.P.(C)No.13705/2009 6 areas specified in the judgments referred to above. Fresh orders in the matter shall be passed by the 1[st] respondent Tahsildar within a period of two months from the date of receipt of a copy of this judgment. It is also made clear that nothing in this judgment shall prevent the 1[st] respondent Tahsildar from pursuing fresh steps for levying building tax in the event of any additions or alterations made to the building by the petitioners. The writ petition is disposed as above. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** DSV/01/10 W.P.(C)No.13705/2009 7 # W.P.(C)No.13705/2009 8