Somashekara Pillai v State of Kerala & The Tahsildar, Taluk Office, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** **TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932** **WP(C).No. 34973 of 2010(V)** **---------------------------------------** **PETITIONER(S):** **-----------------------** **SOMASEKHARA PILLAI,S/O.LATE RAGHAVAN PILLAI,AGED 66 YEARS,KURUSUVILAKATHU VEEDU, KOWDIAR(PO),THIRUVANANTHAPURAM.** **BY ADV. SRI.C.AJITH KUMAR** **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT,REVENUE DEPARTMENT, THIRUVANANTHAPURAM-1.** **2. THE TAHSILDAR,TALUK OFFICE, THIRUVANANTHAPURAM-1.** **R1 & R2 BY GOVERNMENT PLEADER SRI. BIJOY CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 34973 of 2010 --------------------------------Dated this the 4th day of January, 2011 ## JUDGMENT Challenge in this writ petition is against assessment of Building Tax finalised as per Ext.P1 proceedings. On an earlier occasion, the petitioner had approached this court challenging the assessment completed against him with respect to the very same building. In Ext.P3 judgment this court had set aside the assessment and remanded the matter for fresh consideration of the assessing authority. The assessment was directed to be finalised afresh after issuing notice to the petitioner as well as to all others who are the owners of individual apartments contained in the building in question. 2. The case of the petitioner is that apartment complex consists of ground plus two floors, which was constructed in a land belonging to the petitioner, on the basis of an agreement entered between the petitioner, a promoter by name V.R.Bhaskaran Nair, and a builder M/s Asset Homes. It is the specific case that each individual apartments were constructed on the basis of agreements entered with the intending WP(C) .34973/2010 2 purchasers of such apartments. Specific agreements were also executed with such individual purchasers for sale of undivided shares in the property in question. It is stated that sale deeds with respect to transfer of such undivided shares were also executed into the name of the owners of the apartments. Since the construction of the building was completed on the basis of the specific agreements, for and on behalf of the purchasers, by meeting the cost of construction by each of them jointly, each apartment in question is liable to be assessed separately as one falling within the purview of explanation (2) to section 2(e) of the Kerala Building Tax Act, is the contention. But ignoring such contentions, the 2[nd] respondent had finalised the assessment which was challenged before this court earlier. 3. While considering validity of the assessment completed earlier, this court observed that the order of assessment was issued only in a printed form, from which nothing was discernible as to whether any notice was issued and as to whether the petitioner had raised any objection. However, it was observed that, with respect to building contains more than one apartment owned by different persons the procedure for assessment is enumerated in the decisions of this WP(C) .34973/2010 3 court in **M/s.Bavasons Constructions (P)Ltd. vs. State of Kerala (2007(3) KLT 101)** and in **Lissy vs. Tahsildar (2000 (3) KLT 497).** Therefore while remitting the matter the 2[nd] respondent was directed to take note of the dictum laid down in those decisions and to finalise the same with notice to the petitioner as well as to all the owners of different apartments. 4. Ext.P1 is the fresh order of assessment issued consequent to direction contained in Ext.P3 judgment. It seems that the 2[nd] respondent had issued a highly cryptic order wherein it is stated that the earlier assessment was confirmed since the parties have failed to produce any documents warranting assessment in view of explanation (2) to section 2(e) of the Kerala Building Tax Act. According to the petitioner, copies of the entire documents relating to different agreements executed between the parties, as well as copies of sale deeds through which ownership of land was transferred, were produced before the assessing authority. The petitioner had also produced such documents before this court, as per Exts.P4 to P18. It is stated that eventhough the petitioner as well as other co-owners of building were invited for a personal hearing, without considering WP(C) .34973/2010 4 any such evidence the respondents had confirmed the earlier order without any proper application of mind and unmindful of the observations contained in the earlier judgment. Hence the petitioner is challenging Ext.P1 without resorting to the appellate remedy. 5. On the basis of contentions raised, records from the office of the 2[nd] respondent was called for, which was made available for my perusal through the Government Pleader. It is noticed that the 2[nd] respondent had shown scant respect to the directions contained in Ext.P3 judgment. I am constrained to observe that the matter was dealt with in a callous and irresponsible manner. The files revealed that after receipt of Ext.P3 judgment a notice of hearing was issued to the petitioner with the date of hearing fixed as 31.5.2010. It is evident that the petitioner had submitted an adjournment application expressing inconvenience for appearance on that day. It is further revealed that notices were also issued to the other coowners fixing the hearing on 20.7.2010. But the 'note file' does not contain any endorsement with respect to any hearing conducted on 20.7.2010 or on any subsequent dates. But the endorsements written by some sub staff in the office of the 2[nd] WP(C) .34973/2010 5 respondent reveals that a decision was taken on 17.9.2010 to restore the original order of assessment, on the basis of observations to the effect that no documents were produced to prove that building in question was constructed jointly by all parties. The 'note file' clearly reveals that an opinion was formed in this regard on that date and a draft proceedings was prepared and put up for approval of the 2[nd] respondent. However, the 2[nd] respondent made a query as to whether hearing notice was issued to all parties concerned. The query was explained subsequently and on that basis the draft notice was approved on 1.10.2010. It is evident that hearing notices were issued to the parties fixing the date of hearing on 20.7.2010. But the file does not contain endorsement regarding any hearing conducted, not any recording of any of the contentions raised by the parties. The file does not reveal a consideration of any of the contentions of the parties concerned. At the same time it is evident that copies of agreements and sale deeds were available in the file, which presumably were produced only by the petitioner and other co-owners. 6. The manner in which the subject matter was dealt with by the 2[nd] respondent deserves severe criticism. However WP(C) .34973/2010 6 I take note of an affidavit filed by the 2[nd] respondent in which it is stated as follows:- “ If this Hon'ble Court feels that, there is any inadvertent mistake committed by this respondent in the proper compliance of the judgment, the same is not at all purposeful and so may kindly be excused. Ext.P1 order is issued in terms with the Kerala Building Tax Act, and perfectly in the interest of the revenue of the State.” Taking note of the above submissions of the 2[nd] respondent, I am proposing to dispose of the case by further remanding the matter for a proper disposal in accordance with Ext.P3 judgment. 7. Hence the writ petition is allowed. Ext.P1 order of assessment is hereby set aside. The 2[nd] respondent is directed to reconsider the matter and to complete the assessment strictly in accordance with the observations and directions contained in Ext.P3 judgment. 8. Needless to say that the same shall be done at the earliest, after affording reasonable opportunity to all the parties WP(C) .34973/2010 7 concerned. Orders in this regard shall be issued at the earliest, at any rate within a period of two months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM,JUDGE pmn/