Raphel Rajan v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ``` ``` THURSDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 ``` ## **`WP(C) NO. 5639 OF 2019`** ## **`PETITIONER/S:`** ``` RAPHEL RAJAN AGED 50 YEARS, S/O. MATHEW, RESIDING AT, ALAPPATTU HOUSE, THEKKUMMURY KARA, PULIYANNOOR VLLAGE,PIN - 686573. ``` ``` BY ADVS. M.NARENDRA KUMAR SRI.C.RAMAN ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY MINISTRY OF REVENUE, SECRETARIAT, TRIVANDRUM PIN - 695001.`** - **`2 DISTRICT COLLECTOR, KOTTAYM - 686002.`** - **`3 REVENUE DIVISIONAL OFFICER PALA,, PIN - 686575`** - **`4 TAHSILDAR, MEENACHIL, PALA,, PIN - 686574 BY ADV GOVERNMENT PLEADER RESHMITA RAMACHANDRAN-GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 5639 OF 2019 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 10[th] day of August, 2023** This writ petition has been filed under Article 226 of the Constitution of India, impugning Ext.P7 order dated 26.12.2018 passed by the District Collector, Kottayam under the Kerala Building Tax Act, 1975 (hereinafter referred to as “the Act, 1975”), whereby the earlier revisional order dated 08.07.2018 is sought to be reviewed in purported exercise of the powers under Section 15 of the Kerala Building Tax Act, 1975. 2. Earlier, the Tahsildar, Meenachil had issued an order assessing the residential house of the petitioner. Against the said order, the petitioner filed an appeal. However, the appeal was dismissed by the Revenue Divisional Officer. The petitioner filed revision against the order of assessment and order of appeal dated 26.08.2011 and 28.06.2016 respectively. 3. The Village officer had assessed the plinth area ``` WP(C) NO. 5639 OF 2019 ``` ``` 3 ``` of the building of the petitioner to be 332.38 sq.m. for the purpose of assessing the building tax under the Act of 1975. The petitioner was issued notice on which he raised an objection with regard to the calculation of the plinth area. Thereafter, the said building was inspected through the charge officer. The charge officer reported that the measurements recorded by the Village Officer are true. He also submitted that the car porch amounting to 17.02 sq.m and the garage attached to the outhouse having plinth area of 25.12 sq.m had also been included in the plinth area. So, the Tahsildar, Meenachil reported that based on the report of the Charge Officer, the building was assessed to the building tax and luxury tax after finding the plinth area of 290.24 sq.m. During pendency of the appeal, the building was inspected on demand of the petitioner and it was found that the plinth area of the building was 297.58 sq.m. 4. During pendency of the revision, the petitioner ``` WP(C) NO. 5639 OF 2019 ``` ``` 4 ``` again raised objection in respect of the correctness of measurement of the building for determination of the plinth area for the purpose of levy of the building tax and luxury tax. The revisional authority directed the Senior Superintendent, Kollam, Collectorate to inspect and calculate the plinth area of the building in the presence of the petitioner. The Senior Superintendent, (Inspection and Vigilance) on 03.05.2018, prepared the report after inspecting the building of the petitioner on 28.04.2018 in his presence. It is stated that the plinth area of the building comes to 277.54 sq.m. and the porch area was 17.02 sq.m. 5. After hearing the parties and on examination of the related files of the Taluk office and Revenue Divisional Office and several reports including the reports submitted by the Senior Superintendent after inspecting the site, the revisional authority found that the plinth area of the building of the petitioner was 277.54 sq.m and the ``` WP(C) NO. 5639 OF 2019 ``` ``` 5 ``` Authority directed the Tahsildar, Meenachil to assess the area of building as 277.54 sq.m. and to reassess the tax for the building, taking into consideration the said area. This order attains finality. However, a notice came to be issued to the petitioner as Ext.P6 for re-inspection of the building by the the Deputy Collector (RR), for District Collector. Thereafter, the impugned order dated 26.12.2018, came into force purportedly in exercise of the powers under Section 15 of the Act, 1975. 6. The relevant portion of the impugned order dated 26.12.2018 read as under:- In the above circumstances it appears that the revision petition needs to be reconsidered as per Section 15 of the Kerala Building Tax Act, 1975. As per the Section 15 of Kerala Building Tax Act, 1975 based on that the party was invited for hearing on 28.11.2018 and representing him Adv. K.J. Jacob appeared. He argued that the portion attached to the outhouse was exempted by the ``` WP(C) NO. 5639 OF 2019 ``` ``` 6 ``` Tahsildar finding that it is for the purpose of using as car garage. But, the site inspection report clearly indicates that said area is not constructed as a car shed but for a more convenient use of the building. In the above circumstances the proceedings referred as first above is cancelled and the portion which has been exempted by the Tahsildar as a car garage should also be included in the plinth area of the building in accordance with Section 15 of the Kerala Building Tax Act, 1975. The Tahsildar Meenachil is directed to reassesses the building for the purpose of building tax in accordance with Section 15 of the Kerala Building Tax Act, 1975. The revision submitted by Sri. Raphel Rajan, Alappatt is disposed of accordingly. 7. Section 15 of the Act of 1975 gives power for rectification of mistakes. It is not the power for reviewing ``` WP(C) NO. 5639 OF 2019 ``` ``` 7 ``` the decision taken by the the Assessing Authority, Appellate Authority or Revisional Authority. If there is any mistake apparent on the face, the power under Section 15 of the Act, 1975, can be exercised for rectifying the said mistake apparent on the face of the record. However, the said power cannot be used for reviewing the assessment order or the appellate order or the revisional order, as the case may be. Section 15 of the Act, 1975 which empowers for rectification of the mistakes is extracted hereunder: "15. Rectification of mistakes:-(1) The appellate authority or the revisional authority may, at any time within three years from the date of an order passed by it on appeal or revision, as the case may be, and the assessing authority may, at any time within three years from the date of any assessment or order passed by it, or its own motion, rectify any mistake apparent from the record of the appeal, revision, assessment or order, as the case may be, ``` WP(C) NO. 5639 OF 2019 ``` ``` 8 ``` and shall, within the like period, rectify any such mistake which has been brought to its notice by an assessee: Provided that no such rectification shall be made which has the effect of enhancing an assessment or reducing a refund unless the assessee has been given a reasonable opportunity of being heard in the matter. **==> picture [353 x 32] intentionally omitted <==** (2) Where any such rectification has the effect of reducing the assessment, the assessing authority shall make any refund which may be due to such assessee. **==> picture [353 x 31] intentionally omitted <==** (3) Where any such rectification has the effect of enhancing the assessment or reducing a refund, the assessing authority shall serve on the assessee a notice of demand in the prescribed form specifying ``` WP(C) NO. 5639 OF 2019 ``` ``` 9 ``` the sum payable; and such notice of demand shall be deemed to be issued under Section 10 and the provisions of this Act shall apply accordingly." 8. Section 15 of the Act, 1975 has come for consideration for a Full Bench decision of this Court in **Aswirathul Musthaqeem Sangham v. State of Kerala** **[2019 (1) KLT 238 (F.B)].** In the above case, it is held that where there is an arithmetical error, clerical error or slip or inadvertent omission, in the order or judgment etc, the power under Section 15 of the Act, 1975 can be exercised. Paragraph 10 and 11 of the said judgment, which are relevant are extracted hereunder:- (a) Arithmetical error (b) Clerical error (c) Slip or inadvertent omission in an order or judgment ``` WP(C) NO. 5639 OF 2019 ``` ``` 10 ``` (d) If the later enactment having retrospective operation enables an authority to modify or alter the original assessment order; and (e) where in the earlier assessment order no valid principle of law was applied. It can also be said that the authority has no jurisdiction to rectify the mistake, if: (i) the authority has passed orders by taking one of the alternative views, when two views are possible. (ii) the authority has adopted one of the alternative methods available for assessment of tax according to law and later finds that more amount of tax could be obtained by adopting the alternative method. (iii) a mistake has to be discovered by a long drawn process of reasoning or examining arguments on points of law and on facts or when further evidence is required to be adduced to rectify the mistake. 11. The Statute does not confer any power on the assessing authority to reopen or review the assessment order and substitute it with a fresh one, on a different ``` WP(C) NO. 5639 OF 2019 ``` ``` 11 ``` basis. There is much difference between reopening of an assessment and rectification of any mistake. The latter course can be pursued only if the mistake is apparent from the records and never by any fresh or long drawn process. Of course, the said power to have the mistake rectified can be exercised by the assessing authority within a period of three years, after affording an opportunity of being heard; but care and caution has to be taken to see that the said exercise does not transgress into a process which will make the proceedings an instance of review, for which there is no power. This is more so, in view of the ruling rendered by the Apex Court on many an occasion, explaining the scope of review and alerting that such power is very limited, subject to availability of error apparent on the face of record' and that it cannot be a substitute for appeal. We find support from the dictum in Thungabhadra Industries Ltd. v. Government of Andhra Pradesh (1964 KLT OnLine 1226 (SC) = AIR 1964 SC 1372) and Meera Bhanja v. Nirmala Kumari Choudhary (1995 (1) KLT OnLine 921 (SC) = AIR 1995 SC 455). It ``` WP(C) NO. 5639 OF 2019 ``` ``` 12 ``` cannot be an instance of 're hearing' as well, as held in Parsion Devi v. Sumitri Devi (1998 (1) KLT OnLine 1108 (SC) = (1997) 8 SCC 715). Similarly, if the original view, where two views are possible, is sustainable, substitution of that view by another view, will also not come within the purview of the review as held in M/s Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi (1980 KLT OnLine 1008 (SC) = (1980) 2 SCC 167) and N. Anantha Reddy v. Anshu Kathuria & Ors. (2014 (1) KLT Suppl. 10 (SC)=; (2013) 15 SCC 534). Considering the aforesaid judgments and the scope of Section 15 of the Act, 1975, the language employed in Section 15, the impugned order in Ext.P7 travels beyond the power of rectification or mistake conferred under Section 15 of the Act, 1975. It amounts to reviewing the earlier revisional order dated 08.07.2018. Such a course is not permitted under Section 15 of the Act, and, therefore, I am of the view that the impugned order is beyond the Scope of Section 15 of the Act, 1975 and therefore Ext.P7 ``` WP(C) NO. 5639 OF 2019 ``` ``` 13 ``` is set aside and the writ petition stands allowed. ``` Sd/- DINESH KUMAR SINGH JUDGE ``` ## **`RK`** ``` WP(C) NO. 5639 OF 2019 ``` ``` 14 ``` ## **`APPENDIX OF WP(C) 5639/2019`** ``` PETITIONER EXHIBITS EXHIBIT P1 ``` ``` THE TRUE COPY OF THE ORDER NO.B8- 7124/11 DATED 26.08.2011 AND TYPED COPY PRODUCED HEREWITH . ``` ``` EXHIBIT P2THE TRUE COY OF THE ORDER NO. L1- 4650/11 DATED 28.06.2016. ENGLISH TRANSLATION OF EXT.P2. ``` ``` EXHIBIT P3THE TRUE COPY OF PLAN PREPARED BY THE TAHSILDAR, MEENACHIL. EXHIBIT P4THE TRUE COPY OF THE PLAN PREPARED BY THE TALUK SURVEYOR. ``` ``` EXHIBIT P5 ``` ``` THE TRUE COPY OF THE ORDER NO.B5/B10(1)-5503/2016 DATED 08.07.2018 PASSED BY THE DISTRICT COLLECTOR. ENGLISH TRANSLATION OF EXT.P5. ``` ``` EXHIBIT P6THE TRUE COPY OF THE NOTICE DATED NIL ISSUED FROM THE OFFICE OF THE DISTRICT COLELCTOR. ENGLISH TRANSLATION OF EXT.P6. ``` ``` EXHIBIT P7 ``` ``` THE TRUE COPY OF THE ORDER DATED 26.12.2018. ENGLISH TRANSLATION OF EXT.P7 ```