IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 8460 of 1999(F)
1. M/S.CHERUPUSHPAM FINANCIERS & INVESTMENT
... Petitioner
Vs
1. THE STATE OF KERALA
... Respondent
For Petitioner :SRI.S.A.NAGENDRAN(SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :09/08/2007
O R D E R
H.L. DATTU, C.J. & K.T. SANKARAN, J.
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O.P. No. 8460 OF 1999
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Dated this the 9th August, 2007
J U D G M E N T
H.L. Dattu, C.J.:
The petitioner is a firm, which owns a multi storeyed building in
Shanmugham Road, Ernakulam. According to the petitioner-firm, the
construction of the building was completed during the years 1975-77.
2. It is stated in the petition, that the Corporation authorities, for the
purpose of computing the property tax, had valued the building owned by the
petitioner-firm at Rs. 12,60,008/- .
3. As envisaged under section 7 of the Kerala Building Tax Act
(hereinafter referred to as ‘Act’), the petitioner had filed his returns under the
Act and the rules framed thereunder before the Tahsildar, Kanayannur Taluk.
The Tahsildar had rejected the returns and had fixed the capital value of the
building at Rs. 28,59,000/- and had levied the tax at Rs. Rs.2,59,650/-.
4. Aggrieved by the orders of assessment so passed by the Tahsildar
under the provisions of the Act, the petitioner/assessee had preferred a
statutory appeal . The first appellate authority had allowed the appeal. The
matter was remanded to the Tahsildar by the first appellate authority to re-do
the matter in accordance with law and also had issued certain directions while
disposing of the appeal.
5. After the disposal of the appeal, the Tahsildar had passed yet
another order of assessment, keeping in view the provisions of Section 5 (2) of
O.P. No. 8460 OF 1999
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the Act and had levied the building tax at Rs. 3,01,500/- . Aggrieved by the
said order passed by the Tahsildar, the petitioner-firm has filed an appeal
before the Revenue Divisional Officer and the same is pending consideration.
The petitioner-firm, questioning the vires of Section 5(2) of the Act is before us
in this Original Petition.
6. Apart from other contentions, the learned counsel for the petitioner-
firm would submit that the provisions of Section 5(2) of the Act has been
struck down by this court in the case of Shirly v. State of Kerala ( [2006]
(2) KLT 306) and further would submit that the matter requires to be
remanded to the Tahsildar for a fresh disposal, in accordance with law and in
accordance with the provisions of the Act.
7. We are informed by the learned Senior Government Pleader Shri
Muhammed Rafiq, learned counsel for the respondent that the State has
accepted the verdict of this Court enunciated in Shirly v. State of Kerala
( [2006] (2) KLT 306).
8. In view of the above, in our opinion, at this stage, we can only grant
the first prayer sought for by the petitioner and in so far as other reliefs are
concerned , a direction requires to be issued to the appellate authority, before
whom, the appeal filed by the petitioner is pending for consideration.
Accordingly, we pass the following order:
O R D E R
i) Original Petition is disposed of.
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ii) Following the dictum of this Court in Shirly v. State of Kerala
( [2006] (2) KLT 306) , Section 5(2) of the Act, as has been amended by Act
13 of 1993, is held ultra vires, unconstitutional and discriminatory etc.
iii) Now a direction is issued to the first appellate authority to
dispose of the appeal filed by the petitioner against the orders of assessment
passed by the Tahsildar under the provisions of the Act, keeping in view the
observations made by this court in Shirly v. State of Kerala ( [2006] (2) KLT
306), as expeditiously as possible, at any rate, within two months from the date
of receipt of a copy of this order.
iv) While disposing of the appeal, the petitioner shall be afforded
an opportunity of being heard.
v) All other contentions raised by the petitioner-firm are left open.
vi) C.M.P. No. 14160 of 1999 is also disposed of.
Ordered accordingly.
H.L. DATTU,
CHIEF JUSTICE.
K.T. SANKARAN,
JUDGE.
lk
O.P. No. 8460 OF 1999
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H.L. DATTU, C.J.&
K.T. SANKARAN, J.
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O.P. No. 8460 OF 1999
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Dated this the 9th August, 2007
J U D G M E N T