LAWS(KER)-1990-2-45

BALAN Vs. STATE OF KERALA

Decided On February 05, 1990
BALAN Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) THE respondents in Civil Miscellaneous reference No. 1/85 of the District Court, Kozhikode are the revision petitioners. THE District Court by the order under challenge has answered the reference under S. 12 of THE Kerala Building Tax Act, 1975, Act 7/1975, for short, THE Act, against the petitioners.

(2.) THE learned Government Pleader raised a preliminary objection that the revision is not maintainable. Dilating on this point he submitted that the decision of the District Court cannot be said to be a 'case decided' within the meaning of S. 115 C. P. C. in view of the provisions contained in sub-section (3) of S. 12, 13 and S. 14. THE scope and effect of these sections therefore require to be considered. Sub-section 3 of S. 12 says that the Appellate Authority, on receipt of the decision of the District Court on the question of law referred to it under S. 12 (1), shall pass the final order on the appeal in conformity with such judgment. S. 13 empowers the District Collector to revise the order of the Appellate Authority either suo motu or on application by an aggrieved party. THE District Collector however, has no power to revise the order of the District Court under S. 12 (3 ). S. 14 provides that the Government may, on application by any person aggrieved, call for and examine the record of any order passed by the District Collector suo motu under S. 13 (1), for the purpose of satisfying themselves as to the propriety or regularity of such order and pass such order in reference thereto as they think fit. This section empowers the Government to call for and examine the records of any order passed by the District Collector under S. 13 (1), not for considering whether the District Collector was justified in accepting the judgment of the District Court under S. 12 (3) but only for the limited purpose of satisfying themselves as to the propriety or regularity of such order and pass such order in reference thereto as they think fit. For instance if the District Collector refuses to accept the judgment of the District Court under S. 12 (3) and passes an order under S. 13 (1) which reflects his own view on the question of law referred to the District Court, then that order must be held to be an improper order warranting interference under S. 14. In exercise of this power the Government therefore cannot revise the order of the District Judge. In other words neither the District Collector nor the Government can revise the order of the District Court under S. 12 (3 ). THE order of the District Court under S. 12 therefore must be treated as a 'case decided'. That a case decided by a court subordinate to the High Court is revisible is a proposition well established. THE order of the District Court under S. 12 therefore is revisible under S. 115 C. P. C. THE preliminary objection as to the maintainability of the revision therefore is not sustainable. THE same therefore is rejected.

(3.) S. 5 is the charging section. It provides that subject to the other provisions contained in this Act, there shall be charged a tax (hereinafter referred to as 'building tax') at the rate specified in the Schedule in respect of every building the construction of which is completed on or after the 1st day of April, 1973, and the capital value of which exceeds seventy-five thousand rupees. The other sub-sections are not relevant and therefore they are not dealt with here. S. 6 provides the guidelines to determine the capital value. This section says that for determining the capital value for the purpose of levying the building tax, the annual value of a building shall be the annual value fixed for that building in the assessment books of the local authority within whose area the building is situate. If the assessing authority is of opinion that the annual value fixed for a building in the assessment books of the local authority is too low, it may, after giving the person or persons affected thereby an opportunity of being heard, fix the annual value of the building, by itself. In determining the annual value under sub-section (2) the assessing authority shall have regard to the following factors, namely:- (a) the location of the building; (b) the nature and quality of the structure of the building; (c) the capability of the building for profitable use; (d) amenities provided in the building; (e) access to the building from public roads or waterways; (f) the value of the land on which the building is constructed; (g) the estimated cost of construction of the building; (h) such other factors as may be prescribed. It is thus clear that the annual value of the building for the purpose of levying building tax is determined not with reference to the actual investment made by the assessee but only with reference to the various factors made mention of under sub-sections 1, 2 and 4 of S. 6 referred to above.