Judgment :- 1. A question of considerable importance as far as Municipal taxation is concerned arises for consideration in this case. The question is whether a new building constructed is assessable to property tax under S.100 of the Kerala Municipalities Act, 1960, for short the Act, before it is completed and occupied. The petitioner in this Original Petition started construction of a building in Ward No. VIII of the Muvattupuzha Municipality of which the respondent is the Commissioner, in June 1970. Though initially sanction was obtained only for the ground-floor and first-floor, immediately after the slab concrete of the first-floor the petitioner applied for sanction for the construction of the second-floor also. The structure of the three-floors of the building was over and the plastering and other finishing works were going on. Then the petitioner got Ext. P-1 notice from the respondent assessing the building to property tax for the first half of 1971-72. The assessment was in respect of the first two-floors of the building under construction. The petitioner filed Ext. P-2 objection. 2. But the petitioner received Ext. P-3 demand bill for a sum of Rs. 542/- in respect of the first and second half years 1971-72. Subsequently, the petitioner was served with Ext. P-4 order revising the assessment and fixing the half yearly rate of tax at Rs. 271/-. As no reasons were stated in Ext. P-4 the petitioner applied for the actual order and the petitioner on 29 31972 received Ext. P-5 order which is the real order making the assessment in respect of the building. 3. The case of the petitioner is that by the time Ext. P-5 was received, the time for appeal from Ext P-4 to the Municipal Council had expired and hence the petitioner did not file an appeal. It is under the above circumstances that the petitioner has approached this Court with this Original Petition to quash Exts. P-1, P-3, P4 and P-5. The main contention raised in the Original Petition is that as the building is not complete and no portion of it has been put to any use or occupation, no assessment to property tax can be made under the Act. It is also contended that assessment can be made only after completion of the construction of the entire building and notice thereof is given to the respondent-Commissioner. 4. It is also contended that assessment can be made only after completion of the construction of the entire building and notice thereof is given to the respondent-Commissioner. 4. The stand taken in the counter-affidavit filed by the Commissioner is that the construction of the ground-floor and the first-floor of the building was completed on 1-61971 and under the Act that building is liable to be assessed for property tax and the assessment in question was made accordingly. It is further contended that it cannot be said that a building becomes complete only after it is occupied or only after sanitary and electrical fittings had been installed. But the moment a building becomes usable, it is liable to property tax and in this case the building became usable as a lodge as on 161971 and hence it was liable to be assessed to property tax from that date. It is averred in Para.6 of the counter-affidavit that from 26 21973 a hotel called "Everest Tourist Home" is run in the building. 5. Counsel for the petitioner contends that unless a building is completed and is occupied no property tax can be levied for that building by the respondent. In this case, neither the construction of the building was completed nor notice under S.107 of the Act given to the respondent. In the case of a new building put up, before it is occupied, no question of assessment to property tax under S.100 of the Act arises. In support of his contentions, the counsel for the petitioner relies on a decision of the High Court of Bombay in Polychem Ltd. v. Municipal Corporation of Greater Bombay (ILR. 1970 Bom.102). This case arose in respect of an assessment to property tax of some land situated within the Municipal Corporation of Greater Bombay. One of the questions that arose for consideration was whether that portion of land which was in the course of being built upon could be taxed. It was contended on behalf of the respondent-Corporation that the liability to tax must be irrespective of the capacity of the property for beneficialn enjoyment by any person. Repelling the above contention the Court held: "It is impossible to accept this contention. It was contended on behalf of the respondent-Corporation that the liability to tax must be irrespective of the capacity of the property for beneficialn enjoyment by any person. Repelling the above contention the Court held: "It is impossible to accept this contention. As has been made clear by the Supreme Court in the above case, these various methods no doubt do exist but the purpose of those methods is to find out what a willing tenant would pay for the property from year to year as rent in its present condition and not more. As observed earlier, if there is no tenant who would be prepared to take the property from year to year in its then condition, evidently there can be no tax on the same." In the above decision it has been made clear that the principle of taxation however depends upon the beneficial occupation of the property. The following passage from Ryde on Rating has been extracted in the above decision: "It has always been accepted that buildings and works in course of construction or alteration are not rateable, because there is no occupier of them within the meaning of the Poor Relief Act, 1601." After extracting the above passage it is further said: "the fundamental principle that there must be a tenant who would take the property in the condition in which it is from year to year exists in our statutes as much as in English Statutes. If therefore there can be no tenant who would be prepared to take the property in that condition, evidently the rateable value would be null and consequently the tax also null." The petitioner's counsel further points out that in this case not only that the building was not occupied but the building was not electrified. Further sanitary fittings were yet to be made. It is also contended that the indication in S.105 of the Act which provides for vacancy remission is that the property tax is for building when it is occupied. 6. The counsel for the respondent relies on the definition of building in S.3 (3) of the Act and contends that the building in question with its two floors completed though not electrified and without sanitary fittings will attract assessment to property tax under S.100 of the Act. 6. The counsel for the respondent relies on the definition of building in S.3 (3) of the Act and contends that the building in question with its two floors completed though not electrified and without sanitary fittings will attract assessment to property tax under S.100 of the Act. It is also contended that it cannot be said that a building becomes a building only after it is occupied and the moment it becomes usable it is liable to be taxed. 7. S.3 (3) of the Act which defines building reads: "'building' includes a house, out-house, stable, latrine, shed, hut, wall (other than a boundary wall not exceeding eight feet in height) and any other such structure whether of masonry, wood, brick, mud, metal or any other material whatsoever." S. 100 of the Act which provides for the method of assessment to property tax reads: "100. (1) Every building shall be assessed together with its site and other adjacent premises occupied as an appurtenance thereto unless the owner of the building is a different person from the owner of such site or premises. (2) The annual value of buildings and lands which are occupied by or adjacent and appurtenant to buildings shall be deemed to be the gross annual rent at which they may reasonably be expected to let from month to monthor from year to year less a deduction in the case of buildings of fifteen per cent of that portion of such annual rent which is attributable to the buildings alone apart from their sites and the adjacent lands occupied as an appurtenance thereto:" (the provisos to sub-section (2) and sub-section (3) which are not relevant here are omitted). S. 107 (1) (a) of the Act reads: "107. Owner's obligation to give notice of construction, reconstruction or demolition of building:-(1) (a) If any building in a municipality is constructed or reconstructed the owner shall give notice thereof to the commissioner within fifteen days from the date of completion or occupation of the building, whichever is earlier." No doubt, the building in question with its two-floors completed, though not electrified, falls within the definition of 'building' in S.(3) of the Act. Sub-s. (1) of S.100 says that every building shall be assessed. But that assessment is to depend upon the annual value as stated in sub-section (2) of that section. Sub-s. (1) of S.100 says that every building shall be assessed. But that assessment is to depend upon the annual value as stated in sub-section (2) of that section. In the case of a building which is not completed and not occupied, there cannot be an annual value because it is not rateable. Moreover, the tax is levied on a building which is occupied. There is provision, in S.105 of the Act to give remission of tax in respect of a building already assessed to property tax when it falls vacant and unlet for thirty or more consecutive days in any half year. So, occupation is an essential pre-requisite for a building to attract tax under S.100. But once assessed, that will continue and only S.105 will be available. It is also admitted in Ext. P-5 that the building was not occupied. So the assessment in question cannot be sustained. 8. Counsel for the respondent has also a contention that this Original Petition is not maintainable since the petitioner did not exhaust the alternate remedy of appeal provided by the Act. The stand taken by the counsel for the petitioner is that by the time Ext. P-5 was served on the petitioner, the time for filing an appeal from Ext. P-4 assessment before the Municipal Council was over. I don't think there is any hard and fast rule on the question of pursuing the alternate remedy provided by the Act. In a case like this where there is a miscarriage of justice this Court also can entertain a petition under Art.226 of the Constitution even if the petitioner has not exhausted the alternate remedy before approaching this Court. 9. For the reasons stated above, Exts. P-1, P-3, P-4 and P-5 orders of the respondent are quashed. But it is made clear that the respondent will be free to assess the building in question to property tax as per the Act and the Rules taking into consideration that the building was occupied from 26-2-1973. This Original Petition is allowed. There will be no order as to costs. Allowed.