IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 WP(C).No. 10313 of 2009(H) ----------------------------------------- PETITIONER(S): ------------------------- JOSE, AGED 47 YEARS, S/O.MATHAI, PANAKKATHOTTAM HOUSE, KALLADIKODE P.O., PALAKKAD DISTRICT. BY ADVS. SMT.C.G.PREETHA MR.MATHEWS P.MATHEW MR.ANEISH RAVINDRA RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO REVENUE, THIRUVANANTHAPURAM. 2. THE REVENUE DIVISIONAL OFFICER, OTTAPPALAM. 3. THE TAHSILDAR, MANNARKAD. BY GOVT. PLEADER MR.P.K.BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.10313/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE DT. 17.3.08 PASSED BY THE 3RD RESPONDENT. P2:- COPY OF THE ORDER DT. 17.3.08 ISSUED BY THE 3RD RESPONDENT. P3:- COPY OF THE DEMAND NOTICE DT. 17.3.08 ISSUED BY THE 3RD RESPONDENT. P4:- COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DT. 21.7.08. P5:- COPY OF THE ASSESSMENT ORDER DT. 18.8.08 ISSUED BY THE 3RD RESPONDENT. TRUE COPY P.S. TO JUDGE TSS P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 10313 OF 2009 ......................................................................... Dated this the 31st July, 2009 J U D G M E N T Exts.P1 to P3 proceedings, assessing and demanding 'building tax' as well as 'luxury tax', payable under the relevant provisions of the Kerala Building Tax Act, were subjected to challenge by filing necessary appeal before the second respondent. After considering the facts and figures, the second respondent passed Ext. P4 order, directing the third respondent to assess the area of 357.63 Sq.M as the 'plinth area' as defined under Section 2(k) of the Act, instead of 369.13 Sq.M as given in Ext.P1. 2. The fact remains that the specific case of the petitioner was that the building was having a total plinth area of 251.75 Sq.M alone and that an area of 105.88 Sq.M which constitutes the 'cellar portion' of the building was not liable to be assessed, particularly in view of the parameters to be looked into as W.P.(C) No. 10313 OF 2009 2 provided in the statute and also as per the binding judicial precedents. It is also revealed from Ext. P4 order passed by the appellate authority that the actual nature of the disputed area in question was brought to the notice of the said authority also conceding that the petitioner was very much agreeable to have the said area, where concrete pillars have been erected upon which the building has been erected, to be filled by earth, so that there will be no question of any use of the said portion. 3. However, suggestion of the second respondent/appellate authority on this aspect is not seen recorded in Ext.P4 and no instruction is stated as given to the petitioner to have the disputed area to be 'filled by earth' as proposed by the petitioner. Yet another aspect to be looked into is that, during the pendency of the appeal proceedings , the appellate authority decided to have re-measurement of the plinth area and accordingly re-measurement was conducted by the Senior Superintendent of the office, with the help of Taluk Surveyor, Mannarkkad, whereupon the 'cellar area' was found as having W.P.(C) No. 10313 OF 2009 3 105.88 Sq.M; the ground floor was noted as having 164.10 Sq.M. and the first floor with an extent of 87.65 Sq.M, thus coming to a total of 357.63 Sq.M. It is also observed therein that the 'cellar area' can be put to beneficial enjoyment and that it was never filled by earth, as suggested by the petitioner, which made the appellate authority to reckon that area as well. As pointed out already, despite the offer, suggestion and proposal made by the petitioner, Ext. P4 does not show that any positive instruction was given to the petitioner to have the disputed area to be filled by earth, before putting the blame upon the petitioner. Similarly, it is not discernible from the materials on record that whether re-measurement was got effected by the second respondent with knowledge and involvement of the petitioner before modifying and fixing the reckonable plinth area as 357.63 Sq.M. Obviously, if the cellar area is to be excluded from the purview of the assessment, an extent of 105.88 Sq.M will have to be deleted from the area reckoned by the authorities, thus bringing the total extent much W.P.(C) No. 10313 OF 2009 4 below the prescribed/stipulated extent of 278.7 Sq.M, to attract assessment under the luxury tax invoking the provisions under Section 5A of the Act. Whether the said area is liable to be excluded, particularly in view of the contentions taken by the petitioner that it is not a covered area, since no walls have been constructed and further since no floors have been provided, is a matter to be looked into by the second respondent, particularly in view of law declared by this Court in Padmanabhan vs. State of Kerala [2009(1) KLT 295 ] and other binding judicial precedents . In the above facts and circumstances, Ext. P4 appellate order is set aside and the second respondent is directed to re- consider the matter in accordance with law, after giving an opportunity of hearing to the petitioner. Such exercise shall be pursued as expeditiously as possible and at any rate within three months from the date of receipt of a copy of the judgment. It is made clear that till such exercise is finalised, all further coercive steps stated as being pursued shall be kept in abeyance. It is W.P.(C) No. 10313 OF 2009 5 also made clear that the amount already stated as remitted by the petitioner pursuant to Ext. P5 will be subject to the outcome of re-consideration of the appeal by the second respondent. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk