The main legal point established is that under the Kerala Building Tax Act, 1975, the assessment of additional construction should be based on the plinth area method, as provided in S.5(3), and not on the entire building as per S.5(4).

G. Sivarajan, J.

Petitioners two in number are running a hospital at Perinthalmanna in Malappuram District in the name and style “Moulana Hospital”. Initially the petitioners constructed a building consisting of two floors for the purpose of conducting the hospital in the year 1992 and the same was assessed to building tax under the Kerala Building Tax Act, 1975 (for short, ‘the Act’) as per proceedings dated 24.1.1992. The petitioners had subsequently constructed three more floors to the said building. The plinth area of the entire building including the one which is assessed as per Ext.P1 came to 7119.04 sq. metres and the building tax was assessed at Rs.8,36,400/-. After deducting the tax assessed as per Ext.P1 Rs.2,54,050/- and paid the balance tax was assessed at Rs.5,82,350/-. Being aggrieved by this assessment order (Ext.P2), the petitioners took up the matter in appeal before the 2nd respondent which was rejected by order dated 30.3.1998 (Ext.P3). The same was confirmed in revision by the 3rd respondent as per order dated 19.8.1998.

2. I have heard the learned counsel for the petitioners and the learned senior Government Pleader for respondents. From the pleadings it would appear that the petitioners had initially constructed a two storeyed building, which was assessed as per Ext.P1 order and later constructed a two storeyed building, which was assessed as per Ext.P1 order and later constructed 3 more floors totaling 5 floors which was assessed as per Ext.P2 order. From Ext.P2 it is seen that the entire building consisting of 5 floors were measured and the plinth area was ascertained. The assessment was completed by applying the provisions of S.5(4) of the Act and relevant provision to be applied in S.5(3) as it stood at the time of making the assessment. Though the petitioners had contended that the building cannot be assessed under S.5(4) of the Act the said contention was rejected. The contention of the counsel for the petitioners is that there cannot be two methods for assessing a building and that since the earlier construction was assessed by adopting the capital value method the assessment of the entire building by adopting the plinth area is arbitrary and discriminatory by virtue of the constitutional provisions. The counsel, in short, submitted that the assessment can be made only in respect of the portion which is constructed after the amendment made in 1992 by applying S.5(3) of the Act. The counsel has alternatively submitted that S.5(4) deals with a situation where the building was constructed after the appointed day, i.e., after 10.2.1992 and if any improvement or alteration is made to the said building thereafter. The counsel submits that admittedly the first two floors of the building have been constructed prior to the appointed day and only additional three floors have been constructed after the appointed day. The counsel submits that in such a case it is only S.5(3) of the Act the can be applied.

3. The senior Government Pleader, on the other hand, submitted that the petitioners applied for and obtained permit for construction of a 5 storeyed building, that they initially constructed only two floors and the construction of the entire building was completed only after the appointed day and consequently it must be taken that both the initial construction and the additional construction put together was after the appointed date. The senior Government Pleader accordingly submitted that S.5(4) was rightly applied.

4. I have considered the rival submissions. S.5(1) is the charging section. Prior to 10.2.1992 i.e., the date from which the Amended S.5 came into force, in respect of a building the construction of which is completed on or after the 1st day of April, 1973 there shall be charged a tax referred to as building tax where the capital value exceeds Rs.20,000/- at the rate specified in the Schedule. Under the unamended provisions the assessment has to be made on the capital value of the buildin