A.C.DEVASSY, ARAKKAL HOUSE, KECHERI P.O., TALAPPILLY v. MENON

ORDER ON CMP. NO.59426/2002 IN OP. 35126/2002DISMISSED12.1.2007SD/- K.BALAKRISHNAN NAIR, JUDGEAPPENDIX PETITIONER'S EXHIBITS EXT.P1:- COPY OF THE ORDER OF THE 1ST RESPONDENT.EXT.P2:- COPY OF THE LIST OF DOCUMENTS FILED BEFORE THE 2ND RESPONDENT.EXT.P3:- COPY OF THE ORDER OF THE 2ND RESPONDENT.EXT.P4:- COPY OF THE ORDER OF THE 3RD RESPONDENT.EXT.P5:- COPY OF THE JUDGMENT OF KERALA HIGH COURT.EXT.P6:- COPY OF THE LEASE DEED ENTERED INTO WITH THE INDIAN OVERSEASBANK.EXT.P7:- COPY OF THE CERTIFICATE ISSUED BY THE INDIAN OVERSEAS BANKEXT.P8:- COPY OF THE ORDER OF THE 3RD RESPONDENT.EXT.P9:- COPY OF THE RECEIPT ISSUED BY THE PANCHAYATH EXECUTIVE OFFICER,CHOONDAL.EXT.P10:- COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY, CHOONDALGRAMA PANCHAYATH./TRUE COPY/tss K.BALAKRISHNAN NAIR, J.-----------------O.P.NO.35126 of 2002-F-----------------------------Dated this the 12th day of January, 2007---------------------------------------JUDGMENT---------- The petitioner submits he constructed a commercialbuilding in Sy.No.515 of Eranallur Village in Thalappilly Taluk, in1971, long before the enforcement of the Kerala Building TaxOrdinance with effect from 1-4-1973. He has given the buildingon lease as per Ext.P6 lease deed dated 15-6-1973. Longthereafter, in 1999 the petitioner has been served with Ext.P1order assessing the said building to tax, under the Kerala BuildingTax Act 1975. As per Ext.P1, it was found that the petitionerconstructed a building on 14-5-1973 or thereafter and thereforehe is liable to pay tax to the tune of Rs. 19,800/-. He filed anappeal before the R.D.O. That appeal was dismissed by Ext.P3.He filed revision before the District Collector. The revision wasdismissed by Ext.P4. He challenged the above-said orders beforethis Court. This Court remitted the matter to the R.D.O. for freshconsideration. The R.D.O. again held against the petitioner andrejected his contentions by order dated 28-5-2000. Thepetitioner filed revision before the District Collector. That revision OP.35126 of 2002.-2-was dismissed by Ext.P8 order dated 26-7-2002. This originalpetition is filed challenging Ext.P8.2. According to the petitioner, the finding of the authoritiesregarding the date of construction is unsustainable. Apart fromExt.P6 lease deed he also relies on Exts.P9 receipt issued by thePanchayat levying house tax for the said building for the first halfof 1973-74. He also relies on Ext.P7 certificate issued by theIndian Overseas Bank to show that the petitioner's building was inits possession from 15-6-1973 to 9-2-1987. Based on the abovedocuments the petitioner would submit the building was actuallyconstructed before 1-4-1973. Altogether he would submit thatthe omission of the Tahsildar to levy the tax within a reasonabletime is unjustified. Even though there is no express bar orlimitation in the Act, the respondents were bound to collect taxwithin a reasonable time limit. Its collection after a lapse ofseveral years, in 1999, is unjustified. In support of thatsubmission reliance is placed on the decision of the Apex Court inGovernment of India Vs. Citedal Fine Pharmaceuticals (1989 (3)SCC 483).2. The respondents have filed counter affidavit supporting OP.35126 of 2002.-3-the impugned orders.3. Heard the learned counsel on both sides. The findingthat the building was constructed after 1-4-1973 is a finding offact which cannot be disturbed by this Court. It shows that it isnot perverse. Ext.P6 would show that the petitioner has given thebuilding on lease, to the Indian Overseas Bank in June, 1973. Itwould not show that the building was constructed before1-4-1973. Going by Ext.P8, the impugned order, it could be seenthat only Ext.P6 was the material which was produced before theR.D.O. and District Collector. Therefore, this Court need not gointo the contention raised by the petitioner relying on Exts.P7and P9. Ext.P7 would only show that the Indian Overseas Bankwas a tenant in the petitioner's building from June, 1973. Ext.P9also would show that the petitioner has paid property tax which isdescribed in the receipt as house tax in the first half of 1973-74.It does not show that the said receipt relates to a particularperiod. It was not a material produced before the authoritiesbelow. Further, even if the construction is completed in May,1973 the property tax (house tax) will be collected from 1-4-1973.Therefore, it is not a clinching material in favour of the petitioner. OP.35126 of 2002.-4-In the result, I find that the finding of the authorities below thatthe building was constructed after 1-4-1973 cannot be said to beperverse warranting interference by this Court.4. The next contention of the petitioner is that after thelapse of several years there cannot be any levy and collection ofbuilding tax. Under the Building Tax Act, there is no period oflimitation fixed. Under Sec.7, the petitioner is bound to file thereturns. As per Sec.7 (3) and the relevant rules, the VillageOfficer has to keep the register of new buildings and he has tobring it to the notice of the Tahsildar so that the Tahsildar can askthe person who constructed the building to file returns underSec.7 of the Building Tax Act. But, their failure in this regardcannot create any right in favour of the petitioner. The decisionrelied on by the petitioner relates to demand of short levy ordeficiency in collection of tax. It does not relate to collection atthe first instance. The petitioner cannot take advantage of hisown default. So, the jurisdiction under Art.226 of the Constitutionof India being discretionary, I feel that this Court cannot extend itshelping hand to the petitioner who flouted by not filing thereturns and who is now trying to take advantage of his own OP.35126 of 2002.-5-default. So, the technical contention raised by the petitionerbased on delay cannot be accepted.The Original Petition fails, and it is dismissed.K.BALAKRISHNAN NAIR,JUDGE.MS OP.35126 of 2002.-6-K.BALAKRISHNAN NAIR, J.----------------------------------------------- O.P. No.35126 of 2002 J U D G M E N TDATED 12th JANUARY,2007-----------------------------------------------