IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 WP(C).No. 32249 of 2011(E) -------------------------------------- PETITIONER(S): ----------------------- DR.MUHAMMED SALIM, VI/721A, KOTTATHARA HOUSE, EDAVANAKKADU VILLAGE, KOCHI TALUK. BY ADV. SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SMT.M.C.SANITHA RESPONDENT(S): ------------------------- 1. DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANADU, ERNAKULAM - 682030. 2. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI - 682001. 3. THE TAHSILDAR, KOCHI TALUK - 682031. BY GOVERNMENT PLEDER SRI. S. JAMAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD WPC NO. 32249/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1- TRUE COPY OF THE PLAN OF THE PETITIONER'S BUILDING. EXHIBIT P2- TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 14.9.2009. EXHIBIT P3- TRUE COPY OF THE ORDER BEARING NO.G-1634/10/K/DIS DATED 13.9.2010. TRUE COPY OF THE SAID ORDER PASSED BY THE 2ND RESPONDENT. EXHIBIT P4- TRUE COPY OF THE MEMORANDUM OF REVISION PETITION. EXHIBIT P5- TRUE COPY OF THE ORDER DATED 29.7.2011 OF THE DISTRICT COLLECTOR, ERNAKULAM. RESPONDENTS' EXHIBITS NIL TRUE COPY P.A. TO JUDGE SD S.SIRI JAGAN, J. ================== W.P.(C).No. 32249 of 2011 ================== Dated this the 9th day of December, 2011 J U D G M E N T The petitioner is the owner of a residential building. The petitioner has been assessed to building tax under the Kerala Building Tax Act. The petitioner has serious disputes regarding measurement of the plinth area for the purpose of assessment. According to the petitioner, for assessment, the garage area as well as the area covered by truss work on the terrace also have been included, which is against decisions of this Court. As per the Act itself, the garage is to be excluded. This Court in Padmanabhan v. State of Kerala, 2009 (1) KLT 295, has categorically held that the truss work area on the terrace of a building, if it is not covered on the sides cannot be included in the plinth area for the purpose of assessment for building tax and luxury tax is the contention raised by the petitioner. However, the assessment has been completed by Ext.P2 order including those areas as well. By Ext.P3 order, the petitioner's appeal against Ext.P2 has been rejected. Although the petitioner filed a revision, the District Collector remanded the matter allowing exclusion of garage area alone. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) Issue a writ of certiorari or any other appropriate writ or order, quashing Ext.P2, P3 and P5, to that extent it rejected the challenge of the petitioner against the assessment of luxury tax under section 5A of the Kerala Building Tax Act. w.p.c.32249/11 - : 2 :- ii) Issue a writ of mandamus or any appropriate writ or order directing the respondents (sic) refund the amount collected as luxury tax. 2. I have heard the learned Government Pleader also. 3. In view of the decision of this Court in Padmanabhan's case (supra), the respondents cannot now take the stand that the area covered by truss work, if it not covered on the sides, can be included in the plinth area in the assessment under the Kerala Building Tax Act. The stand that the decision is applicable only to the parties to that writ petition and the subsequent Government order on the basis of that judgment applies only prospectively is against the basic principles of law relating to precedents. This Court has declared the law, which is applicable to all pending and future proceedings. In the above circumstances, I am of opinion that the impugned orders are unsustainable to that extent. Accordingly, Exts.P2, P3 and P5 orders are quashed. The 3rd respondent is directed to pass fresh orders of assessment excluding the garage area and truss work area, if truss work area is not covered on the sides. Fresh orders in this regard shall be passed, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.32249/11 - : 3 :-