IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 WP(C).No. 10706 of 2010(K) -------------------------- PETITIONER: --------------- TREVER FERNANDEZ, CHIANTREL, HOUSE, NO.1/1053 B, KUNNUMPURAM ROAD, FORT KOCHI, ERNAKULAM DISTRICT. BY ADV. SRI.DILEEP VARGHESE SRI.TESMY DILEEP RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, TO GOVERNMENT (REVENUE), THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, CIVIL STATION, KAKKANAD. 3. THE REVENUE DIVISIONAL OFFICER,FORT KOCHI, ERNAKULAM DISTRICT. 4. THE TAHSILDAR, KOCHI TALUK, TALUK OFFICE KOCHI, ERNAKULAM DISTRICT. THE VILLAGE OFFICER, FORT KOCHI. 5. THE VILLAGE OFFICER, FORT KOCHI. SR. GOVT. PLEADER SRI. MATHEW GEORGE VADAKKEL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) 10706/2010 EXT.P1 TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY CORPORATION OF COCHIN DATED 21.3.2005. EXT.P2 TRUE COPY OF THE NOTICE DATED 28.2.2006 ISSUD BY TAHSILDAR, KOCHI. EXT.P3 TRUE COPY OF ORDER OF ASSSSMENT DATED 18.8.2006. EXT.P4 TRUE COPY OF THE ORDER DATED 5.2.2008 OF REVENUE DIVISIONAL OFFICER, FORT COCHIN. EXT.P5 TRUE COPY OF BLUE PRINT OF THE COMPLETED RESIDENTIAL BUILDING OF THE PETITIONER. EXT.P6 TRUE COPY OF THE ORDER DATED 22.4.2008 OF DISTRICT COLLECTOR, ERNAKULAM. EXT.P7 TRUE COPY OF REVISION APPLICATION SET TO PRINCIPAL SECRETARY, GOVERNMENT OF KERALA. EXT.P8 TRUE COPY OF RECONSIDERATION PETITION FILED ON MAY, 2009. RESPONDENTS' EXHIBITS: NIL. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMACHANDRA MENON, J. = = = = = = = = == = = = == = = = = = = W.P.(C) No. 10706 OF 2010 = = = = = = = = == = = = = = = = = = = = = DATED THIS, THE 23RD DAY OF JULY, 2010. J U D G M E N T The issue involved in this writ petition is fixation of liability under Section 5 of the Kerala Building Tax Act in respect of a building constructed by the petitioner. According to the petitioner, the building does not have the requisite plinth area of 278.7 square metres so as to attract luxury tax and without regarding the facts and figures, the assessment was finalised by the assessing authority, the 4th respondent, by passing the assessment order. Petitioner filed an appeal before the third respondent Revenue divisional Officer and requested re-measurement of the plinth area. After re-measurement, excluding the area of the car porch, it was found that the plinth area was 294.95 M2, which in turn, very much attracted the liability to pay luxury tax. Accordingly, interference was declined and the appeal was dismissed. Petitioner preferred a revision petition before the second respondent which also met with the same fate. After submitting Ext.P8 before the second respondent to re-consider the matter, petitioner has approached this court by filing the present petition. 2. Heard the Government Pleader as well. It is brought to the notice WP(C) 10706/2010 2 of this Court by the learned counsel for the petitioner that pursuant to Ext.P8 application preferred by the petitioner before the second respondent, the second respondent had instructed the Assistant Engineer (PWD) Mattancherry to conduct a proper measurement and fix the plinth area of the building, vide letter B7-22 741/2010 dated 2.6.2010. Pursuant to this, the building was inspected and measurement was conducted by the said authority who submitted a report before the 4th respondent certifying that the total plinth area of the building is 272.66M2 and that the plinth area of the car porch is 9.56 M2. The factual position in this regard has been communicated by the 4th respondent to the learned Advocate General as per letter B3-957/2006 dated 2.7.2010, which is produced before this Court by the learned Government Pleader. 3. In the above circumstances, this Court finds that the tax liability mulcted under Section 5A of the Kerala Building Tax Act holding that the building is having the requisite plinth area of 278.7 M2. is not correct and the actual the plinth area of the petitioner's building is much less than the required extent as conceded by the concerned respondent, including the assessing authority, vide his letter 2.7.2010, as mentioned above. 4. In these circumstances, nothing further remains to be considered or no 'fact adjudication' is necessary. Accordingly, it is declared that the WP(C) 10706/2010 3 building belonging to the petitioner is not having the requisite plinth area so as to attract tax liability under Section 5A of the Building Tax Act. Accordingly, the order of assessment and the orders passed by the Appellate Authority as well as the Revisional Authority impugned in this writ petition are set aside. The writ petition is allowed. No cost. P.R. RAMACHANDRA MENON, (JUDGE) KNC/-