IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 WP(C).No. 18752 of 2010(T) --------------------------------------- PETITIONER(S): ------------------------ MARY JOHNY, AGED 42 YEARS, W/O. JOHNY, PALAMATTATH KUTTIYIL HOUSE, WEST CHALAKUDY, MUKUNDAPURAM TALUK, THRISSUR DIST. BY ADV. SRI.P.I.DAVIS RESPONDENT(S): --------------------------- 1. DISTRICT COLLECTOR, TRISSUR. 2. REVENUE DIVISIONAL OFFICER, TRISSUR. 3. TAHSILDAR, MUKUNDAPURAM TALUK, IRINJALAKUDA. 4. STATE OF KERALA, REPRESNTED BY ITS SECRETARY REVENUEDEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R4 BY SR GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.18752/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER DATED 17/7/09 OF 2ND RESPONDENT. P2 COPY OF THE ORDER DATED 27/8/09 OF THIRD RESPONDENT. P3 COPY OF THE SHOWING THE COVERED PORTION ABOVE THE GROUND FLOOR. P4 COPY OF THE ORDER OF THE THIRD RESPONDENT DATED 25/2/2010. P5 COPY OF THE REVISION PETITION DATED 24/3/2010. P5(A) COPY OF THE STAY PETITION P6 COPY OF THE ORDER DATED 12/4/10 OF 1ST RESPONDENT. P7 COPY OF THE REVIEW PETITION DATED 3/5/10 FILED BEFORE 1ST RESPONDENT. P8 COPY OF THE LETTER DATED 22/5/10 OF FIRST RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.18752 of 2010-P ---------------------------------------- Dated this the 21st day of June, 2011. J U D G M E N T Challenge in this writ petition is against assessment of building tax finalised in revision under Section 11 of the Kerala Building Tax Act, 1975. The residential building of the petitioner was assessed with building tax, reckoning the total plinth area as 407.44 Sq.M, and imposing a tax liability to the tune of Rs.23,400/-. On an appeal filed by the petitioner, mainly disputing correctness of the plinth area, the 2nd respondent remanded the matter through Ext.P1 order, directing the assessing authority to re-do the assessment by computing the exact plinth area, taking note of the decisions of this court and orders issued by the State Government. 2. After the remand, fresh assessment was completed through Ext.P2. The 3rd respondent found that, out of the total plinth area of 407.44 Sq.M determined earlier, an area of 119.49 Sq.M is liable to be exempted, W.P(C) No.18752 of 2010-P 2 because it is the 'terrace' portion covered through sheets. But at the same time an extent of 48.72 Sq.M area in the terrace was found liable to be included since the said area was enclosed. Accordingly, the total plinth area was re- fixed at 287.95 Sq.M. 3. Against Ext.P2 order, the petitioner again approached the appellate authority contending that the assessment made with respect to 48.72 Sq.M area in the terrace portion, is not sustainable. But through a cryptic order (Ext.P4) the appeal was dismissed by the 2nd respondent, observing that the petitioner had failed in producing necessary documents and records. The petitioner had taken up Ext.P4 order in revision before the 1st respondent. But the revision petition was rejected through Ext.P6, finding that the same is not maintainable since the petitioner had failed to challenge Ext.P1 order of remand issued by the appellate authority. 4. Eventhough the petitioner had filed review petition against Ext.P6, the same was also rejected through W.P(C) No.18752 of 2010-P 3 Ext.P8 holding that a review is not maintainable. 5. Heard; Government Pleader appearing on behalf of the respondents. It is contended that, Ext.P2 assessment is sustainable in view of the decision of this court, reported in Padmanabhan V. State of Kerala ( 2009(1) KLT 295) . It is pointed out that, any portion of the terrace area, which is covered only with sheets, if enclosed by covering the side walls will be liable to be assessed. However, learned counsel for the petitioner, on the other hand, contended that the area of 48.72 Sq.M included in the total plinth area is the terrace portion, which was not covered and it is an area not used for any purpose. 6. However, considering the facts and circumstances and rival contentions, I am of the view that the merits of the assessment need not be looked into by this court, because the revisional authority had rejected the application on a totally unsustainable ground. The reason for rejection mentioned in Ext.P6 seems to be totally misconceived. Merely because the petitioner has not challenged the order W.P(C) No.18752 of 2010-P 4 of appellate authority remanding the matter for fresh assessment he will not be precluded from challenging the fresh (consequent) order of assessment. A fresh order of assessment finalised by the assessing authority subsequent to the remand, is an order which is amenable to challenge by resorting to the statutory provisions of appeal and revision. Therefore the reason for rejection mentioned in Ext.P6 is not sustainable in the eye of law. 7. Under the above circumstances, the writ petition is allowed and Ext.P6 is hereby quashed. The 1st respondent is directed to restore the revision petition dt.24.2.2010 filed by the petitioner, and to consider and dispose of the same on merits, if it is otherwise in order, after affording an opportunity of personal hearing to the petitioner. 8. The needful in this regard shall be done by the 1st respondent at the earliest possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. 9. Needless to say that, the petitioner will be at W.P(C) No.18752 of 2010-P 5 liberty to seek appropriate interim relief from the 1st respondent regarding collection and recovery of the balance tax amount due, pending disposal of the revision petition. It is further clarified that amount if any already remitted by the petitioner shall be appropriated subject to final outcome of the revision petition. C.K.ABDUL REHIM JUDGE ab