IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 WP(C).No. 23743 of 2006(B) PETITIONER(S): 1. M.C. ROY, S/O. CHINNAN, MECHERIL HOUSE, CHINNANSONS JEWELLERS, PERINTHALMANNA. 2. M.C. MARTIN, S/O. CHINNAN, MECHERIL HOUSE, CHINNANSONS JEWELLERS, PERINTHALMANNA. BY ADV. MR.V.M.KURIAN MR.MATHEW B. KURIAN MR.K.T.THOMAS RESPONDENT(S): 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REVENUE DIVISIONAL OFFICER, PERINTHALMANNA, PERINTHALMANNA P.O.,MALAPPURAM DT. 3. THE TAHSILDAR, PERINTHALMANNA, PERINTHALMANNA P.O., MALAPPURAM DIST. 4. VILLAGE OFFICER, PERINTHALMANNA, PERINTHALMANNA P.O., MALAPPURAM DIST. R3 BY MR. MATHEW VADAKKEL GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- WP(C).No. 23743 of 2006(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE NOTICE DATED 18.3.2005 ISSUED BY THE 3RD RESPONDENT. EXT.P2 : COPY OF THE REPLY DATED 7.4.2005 SUBMITTED BY THE PETITIONERS EXT.P3 : COPY OF THE NOTICE DATED 15.4.2005 ISSUED BY THE 3RD RESPONDENT EXT.P4 : COPY OF THE REPLY DATED 23.4.2005 SUBMITTED BY THE PETITIONERS EXT.P5 : COPY OF THE ORDER DATED 14.1.2006 PASSED BY THE 3RD RESPONDENT EXT.P6 : COPY OF THE NTOICE DATED 19.1.2006 ISSUED BY THE 3RD RESPONDENT EXT.P7 : COPY OF THE APPEAL MEMORANDUM DATED 1/2/2006 FILED BEFORE THE 2ND RESPONDENT EXT.P8 : COPY OF THE ORDER DATED 1/8/2006 ISSUED BY THE 2ND RESPONDENT EXT.P9 : COPY OF THE GOVERNMENT CIRCULAR NO.47999/SLMC/2003/REV DATED 5.12.2003 RESPONDENT'S EXHIBITS : NIL ///TRUE COPY/// PA TO JUDGE nl P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 23743 OF 2006 ......................................................................... Dated this the 5th January , 2010 J U D G M E N T The proceedings taken by the authorities under the Kerala Building Tax Act assessing the building belonging to the petitioners are under challenge. 2. The case of the petitioners is that they purchased the building bearing Nos.XVIII/437, 438 and 439 of Perinthalmanna Municipality in the year 1999 as per the sale deed bearing Nos. 3463/1999 and 3464/1999 of SRO Perinthalmanna for valuable sale consideration . At the time of purchase, the said building was actually a 'godown', which however was later converted as a show room. Mainly because of the age of the building, the petitioners had sought to provide temporary shelters to the terrace, however without any enclosures to the sides, intending to protect the premises from the Sun and rain. While so, the third respondent, who is the assessing authority, issued Ext.P1 notice seeking to assesss the entire building including the W.P.(C) No. 23743 OF 2006 2 terrace covered by shelter, which was responded by the petitioners by submitting Ext.P2 reply. It was specifically brought to the notice of the assessing authority by the petitioners, that the building in question was constructed years before the Act came into existence and hence that no assessment was possible under the statute 3. After considering the materials on record, the third respondent passed Ext.P5 assessment order, whereby the contention of the petitioners regarding the age of the building was accepted and the basic structure constituting the 'ground floor' was exempted. However, with regard to the 'terrace' covered by the shelter, the assessment authority chose to reckon it as the 'first floor' and assessed the same, which in turn was subjected to challenge by filing Ext.P7 appeal before the second respondent. The appellate authority, placing reliance on the Circular issued by the Government holding that such temporary shelters constructed to protect the main building from the Sun and rain is liable to be assessed under the Act, accordingly dismissed Ext P7 appeal preferred by the petitioners W.P.(C) No. 23743 OF 2006 3 as per Ext P8. The petitioners are before this Court challenging Ext.P5 assessment order, Ext P8 appellate order as well as Ext P9 Circular issued by the concerned respondents 4. The third respondent has filed a counter affidavit seeking to sustain the stand taken by the respondents and to have the Writ Petition dismissed, stating that it is devoid of any merit. 5. Learned Counsel for the petitioner submits that sustainability of Ext.P9 Circular had come up for consideration before this Court in some other Writ Petitions and as per the judgment reported in Padmanabhan vs. State of Kerala (2009(1) KLT 295), the said Circular was quashed by this Court and that, the basis/foundation of Ext.P8 order passed by the appellate authority, which was passed solely on the basis of the said Circular, is no more there. 6. Learned Government Pleader appearing on behalf of the respondent submits that the decision rendered by this Court cited supra, stands entirely on a different footing and that the building involved therein was a 'residential building', whereas the building involved in the present case is a commercial building. W.P.(C) No. 23743 OF 2006 4 7. The distinction sought to be placed as above does not appear to be correct or palatable to this Court, as the dictum in Padmanabhan vs. State of Kerala (2009 (1) KLT 295) has been rendered with specific reference to the relevant provisions of the Act wherein the term 'building' has been defined under Sec. 2(e) and also the charging provisions. The reasoning given by this Court in the decision cited supra is with regard to the 'purpose' for which the shelter is made. Since it has been held that the said portion covered by temporary shelter to protect the main building from heat and rains cannot be used independently for the residence of the parties concerned, the said principle is equally applicable to the commercial building as well and no distinction could be drawn under any circumstances, which otherwise, will be contrary to the scope and intent of the provisions. The 'proviso' to Sec.6 is only of 'explanatory' in nature and the liability arises only under the charging provision and not under the 'proviso'. 8. In the above facts and circumstances, and more particularly in view of the fact that the sole reason stated in Ext W.P.(C) No. 23743 OF 2006 5 P8 order passed by the appellate authority for rejecting the appeal is based on Ext P9 Circular, which in fact has been set aside by this Court as per the decision cited supra, the said appellate order cannot exist any further. 9. Accordingly Ext P5 assessment order, to the extent it has fixed the liability upon the petitioners and Ext P8 appellate order rejecting Ext P7 appeal are wrong and unsustainable and hence are set aside. The matter is remitted to the third respondent for fresh consideration in the light of the dictum in 2009(1) KLT 295. Final orders shall be passed only after giving an opportunity of hearing to the petitioners as expeditiously as possible, at any rate within 2 months from the date of receipt of a copy of this judgment. The Writ petition is allowed to the above extent. No cost. P.R. RAMACHANDRA MENON, JUDGE. lk