YOUSEF Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the owner of a building situate in Thiruvangad Village, which bear Door Nos, 13/408-A to 13/408-M of the Tellicherry Municipality. The building was assessed to tax under the Kerala Buildings Tax Act, 1975, (hereinafter referred to as the Act), on a capital value of Rs.2,94,000/- on the basis of the annual value fixed by the Tellicherry Municipality, namely Rs.29,400/-. A copy of the order of assessment is Ext. P2 dated 9-7-1986. Petitioner has paid the tax of Rs.7,700/- demanded of them under the assessment.

(2.) The Assessing Authority viz. the Tahsildar, Tellicherry subsequently issued a notice Ext. P5 to the petitioner intimating them that the District Collector had directed him to reopen the assessment Ext. P2 as some irregularities and omissions had crept in while finalising the said assessment. The Tahsildar therefore proposed to inspect the building at 11 a.m. on 21-7-1988 and he requested the petitioner to be present at the site with all documents. The petitioner was later directed by Ext. P7 notice to produce the Kychit executed between him and the occupiers of the shops, for verification, on 18-10-1988. Petitioner did not hear anything further in the matter before they were served with the order Ext. P9 dated 30-12-1988 together with a notice of demand, Ext. P8 of even date, calling upon them to make payment of an amount of Rs.39,260/- as additional building tax for the building. It was stated in Ext. P9 that further enquiry after the original order of assessment Ext. P9 was completed, revealed that the actual annual value of the building was Rs.73,200/-, which was higher than the amount of annual value adopted in the original assessment. The higher rate of annual value had therefore to be adopted for assessing the annual value. Accordingly the capital value of the building was fixed at Rs.7,32,000/- with a consequent liability for tax of Rs.46,960/- out of which credit was given for the amount of Rs.7,700/- paid pursuant to Ext. P2, and demand made for the balance. Petitioner has filed this writ petition challenging the order Ext. P9 and the consequent demand Ext. P8 with the plea that the Act does not contain any provision for reopening the order Ext. P2 in this fashion or for passing an order of the nature of Ext. P9, which is also alleged to be one passed in violation of the principles of natural justice.

(3.) The Act contains provisions for. assessment of the tax and also provides appellate/revisional remedies for any person aggrieved by any assessment made under the Act. S.5, which is the charging section, provides that building tax shall be charged at the rate specified in the Schedule in respect of every building the construction of which is completed on or after April, 1973 and the capital value of which exceeds Rs.75,000/-. Capital value of the building is defined in S.2(f) as the value arrived at by multiplying the annual value of the building by sixteen, as the Act originally stood, and now by ten, after an amendment of the year 1980. S.6 provides the machinery for determining the capital value. Sub-section (1) mentions that for determining the capital value for the purposes of the Act, the annual value of 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. But sub-section (2) makes an exception by providing that notwithstanding anything contained in sub-section (1), 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, he may, after giving the person or persons affected thereby an opportunity of being heard, fix the annual value of the building. In so fixing the annual value of the building, the assessing authority must have regard to the various factors made mention of in sub-section (4). S.7 contains provisions regarding the filing of returns. S.9 prescribes the procedure for assessment. An appeal against the order of assessment lies to the Revenue Divisional Officer (the Appellate Authority) under S.11 with a remedy of reference to the District Court on a question of law under S.12. At the same time, the District Collector is also empowered by S.13 to call for and examine the record of any order passed by the Appellate Authority or the Assessing Authority, and pass such order in reference thereto as he deems fit but no such order shall be passed without notice to the party who may be affected by the order, with an added proviso that the District Collector shall not call for and examine the record of any order passed by the Assessing Authority if the period of thirty days specified for presentation of an appeal under sub-section (3) of S.11 has not expired, or if an appeal against that order is pending before the Appellate Authority. It is also provided that the District Collector shall not exercise his power suo motu if the order sought to be revised has been passed more than three months previously. S.14 vests the Government with a revisional jurisdiction over the orders of the District Collector passed suo motu. S.15 is the one with which we are concerned in this case and that provides for rectification of mistakes in the order of any authority. Sub-section (1) which alone is relevant for our purposes reads: