IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 2655 of 2009(N) -------------------------------------------- PETITIONER(S): ---------------------- 1. REMA MATHEW,W/O.LATE P.K.MATHEW, AGED 57 YEARS,RESIDING AT FIRST FLOOR,XLI/244, MAHAKAVI BHARATI ROAD, ERNAKULAM. 2. SUNIL MATHEW,S/O.LATE.P.K.MATHEW, AGED 42 YRS,RESIDING AT IST FLOOR,XLI/244, MAHAKAVI BHARATI ROAD, ERNAKULAM. 3. ALEX MATHEW,AGED 40 YRS, S/O.LATE P.K.MATHEW,RESIDING AT FLAT NO.IV-A, PROVIDENCE GROVE ROAD, ERNAKULAM. BY ADV. SRI.ELIZABETH ALEXANDER KURIAN RESPONDENT(S): ------------------------- THE TAHSILDAR,ASSESSING AUTHORITY UNDER BUILDING TAX ACT,KANAYANNOOR TALUK OFFICE, ERNAKULAM. BY GOVERNMENT PLEADER SRI. BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 2655 OF 2009 N -------------------------------------- Dated this the 30th January, 2009 JUDGMENT Even though this Writ Petition is coming up for admission, it is being taken up for hearing on consent. 2. Petitioners challenge Exts.P5 to P7 and seeks a direction to treat Door Nos. XL/1511 and XL/1511A as two different and separate Units. Case of the petitioners, in brief, is as follows: Petitioners are the owners with respect to building bearing No. XL/1511. The construction of the said building was completed in 1978 by late P.K. Mathew, father of petitioners 2 and 3 and husband of the first petitioner. It is stated that by way of Sale Deed of 1988, the right to construct the second floor with absolute ownership was conveyed to the first petitioner. Accordingly, the first petitioner constructed the second floor bearing Door No. XL/1511A in the year 2003. It is complained that there is an attempt to assess the total plinth area of 601 Sq. WPC.2655/09 N 2 Metres treating the two buildings as a single unit. Hence, apparently, the second prayer relates to that complaint. The further complaint raised is that Ext.P6 assessment order is passed without affording an opportunity of being heard to the petitioners. It is pointed out that Shri P.K. Mathew passed away on 5.7.1996. Ext.P5 is the notice in Form No.4. It refers to Sections 9(2) and 9(4) of the Kerala Building Tax Act, 1975. It is pointed out that when the person who came to serve the notice, became aware of the death of Shri P.K. Mathew to whom it was purportedly addressed, the date 02.01.09 which was originally noted in Ext.P5 was corrected as 12.01.09. It is stated that it is seen initialed. Ext.P6 assessment order, however, is dated 9.1.09. So is the demand notice, Ext.P7. Thus, the hearing notice, wherein the date was noted as 12.01.09 was rendered meaningless and the petitioners were denied the right of hearing and the assessment order was passed with opportunity of hearing on a date anterior to the date on which the hearing was scheduled to be held. Learned Government Pleader got WPC.2655/09 N 3 instructions. He also admits that the hearing date was 12.01.09 and the order was passed on 9.1.09. Petitioners have a definite case that Ext.P5 notice itself was served only on 12.01.09. Though the learned Government Pleader has a case that the son of late P.K. Mathew was present on 09.01.09, the first petitioner and another son were admittedly not present. Whatever that be, there is an assessment against the petitioners and it is passed on a date anterior to the date on which the hearing was proposed. Petitioners have a case of violation of Section 7(3) notice. I have already taken a view in W.P.(C).No. 32330/08 that under the Scheme of the Building Tax Act, an assessment under Section 9(5) which is a best of judgment assessment, can be lawfully completed only if either there is a Return or if there is no return, a notice under Section 7(3) calling upon the party to file a Return is observed in its breach or a notice under Section 9 (2) or 9(4) is issued and there is non-compliance with the said notices. A notice under Section 9(2) can be issued only when a Return is filed. A notice under Section 9(4) can be issued again, WPC.2655/09 N 4 only when there is a notice issued under Section 7(3). Thus, an assessment cannot be completed unless there is a Return or a notice issued under Section 7(3) calling upon the party to file a Return. In this case, learned Government Pleader submits that there is no Return filed and there is also no notice issued under Section 7(3). On this ground itself, the assessment order is liable to be quashed. In such circumstances, Exts.P6 and P7 are liable to be quashed and I quash Exts.P6 and P7. Regarding the other contentions relatable to prayer No.2, I leave it open. This will be without prejudice to the respondent to take such action as warranted in law and on facts. The Writ Petition is allowed as above. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge