IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 WP(C).No. 31672 of 2010(H) ---------------------------------------- PETITIONER(S): ----------------------- 1. V. GANGADHARAN, AGED 62 YEARS, S/O.RAMAN NAIR, ASWATHY, KANIKUNNU, KUPPAM POST, THALIPARAMBA, KANNUR DISTRICT. 2. T. LEELA, AGED 58 YEARS, W/O.V. GANGADHARAN, ASWATHY, KANIKUNNU, KUPPAM POST, THALIPARAMBA, KANNUR DISTRICT. BY ADV. SRI.U.BALAGANGADHARAN RESPONDENT(S): --------------------------- 1. THE TAHSILDAR, THALIPARAMBA, KANNUR-670 144. 2. THE VILLAGE OFFICER, THALIPARAMBA, KANNUR- 670 144. 3. STATE OF KERALA, REPRESENTED BY SECRETARY REVENUE DEPARTMENT, THIRUVANANTHAPURAM-695 001. R1 TO R3 BY GOVT. PLEADER MR.BIJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.31672 of 2010 ------------------------------------------- Dated this the 26th day of October, 2010 J U D G M E N T ---------------------- The petitioners are husband and wife. 50 cents of property comprised in Sy.No.96/5 of Thaliparamba Village along with a house situated therein was purchased by the petitioners during the year 1992, by virtue of Ext.P1 sale deed. After purchase of the property, the petitioners had made modifications on the residential building on the basis of Ext.P2 building permit issued by the Muncipality. According to the petitioners, the building in question is having total plinth area of 153 Sq.M. on completion of such modifications. 2. During the year 2005 the petitioners had constructed first floor of the building and the additional construction made is having a plinth area of 92 Sq.M. Thus, according to the petitioner, even the total plinth area of the building is only 245 Sq.M. which is below the statutory limit of 278.7 Sq.M. prescribed under Section 5A of the Kerala Building Tax Act, 1975. 3. According to the petitioners, on the basis of information received from the Village Officer, it was revealed that steps were being pursued for imposing luxury tax under Section 5A of the Act, with respect to the building in question. Therefore W.P.(C).31672/10 -2- the 1st petitioner submitted Ext.P3 representation before the Village Officer, narrating the above facts and requesting to refrain from imposing tax under Section 5A. Copy of the building permit obtained by the petitioners during the year 1993 and copy of the receipt evidencing payment of property tax due to the Municipality during the year 1994, were also produced in support of the claim of the petitioners. But according to the petitioners, the 1st respondent had issued Ext.P4 order of assessment and Ext.P4(a) demand notice imposing luxury tax under Section 5A at the rate of Rs.2,000/- per year for the period from 2002-'03 onwards till 2011-'12, on the premise that total plinth area of the building is 296.61 Sq.M. On receipt of Ext.P4 and P4(a) the petitioners submitted application to the 1st respondent as evidenced from Ext.P5 seeking review of the assessment and to set aside the same. The 1st respondent had rejected the said application directing the petitioners to approach the appellate authority by filing proper statutory appeal. This writ petition is filed aggrieved by rejection of Ext.P5 through Ext.P6 order, inter alia, seeking direction to the 1st respondents to consider and pass orders on Ext.P5, after conducting physical measurement of the building and after affording a reasonable opportunity of hearing. 4. On a perusal of Ext.P4 order of assessment it is evident that the said order is issued only on a printed form. It is W.P.(C).31672/10 -3- not discernible as to whether any proposal notice for finalising the assessment was issued on the petitioners or as to whether any such notice was received by the petitioners. It is also silent as to whether the petitioners have filed any objections or as to whether any personal hearing was afforded before finalising the assessment. It is also not discernible as to whether any physical measurement was conducted before finalising the assessment in order to arrive at a conclusion that the building is having a total plinth area of 296.61 Sq.M. It is pertinent to note that the impugned assessment does not reflect any consideration made by the 1st respondent as to whether the building is liable to be assessed under Section 5A since the construction of the first floor of the building stood completed prior to 1.4.1999, the date on which Section 5A was introduced. Under such circumstances I am of the view that the matter need be looked into for deciding sustainability of the assessment and fresh order need be issued. 5. But it is pertinent to note that the petitioners have not chosen to avail appellate remedy provided under the statute against the order of assessment. On the other hand, he had filed Ext.P5 application seeking rectification of the order, invoking powers under Section 15 of the Act. It is pertinent to note that the 1st respondent is entitled to invoke Section 15 only if there exists any apparent error on the face of the order. The ambit and scope of Section 15 are not intended for a re-opening or W.P.(C).31672/10 -4- revision of the assessment once completed. Normally the assessing authority will become 'functus officio', once the assessment is completed. Going by the contents in Ext.P5, it could not be held that the petitioner had pointed out any error apparent on the face of the order, which need be rectified. At the same time, the petitioners are aggrieved by the illegal manner in which the assessment order and the consequent demand was issued. 6. Under such circumstances, I am of the opinion that the rejection of Ext.P5 is not erroneous in any manner. Further it has to be taken note of that the 1st respondent had only directed the petitioners to approach the appellate authority, which is an effective and alternative remedy provided under the statute. Hence the challenge raised against Ext.P6 is not sustainable in any manner. 7. However, I am of the opinion that considering the fact that the petitioners have approached this court challenging Ext.P6 they shall be provided with an opportunity to invoke the appellate remedy. 8. Under the above circumstances, the writ petition is disposed of directing the petitioners to file appeal against Ext.P4 and P4(a) before the Revenue Divisional Officer concerned, who is the appellate authority, within a period of two weeks from the date of receipt of a copy of this judgment. If any such appeal is W.P.(C).31672/10 -5- preferred by the petitioners, the appellate authority shall treat the same as an appeal filed within the time prescribed and shall dispose of the same, after affording a reasonable opportunity to the petitioners to substantiate their case by producing all relevant records and after affording an opportunity of personal hearing. 9. Needless to say that the appellate authority will be at liberty to direct for measurement of plinth area of the building, if desirable through an independent expert, preferably a Government official from the Public Works Department having jurisdiction in the local area. If any appeal is filed as directed above, the same shall be disposed of at the earliest, at any rate within a period of three months from the date of receipt of such appeal. 10. Till such time orders are passed on the appeal, recovery of amounts covered under Ext.P4 and P4(a) shall be kept in abeyance provided the petitioners file the appeal within the time stipulated as above. 11. The petitioners will produce a copy of this judgment along with the appeal before the appellate authority concerned. C.K.ABDUL REHIM, JUDGE. okb