IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 WP(C).No. 4983 of 2010(W) ------------------------- PETITIONER: -------------- SARA VARGHESE, W/O.VARGHESE, KANNETH THARAVAD, VADAYAMPADY, AIKKARANADU SOUTH VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.S.EASWARAN RESPONDENTS: ----------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, ERNAKULAM DISTRICT. 3. THE TAHASILDAR, TALUK OFFICE, KUNNATHUNADU, PERUMPAVOOR, ERNAKULAM DISTRICT. 4. THE VILLAGE OFFICER, AIKKARANADU SOUTH VILLAGE, ERNAKULAM DISTRICT. BY GOVERNMENT PLEADER, SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.Ramachandra Menon, J. ------------------------------------------ W.P.(C) No.4983 of 2010 & I.A.No.2721 of 2010 ------------------------------------------ Dated this the 2nd day of March, 2010 JUDGMENT The issue involved in this case is whether the measurement taken by the respondents for computing the plinth area as defined under Section 2(k) of the Kerala Building Tax Act, 1975 is in accordance with the relevant statutory prescriptions so as to exclude the fire-wood storage area as now contended by the petitioner from the purview of assessment and in turn to avoid the liability with regard to the payment of Luxury Tax under Section 5A of the said Act. 2. The petitioner constructed ground floor of the building in the year 1999-2000. Subsequently, when the first floor was also constructed in the year 2003-04 the assessment under Section 5A as to the liability to pay Luxury tax was also to be finalised. Accordingly, the third respondent issued orders W.P.(C) No.4983 of 2010 - 2 - levying luxury tax under Section 5A of the Act observing that the total area was very much above the limit of 278.76 sq.mtrs. and hence liable to be assessed. 3. The proceedings in this regard were the subject matter of challenge on the part of the petitioner earlier and as per Ext.P10 judgment this Court directed to cause measurement of the building with the help of a qualified engineer and consequential directions were also issued. Pursuant to that, measurement was conducted by the concerned authority and Ext.P11 order was passed on 25.1.2006 whereby it was held that the building was having a total plinth area of 308.54 M² and accordingly levied luxury tax. Aggrieved by the said proceedings, the petitioner preferred appeal before the second respondent who considered the entire facts and circumstances and the matter was remanded for fresh consideration after causing fresh measurement as specified. Accordingly, the matter was considered again by the assessing authority, i.e. the second respondent, giving effect to the verdict of this Court in W.P.(C) No.4983 of 2010 - 3 - Ext.P10 and also taking note of the specific instructions given by the appellate authority in Ext.P12 order passed on 11.11.2009, whereby the claim preferred by the petitioner was turned down and fixation of the tax liability under Section 5A of the Act was confirmed, though with minor modification with regard to the total plinth area concerned whereby an extent of 291.82 sq. mtrs. has been reckoned after excluding the area of 'car porch' constituting an extent of 17.15 sq.mtrs. Petitioner is challenging the correctness or sustainability of Ext.P12 order, simultaneously seeking for causing a fresh measurement (for which he has filed a separate application I.A.No.2721 of 2010) to be effected by the Executive Engineer or the Assistant Executive Engineer attached to the Public Works Department. 4. Heard learned Government Pleader as well, in detail, who submits that the course and procedure pursued by the first respondent are very much in tune with the relevant provisions of law and also in conformity with the mandate given by this Court in Ext.P10 judgment and hence does not call for W.P.(C) No.4983 of 2010 - 4 - any interference. 5. Learned counsel for the petitioner with reference to Ext.P9 sketch produced before this Court submits that the petitioner is entitled to get exemption in respect of the fire wood storage area as shown in the sketch and once this is allowed the total plinth area of the building will definitely come below the specified extent and that the petitioner will not be liable to pay luxury tax. 6. Learned Government Pleader appearing for the respondents submits that even a cursory look of Ext.P9 will show that the 'fire wood storage area' as given in the plan and sketch very much constitutes the area within the building and that there is no separate entrance to the said area, but for the entrance through the dining hall. It is also brought to the notice of this Court that by virtue of the specific stipulation under the proviso to Section 6 of the Building Tax Act, the area intended to be excluded as the area being used as 'fire wood storage area' is in respect of the portion which is 'appurtenant to the building', W.P.(C) No.4983 of 2010 - 5 - which situation is conspicuously absent in the instant case as the area which is now sought to be excluded by the petitioner is very much part of the main portion of the building itself and hence the petitioner is not entitled to get any relief sought for. 7. After hearing both the sides, this Court finds that the proceedings pursued by the third respondent are very much in conformity with Ext.P10 judgment and further the matter has been considered in detail by the third respondent again after the remand made by the appellate authority and the findings are well supported by reasons. This being the position, no interference is called for. The writ petition fails and it is accordingly dismissed. P.R.Ramachandra Menon, Judge vns