IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 WP(C).No. 513 of 2011(L) ------------------------ PETITIONER(S): --------------- 1. C.GOPALAKRISHNA PILLAI,ADVOCATE, KOLLAM FROM KOCHUPUTHUPPALLIL VEEDU, THURUTHIKKARA PO, KUNNATHOOR EAST, KOLLAM 690 540, NOW RESIDING AT GANGOTHRI,KUNNATHOOR EAST PO, KOLLAM 690 540. , 2. S.JAYASREE,W/O.C.GOPALAKRISHNA PILLAI, GANGOTHRI,KUNNATHOOR EAST PO, KOLLAM 690 540. BY ADV. SRI.B.SURESH KUMAR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP.BY ITS SECRETARY TO THE REVENUE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOLLAM, CIVIL STATION, KOLLAM 691 013. 3. THE REVENUE DIVISIONAL OFFICER, KOLLAM,CIVIL STATION, KOLLAM 691 013. 4. THE TAHSILDAR, KUNNATHOOR, KUNNATHOOR EAST PO, KOLLAM 690 540. BY GOVT. PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.513 of 2011-L ---------------------------------------- Dated this the 31st day of January, 2011. J U D G M E N T In this writ petition, the challenge is against assessment of the building tax and luxury tax completed under Section 5 and 5A of the Kerala Building Tax Act 1975, which was confirmed by the appellate authority as well as the revisional authority. 2. Through Ext.P7, a residential building constructed by the petitioners was assessed to the tune of Rs.9,000/-, as per Section 5 of the Act. So also under Ext.P8, the petitioners were assessed with luxury tax under Section 5A to the tune of Rs.2,000/- per annum, on the basis of the finding that the total plinth areas of the building is 285.44 Sq.M. It is evident that the assessments were taken up in appeal and further in revision before respondents 3 and 2 respectively. Main contention raised by the petitioners is that the different floors of the building need be assessed separately. It was seen negatived on the basis of factual W.P(C) No.513 of 2011-L 2 aspects. Against the order of the revisional authority (Ext.P12) the petitioner had approached the State Government by filing a further petition dt.4.3.2010. In Ext.P3, the State Government had rejected the application observing that the Government has no revisional power in the matter, as per provisions contained in the statute. 3. According to the petitioners the entire amount of building tax assessed under Section 5 of the Act, as per Ext.P7 has already been paid and that the petitioners are not intending to pursue the challenge on the ground regarding eligibility for separate assessment. On the other hand specific contention raised is that the building in question was not liable to be assessed under Section 5A since the total plinth area is below 278.78 Sq.M, excluding the car porch. Learned counsel for the petitioners points out that by virtue of the provisions contained in Section 6 of the Act, the Car Porch of the any residential building is exempted while reckoning the plinth area. The petitioners canvass the support of the above proposition through W.P(C) No.513 of 2011-L 3 various decision of this Court as well as the circular issued by the Government in this regard. The petitioner had taken specific contention in view of the fact that the assessment under Section 5A is completed in a total lack of jurisdiction. 4. However, I find no fault with Ext.P13 order issued by the State Government, because as observed therein the Government is not a revisional authority, vested with powers of revision against any order passed by the District Collector. Going by the statute the only power vested with the Government is to exercise of suo motu power provided under Section 14 of the Act, against any order passed by the District Collector in exercise of suo motu power vested on that authority. 5. Regarding the contentions of exemption of plinth area of the car porch, learned Government Pleader appearing on behalf of the respondent had fairly conceded that the assessing authority has reported that after excluding the area of car porch, total plinth area of the building is only 270.82 Sq.M. Therefore, it is clear that the W.P(C) No.513 of 2011-L 4 building in question is not liable to be assessed under Section 5A of the Act. 6. Under such circumstances, I am inclined to accept the contentions of the petitioners that Ext.P8 order of assessment as well as further steps taken for realising the amounts of luxury tax is done in an illegal manner, which is lacking jurisdiction. 7. In the result, the writ petition is allowed to the extent of quashing Ext.P8 order of assessment, which is confirmed through Exts.P10 and P12 orders. Accordingly, the respondents are restrained from collecting any amount of luxury tax from the petitioners under Section 5A. Needless to say that, the amount remitted by the petitioner pursuant to interim order of this Court shall be appropriated against the building tax if any due, as assessed under Ext.P7, or the same is to be refunded if payment is already effected. C.K.ABDUL REHIM JUDGE