IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 33231 of 2008(F) -------------------------- PETITIONER: --------------- P.J.NELSON, S/O.JOSEPH, AGED 40 , PARIATHUSON HOUSEM, ANDIKADAVU MURI, KUMBALANGY VILLAGE,REPRESENTED BY HIS POWER OF ATTORNEY CINI NELSON, W/O. P.J.NELSON, D/O.BOSTON AGED 36, C.C. 15/314 B,MOOLAMKUZHI MURI, RAMESWARASM VILLAGE, KOCHI TALUK, ERNAKULAM. BY ADV. MR. G.KRISHNAKUMAR RESPONDENTS: --------------- 1. TAHSILDAR, KOCHI. 2. R.D.O., FORT KOCHI. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR. P.K. BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP (C) No. 33231 OF 2008 APPENDIX PETITIONER'S EXHIBITS : EXT.P1 : PHOTOCOPY OF THE BG PERMIT DATED 5.2.2000 ISSUED BY THE CORPORATION OF COCHIN EXT.P2 : PHOTOCOPY OF THE BUILDING PERMIT DATED 19.8.2005 ISSUED BY THE CORPORATION OF COCHIN EXT.P3 : PHOTOCOPY OF THE ORDER DATED 27.8.2008 ISSUED BY THE 2ND RESPONDENT. EXT.P4 : PHOTOCOPY OF THE ASSESSMENT ORDER DATED 27.8.2008 ISSUED BY THE 2ND RESPONDENT EXT.P5 : PHOTOCPY OF THE ORDER DATED 27.8.2008 OF THE SECOND RESPONDENT. /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 33231 of 2008 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 13th day of July, 2009 JUDGMENT The crucial question to be considered in this case is, whether the assessment proceedings finalized by the first respondent, computing the building tax as well as the luxury tax, as per Exts.P3 and P4 reckoning the 'roof' covered with the aluminum sheets also as part of the 'plinth area' as defined under Section 2 (k) of the Act, is correct or sustainable. 2. Challenging Ext.P3 assessment order, in respect of the building tax and also Ext.P4 order passed by the assessing authority under Section 5 A imposing the luxury tax, the petitioner preferred statutory appeal before the second respondent, which led to Ext.P5 order, declining interference holding that, the terrace covered with aluminum sheet cannot be excluded under the Act. The issue is no more open to challenge in view of the authoritative pronouncement of the relevant provisions of law as per the decision rendered by this Court in Padmanabhan Vs. State of Kerala (2009 (1) KLT 295). It has been held by this Court that, covered terrace of residential building does not constitute “plinth area” for building tax assessment, unless such terrace, in full or part, is enclosed with bricks, walls, grills, wood or the like. WP (C) No. 33231 of 2008 : 2 : 3. This being the position, the manner in which the issue has been dealt with by the assessment authority as well as the appellate authority cannot be held as correct or sustainable and as such, the impugned orders are set aside. The first respondent is directed to reconsider the matter, with specific reference to the dictum in Padmanabhan Vs. State of Kerala (2009 (1) KLT 295), after giving an opportunity of hearing to the petitioner, which exercise shall be pursued and finalized as expeditiously as possible, at any rate, within 2 months, from the date of receipt of a copy of this judgment. It is made clear that, the petitioner will be at liberty raise all other contentions as well, as projected in the present Writ Petition. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd