Important points
" The observation made by the Bench while passing the order of reference, that Section 3(2) of the Act does not stipulate that a claim for exemption under Section 3(1)(b) has to be preferred before passing the assessment order, is perfectly correct and justified.
" Even after passing the assessment order, it is open for the owner of the building/assessee to raise a claim/question for exemption, in an appeal filed against the assessment order, in terms of Section 11, satisfying the requirements and procedure for filing such appeal, within the specified time-Once such a claim/question is raised, the appellate authority is bound to have it referred to the Government for a decision under Section 3(2) of the Act-It is for the Government to conduct an enquiry as to the merit in respect of the claim for exemption, i.e., to ascertain whether the building is being used for religious, charitable or educational purpose, after affording an opportunity of hearing to the claimant and the decision of the Government shall be final as mentioned in sub-section (3) of Section 3.

Ramachandra Menon, J.

Whether a claim for exemption could be made in terms of Section 3(1)(b) of the Kerala Building Tax Act, 1975 [hereinafter referred to as the 'Act'], after finalization of the assessment, is the question referred for consideration. The verdict passed by a learned Judge of this Court in Mother Superior, Congregation of Sisters of Charity Vs. Tahsildar, Mananthawady [1987 (1) KLT 841 : 1987 KHC 244] and the unreported judgment dated 20.01.2016 passed by a Division Bench in W.A. No. 106 of 2016, whereby the former judgment was approved, are doubted and hence the reference.

2. Though the question mooted can be considered directly, we think it appropriate to make a reference to the factual matrix as well, as the Division Bench, while making the reference, has made some observations as to the 'identical factual situation' involved in some of the cases mentioned therein, to have an effective appreciation and analysis of the relevant provisions of law.

3. We heard Mr. Abraham John, the learned counsel appearing for the appellant and Mr. Mohammed Rafeeq, the learned senior Government Pleader, who entered appearance on behalf of the respondents accordingly.

4. The appellant/writ petitioner is an entity registered under the relevant provisions of the Societies Registration Act 1860, which is stated to be an institution established for religious and educational development of Muslim community and registered as a religious, charitable and educational society. The building in question, having a plinth area of about 2478.22 sq.m., was constructed by the appellant society. However, no return was ever filed in terms of Section 7 of the Act and in the said circumstances, the second respondent issued notice under Section 7(3) of the Act, proposing to levy the one time tax. Admittedly, it was not responded from the part of the appellant/writ petitioner. Met with the situation, the second respondent proceeded with further steps and the assessment was finalized in conformity with Section 9(5) of the Act, passing Ext.P3 assessment order dated 21.12.2017 and fixing tax liability as Rs.8,35,200/-. A demand notice was served through the Village Officer, on 10.01.2018, in this regard.

5. On getting the assessment order and demand notice, the appellant/writ petitioner woke up from the slumber, who preferred Ext.P4 representation dated 15.01.2018 [styled as a 'reply' in the writ petition] before the second respondent, claiming that the building of the society was principally and exclusively intended to be used for imparting religious, charitable and educational development of the community and hence was eligible for tax exemption under Section 3(1)(b) of the Act. This was replied by the second respondent vide Ext. P5 dated the same day, pointing out that the said authority was not having any power to review the assessment order and as such, the grievance could be pursued by filing statutory appeal in Form No.10 before the appellate authority/Revenue Divisional Officer, after remitting the first installment [out of the four quarterly installments provided as per relevant Rule] within the specified time. Instead of pursuing the remedy as above [putting forth the claim for exemption before the competent authority to deal with the matter], the appellant/writ petitioner approached this Court directly, by filing W.P.(C) No. 3634 of 2018, challenging Ext. P3 assessment order and seeking to direct the first respondent/State to grant exemption under Section 3(1)(b) of the Act, after making an enquiry into the principal use of the building, with reference to its memorandum of association, the bye law and the activities being carried out by the writ petitioner.

6. When the matter came up for admission, the learned single Judge observed that, Ext.P3 order under challenge in the writ petition was appealable under Section 11 of the Act and in view of the said alternate remedy, the writ petition was dismissed as per the judgment dated 05.02.2018