IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 11000 of 2005(H) ----------------------------------- PETITIONER: ------------------- JAMIYA VAHABIA ARABIC COLLEGE, PALLIKUNNU, WANDOOR, MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY, K.T.ABDUL SAMAD MASTER. BY ADV. SRI.BABU S. NAIR SMT.SMITHA BABU RESPONDENTS: ------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REVENUE, GOVT.SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, MALAPPURAM. 3. THE REVENUE DIVISIONAL OFFICER, PERINTHALMANNA, MALAPPURAM DISTRICT. 4. THE TAHSILDAR, NILAMBUR, MALAPPURAM DISTRICT. BY GOVERNMENT PLEADER SRI MATHEW VADAKKEL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.11000/2005 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE NOTICE OF DEMAND ISSUED BY THE 4TH RESPONDENTS DATED 28/9/2002 AS NO.351/2002. EXT.P2 TRUE COPY OF THE APPEAL PETITION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DTD. 19/3/2003. EXT.P3 TRUE COPY OF THE RECEIPT ISSUED TO THE PETITIONER BY THE VILLAGE OFFICER, WANDOOR DATED 18/11/202. EXT.P4 TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT RDO AS NO.E.10084/04 DTD. 10/1/2005. EXT.P5 TRUE COPY OF THE REVISION MEMORANDUM SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 28/2/2005. EXT.P6 TRUE COPY OF THE ORDER PASSWED BY THE 2ND RESPONDENT AS NO.10802/2005 DATED 11/3/2005. P.R.RAMAN, J. --------------------------- W.P.(C).NO.11000 OF 2005 ---------------------------- DATED THIS THE 28th DAY OF AUGUST,2008 JUDGMENT Petitioner was assessed to building tax under the Kerala Building Tax Act. It is an Arabic College established under the Wandoor Juma-ath Mosque Committee registered under the Societies Registration Act, 1860. It is stated that the building is used for educational purposes and thus exempted under Section 3 (1)(2) of the Act. The Assessing Officer did not accept the contention and finalised the assessment. Though an appeal was filed belatedly, the same was dismissed. A revision therefrom was also dismissed. Hence, this writ petition. 2. No doubt, the dismissal of the appeal as belated and the order passed in the revision cannot be assailed in this writ petition, since the Appellate Authority has got restricted power in the matter of condonation of delay upto six months and any appeal filed beyond the period of six weeks is not a matter on which he -2- W.P.(C).No.11000/2005 could exercise any discretion to condone the same. If so, it cannot be said that the order is wrong and merely because it was a belated appeal and not considered on merits is not a ground to interfere under Article 226 of the Constitution. 3. But in this case, the assessment order itself without referring the matter to the Government in a claim for exemption is without jurisdiction. As per Section 3 of the Act, when a claim for exemption is made, the proper authority to consider the same is the Government alone. If so, the Assessing Officer ought to have referred the matter to the Government and after the decision of the Government, he should have proceeded accordingly. I find that there is no reference of the matter to the Government and the alleged demand raised therefrom cannot be legally sustained. However, in the factual situation, the proper course open to this Court is to direct the Government to consider the claim for exemption of the building in question, as the building is said to be used for educational purposes. The demand pursuant to the -3- W.P.(C).No.11000/2005 assessment order will be kept in abeyance, till a decision is taken by the Government. The petitioner will submit an additional representation along with the materials supporting his case before the Government within a period of three weeks from today. In case any such representation along with the materials is not filed before the Government, then the Government may take a decision of its own without further notice to the petitioner. However, in case the petitioner submits a representation along with the materials as directed above, he will be heard in the matter before final orders are passed and the order shall be communicated to the Tahsildar also, whereupon the Tahsildar shall proceed to recover the amount, only if the building is not exempted. A copy of this judgment be forwarded to the Ist respondent. Writ Petition is allowed as above. P.R.RAMAN, Judge. kcv.