IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 WP(C).No. 18020 of 2005(T) -------------------------- PETITIONER: ------------ SARADAKUTTY AMMA M.J., MADAPPARAMBIL, PARAVOOR VILLAGE, SANATHANAPURAM, ALAPPUZHA. BY ADV. SRI.R.HARIKRISHNAN SRI.SUDHEENDRAN. K.Y. SRI.N.ASHOK KUMAR SMT.A.SINDHULAKSHMY SMT.R.REMA RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, TRIVADNRUM. 2. THE TAHSILDAR, AMBALAPUZHA TALUK. 3. THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA. 4. THE DISTRICT COLLECTOR, ALAPPUZHA. 5. M/S.BENZ MOTORS CO LTD., BENZ TOWERS, EDAPPALLY, KOCHI-24, REP. BY ITS MANAGING DIRECTOR(NOW CHANGED AS FOCUZ MOTORS). BY GOVERNMENT PLEADER SRI.BEJOY CHANDRAN FOR R1 TO 4 SRI.P.GOPAKUMARAN NAIR FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF LICENCE DEED DT.11.2.2000. P2 COPY OF FACTORY LICENCE DT.12.7.01. P3 COPY OF BUILDING TAX ASSESSMENT DT 10.7.01. P4 COPY OF ORDER IN APPEAL DT 21.2.04. P5 COPY OF ORDER IN REVISION DT 19.4.05. /TRUE COPY/ P.A.TO JUDGE K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 18020 OF 2005 T ```````````````````````````````````````````````````` Dated this the 8th day of August, 2008 J U D G M E N T Petitioner challenges Exts.P3, P4 and P5. By Ext.P3, petitioner has been assessed to building tax. Petitioner carried the matter in appeal before the Revenue Divisional Officer who confirmed the assessment against the petitioner. Revision preferred before the District Collector also became unsuccessful and the petitioner stands assessed for a sum of Rs.1,27,440/- by way of building tax. 2. I heard learned counsel for the petitioner, learned Government Pleader and learned counsel appearing on behalf of the 5th respondent. Ext.P1 is styled as a licence deed. Petitioner is the licensor and 5th respondent is the licensee. It is the case of the petitioner that under the terms of the deed, 5th respondent constructed the building in question at his cost and it is also agreed between the parties that on the termination of the licence, the 5th respondent should dismantle the building and deliver up WPC.18020/05 : 2 : vacant possession to the petitioner. It is contended that in Ext.P4 order, the appellate authority has found that the building was constructed by the 5th respondent. It is further pointed out that though a claim for exemption was raised, the Tahsildar wrongly referred the matter to the District Collector instead of referring the matter to the Government under section 3 of the Kerala Building Tax Act. It is also contended that the ultimate order which has been passed by the appellate authority would show that it was swayed by Ext.P1. It is contended by the learned counsel for the petitioner that the liability to pay building tax should not be determined on the basis of the agreement between the parties. It is the contention that the petitioner is only the owner of the land and the building is constructed by the 5th respondent, which is found by the appellate authority. It is complained of by the petitioner that the revisional authority has passed Ext.P5 order without considering the matter and only by referring to the terms in Ext.P1 that the petitioner will be liable to pay tax. Learned Government Pleader, on the other hand, relied on the decision of this court in Mother Superior, Congregation of Sisters of WPC.18020/05 : 3 : Charity Vs. Tahsildar, Mananthawady [1987 (1) KLT 841] in which it is stated that the assessing authority is not bound to refer the claim for exemption to the Government in the absence of a request by the person concerned. Learned counsel for the 5th respondent relied on the judgment of this court in OP.No.31734/1999. He contended that on the strength of that decision that the claim raised before the appellate authority suffices and pointed out that the claim in that case was raised before the revisional authority. He further contended that though the State carried the matter in appeal by WA.No.2273/2004, the appeal came to be dismissed. It is also pointed out that when the claim is raised before the appellate authority, there is a duty on the part of the authority to refer the matter to the Government. 3. On going through the judgment of the learned single Judge in 1987 (1) KLT 841, it would appear that that is the case where the claim for exemption was made before the assessing authority after he had passed the assessment order. In the facts of this case, though learned counsel for the 5th respondent would point out that the claim was raised before the assessing authority WPC.18020/05 : 4 : and it is erroneously referred to the District Collector, I am in agreement with the learned Government Pleader that nothing can turn on the fact that the Tahsildar instead of referring to the Government, referred it to the District Collector. This is following the dictum in 1987 (1) KLT 841 as the claim for exemption was raised before the assessing authority only after the assessment order is passed. But, that would not be the end of the case. This is for the reason that going by the judgment of the learned Single Judge in O.P.No.31734/1999 as confirmed in W.A.No.2273/2004, it suffices to have the matter referred to the Government under section 3 of the Act that the claim is raised in appeal or even in a revision. In this case, the claim has been raised before the appellate authority. It is pointed out that Ext.P2 would show that the building is a factory. Of course, I hasten to say that the Government is free to take a decision in accordance with law untrammeled by any observation made by this court. I direct the 2nd respondent, Tahsildar, to refer the matter as to whether the building in question is entitled to be exempted under section 3 of the Kerala Building Tax Act. An opportunity of hearing WPC.18020/05 : 5 : will be afforded to the petitioner and the 5th respondent. A decision will be taken in the matter in accordance with law within two months from the date of receipt of a copy of this judgment. If it is found that the building is entitled to be exempted from building tax, the entire amount collected from the petitioner shall be refunded within one month from the date of the decision taken. Writ petition is disposed of as above. Sd/- (K.M.JOSEPH, JUDGE) aks