IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 WP(C).No. 27017 of 2003 (N) -------------------------- PETITIONER: ------------------- 1. LISSY IYJU, W/O.IYJU JOHN, AGED 43, KAITHAKULANGARA HOUSE, CHOTTANIKKARA. 2. JOHNY K. JOHN, S/O.K.C.JOHN, AGED 37, KAITHAKULANGARA HOUSE, CHOTTANIKKARA. BY ADVS. SRI.C.T.JOSEPH SRI.K.R.GANESH SRI.N.SAJU THOMAS SRI.C.JAYACHANDRAN SRI.JOE POLLAYIL VS RESPONDENTS 1. TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM, (ASSESSING AUTHORITY UNDER THE KERALA BUILDINGS TAX ACT, 1975). 2. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1, 2 GOVERNMENT PLEADER, SRI. K.P.PRADEEP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15 /09 / 2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 27017 of 2003 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 15th day of September, 2010 JUDGMENT The petitioners are challenging the correctness and sustainability of Exts. P8 and P9 orders passed by the first respondent under the Kerala Building Tax Act, followed by Exts. P10 and P11 notices seeking to realize the amount due thereunder. 2. The building in question is a two-storied one; 'ground floor' belonging to the first petitioner and the 'first floor' to the second petitioner. The assessment was completed as per order dated 27.10.1988, treating the whole building as a single unit, which was challenged in O.P. 80 of 1990. After considering the contentions, the impugned assessment order was set aside, as per the judgment dated 18.08.2000, ordering separate assessment by virtue of Explanation 2 to Section 2 (e) of the Kerala Building Tax Act, to have separate assessment at the hands of the separate owners. 3. Pursuant to the above verdict, assessment was made afresh by the assessing authority, who passed Exts. P8 and P9, effecting separate assessment, however adopting a much 'higher rate' (as applicable on the date of passing the 'revised assessment order'), in spite of adopting the rate as it existed on the date of passing the W.P. (C) No. 27017 of 2003 : 2 : original assessment order, Ext. P3. The rate which ought to have been reckoned is stated as the rate as on the date of the taxable event and not the rate on the date of revised assessment, The petitioner has placed reliance on the decision rendered by this Court in Showkathali Vs. Tahsildar (2000 (2) KLT 512). 4. The learned Government Pleader appearing for the respondents submits that, the revised assessment orders as borne by Exts. P8 and P9 were passed by concerned assessment authority based on Section 5 (2) of the Act, which however has been declared as unconstitutional by a Division Bench of this Court as per the decision rendered in Sherly Vs. State of Kerala (2006 (2) KLT 306). This being the position, the matter could be directed to be considered afresh to have the 'capital value' assessment, which is more so, in view of the law declared by this Court as per the decision cited supra, sought to be relied on the part of the petitioner. 5. In the above circumstances, Exts. P8 & P9 assessment orders and Exts. P10 & P11 demand notices are set aside. The first respondent is directed to pass fresh assessment orders adopting the rate as it existed on the date of the taxable event, by following 'capital value assessment', which shall be finalized, in accordance with law, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. It is also made clear that if there W.P. (C) No. 27017 of 2003 : 3 : in any additional construction is effected by the petitioner, the assessing authority will be free to proceed with 'plinth area rules', if the additional construction was effected after coming into effect of the plinth area rules. The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd