IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 WP(C).No. 27446 of 2007(P) -------------------------- PETITIONER: ------------ HYDROSEKUTTY.M.M., AGED 62 YEARS, S/O.IBRAHIM, MUKKATH HOUSE, KODAR LANE, ALUVA, ERNAKULAM DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENTS: ------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI. 3. THE TAHSILDAR, ALUVA. 4. AYSHA, D/O.HYDROSEKUTTY M.M., MUKKATH HOUSE, BUILDING NO.91(2), ALUVA. 5. THE ALUVA MUNICIPALITY, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS R1 TO R3 BY G.P. SRI.TEK CHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIIBITS: P1: TRUE COPY OF OCCUPANCY CERTIFICATE ISSUED BY THE 5TH RESPONDENT. P2: TRUE COPY OF AGREEMENT DT.3.4.03 EXECUTED BY THE PETITIONER IN FAVOUR OF 4TH RESPONDENT. P3: TRUE COPY OF CERTIFICATE DT.6.12.2004 ISSUED BY 5TH RESPONDENT. P4: TRUE COPY OF TAX RECEIPT NO.13906 DT.10.11.2004. P5: TRUE COPY OF SALE DEED NO.5204/04 OF ALUVA WEST SUB-REGISTRAR OFFICE. P6: TRUE COPY OF PROCEEDINGS DT.30.9.04 ISSUED BY R3. P7: TRUE COPY OF ORDER DT.7.3.2005 ISSUED BY R2. P8: TRUE COPY OF ORDER DT.21.6.05 ISSUED BY 1ST RESPONDENT. P9: TRUE COPY OF JUDGMENT IN W.P.(C) 28235/05. P10: TRUE COPY OF ORDER ISSUED BY 1ST RESPONDENT. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.27446 of 2007 .................................................................... Dated this the 18th day of February, 2008. JUDGMENT The question arising in this case is whether the building constructed by the petitioner is a single residential building with a plinth area above 278.7 sq. metres to attract liability for luxury tax under Section 5A of the Kerala Building Tax Act. The petitioner's case is that in the land belonging to him, he permitted his children to construct a three storied building, each floor consisting of a separate residential apartment with external staircase giving access from ground to each flat. According to the petitioner, the building is assessed as a single unit because the external staircase is also covered by wall to protect it from rain. If the building consists of three residential flats, then it cannot be treated as a single residential building for the purpose of luxury tax. However, if internal staircase is provided among the various floors and the building is a single residential unit, then irrespective of whether it is given two numbers by the Panchayat or whether each floor is in the name of each of petitioner's children, luxury tax will have to be assessed treating the building as a single residential building. If the building consists of three residential units as claimed by the petitioner, each one will have separate kitchen, living room, bedrooms etc., which are 2 common features of a residential flat. If petitioner has a case that each floor is a separate independent residential unit and the staircase is externally provided, though covered by wall, for giving access to each of the residential buildings from ground, then there will be direction to the petitioner to file an affidavit before the third respondent affirming it. If such an affidavit is filed, third respondent will make physical verification and if satisfied that the statements are correct in as much as each floor is an independent residential unit with kitchen, living room, bedrooms etc., he will assess the building separately in the name of each owner and recall the demand of luxury tax. However, if petitioner's statement is found to be false on verification, in addition to the arrears of tax and luxury tax, there will be direction to the third respondent to recover rupees ten thousand towards cost from the petitioner for the inconvenience caused to him in wasting his official time. If petitioner does not pay the cost, the Tahsildar can move this court for taking contempt action against the petitioner. Recovery proceedings for recovery of luxury tax will remain stayed for three months from now and thereafter recovery will be initiated after fresh proceedings, if issued as above. If petitioner is willing to clear the arrears without contest, he is free to do that. C.N.RAMACHANDRAN NAIR Judge pms