Dr.Kauser Edappagath, J.
1. This writ appeal has been filed challenging the judgment of the learned Single Judge in WP(C) No.3074/2020 dated 15th September 2023.
2. The appellant is the petitioner in the writ petition. He owns a commercial building with a plinth area of 5437.39 M2 situated at Kozhikode. It was let
out to M/s Kalyan Silks and is being used as its showroom. On completion of the building, it was assessed to building tax by the 1st respondent at
`11,94,163/-. The appellant unsuccessfully challenged the said assessment before the Appellate Authority. Hence, he paid the entire building tax
amount. Thereafter, another order of assessment (Ext.P2) was served on the appellant, directing him to pay an additional amount of building tax of
₹25,29,000/- on the ground that he had made a structure over the terrace of the building, and it is amenable to tax under the Kerala Building
Tax Act. The appellant challenged the Ext.P2 assessment order before this court in W.P(c) No.12153/2018. This court, vide Ext.P5 judgment,
allowed the writ pe(cid:45)(cid:45)on and quashed the Ext.P2. The 1st respondent was directed to pass a fresh order a(cid:47)er affording an opportunity for
hearing to the appellant. Therea(cid:47)er, the 1st respondent passed a fresh order marked as Ext.P8. The appellant challenged the Ext.P8
assessment order before the learned Single Judge, who dismissed it as per the impugned judgment. Hence, the appellant is before us.
3. We have heard Sri.Santhosh Kumar G., the learned counsel for the appellant and Sri.V.K.Shamsudheen, the learned Senior Government Pleader.
4. The learned counsel for the appellant submitted that Ext.P8 order passed by the 1st respondent is against the spirit of Ext.P5 judgment of this court
and hence not sustainable. Per contra, the learned Government Pleader submitted that there is absolutely no illegality or impropriety in Ext.P8 order
and if at all the appellant is aggrieved by the same, the remedy open to him is to prefer statutory appeal.
5. Initially, the Ext.P2 assessment order was passed by the 1st respondent without giving the appellant an opportunity to hear. The said order of
assessment was unsupported by reasons also. It was in that circumstances that this court vide Ext.P5 set aside the said order. However, it seems that
Ext.P8 order also suffers from the same infirmity. Absolutely no reason has been stated in Ext.P8 as well. The appellant has a specific case that he
had only erected truss work over the terrace of the building for protecting the building from heat and rain and the said area cannot be termed as part
of the building or appurtenant to the building to subject it to the building tax. The said specific case set up by the appellant at the inception was not
taken into consideration at all by the 1st respondent.
6. The question whether the additional construction made by the appellant on the terrace of the building would form part of the original building or not
is a disputed question of fact.
The said disputed question of fact cannot be resolved under the exercise of jurisdiction vested with this court under Article 226 of the Constitution of
India. The appellant has statutory appellate remedy against Ext.P8 order. The remedy open to the appellant is to approach the Appellate Authority
challenging Ext.P8 order. Hence, we find no reason to interfere with the impugned judgment. However, we make it clear that in the event the
appellant files an appeal before the Appellate Authority against Ext.P8 order, within two weeks from the date of receipt of a copy of this judgment,
the same shall be considered by the Appellate Authority on merits in accordance with law and dispose of the same within three months thereafter.
The Appellate Authority shall give an opportunity for the appellant for hearing and conduct a site inspection, if necessary. The Appellate Authority
shall consider the contentions raised by the appellant against the assessment and detailed in the above paragraphs. The 1st respondent shall not
enforce Ext.P8 order till the disposal of the appeal by the Appellate Authority.
The writ appeal accordingly stands dismissed with the above observation.
