K. Ramakrishnan v. Revenue Divisional Officer, Thrissur; Tahsildar, Thrissur

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY ,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940 ## WP(C).No. 42311 of 2018 ## PETITIONER/S: K.RAMAKRISHNAN,AGED 63 YEARS S/O.KUNNAMBATH DEVAKI AMMA, MANAGING DIRECTOR, M/S. ENARC BUILDERS PVT.LTD., M.G.ROAD, THRISSUR- 680000. BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI SRI.A.SANTHOSHKUMAR ## RESPONDENT/S: 1 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FIRST FLOOR, CIVIL STATION, CIVIL LINES ROAD, AYYANTHOLE, THRISSUR, KERALA- 680003. 2 THE TAHSILDAR, THRISSUR TALUK OFFICE, OPPOSITE THRISSUR TOWN HALL, PALACE ROAD, CHEMBUKKAV, THRISSUR, KERALA- 680022. SMT.M.M.JASMINE GOVERNMENT PLEADER SRI. MATHEW GEORE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 42311 of 2018 2 ## **JUDGMENT** ## **Facts:** The petitioner owns a multi-storeyed building with 58 flats and 13 shop rooms. In 1999 the Tahsildar assessed the building to tax and wanted the petitioner to pay Rs.14,04,000/-. In fact, he has taken the entire building as one unit for fixing the building tax. Aggrieved, the petitioner filed O.P. No.27480 of 1999, but this Court refused to interfere on merits. It allowed the petitioner to exhaust the appellate remedy. 2. Then the petitioner filed an appeal before the Revenue Divisional Officer (RDO) concerned. Before that authority, the petitioner has also applied to have, what he perceived, the question of law referred to under Section 12 of the Act to the District Court. 3. As a result, the RDO referred the matter—presumably the question of law as raised by the petitioner—to the jurisdictional District Court, Thrissur. Then the District Court, on 31.08.2010, rendered the Ext.P1 judgment. Though it was rendered over eight years ago, the petitioner could not secure a copy of the judgment. And he, of course, blames his counsel before the District Court for this lapse. 4. At any rate, recently, on 24.11.2018, the Tahsildar issued the Ext.P2 notice demanding the petitioner to pay the building tax as originally assessed because the District Court had dismissed the O.P. No.437 of 2003. In fact, the authorities besides issuing the Ext.P2 demand notice invoked the revenue recovery proceedings, WP(C).No. 42311 of 2018 3 too. As a result, the District Revenue Administration has issued the Exts.P3, P4, and P5 notices. Assailing the Exts.P1 to P5 proceedings, the petitioner has filed this writ petition. ## **Petitioner’s:** 5. The petitioner's counsel strenuously contends that instead of confining itself to the question of law referred to it, the District Court has exceeded its jurisdiction and rendered findings on pure questions of fact. To support her contentions, the petitioner’s counsel has taken me through the judgment. Besides that, she has heavily relied on the procedure prescribed in Section 12 of the Act. Thus she asserts that the judgment violates that provision. 6. Indeed, the petitioner had little defence why he could not challenge the Ext.P1 on time. Yet, the learned Counsel persists with her plea that even the authorities issued the Ext.P2 recently in 2018, and only after that had the petitioner an occasion to check the record and realise the procedural infraction. Under these circumstances, the petitioner’s counsel urges this Court to set aside the Exts.P1 to P5 and remand the matter to the appellate authority for fresh consideration. ## **Respondents’:** 7. The Government Pleader, on the other hand, has stoutly defended not only the Ext.P1 judgment but also the consequential proceedings the authorities have taken. Relying on _Balan v. State of Kerala_[1] , the learned Government Pleader asserts that once the District Court has rendered its judgment, the authorities are powerless to 1 1990(1) KLT 428 WP(C).No. 42311 of 2018 4 interfere with it; instead, they have to comply with that one. According to him, the Ext.P2 notice, in fact, complies with the Ext.P1 judgment. He, therefore, maintains that the Writ Petition is meritless. 8. Heard the learned counsel for the petitioner and also the learned Government Pleader for the petitioners. ## **Discussion:** 9. Indeed, there are no disputed questions of fact—in this writ petition. And I wonder whether there is any pure question of law in the first place to be referred to the District Court and later to be adjudicated by this Court. At any rate, the admitted facts fall in a narrow compass. 10. The petitioner suffered an adverse assessment in 1999. Soon thereafter, he filed O. P. No.27480 of 1999 but failed in his attempt. Then, he filed a statutory appeal. Acting on the petitioner's request the appellate authority under Section 12 of the Kerala Building Tax Act, 1975, referred to the District Court, Thrissur, what is considered to be the questions of law involved in that assessment. 11. The District Court, Thrissur, in turn, rendered the Ext.P1 judgment in August 2010. Indeed, the District Court dismissed the petitioner's claim. But nothing happened thereafter. To be explicit, the petitioner did not challenge that judgment. In fact, as admitted, he was unaware of it. On the other hand, the Tahsildar as the primary authority also remained quiet for about eight years. Then, in November 2018 he issued the Ext.P2 demand notice followed by Exts.P3 to P5 notices under the Revenue Recovery Act. WP(C).No. 42311 of 2018 5 12. The first hurdle the petitioner faces is that he has not challenged the Ext.P1 judgment. The counsel now asserts that the judgment is entirely erroneous and even without jurisdiction. According to her, the very question of law the Court has referred to in paragraph 6 of the judgment only confines itself to a question of fact. Besides that, she has also drawn my attention to paragraph 8 of the judgment, which, according to her, the District Court has only referred to a pure question of fact. For record, I may extract the District Court's observations: “There cannot be dispute regarding the scope of explanation 2 of section 2(e) of the K.B.T.Act. 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. _In this case, the question to be considered is whether these flats can be considered as separate building for the purpose of assessment. In order to decide this question of fact there should be evidence to prove that cost of construction was met by all these persons. But there is absolutely no evidence to prove this fact_ . So I find no reason to interfere with the assessment made by the respondent. _In the absence of evidence to prove that the building was constructed with the funds of all these persons, it was possible only to assess the building as a single unit, and it was impossible to assess each apartment or flats as separate building_ . In that view of the matter, I find no reason to interfere with the order of assessment passed by the respondent on 24.07.1999 as referred to in the order of reference. There is no merit in this petition, and it is only to be dismissed.” (italics supplied) 13. There is no room for any ambiguity in the District Court’s observations that it has dealt with a pure question of fact, for it has explicitly observed that _“ there is absolutely no evidence to prove this fact”_ . 14. To examine the propriety of the Ext.P1 judgment I must invariably refer to Section 12 and it reads: “ **12. Reference to District Court.** - (1) The appellate authority may, if it is satisfied either suo motu or on application by any party to an appeal under WP(C).No. 42311 of 2018 6 Section 11 that the decision on the appeal involves a question of law, draw up a statement of the case and refer it to the District Court. (2) If the District Court is not satisfied that the statement in a case referred under this section is sufficient to enable it to determine the question raised thereby, the Court may refer the case back to the appellate authority to make such additions thereto or alterations therein as the Court may direct in that behalf. (3) The District Court, upon the hearing of any such case, shall decide the question of law raised therein and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the Court to the appellate authority which shall pass orders on the appeal in conformity with such judgment. (4) For the purpose of this section, “District Court” means the Distinct Court having jurisdiction over the area in which the building in respect of which building tax has been levied is situate.” 15. In the first place, I find it difficult to appreciate that what was referred to in paragraph 6 of the judgment amounts the question of law: “[T]he question to be decided is whether each fact should be separately assessed or not.” The law, I reckon, on this point is well settled. Once a structure is regarded as a single unit, it is liable to tax as such. On the contrary, if it comprises independent tenements having distinct owners, then each tenement must be treated as a distinct unit assessible as such. What ought to be examined and ascertained is whether there are others who co-owned the land and contributed to the construction. I reckon it is a pure question of fact. 16. Section 12 provides for a contingency. On reference, if the District Court has not been satisfied there is any question of law, it could return the reference to the appellate authority for reformulation. That has not happened here. To take the discussion further to its logical end, I am prepared to assume that there was a question of law. I further assume that the District Court, Thrissur, determined that question of law. In that event, based on the District Court’s findings, the appellate WP(C).No. 42311 of 2018 7 authority should have considered the facts, by applying the law as declared by the District Court, and then rendered an order to be enforced. Here, after the Ext.P1 judgment from the District Court, the appellate authority has taken no further steps. 17. More pertinently, in a reference, what needs to be answered are the questions of law referred or raised. If there are no questions of law as the District Court can perceive, then it must return the reference. At any rate, its dismissing a reference “on merits”—after adverting to factual controversy—does not arise. 18. One lapse on the petitioner's part sticks out, though. Ext.P1 is the judgment rendered by a competent court. However erroneous that judgment may be, that needs to be corrected at higher adjudicatory echelons. Here, the petitioner has taken no such step. His defence is that his counsel has not informed him about the dismissal. Thus, there are latches on the petitioner's part. But I believe they are curable or, at least, condonable. 19. On the other hand, even the authorities under the Act have remained silent for about eight years. On their part, they too ought to have followed Section 12: the appellate authority has undertaken no further adjudication based on the Ext.P1. Of course, with the summary dismissal of the reference, that situation has not arisen. 20. In sum, I must conclude that the Ext.P1 suffers from incurable statutory defect as mandated in Section 12. Besides that, the Ext.P2 demand notice also suffers procedural lapses as the assessing authority has not acted under sub section (3) of Section 12. WP(C).No. 42311 of 2018 8 21. I, therefore, set aside the Exts.P1 to P5 and remand the matter to the appellate authority. That appellate authority will fix a date and hear the petitioner on the tax the primary authority imposed on the building long back, as the Ext.P1 stands set aside in its entirety. Now any reference to the alleged question of law does not arise, nor has the petitioner before me convincingly demonstrated that there arise any question of law. 22. So it is entirely open for the appellate authority to adjudicate the issue: how much tax the petitioner's building attracts. For that purpose, the appellate authority will also address the issue whether the building is to be treated as a single unit or as a composite structure involving different owners. Indeed, the petitioner may produce any evidence to hammer home his contentions, which he must do within the time frame that may be fixed by the appellate authority. The amount the petitioner has paid in compliance with the interim order stands adjusted towards the tax the petitioner has to pay. And that adjustment will take place after the appellate authority renders its orders. This Writ Petition is disposed of accordingly. ## **Sd/-** ## **DAMA SESHADRI NAIDU** ## **JUDGE** sd WP(C).No. 42311 of 2018 9 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER DATED 31.08.2018 OF THE DISTRICT COURT, THRISSUR IN O.P.NO.437/2003. EXHIBIT P2 TRUE COPY OF THE NOTICE NO.G2-439/98 DATED 24.11.2018 ISSUED BY THE TAHSILDAR, THRISSUR ALONG WITH ENGLISH TRANSLATION. EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 17.12.2018 UNDER SECTION 7 AND SECTION 34 FOR AN AMOUNT OF RS 11,44,010/- ALONG WITH ENGLISH TRANSLATION. EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 17.12.2018 UNDER SECTION 7 AND SECTION 34 FOR AN AMOUNT OF RS 11,54,627/- ALONG WITH ENGLISH TRANSLATION. EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 17.12.2018 UNDER SECTION 7 AND SECTION 34 FOR AN AMOUNT OF RS 11,33,624/- ALONG WITH ENGLISH TRANSLATION. EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER ISSUED BY THE 1ST RESPONDENT IN APPEAL NO.C1.15214/99 UNDER THE KERALA BUILDING TAX ACT. sd