P.K. Saidu Mohammed Haji and Others v. Tahsildar, Kodungallur and The District Collector, Thrissur

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 25TH DAY OF NOVEMBER 2014/4TH AGRAHAYANA, 1936 WP(C).No. 28990 of 2007 (A) ---------------------------- PETITIONER(S): -------------- 1. P.K.SAIDU MOHAMMED HAJI, POOVATHUPARAMBAL HOUSE, EDAMUTTAM P.O.VALAPPADU, CHAVAKKADU TALUK, THRISSUR DISTRICT. 2. P.K.ABDUL KHADER, -DO-. 3. P.K.RAHMATHALI, -DO- 4. P.S.MUBARAK, -DO- 5. RAHIYANATH, WIDOW OF SHOWKATHALI, -DO- 6. SAABIR, S/O LATE SHOUKATHALI, -DO- 7. SHAMIR, S/O LATE SHOWKATHALI, -DO- 8. JINCY, D/O LATE SHOWKATHALI, -DOBY ADVS.SRI.P.S.KRISHNA PILLAI SRI.JOHN SAM N. RESPONDENT(S): -------------- 1. THE TAHSILDAR, KODUNGALLUR. 2. THE DISTRICT COLLECTOR, THRISSUR. GOVERNMENT PLEADER SRI. BOBBY JOHN PULICKAPARAMBIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX:** ## **PETITIONERS' EXTS:** EXT.P1: TRUE PHOTO COPY OF JUDGMENT DATED 22-7-2005 IN O.P. NO. 16255 OF 1997 EXT.P2: TRUE COPY OF NOTICE NO. C1.56944/97(2) DATED 2410-2005 ISSUED BY 2ND RESPONDENT EXT.P3: TRUE CPHOTO COPY OF THE WRITTEN ARGUMENT NOTES DATED 7-12-2005 SUBMITTED ON BEHALF OF PETITIONERS BEFORE THE 2ND RESPONDENT EXT.P4: TRUE PHOTO COPY OF ASSESSMENT ORDER CUMDEMAND NOTICE NO. C5.4493/95 DATED 18-8-2007 ISSUED BY THE IST RESPONDENTS EXT.P5: TRUE PHOTO COPY OF REPRESENTATION DATED 19-92007 SUBMITTED ON BEHALF OF PETITIONERS BEFORE THE IST RESPONDENTS EXT.P5 (A) .........DO..ACKNOWLEDGMENT OF ..DO. EXT.P6: TRUE PHOTOCOPY OF THE REPLY NO C5.4493/95 DATED 26-09-2007 ISSUED BY THE IST RESPONDENT /true copy/ P.S. To Judge ## A.K.JAYASANKARAN NAMBIAR, J. ----------------------------- W.P. (C ) No. 28990 of 2007 - A ----------------------------Dated this the 25[th] day of November, 2007 ## JUDGMENT Petitioners 1 to 4 are brothers, and petitioners 5 to 8 are the legal heirs of a deceased brother of petitioners 1 to 4. A building that was put up by the petitioners jointly, and in respect of which they claim to have separate ownership of different portions, was assessed to building tax under the Kerala Building Tax Act, by treating the said building as a single unit for the purpose of taxation. The assessment proceedings culminated in an order of the District Collector in revision. Aggrieved by the said proceedings, the petitioners challenged the orders passed by the respondents in O.P. 16255 of 1997. By Ext. P1 judgment, this Court set aside the orders passed by the respondents and remanded the matter back to the 2[nd] respondent to re-consider the revision petition filed by the petitioners afresh, after taking into account the documents that were submitted by the petitioners for establishing that they had separate ownership over various portions of the building. Pursuant to the judgment of this W.P. (C ) No. 28990 of 2007 - A 2 Court, the 2[nd] respondent issued Ext. P2 notice, to which Ext. P3 written arguments were submitted by the petitioners. It is the case of the petitioners that thereafter nothing was heard from the 2[nd] respondent and the petitioner was served with Ext. P4 demand notice by the first respondent confirming a tax liability at an enhanced rate, by treating the building as a single unit. The demand notice received by the petitioner is produced as Ext. P4 and is impugned in the Writ Petition. Petitioners would also submit that, during the pendency of the Writ Petition, the petitioners received Ext. P6 reply to a representation filed by them to the first respondent. Therein they were informed that Ext. P4 demand notice was issued pursuant to the proceedings of the 2[nd] respondent dated 17-2-2006 by which the revision petition preferred by the petitioners had been rejected by the 2[nd] respondent. It was pointed out that it was pursuant to the rejection of the revision petition that the first respondent had proceeded to issue Ext. P4 demand notice. The case of the petitioners is that, after having submitted their written arguments and also appeared for hearing before the 2[nd] respondent, all further proceedings were carried on behind the back of the petitioners and they were not informed of the further proceedings or the order dated 17-2-2006 of the 2[nd] respondent. W.P. (C ) No. 28990 of 2007 - A 3 2. A counter affidavit has been filed on behalf of the 2[nd] respondent wherein the sequence of events, leading to the passing of the order dated 17-2-2006 of the 2[nd] respondent, has been narrated. It is also pointed out that, pursuant to the said order of the 2[nd] respondent, the Tahsildar had proceeded to re-assess the tax due on the building and it was the computation that was done by the Tahsildar thereafter, that was communicated to the petitioners by Ext. P4 demand notice. 3. I have heard the learned counsel for the petitioner and also the learned Government Pleader appearing on behalf the respondents. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that this is a case where, despite the directions of this Court in Ext. P1 judgment that directed the 2[nd] respondent to reconsider the revision filed by the petitioners after hearing them, the 2[nd] respondent proceeded to pass the order dated 17-2-2006 behind the back of the petitioners and without informing them of the further proceedings, such as the enquiry that was directed to be done through the Tahsildar. Petitioners also have a definite case that the said order dated 17-2- W.P. (C ) No. 28990 of 2007 - A 4 2006 of the 2[nd] respondent was never served on them and they came to know of it only during the pendency of the proceedings when they received Ext. P6 reply in response to a representation made before the first respondent. The argument notes filed by the petitioners before the 2[nd] respondent, pursuant to the judgment of this Court, would clearly indicate that the petitioners had sought to rely on various documents to substantiate their contention that the assessment, in respect of the portions of the building separately owned by them, had to be done separately and not by considering the whole building as a single unit. These aspects do not appear to have been considered by the 2[nd] respondent while passing the order dated 17-2-2006. 5. Under these circumstances, I am of the view that the proceedings dated 17-2-2006 of the 2[nd] respondent, as also Ext. P4 demand notice issued pursuant thereto, require to be quashed and I do so. The 2[nd] respondent shall reconsider the matter, after affording the petitioners an opportunity of hearing, and pass orders in the matter after recording the submissions of the petitioners and specifically adverting to the documents produced by them in his order. The 2[nd] respondent shall also take note of the Judgments of this Court in **District Collector, Civil Station, Kakkanad and Others** W.P. (C ) No. 28990 of 2007 - A 5 **v. V.K.Sreekumari Kunjamma - 2011 (1) KLT 248 (FB), Varghese P.D. And Others v. State of Kerala and Others - 2013 (2) KLT 831 (DB), Natarajan v. State of Kerala- 2013 (4) KLT 364 and Thahasildar & Another v. Soman Peter (Dr.) - ILR 2014 (4) Kerala 327.** The said decisions lay down the factors to be considered, by the authorities called upon to decide the issue as to whether a building should be assessed as a single unit or a separate unit for the purpose of Kerala Building Tax Act, 1975. The 2[nd] respondent shall pass orders as directed, within a period of three months from the date of receipt of a copy of this judgment. This Writ Petition is disposed as above. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE ## **ani/25th** ## **/true copy/** ## **P.S. To Judge** W.P. (C ) No. 28990 of 2007 - A 6 ## xxx