FRANCIS Vs. REVENUE DIVISIONAL OFFICER

JUDGEMENT

(1.) THE petitioner in O. P. No. 8674 of 1988-Gis the appellant in this writ appeal. C. M. P. No. 34047 of 1988 is filed by the petitioner in the O. P. seeking to implead 4 others as respondents 3 to 8 in the appeal. Respondents 1 to 3 are the Revenue Divisional Officer, Fort Cochin , the Tahsildar, Kanayanur Taluk and the State of Kerala. THE matter involved in this writ appeal arises under the Kerala Building Tax Act (Act 7 of 1975) and the rules framed thereunder. THE short facts necessary to understand the controversy raised in this writ appeal are as follows: THE petitioner along with his 2 brothers and 2 sisters own 10. 05 cents of land in Sy. Nos. 705/2 and 705/6 in ernakulam Village. THEy filed a joint application for permission to construct a multi storied building in the said land. It was so done on the basis of an agreement entered into amongst them dated 7-4-1985. THE interest of each of the owners in the land, on which construction was proposed is 1/5th. As per the agreement, the ownership of the building when completed is to be as per schedule I to III shown in the said agreement. THE construction of the ground floor of the building was completed in 1986. THE Corporation allotted 5 numbers for the shop rooms. Property tax was determined on 26-3-1986. Similarly, the construction of the first floor was completed in April, 1987 and property tax was assessed by the Corporation on 16-3-1988. THE assessments were made on all the five persons jointly. THE construction of the second floor was completed in june, 1988. It was not occupied. Due to non-receipt of the Engineer's report, the building has not been numbered and assessment has not been made. While so, the Tahsildar, Kanayanur Taluk (second respondent) initiated proceedings for assessment to building tax. In response to the notice issued, the co-owners filed separate returns, showing the ownership of the building. THE Tahsildar called for details of the construction. THE petitioner/ appellant and others filed a copy of the agreement entered into by them dated 7-4-1985 as also other corporation records indicating the ownership, annual letting value of the building etc. It is further stated that one of the co-owners, who appeared before the Tahsildar, prayed for treating the construction of the building as belonging to five different persons. THEre was also a plea that since the construction of the building was completed in three different years, there should be three separate assessments. Ignoring this, the Tahsildar passed an order of assessment treating the building as one unit and determined the tax payable at Rs. 2,21,670/ -. THE order of assessment is dated 29-6-1988. Ext. P1 is the order of assessment and Ext. P1 (a) is the relevant notice of demand. THE petitioner, one of the co-owners, contends that the order of assessment was served on him, as per the directions of this Court in O. P. No. 7025 of 1988, only on 20-9-1988. THE petitioner/ appellant filed an appeal before the first respondent Revenue Divisional Officer on 23-9-1988. A plea was made that in view of acute financial difficulties, the petitioner has not paid the tax as per the proviso to S. 11 (1) of the Building Tax Act. Ext. P2 appeal memorandum was returned by the first respondent to the petitioner/ appellant, by an endorsement dated 11-10-1988, stating that "the building tax amount due has not seen paid and the receipt not produced and so the appeal petition is returned to the petitioner". THE petitioner attacks the return of the appeal memorandum as illegal. In the Original Petition, the petitioner prayed for the following reliefs: "i) a declaration that the proviso to S. 11 (1) of the Kerala Building Tax Act, 1975 directing payment of tax as condition for entertainability of the appeal is unconstitutional and void. ii) a declaration that the return of Ext. P2 appeal memorandum, for non-payment of tax, is illegal. iii) a declaration that the assessment and demand of tax, evidenced by Exts. P1 and P1 (a), treating the building, belonging to the petitioner and 4 others, as one unit and determination of capital value of the building on the basis that the construction was over within one year is wrong. vi) a declaration that the petitioner is entitled to recompute the building tax payable by recognizing separate ownership of the building in five different parts and the construction was completed in three assessment years. "

(2.) SUKUMARAN, J. directed the first respondent to entertain the appeal and dispose of it on merits with a direction that the petitioner should pay, as a condition precedent for the entertainment of the appeal, Rs. 55,419/- within two weeks and a further sum of Rs. 55,419/- within one month from the date of judgment. The judgment was delivered on 3-11-1988. Aggrieved by the said judgment of the learned single judge, in O. P. No. 8674 of 1988, dated 3-11-1988, the petitioner in the Original Petition has come up in writ appeal.

(3.) WE considered the rival arguments advanced before us, by counsel appearing on both sides. For adjudicating the various aspects argued before us, it will be useful to refer to S. 9 (1), (10), 11 (1), 11 (2), 11 (3), r. 8, 9,10 and Forms No. V, VI and VII of the Kerala Building Tax Act & rules. They are extracted herein below. "s. 9. Assessment. (1) If the assessing authority is satisfied that a return made by an owner under S. 7 or S. 8 is correct and complete, it shall assess the amount payable by him as building tax on the basis of the return. S. 10. Notice of demand. When any building tax is due in consequence of any order passed under or in pursuance of this Act, the assessing authority shall serve on the assessee a notice of demand in the prescribed form specifying the sum so payable. S. 11. Appeals. (1) Any assessee objecting to the amount of building tax assessed under S. 9 or denying his liability to be assessed under this Act or objecting to any order of the assessing authority under this act may appeal to the appellate authority against the assessment or against such order: Provided that no such appeal shall lie unless the building tax has been paid. (2) An appeal under sub-s. (1) shall be in the prescribed form and shall be verified in the prescribed manner. (3) The appeal shall be presented within a period of thirty days from the date of service of the notice of demand relating to the assessment or the date of service of the order, as the case may be, but the appellate authority may admit an appeal presented after the expiration of the said period if it is satisfied that the appellant had sufficient cause for not presenting it within the said period, provided however that no such appeal shall be admitted after a period of six months from the date of service of the notice of demand relating to the assessment or the date of service of the order, as the case may be. Rule 8. (1) The assessment order under S. 9 shall be in form V. (2) The order of assessment shall be served on the assessee as soon as the order is passed and a copy of the order shall be communicated to the concerned Village Officer also. (3) The order of assessment shall specify the basis of assessment, the amount of tax payable, the amount payable in instalments, the last date of payment of each instalment, etc. Rule 9. The notice of demand under S. 10 shall be in Form vi. R. 10. (1) Appeals against the orders of assessment shall be in Form VII. (2) Appeals shall be accompanied by: (a) the original or a certified copy of the order appealed against; and (b) the original or a certified copy of the receipt obtained for the payment of the entire amount assessed. (3) A court fee stamp to the value of Rs. 2 shall be affixed to every memorandum of appeal. (4) Appeals shall be disposed of by the appellate authority only after giving the appellant an opportunity of being heard. (5) The assessing authorities shall also have a right to be heard, at the hearing of the appeals. FORM V (See R. 8 (1)) Order of Assessment Under the Kerala Building Tax ordinance, 1974. No. TO . . . . . . . . . . . . . . . . . . . Whereas/it is found from the return submitted in Form ii/you have failed to make a return in pursuance of the notice under S. 7 (3)you have failed to comply with the terms of the notice, issued to you under S. 9 (2) (4), and whereas enquiries conducted by me have shown that a building has been constructed by you after 1-4-1973 major repairs of or improvements to the building constructed before 1-4-1973 has been carried out which is assessable under the provisions of the Ordinance, you are hereby informed that you are assessed to Building Tax amounting to Rs as specified in the Schedule. The amount assessed shall be paid to the Village Officer of Village in four equal quarterly instalments as mentioned in the schedule. You are further informed that you are at liberty to pay the amount in a lump, if you so desire. You are also informed that if any amount is not paid on the due dates specified, interest at 6 percent per annum will be charged on the arrears from the date of default and recovered under the provisions of the revenue Recovery Act. Place: Date: Assessing Authority FORM VI (See R. 9) Notice of Demand under S. 10 of the Kerala Building Tax Ordinance, 1974 To . . . . . . . . . . . . . . . . . . . Whereas it is found from the return in Form II submitted by you/you have failed to make a return in pursuance of the notice under S. 7 (3)you have failed to comply with the terms of the notice issued to you under s. 9 (2)/9 (4) and whereas enquiries conducted by me have shown that a building has been constructed by you after 1-4-1973/major repairs of or improvements to the building constructed before 1-4-1973 has been carried out which is assessable under the provisions of the Ordinance, you are hereby informed that you are assessed to Building Tax amounting to Rs as specified in the Schedule. The amount shall be paid to the Village Officer/of village in four equal quarterly instalments as mentioned in the schedule. You are further informed that you are at liberty to pay the amount in a lump if you so desire, you are also informed that if any amount is not paid within the due dates specified, interest at 6 per cent per annum will be charged on the arrears from the date of default and recovered under the provisions of the revenue Recovery Act. Place: Date: Assessing Authority. To . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Copy to FORM VII (See R. 10 (1) Appeal under S. 11 of the Kerala Building Tax Ordinance, 1974. To The Revenue Divisional Officer, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . the day of 19 The Petitioner. . . . . . . . . . . . . . . . . . . . . . . . . of. . . . . . . . . . . . . . . . . . shows as follows: 1. Under Section. . . of the Kerala Building Tax Ordinance, 1974 the building specified below owned by me has been assessed to Building Tax as in the Schedule (vide Order No dated of the) 2. Copy of the order appealed against is enclosed. 3. Date of service of the order on me is 4. The original/copy of the receipt for payment of the tax assessed is enclosed. 5. Statement of facts.