IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 5565 of 2004(K) ------------------------- PETITIONER: --------------- NISA BEEVI, AGED 43 YEARS, W/O. RASHEED KUTTY, AAREEPURATH, ELIPPAKULAM P.O., PALLICKAL, MAVELIKKARA. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT IN THE DEPARTMENT OF FINANCE, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOLLAM. 3. THE TAHSILDAR, KUNNATHUR TALUK. 4. THE VILLAGE OFFICER, SASTHAMKOTTA. BY GOVERNMENT PLEADER ADV. SHRI P.K. BABU. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 5565 OF 2004 ......................................................................... Dated this the 13th July, 2009 J U D G M E N T The case of the petitioner is that Ext. P5 assessment order passed by the third respondent effecting assessment of building tax in respect of the building in question, even much prior to its completion or occupation, is beyond the scheme of the Statute and hence is not sustainable under any circumstances. 2. The petitioner had constructed an 'outhouse' in the property purchased in the year 1994. After effecting the construction in 1995 consisting of two rooms, it was assessed to building tax under the Act and the liability has already been cleared by the petitioner as well, as borne by Exts. P2 and P3. Thereafter in the year 1996, a separate residential building was intended to be constructed very near to the above 'outhouse', which is a two storeyed structure and the first floor is connected with the outhouse by a concrete slab having a width of 2 Metres. W.P.(C) No. 5565 OF 2004 2 Notwithstanding the fact that the construction of the building is et to be completed, as borne by Ext.P4 photographs, he third respondent, simply with intent to generate funds for the revenue, effected the assessment; which though was subjected to challenge by filing Revision Petition before the second respondent, did not yield any positive result, driving the petitioner to approach this Court by filing the above Writ Petition. 3. The learned Counsel for the petitioner submits that the liability to pay tax will arise only on completion of the construction as contemplated under sub section (1) of Section 5 of the Kerala Building Tax Act, 1975. The learned Counsel placed reliance on the 'explanation' provided under Section 5 , whereby it has been made clear in black and white terms that, for the purpose of the Act, the construction of the building shall be deemed to have been completed when it is ready for occupation or has been actually occupied , whichever is earlier. Referring to the photographs, the learned Counsel asserts that the condition of the building is not in an occupational condition W.P.(C) No. 5565 OF 2004 3 and that the construction of the building is yet to be completed. In the course of the proceedings, pursuant to the interim order passed by this Court on 24.03.2004, the fourth respondent has filed a report dated 18.06.2005, wherein the actual facts and figures have been referred to. After referring to the double roomed terrace building including kitchen, which forms the first portion ( presumably the 'outhouse' referred to by the petitioner), the fourth respondent has referred to the main building, which is a double storeyed building and forms the disputed structure in the case in hand. It has been categorically asserted in the said report that flooring, electrification and other finishing works are yet to be completed and that the building is not occupied. It is further pointed out that, as per the information furnished by the concerned Grama Panchayat (Sastamcottah Grama Panchayat ), the building is not assessed to property tax as well. 4. This being the position, the above admitted fact does not require to be proved and it can be safely concluded that the construction of the building was yet to be completed as on the W.P.(C) No. 5565 OF 2004 4 date of filing of the report. As it stands so, the assessment effected by the third respondent as per Ext.P5 treating it as a completed/occupied building, is not at all correct or sustainable and hence Ext. P5 is hereby set aside. 5. The learned Government Pleader appearing for the respondents submits that the report was submitted by the Village Officer/4th respondent four years back and the condition of the building is not ascertainable from the materials on record. It is also pointed out that the matter can be re-examined by the third respondent, with reference to the actual position as on date, provided the petitioner appears with all the relevant testimonials before the third respondent within a reasonable time. 6. In the above facts and circumstances, the petitioner is permitted to approach the third respondent by filing an affidavit as to the present stage of the building. On filing such affidavit within two weeks, the third respondent shall consider the same and pass appropriate orders with regard to the assessment of the building, if construction of the building is completed as contemplated under the relevant provisions of law or stands W.P.(C) No. 5565 OF 2004 5 occupied by the petitioner. Appropriate orders in this regard shall be passed as expeditiously as possible and at any rate, within three months from the date of receipt of the affidavit, as aforesaid. It is made clear that if the petitioner does not turn up before the third respondent by filing the affidavit as aforesaid or does not co-operate with the steps for assessment as above, it will be deemed that the petitioner does not have any further case to offer in this regard and the assessment proceedings shall be finalised accordingly. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk