IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 10074 of 2006(Y) -------------------------- PETITIONER: ------------------ CHANDIROOR VIJAYAN, PUTHANPURAKKAKAM, CHANDIROOR, ALAPPUZHA. BY ADV. SRI.DEEPU THANKAN RESPONDENTS: ---------------------- 1. DISTRICT COLLECTOR, ALAPPUZHA. 2. TAHASILDAR, TALUK OFFICE, CHERTHALA. BY GOVERNMENT PLEADER MATHW VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.10074/2006 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DTD.23/10/2002. EXT.P2 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DTD. 2/6/2003. EXT.P3 TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.19872/2003. EXT.P4 TRUE COPY OF THE ORDER OF THE RDO DTD. 4/3/2005. EXT.P5 TRUE COPY OF THE ORDER OF THE IST RESPONDENTL DTD. 13/2/2006. True Copy P.S. TO JUDGE P.R. RAMAN, J. = = = = = = = = = = W.P.(C) 10074 OF 2006 = = = = = = = = = = = = = = DATED THIS, THE 29TH DAY OF AUGUST, 2008. J U D G M E N T Petitioner had approached this Court earlier by filing a writ petition which resulted in Ext.P3 judgment whereby this Court partly allowed the writ petition with a direction to the appellate authority to consider the matter on merits after holding that even in the matter of luxury tax an appeal could be filed under Section 11. 2. Section 5 A of the Luxury Tax Act as introduced subsequently brought a new tax by name 'luxury tax' on all buildings constructed after 1.4.1999 where the total plinth area exceeds 278.7sq.mts. Petitioner submitted a return under the Building Tax Act after the cut off date. He paid the building tax; but when luxury tax was sought to be imposed under Section 5A he raised a contention that the building in question was an old one which was demolished and remodulated retaining some portion of the old building and if the retained portion of the building is excluded for calculating the plinth area it will be less than 278.7 M2 and hence not liable to be assessed under Luxury Tax Act and even if whatever construction is made is prior to the cut off date namely, 1.4.1999, he is not liable to pay WP(C) 10074/2006 :2: any luxury tax. These contentions were not accepted by the authorities. The revisional authority in Ext.P5 order specifically entered a finding that after going through the records it is seen that an enquiry was conducted through the Deputy Tahsildar who verified the building on 7.9.2004 and reported that according to the Panchayat assessment register the Taravadu House - which was an old building - of the petitioner was having tiled roof in some portion and concrete roof in some part and the same was demolished and a fresh two storied building has been constructed there with complete RCC roof with very modern facilities in all places. This is a finding of fact which cannot be interfered with unless it is shown that such a finding was made contrary to the materials produced in the case and therefore perverse. No such materials are placed on record to come to such a conclusion. If the building is constructed as a new one after demolition of the old building then the contention raised by the petitioner falls to the ground. Therefore, to re-appreciate the contention he has necessarily to lay the foundation of fact namely that the building was not completely demolished; but only partly demolished and that new construction was made only partly, and some portion of the building still is an old building and therefore, the area occupied by that portion is liable to be excluded. But the finding of the authorities is to the effect that it was reconstruction of the WP(C) 10074/2006 :3: entire building. If so no relief can be granted to the petitioner under Article 226 of the Constitution of India. 3. The next contention is that construction was made prior to 1.4.1999. That is also belied by the finding in the case because the verification conducted in 2004 and admittedly, the returns were filed only after 1999. True, return could have been filed in 1999 in respect of the construction made prior to that date; but the burden is on the petitioner to show that the building was constructed prior to 1.4.1999. No materials are placed even to come to that conclusion. In the result, no relief can be granted in this writ petition. Dismissed. P.R. RAMAN, (JUDGE) knc/-