Sunny Zachariah v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 2ND DAY OF MARCH 2012/12TH PHALGUNA 1933** ## **WP(C).No. 12496 of 2006 (K)** ## **---------------------------** ## **PETITIONER(S):** ## **-------------** **SUNNY ZACHARIAH, VAIKKATHETHU HOUSE, MUNDANKAVU, CHENGANNUR.** **BY ADV. SRI.MVS.NAMBOOTHIRY** ## **RESPONDENT(S): --------------** **1. STATE OF KERALA, REP. BY THE SECRETARY, DEPARTMENT OF REVENUE, TRIVANDRUM.** **2. THE DISTRICT COLLECTOR, ALAPPUZHA, COLLECTORATE, ALAPPUZHA.** **3. THE REVENUE DIVISIONAL OFFICER, CHENGANNUR.** **4. THE TALUK TAHSILDAR, CHENGANNUR.** **5. THE CHENGANNUR MUNICIPALITY,** - **REP. BY ITS SECRETARY,** - **MUNICIPAL OFFICE, CHENGANNUR.** - **R1 TO R4 BY GOVERNMENT PLEADER SRI.SOJAN JAMES R5 BY SRI.S.HARIKRISHNAN, SC, MC, CHENGANNUR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BKA** ## **WP(C).No. 12496 of 2006 (K)** ## **APPENDIX** ## **PETITIONER'(S) EXHIBITS:** - **EXT.P1 COPIES OF THE NOTICES DATED 23.09.1995 ISSUED BY THE MUNICIPALITY.** - **EXT.P2 COPY OF THE TAX RECEIPT DATED 09.10.1995.** - **EXT.P3 COPIES OF THE CHALAN EVIDENCING THE PAYMENT.** - **EXT.P4 COPY OF THE NOTICE DATED 19.08.1997.** - **EXT.P5 COPY OF THE COMMON NOTICE DATED 13.08.1998.** - **EXT.P6 COPY OF THE PROCEEDINGS ISSUED BY THE TALUK TAHSILDAR DATED 20.10.1998.** - **EXT.P7 COPY OF COMPLETION CERTIFICATE DATED 06.09.1996.** - **EXT.P8 COPY OF THE ORDER DATED 29.03.2006 ISSUED BY THE DISTRICT COLLECTOR, ALAPPUZHA.** - **EXT.P9 COPY OF THE NOTICE DATD 07.04.2006 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P10 COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 12.04.2006.** - **EXT.P10 COPY OF THE LETTER NO.R1.724/1996 DATED 22.02.2006 ISSUED BY THE MUNICIPAL COUNCIL, CHENGANNUR.** ## **RESPONDENT'(S) EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE** **BKA** ## **K. VINOD CHANDRAN, J. -----------------------------------------WP(C) NO. 12496 OF 2006 -----------------------------------------Dated this the 2[nd] day of March, 2012** ## **J U D G M E N T** The petitioner challenges Ext.P6 revised assessment made on the petitioner's building as confirmed in appeal; which was dismissed by the 3[rd] respondent for the reason that the tax amounts were not paid before filing the appeal. Aggrieved by the order in appeal, petitioner filed a revision petition before the 2[nd] respondent. Thereafter, the petitioner filed OP No:10149/99 in which revisional authority was directed to consider the revision petition without insisting for payment of any amount. Subsequently challenging the revisional order, which went against the petitioner, the petitioner was again before this Court in OP No: 28366/1999 wherein this Court set aside the order of assessment as well as the order in appeal and revision and directed the District Collector, Alappuzha to consider the issue afresh. The order passed in pursuance to the judgment in OP No: 28366/1999, WP(C) NO. 12496 OF 2006 ..2.. Ext.P8, is under challenge in the present writ petition. 2. The petitioner constructed a building of two floors, which was assessed for building tax and the same was paid as evidenced by Ext.P3 series of receipts. Subsequently, Ext.P4 notice was issued alleging that the petitioner's building ought to have been assessed along with the building constructed by the petitioner's brother as a single unit. Though petitioner had submitted objections to the above notice, nothing was heard and no proceedings were taken for assessment. The petitioner was then issued with a notice dated 13.08.1998 revising the assessment of his building from Rs.39,600 to Rs.57,600/-. By Ext.P6 order, assessment of the petitioner's brother's building also was revised. The petitioner alone is before this Court. Pursuant to the directions issued by this Court, the District Collector, Alappuzha considered the issue afresh and passed Ext.P8 order confirming the reassessment made on the petitioner's building. Going by Ext.P8 order as also Ext.P6 passed by the original authority, the rectification WP(C) NO. 12496 OF 2006 **==> picture [20 x 9] intentionally omitted <==** was attempted on two grounds, i.e., the building has to be assessed as a single unit and that the rate which was applied by the assessing authority was not correct since the amendment made effective from 29.07.1996 revised the rates of the tax to be assessed on the basis of plinth area. The petitioner would contend before this Court that there is absolutely no power with the authority to revise an order passed under the Building Tax Act and that the provisions of Section 15, which speaks of rectification of assessments, cannot be invoked to revise an order especially when actually there is no power to revise available in the statute. Faced with the notice, the petitioner in his objection also raised a plea that his building was constructed before the amendment. 3. The learned Government Pleader, however, would contend that the revision of rates was not noticed by the authority while making the assessment, and applying the amended provisions would only lead to a rectification of a mistake. The learned Government Pleader would also submit WP(C) NO. 12496 OF 2006 ..4.. that the petitioner was issued with notice and his claim that the completion of the building was before the amendment, was also considered and rejected based on materials available on record. 4. Admittedly, the assessment of the petitioner's building was completed and the petitioner has paid the amounts as per Ext.P3 series. It is after two years, but within the period provided under Section 15 of the Building Tax Act, that the notice was issued for applying the revised rates as per the amendment as also assessing the building of the petitioner and his brother as a single unit. There is no provision in the Building Tax Act to review or revise an order passed under the provisions of the Act. The power to rectify the mistake going by the words employed in Section 15 is “to rectify any mistake borne out from the record of the order in appeal/revision/assessment”. The issue which is raised in the writ petition is whether the assessment now proposed to be made would come within the ambit of Section 15. It cannot WP(C) NO. 12496 OF 2006 **==> picture [20 x 9] intentionally omitted <==** for a moment be disputed that when the assessment which led to the payment of the amounts as per Ext.P3 series was made, the amendment of 29.07.1996 was already available in the statute. The mere fact that the assessing authority did not notice it and made the assessment as per the unamended provisions cannot be said to be a mistake apparent from the face of the record. It can at best be negligence on the part of the assessing officer. Further, the assessment now sought to be made against the petitioner's building also raises two other issues, namely, whether the building of the petitioner and his brother has to be assessed as a single unit and also whether on the materials available, the petitioner's building can be said to have been completed before the amendment came into force. These are not issues which can be adjudicated in a proceeding initiated under Section 15 of the Building Tax Act. 5. The petitioner's counsel Adv. Sri. MVS Namboothiry would take me through a judgment of a Single Bench as also a WP(C) NO. 12496 OF 2006 **==> picture [20 x 9] intentionally omitted <==** Division Bench of this Court wherein the scope of rectification was considered. In **Hajara v. State of Kerala (2005 (2) KLT 206),** a learned single Judge of this Court held that an assessing authority cannot reopen an assessment which has been completed and substitute with another order under the power of rectification. What cannot be done directly, it is oftener than ever held, cannot be permitted to be done indirectly. A Division Bench of this Court in **Moopan Motors Pvt. Ltd. v. Tahsildar (2009 (1) KLT 989)** again considered the scope of Section 15 and held, relying on precedents that another method of assessment or reassessment cannot be adopted by way of rectification under Section 15 of the Building Tax Act. The Hon'ble Supreme Court in **Deva Metal Powders Pvt. Ltd. v. Commissioner, Trade Tax, U.P. ((2007) 10 VST 751 (SC))** considered the scope of rectification. The Supreme Court held that; “The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. “Mistake” means to take or understand WP(C) NO. 12496 OF 2006 ..7.. wrongly or inaccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. “Apparent” means visible; capable of being seen, obvious; plain. It means “open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming”. A mistake which can be rectified under Section 22 is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration.” It does not require any deep probe to understand that the issues raised in the instant case for reassessment or reopening of the assessment is not one which is visibly evident and obvious and which is not dependent on argument or elaboration. Ext.P8 itself would show that for arriving at a decision, the authorities had to go through the materials and had to enter clear findings on such material. This, in my opinion, does not lead to mere rectification of a mistake. The application of the amended provisions, the ascertainment of the date of completion of the building and the question of whether the building has to be assessed as a separate unit or single unit, cannot be decided without an adjudication of the materials on record. The issues which crop up in reopening the completed assessment of the petitioner can, by no stretch WP(C) NO. 12496 OF 2006 **==> picture [20 x 9] intentionally omitted <==** of imagination, be deemed to be a mistake apparent on the face of the record. 6. In such circumstances, the writ petition succeeds and Ext.P8 order is set aside. The building of the petitioner completed in the year 1996 is assessed under the Building Tax Act and the same is satisfied by Ext.P3 series of payments. There cannot be any further assessment of the building unless there is a reconstruction or extension carried on in the said building. The writ petition is allowed, however, with no costs. Sd/- **K. VINOD CHANDRAN, JUDGE** bka/- //True copy// PA to Judge