Judgment :- J.B. Koshy, J. Petitioner constructed a theatre which was assessed to building tax on the basis of capital value by assessment order dated 26.6.1987. Contending that cost of articles such as generator etc. are included for valuing petitioner filed an appeal. Finally petitioner approached this Court by filing O.P. No. 7175 of 1990. By judgment dated 24.5.1994 this Court held that generator and furniture in the theatre should not be valued while fixing the capital value of the building and fresh assessment was directed to be made. Accordingly, Ext. P1 assessment was made. Petitioner paid the amount as per Ext. P1 assessment. Ext. P1 assessment was on 28.6.1994. Thereafter, Ext. P2 notice was issued asking the petitioner to be present in office for rectifying the defects in the assessment. But, in Ext. P2 notice, it is not stated what is the defect in the original assessment and what is to be rectified. Therefore, no effective opportunity of hearing as per proviso to S.15 was given. But Ext. P3 order was passed rectifying the assessment. There also it was not stated that what was the rectification to be made. 2. From the counter affidavit filed it can be gathered that as per S.5(2) of the Act if an assessment is made on capital value basis and assessment is finalised only after mode of assessment is changed, that is, after the appointed day (10.2.1992), assessment has to be made on the basis of plinth area. Ext. P1 assessment was made as per the direction of this Court in 1994, after the method of assessment was changed and after the appointed day as mentioned in S.5(2). That is the reason explained by the Revenue in issuing rectification order. Petitioner challenged Exts. P2andP3 before this Court. This Court by judgment dated 17.10.1997 in O.P. No. 11863 of 1997 set aside the notice as well as the order as neither the notice nor the order disclosed the alleged mistake said to be rectified even though reason was mentioned in the counter affidavit. In Ext. P5 judgment, dated 17.10.1997, it has been held as follows: "... It is not stated in Ext. PIO order also as to what is the mistake rectified as per Ext. P10. Since Ext. P8 notice or Ext. In Ext. P5 judgment, dated 17.10.1997, it has been held as follows: "... It is not stated in Ext. PIO order also as to what is the mistake rectified as per Ext. P10. Since Ext. P8 notice or Ext. P10 order does not disclose the mistake said to be rectified, notwithstanding the reason stated by the respondents in their counter affidavit that there is an omission to apply the provisions of S.5(2) of the Act as amended by Act 13 of 1993, the same cannot be sustained. Accordingly quash Exts. P8 and P10 proceedings of the first respondent " Therefore, notice itself was quashed. Again learned judge found that: "....this order will not preclude the respondents from considering the matter in accordance with law. I make it clear that I have not pronounced anything on the question as to whether the assessing authority can make any fresh assessment pursuant to Ext. P8 notice." 3. After Ext. P5 judgment, Ext. P6 notice was issued wherein it is only stated that in view of the High Court judgment a hearing will be given. It is also stated in the notice that if petitioner is not appearing, the assessing authority will "without any notice decide the matter". The contention of the petitioner is that Ext. P6 is dated 18.12.1997, after three years of Ext. P1 assessment and statutory bar will apply. It is also stated that even in Ext. P6 notice what is the mistake to be rectified is not mentioned and* in fact notice is for a rehearing. It is not even stated that notice was issued for rectification of a mistake or notice was issued under S.15(1). When such an objection was filed for the first time the assessing authority realised the mistake and a valid notice was issued under S.15(1) by Ext. P8 dated 24.8.1988. The above notice did not refer to any earlier notice. Ext. P8 is quoted below: "Notice under S.15(1) of the Kerala Building Tax Act, 1975. To Shri. P.V. Shajahan, Managing Partner Shaheena Talkies, Mane, Azhiyur. Sir, On scrutiny of records the Secretary, Board of Revenue, Thiruvananthapuram has pointed out that the assessment already made for the building owned by you in RS. No. 25/2 of Azhiyur Village as per this office D4.9757/88 dated 28.6.94 requires rectification as the assessment was made on capital value basis. To Shri. P.V. Shajahan, Managing Partner Shaheena Talkies, Mane, Azhiyur. Sir, On scrutiny of records the Secretary, Board of Revenue, Thiruvananthapuram has pointed out that the assessment already made for the building owned by you in RS. No. 25/2 of Azhiyur Village as per this office D4.9757/88 dated 28.6.94 requires rectification as the assessment was made on capital value basis. The assessment has to be made on the basis of plinth area of the building. You are hereby required to be present in my office at 11 A.M. on 29.8.98 with the following documents for the purpose of rectifying the defects in the assessment failing which the rectification will be made to the best of my judgment. Rectification required - Asssessment is to made on the revised rate prescribed as per S.5 of the Schedule. Taluk Office, Vatakara Dated 24.8.1998. Sd/- Tahsildar" This notice was issued admittedly after time bar. Even Ext. P6 was issued after time bar. Objections were rejected and Ext. P10 was passed on 29.10.1998. Petitioner filed an appeal, but it was dismissed by Ext. P13 for non pre-deposit of tax. But petitioner is challenging the very notice Ext. P8 itself as time barred and lacking jurisdiction. 4. Learned Government Pleader submitted that it is not necessary to make reasons for rectification in the notice because after filing of the earlier Original Petition and reading the counter affidavit petitioner was aware of the reasons. It is also submitted that as per proviso to S.15(1) a mere notice is to be issued for hearing and no reasons need be stated in the notice. It is further submitted that present proceedings are in continuation of earlier proceedings stated by Ext. P2 and, therefore, no time bar will apply and Ext. P2 was issued in time. It is also submitted that since appeal filed was dismissed for non pre-deposit of tax, Writ Petition is not maintainable and hence, the Writ Petition shall be dismissed on that ground. 5. Notice under S.15(1) is mandatory. It cannot be treated as a mere procedural requirement. It is a condition precedent to initiation of proceedings for enhancing tax by way of rectification. S.15 of the Building Tax Act reads as follows: "15. 5. Notice under S.15(1) is mandatory. It cannot be treated as a mere procedural requirement. It is a condition precedent to initiation of proceedings for enhancing tax by way of rectification. S.15 of the Building Tax Act reads as follows: "15. Rectification of mistake: (1) The appellate authority or the revisional power authority may, at any time within three years from the date of an order passed by it on appeal or revision, as the case may be, and the assessing authority may, at any time within three years from the date of any assessment or order passed by it, of its own motion, rectifying any mistake apparent from the record of the appeal, revision, assessment or order, as the case may be, and shall, within the like period, rectify any such mistake which has been brought to its notice by an assessee: Provided that no such rectification shall be made which has the effect of enhancing an assessment or reducing a refund unless the assessee has been given a reasonable opportunity of being heard in the matter. (2) Where any such rectification has the effect of reducing the assessment, the assessing authority shall make any refund which may be due to such assessee. (3) Where any such rectification has the effect of enhancing the assessment, or reducing a refund, the assessing authority shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable; and such notice of demand shall be deemed to be issued under S.10 and the provisions of this Act shall apply accordingly". It is fundamental to fair procedure and principles of natural justice that bodies entrusted with legal power could not validly exercise it without hearing the person who was going to suffer. This right is statutorily recognised in proviso to S.15(1) in the matter of rectification of assessment which may impose additional burden on the assessee. 6. A hearing as contemplated in the above statutory provision is a "fair hearing" and not an empty formality. The contention that no reasons need be stated in the notice to be issued under S.15(1) and assessee need be told in advance what is the alleged mistake in the original assessment which is going to be corrected making the assessee burdened with more tax cannot be accepted at all. The contention that no reasons need be stated in the notice to be issued under S.15(1) and assessee need be told in advance what is the alleged mistake in the original assessment which is going to be corrected making the assessee burdened with more tax cannot be accepted at all. A proper hearing must always include a 'fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view after knowing the points in dispute'. Lord Denning has stated in Kanda v. Government of Malaya ((1962) AC 322) that: "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them". While considering power of rectification under S.154 of the Income Tax Act it was held in Ganapaich v. Income Tax Officer ((1973) 91 ITR 479) that notice must give particulars sufficient to offer effective opportunity to the person. Therefore, it can clearly be held that a notice of hearing issued under S.15(1) proviso without disclosing reason for rectification by which assessee is burdened, denying an effective opportunity, cannot be treated as a valid notice at all. Otherwise, notice will become an empty formality. Assessee has to be clearly informed what is the defect to be rectified and what was the error apparent on the face of record. 7. In fact, for non disclosure of reasons for rectification, Ext. P2 original notice was set aside in Ext. P5 judgment. In the second notice Ext. P6 also no reasons are mentioned. Ext. P6 contains the same mistake as contained in the original notice. When Ext. P6 was issued petitioner is aware of the mistake from the counter affidavit filed in the earlier Writ Petition cannot be a defence. When a charge sheet is issued without mentioning the particulars in the ground that accused is aware of all details cannot be contended at all. Further Ext. P6 speaks about a re-hearing and not about rectification. Like Ext. P2 which was already quashed Ext. P6 is also not a notice at all. 8. When a charge sheet is issued without mentioning the particulars in the ground that accused is aware of all details cannot be contended at all. Further Ext. P6 speaks about a re-hearing and not about rectification. Like Ext. P2 which was already quashed Ext. P6 is also not a notice at all. 8. A reassessment is not contemplated under S.15 by way of rectification. Apart from the above, the question whether Ext. P1 can be rectified is also a different matter. Ext. P1 was passed in accordance with the specific directions of this Court. Petitioner was assessed with capital value basis in 1987 when that method was in force. This Court specifically directed to exclude value of certain items like generator and furniture from the capital value. Ext. P1 is passed as per the direction of this Court. When an assessment was done as per the direction of the High Court whether it can be rectified because of the change in method of assessment subsequent to the assessment is a very contestable question and it cannot be taken as a mistake apparent on the face of record. O.P. No. 7175 of 1990 was disposed of only on 24.5.1994, after change in the method of assessment, that is, after the appointed day, and enactment of S.5(2). First this Court directed to reassess in a particular way. That was done in Ext. P1. Question of assessment under plinth area method as on the date of hearing of the Writ Petition was not pointed out by the Revenue. Principle of constructive res judicata is applicable. No appeal was filed against the above judgment by either of the parties. Now S.5 was inserted in the Act with effect from 10.2.1992 and judgment was passed only on 24.5.1994. Ext. P1 assessment order was passed in accordance with the direction of this Court. There is no dispute to the Revenue that Ext. P1 was passed strictly as per the direction of this Court. When Ext. P1 was passed as per the direction of this Court, there is no scope of rectification by the assessing authority. Hence the present rectification order is against the direction of this Court in the judgment in O.P. No. 7175 of 1990, dated 24.5.1994 to the assessing authority and without jurisdiction. Therefore, on that ground also Ext. P10 assessment is liable to be set aside. Hence the present rectification order is against the direction of this Court in the judgment in O.P. No. 7175 of 1990, dated 24.5.1994 to the assessing authority and without jurisdiction. Therefore, on that ground also Ext. P10 assessment is liable to be set aside. In view of the above finding, I am not going to the contention raised by the assessee that under power of rectification, method of assessment cannot be changed which can be done only by the appellate authority or revisional authority. 9. Even though learned judge did not make any observation in Ext. P5 judgment regarding merits of Ext. P8 notice in that Writ Petition (Ext. P2 herein), that is, whether under S.5(2) assessment can be reopened because of the change in method of assessment, Ext. P2 original notice of hearing on rectification as well as Ext. P3 order of rectification were quashed. Here Ext. P2 has to be ignored. Therefore, question. of time bar mentioned in S.15 will apply. S.15 proceedings has to be initiated within three years of assessment. Exts. P6 and P8 are beyond three years of Ext. P1 assessment. A taxing statute has to be strictly applied and that rule will lie not only against the assessee but also against the Revenue especially when the question of time bar is being considered. On the ground of time bar also the rectification order is liable to be set aside and I do so. 10. As far as the objection raised by the learned Government Pleader regarding maintainability of writ after dismissal of statutory appeal and existence of alternate remedy is concerned, it is true that High Court may in exercise of its discretion decline to interfere until all statutory remedies are exhausted. This rule of exhaustion of statutory remedies before a writ is only a rule of policy, convenience and discretion, but court in appropriate cases can issue discretionary writ of certiorari in certain circumstances. (See A.V. Venkateswaran v. R.S. Wadhwani (AIR 1961 SC 1506). Here I have already held that there is lack of jurisdiction, Ext. P10 order rectifying - Ext. P1 was passed without complying with statutory pre-conditions and-without authority because Ext. P1 was passed strictly in accordance with this Court's direction and is time barred. Here the Original Petition was admitted and stay was granted as early as in 1998. Here I have already held that there is lack of jurisdiction, Ext. P10 order rectifying - Ext. P1 was passed without complying with statutory pre-conditions and-without authority because Ext. P1 was passed strictly in accordance with this Court's direction and is time barred. Here the Original Petition was admitted and stay was granted as early as in 1998. After admitting the Original Petition, granting stay and after hearing the matter on merit and confirming that the notice as well as fair order under challenge are without jurisdiction, against statutory provisions and time barred, it is not proper to dismiss the Original Petition on the question of alternative remedy. In Collector of Customs, Cochin v. A.S. Bava (AIR 1968 SC 13) Supreme Court held that the fact that petitioner filed appeal which was dismissed for non pre-deposit of tax and there is a further remedy of revision will not deter the petitioner from approaching under Art.226. Here the appellate authority did not consider correctness of Exts. P6 and P8 and P10 but dismissed the appeal for non pre-deposit of tax. When the alternate remedy is subjected onerous conditions and question of fact are not in dispute, especially when the impugned order is without jurisdiction and Writ Petition was admitted and pending for more than two years, this Court can certainly exercise its discretionary jurisdiction. Therefore, I overrule the objections raised by the learned Government Pleader in this regard. In the above circumstances, the Original Petition is allowed and the impugned Ext. P10 order and consequential demands are set aside.