IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 WP(C).No. 14772 of 2007(H) -------------------------- PETITIONER(S): --------------- 1. SEBASTIAN MATHEW, KAILATH STEELS, CHANGANACHERRY. 2. SHIJI JOHN, ATTUKADAVIL (GALAXY AUTO FUELS), I.O.C.DEALERS,NEAR S.B.COLLEGE, M.C.ROAD,CHANGANACHERRY. BY ADV. SRI.JOMY GEORGE RESPONDENT(S): --------------- 1. STATE OF KERALA,REP.BY ITS SECRETARY, DEPARTMENT OF TAXES,THIRUVANANTHAPURAM. 2. SECRETARY,LOCAL SELF ADMINISTRATION DEPARTMENT,THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR, KOTTAYAM. 4. THE TAHSILDAR, CHANGANACHERRY. BY GOVT. PLEADER SMT.SMITHA SUKUMARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.14772/07 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE NOTICE DATED 21.11.2006. EXT.P2: TRUE COPY OF THE NOTICE DATED 21.11.2006 ISSUED UNDER SECTION 7 (CLAUSE 3) OF THE KERALA BUILDING TAX ACT TO THE 1ST PETITIONER. EXT.P3: TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 4TH RESPONDENT ON 5.12.2006 WITH REGARD TO THE CANOPY CONSTRUCTED AT THE RETAIL OUTLET OF THE 1ST PETITIONER. EXT.P4: TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 4TH RESPONDENT ON 27.12.2006 WITH REGARD TO THE CANOPY CONSTRUCTED AT THE RETAIL OUTLET OF THE 2ND PETITIONER. EXT.P5: TRUE COPY OF THE CIRCULAR DATED 27.3.2001 ISSUED BY THE 2ND RESPONDENT. EXT.P6: TRUE COPY OF THE CERTIFICATE ISSUED BY THE BUILDER CERTIFYING ABOUT THE COST OF CONSTRUCTION OF the 1ST PETITIONER'S CANOPY DTD.28.8.06. EXT.P7: TRUE COPY OF THE CERTIFICATE ISSUED BY THE VALUER CERTIFYING ABOUT THE COST OF CONSTRUCTION OF LTEH 2ND PEETITIONER'S CANOPY DTD. EXT.P8: TRUE COPY OF THE INTERIM ORDER PASSED IN O.P.NO.9979/03. EXT.P9: TRUE COPY OF THE JUDGMENT IN O.P.NO.9979/03. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.14772 OF 2007 ------------------------------------------- Dated this the 7th day of April, 2010 JUDGMENT The petitioners, owners of petroleum outlets, have two fold contentions against the assessment order under the Kerala Building Tax Act, 1975. The first is that the impugned order has been issued without giving sufficient opportunity of hearing. It is stated that the said order was issued even before the period of one month granted to file reply. The second ground is that the canopy of a petroleum outlet does not fall within the definition of the term 'building' for the purpose of the KBT Act. The latter among the issues stands covered against the petitioners by the judgment of this Court in All Kerala Federation of Petroleum Traders v. State of Kerala [2004(1) KLT 1017]. Therefore, all that survives is the plea for hearing. Learned counsel for the petitioners states that his clients have serious objections to the manner in which the total floor area has been calculated for the WPC.14772/07. 2 purpose of determining the tax. He also states that the area which is liable to be exempted has also been included in the floor area. Under such circumstances, this writ petition is ordered directing that following the production of a copy of this judgment, the petitioners will be heard in relation to the impugned assessment and for such purpose, the impugned order is vacated hereby. The writ petition is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.12/04.