IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 WP(C).No. 2971 of 2011(V) ------------------------------------- PETITIONERS: --------------------- 1. M. JOSEPH SEBASTIAN, MENACHERRY HOUSE, MANJANAKAD ROAD, NARACKAL.P.O., ERNAKULAM DISTRICT – 682 505. 2. SEBASTIAN JOSEPH.M, MENACHERRY HOUSE, MANJANAKAD ROAD, NARACKAL.P.O., ERNAKULAM DISTRICT – 682 505. BY ADVS. SRI.PHILIP T.VARGHESE, SRI.THOMAS T. VARGHESE, SMT. SHUBHA ABRAHAM, SMT. ASWATHY.N. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM – 695 001. 2. THE DISTRICT COLLECTOR, ERNAKULAM, PIN – 682 517. 3. THE SUB COLLECTOR, FORT KOCHI, PIN – 682 511. 4. THE TAHSILDAR, KOCHI – 682 501. R1 TO R4 BY GOVT. PLEADER SRI. MATHEW GEORGE VADAKKEL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 2971 of 2011 --------------------------------- Dated this the 16th day of February, 2011 JUDGMENT Exts.P2 and P3 orders of assessment passed under the Kerala building Tax Act 1975 which is confirmed in appeal and revision through Exts.P6 and P8 orders, is the subject matter of challenge in this writ petition. Crux of the contention is that the existing building was completed construction in the year 1971- 72 and while assessing the additional construction now made, the authority had invoked section 5(2). It is the contention that validity of section 5(2) has already been struck down by this court in the decision reported in Sherly vs. State of Kerala (2006(2) KLT 306) and the said provisions is not in operation. 2. It is evident from Ext.P2 as well as Exts.P6 and P8 that the total plinth area of the building is reckoned for the purpose of assessment by adopting provisions contained in section 5(2), inspite of specific evidence to the effect that the existing building was completed construction even prior to promulgation of the Act, in the year 1975. WP(C) 2971/2011 2 3. Under the above circumstances, I am of the view that the assessment which is confirmed in appeal and revision is not sustainable in the eye of law. In Ext.P8 revisional order it is specifically stated that the petitioner has not specified the exact plinth area of the building which is said to have been completed construction before 1971-72. However, I make it clear that once there is evidence to the effect that the existing building was completed prior to 1975, then the authority has to resort to the procedure contemplated either under section 5(3) or under section 5(4) for finalising the assessment. 4. Hence the writ petition is allowed. Exts.P2 and P3 which is confirmed in Exts.P5 and P6, are hereby quashed. The matter is remitted back to the 4th respondent assessing authority to re- do the assessment after taking note of the observations contained hereinabvoe, by resorting to the appropriate proceedings as contemplated either under section 5(3) or under section 5(4) as the case may be. 5. Needless to say that the assessment shall be finalised afresh, after affording an opportunity to the petitioner for filing objections as well as for personal hearing, as early as possible, at WP(C) 2971/2011 3 any rate within a period of one month from the date of receipt of a copy of this judgment. 6. It is further made clear that the amount already remitted by the petitioner shall be appropriated in accordance with final outcome of the fresh assessment. If the petitioners are liable for payment of any amount, the same shall be paid without any further delay. C.K.ABDUL REHIM,JUDGE pmn/ WP(C) 2971/2011 4