High Court of KeralaSingle Judge2024-04-11Writ petition allowed; Ext.P5 quashed; Ext.P3 s...

WP(C) No. 27341 of 2017

Case / Petition Number:WP(C) NO. 27341 OF 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: GOPINATH P.
Judgment Date: 2024-04-11
Court Decision / Holding: Ext.P5 is quashed and the petition is allowed. The court holds that the 4th respondent could not validly rectify to undo the revisional order; Ext.P3 remains the correct basis for computation, and the Building Tax Act provisions govern tax liability. The period for exercising the rectification power under the Revisional Authority having expired, there is no room for maintaining Ext.P5. The decision effectively upholds the District Collector’s revision (Ext.P3) and reverts to the recalculated tax as per the Building Tax Act, not the Municipality Rules.
Final Disposition: Writ petition allowed; Ext.P5 quashed; Ext.P3 stands; the Building Tax Act governs taxation and the District Collector’s revision is upheld over Ext.P5.

Parties to the Case

Appellants / Petitioners

Adv. M.C. Presannakumar

Respondents

State of Kerala represented by its Secretary, Revenue Department, Government Secretariat, Thiruvananthapuram-695001
The District Collector, Kannur, Pin – 670 003
The Sub Collector, Thalassery, Kannur District
The Tahsildar Thalassery, Kannur District-670 701

Legal Representation & Advocates

Counsels for Petitioners

• Sri.C.P.Peethambaran
• Smt.Mini.V.A.

Counsels for Respondents

• Sri. Arun Ajay Shankar (GP)

Case Synopsis & Summary

The petitioner, Adv. M.C. Presannakumar, challenges Ext.P5, a 17.07.2017 order passed by the 4th respondent under Section 15 of the Kerala Building Tax Act, 1975, which effectively reversed a revisional order and restored the original assessment (Ext.P1). The dispute concerns building tax and luxury tax on a residential building in Thalassery. Initially, the 4th respondent assessed based on a plinth area of 284.86 sq m, demanding Rs. 4,800 as building tax and Rs. 4,000 as luxury tax. The petitioner preferred an appeal to the Sub Collector (Ext.P2), which was rejected. A revision petition before the District Collector, Kannur (Ext.P3) altered the computation by applying the Kerala Municipality Building Rules to determine the plinth area, reducing the total to 270.571 sq m and concluding that the open verandas should be treated with 50% area for the purpose of assessment. Ext.P4 followed consequential steps, and Ext.P5, allegedly exercising power under Section 15, practically undone the revisional order by reinstating Ext.P1. The petitioner contends that the 4th respondent lacked authority to bypass the revisional order and that, per Roy M. Mathew and Bhopal Sugar, no jurisdiction allows an inferior authority to nullify a superior tribunal’s directions. The Government Pleader argues the district-level rules were misapplied. The High Court ultimately allows the petition and quashes Ext.P5, holding that such rectification cannot undo the revisional order and that the Building Tax Act provisions must govern, with Ext.P3 standing.

Provisions of Law Cited

Section 15 of the Kerala Building Tax Act, 1975Kerala Municipality Building Rules, 1999 (Rule 8(11))

Legal Doctrines & Maxims

Hierarchy of Courts
Denial of Justice
Manifest Injustice
Administration of Justice

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that Ext.P5, passed under Section 15 of the Building Tax Act, 1975, cannot legally undo the revisional order (Ext.P3) which had fixed the tax liability after applying 50% verandah area as per the Kerala Municipality Building Rules. The Revisional Authority’s clear directions were being overridden by the 4th respondent’s order. Reliance is placed on Roy M. Mathew v. State of Kerala (2005) to argue that an error by appellate/revisional authorities cannot be corrected by the original authority, and on Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal to emphasize that refusing to carry out superior tribunal directions equates to denial of justice. The petition also invokes W.P.(C) No.16730 of 2016 to challenge the legal correctness of applying municipal rules to building tax calculations.

Contentions of Respondents

Government Pleader argues that Ext.P3 was based on the Municipality Building Rules and that Ext.P5 sought to correct a mistake under Section 15. It is submitted that the Building Tax Act must govern taxation, independent of municipal rules, and that Ext.P5 was a permissible rectification in light of District Collector’s proceedings (Ext.P5 reference). The respondents contend that the 4th respondent was acting within the scope of his powers to rectify the open-area computation and that the revisional order did not bind the subsequent rectification.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Roy M. Mathew v. State of Kerala	2005 (3) KLT 802	Positive	Cited with approval as establishing that an error by appellate/revisional authorities cannot be corrected by the original authority under Section 15.
Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal	AIR 1961 SUPREME COURT 182	Positive	Cited to emphasize that refusal to carry out directions of a superior tribunal amounts to denial of justice and undermines the hierarchical structure of judicial administration.
W.P.(C) No.16730 of 2016	—	Mentioned Only	Cited as a related judgment for context on applying Kerala Municipality Building Rules in tax computation, not as a controlling ruling within this judgment.

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Extracted Judgment Text

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## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` THURSDAY, THE 11[TH] DAY OF APRIL 2024 / 22ND CHAITHRA, 1946 ``` ## **`WP(C) NO. 27341 OF 2017`** ## **`PETITIONER:`** ``` ADV.M.C.PRESANNAKUMAR, AGED 60 YEARS,S/O.KANNAN,LAKSHMI NIVAS,P.O.PARAPRAM,PINARAYI VILLAGE,THALASSERY TALUK,KANNUR DISTRICT. ``` ``` BY ADVS. SRI.C.P.PEETHAMBARAN SMT.MINI.V.A. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY,REVENUE DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.`** - **`2 THE DISTRICT COLLECTOR, KANNUR, PIN – 670 003.`** - **`3 THE SUB COLLECTOR, THALASSERY,KANNUR DISTRICT.`** - **`4 THE TAHSILDAR THALASSERY,KANNUR DISTRICT-670 701. BY ADVS.`** ## **`SRI. ARUN AJAY SHANKAR (GP)`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 27341 OF 2017 2 ## JUDGMENT The petitioner has approached this Court challenging Ext.P5 order of the 4[th] respondent through which he purported to exercise his power under Section 15 of the Kerala Building Tax Act, 1975, in the matter of assessment of building tax and liability to luxury tax in respect of a residential building belonging to the petitioner. The brief facts of the case are as follows:- The 4[th] respondent completed assessment of the Kerala Building Tax Act, 1975 in respect of the building of the petitioner by taking the total plinth area to be 284.86 square meters and directed the payment of Rs.4,800/- as building tax and Rs.4,000/- as luxury tax payable by the petitioner. The petitioner challenged the determination in Ext.P1 by filing an appeal before the Sub Collector, Thalassery. The appeal filed by the petitioner was rejected by Ext.P2 order. The petitioner thereupon filed a Revision Petition before the District Collector, Kannur and the District Collector, Kannur by Ext.P3 order disposed of the Revision Petition as under:- WP(C) NO. 27341 OF 2017 3 "റിവിഷൻ ഹരജി പ്രകാരമുള്ള വാസ ഗൃഹത്തിന്റെ താഴത്തെ 15.98 നിലയിലെ ചതുരശ്ര മീറ്റർ വിസ്തീർണ്ണമുള്ള വരാന്തയും 4.179 ഒന്നാം നിലയിലെ ചതുരശ്ര മീറ്റർ വിസ്തീർണ്ണമുള്ള വരാന്തയും മൂന്നുവശങ്ങളും കൽഭിത്തികളോ മറ്റു മറകളോ ഇല്ലാത്ത തുറസ്സായ സ്ഥലത്തേക **്** ക തുറന്നിരിക്കുന്ന വരാന്തകളുമാണ്. ആയതിനാൽ കേരള മുൻസിപ്പൽ കെട്ടിട നിർമ്മാണ ചട്ടം 1999 ഉപചട്ടം 8 (111) പ്രകാരം പ്രസ് **ത** ു വരാന്തകളുടെ വിസ്തീർണത്തിന്റെ 50% വിസ്തീർണം മാത്രമേ കെട്ടിടനികുതി ചുമത്തുമ്പോൾ ഉൾപ്പെടുത്തേണ്ടതുള്ളൂ.. ആയതിനാൽ29-01-2016 ലെ ജൂനിയർ സൂപ്രണ്ടിന്റെ പുനഃ പരിശശോധനാ റി **പ** ്പ്പോർട്ടിലെ ആകെ വിസ്തീർണ്ണമായ 280.651 ചതുരശ്ര മീറ് **റ** ിൽ നിന്നും കുറവു ചെയ്യേണ്ടതായ 10.079 ചതുരശ്ര മീറ്റർ വിസ്തീർണ്ണം കുറവ് ചെയ്ത പ്രകാരം റിവിഷൻ ഹരജി പ്രകാരമുള്ള വാസ ഗൃഹത്തിന്റെ തറവിസ്തീർണ്ണം 270.571 ചതുരശ്ര മീറ്റർ ആണെ ന്നും ഇത് ആഡംബരനികുതിയുടെ പരിധിയായ 278.7 ചതുരശ്ര മീറ് **റ** ിൽ നിന്നും കുറവാണെ ന്നും ആയതിനാൽ ആഡംബര തന്നെ റിവിഷൻ ഹരജി പ്രകാരമുള്ള കെട്ടിടത്തെ നികുതിയിൽ നിന്നും ഒഴിവാക്കി ഇതിനാൽ ഉത്തരവാകുന്നു . കെട്ടിടത്തിന്റെ വിസ്തീർണ്ണം 270.571 ചതുരശ്ര മീറ് **റ** ായി കണക്കാക്കി കെട്ടിടനികുതി ഉത്തരവ് തലശ്ശേരി തഹസിൽദാർ പുതുക്കി നിശ്ചയിക്കുന്നതിന് നടപടി സ്വീകരിക്കേണ്ടതാണ് .” Following Ext.P3 order, a consequential order was also issued by the 4[th] respondent. The said order is on record as Ext.P4. Thereafter by Ext.P5 order dated 17.07.2017, the 4[th] respondent purporting to exercise the power under Section 15 of the Building Tax Act, 1975 practically restored Ext.P1 order. 2. The learned counsel appearing for the petitioner submits that in the facts and circumstances of this case and considering the findings of the District Collector in Ext.P3 WP(C) NO. 27341 OF 2017 4 order, the 4[th] respondent was not authorized to pass any further order under Section 15 of the Building Tax Act, 1975. Reliance is placed on the judgment of this Court in Roy M. Mathew v. State of Kerala [2005 (3) KLT 802]. It is also submitted that where the order of the 4[th] respondent had been set at naught by the revisional authority, namely the District Collector, the 4[th] respondent could not have pass any further order practically refusing to implement the order of the District Collector. Reliance is placed in this regard to the judgment of the Supreme Court in Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal [AIR 1961 SUPREME COURT 182]. 3. The learned Government Pleader submits that Ext.P3 order of the District Collector proceeds on the basis that in terms of the provisions in the Municipality Building Rules, only 50% of the open area needs to be calculated for the purposes of plinth area. It is submitted that the application of the provisions of the Kerala Municipality Building Rules for the purposes of determining the tax payable under the Building Tax Act, 1975 was obviously an error committed by the District Collector. He placed reliance on the judgment of WP(C) NO. 27341 OF 2017 5 this Court dated 14.11.2022 in W.P.(C)No.16730 of 2016 to contend that the determination of tax payable under the Building Tax Act, 1975 must be with reference to the provisions of that enactment not with reference to the provisions of the Kerala Municipality Building Rules. It is submitted that Ext.P5 order of the 4[th] respondent also refers to the proceedings of the District Collector, Kannur (reference No.6 in Ext.P5). He has placed before me a copy of the proceedings of the District Collector, referred to as reference No.6 in Ext.P5, to show that the District Collector himself had directed the 4[th] respondent to revise the orders, where benefit had been granted on the basis of the provisions contained in the Municipality Building Rules and it is on that basis that the 4[th] respondent had exercised his powers to rectify an obvious mistake (under Section 15 of the Building Tax Act, 1975). It is submitted that in such circumstances, the decisions relied on by the learned counsel for the petitioner may not have any application. 4. Having heard the learned counsel for the petitioner and the learned Government Pleader, I am of the view that the petitioner is entitled to succeed. While it may be true that the WP(C) NO. 27341 OF 2017 6 Ext.P3 order of the District Collector allowing the Revision Petition filed by the petitioner by referring to the provisions in the Municipality Building Rules for the purpose of determination of plinth area may not be legally correct especially in the light of the judgment of this Court in W.P(C) No.16730 of 2016, I am of the view that the procedure adopted by the 4[th] respondent for rectifying the mistake cannot be justified in law. While it may have been open to the District Collector himself to have exercised the power under Section 15 of the Building Tax Act, 1975, it does not lie in the hands of the 4[th] respondent to exercise such powers to practically undo the order of the revisional authority, namely the District Collector. The law is settled by the judgment of this Court in Roy M. Mathew (supra), where this Court has clearly held that an error committed by the appellate or revisional authority cannot be corrected by the original authority by reference to the provisions of Section 15 of the Building Tax Act, 1975. Furthermore I am clear in my mind that if this procedure is permitted, it would amount to the inferior authority directly refusing to implement the order of the appellate / revisional authority which would directly militate against the principle WP(C) NO. 27341 OF 2017 7 laid down by the Supreme Court in Bhopal Sugar Industries Ltd. (supra). In Bhopal Sugar Industries Ltd. (supra), where it was held:- “8. We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter dated March 24, 1955. By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of Courts. If a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal.” Therefore, this writ petition is allowed. Ext.P5 is quashed. Since the time for exercising the power of WP(C) NO. 27341 OF 2017 8 rectification of mistake by the Revisional Authority has clearly expired no purpose will be served by reserving such right in the Revisional Authority, in the facts and circumstances of this case. Sd/GOPINATH P. JUDGE DK WP(C) NO. 27341 OF 2017 9 ## **`APPENDIX OF WP(C) 27341/2017`** |**`PETITIONER EXHIBITS`**|**`PETITIONER EXHIBITS`**| |---|---| |**`EXHIBIT P1`**|**`TRUE COPY OF THE ORDER DATED`**| ||**`23.07.2014 OF THE 4TH RESPONDENT`**| |**`EXHIBIT P2`**|**`TRUE COPY OF THE ORDER DATED`**| ||**`20.10.2015 OF THE 3RD RESPONDENT`**| |**`EXHIBIT P3`**|**`TRUE COPY OF THE ORDER DATED`**| ||**`01.06.2016 OF THE 2ND RESPONDENT`**| |**`EXHIBIT P4`**|**`TRUE COPY OF THE ORDER DATED`**| ||**`11.07.2016 OF THE 4TH RESPONDENT`**| |**`EXHIBIT P5`**|**`TRUE COPY OF THE ORDER DATED`**| ||**`17.07.2017 OF THE 4TH RESPONDENT`**| |**`RESPONDENT EXHIBITS`**|| |**`EXHIBIT R4(A)`**|**`TRUE COPY OF THE NOTICE DATED`**| ||**`07.04.2017`**|