IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 7275 of 2008(N) ------------------------- PETITIONER(S): --------------- SURENDRAN, AGED 59 YEARS, S/O. KONNAN, ITHIPARAMBIL HOUSE, POOVATHOOR, ELLAVALLY, CHAVAKKAD, THRISSUR DISTRICT. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR, THRISSUR, COLLECTORATE, AYYANTHOLE, THRISSUR. 2. REVENUE DIVISIONAL OFFICER, THRISSUR, COLLECTORATE, AYYANTHOLE, THRISSUR. 3. ASSESSING AUTHORITY & TAHSILDAR, CHAVAKKAD, THRISSUR. GOVERNMENT PLEADER SRI.P.K.BABU FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) NO. 7275 OF 2008 ----------------------------------- Dated this the 20th July, 2009 J U D G M E N T The petitioner has challenged the imposition of the luxury tax under Section 5(A) of the Kerala Building Tax Act, 1975 as per Ext.P4/P5; mainly contending that the building in question was constructed much prior to the 'appointed date' i.e., before 01.04.1999 and hence that no luxury tax is attracted under any circumstance. There is a further contention that, the actual 'plinth area' of the building is only 266.03 sq.m. and that the observation in the impugned order that the building is having a plinth area of 290.86 sq.m. is not correct or sustainable. 2. It is the case of the petitioner that, the building was constructed by him based on Ext.P2 plan showing the total plinth area of 266.03 sq.m. It is also pointed out that, the building was numbered by the concerned Grama Panchayat as IX/414 A as evident from Ext.P2 ownership certificate given to the petitioner. Placing reliance on the said certificate, learned counsel for the petitioner submits that, absolutely no liability should have been mulcted on the petitioner in respect of the luxury tax payable under Section 5(A) of the Act, as the said provision was incorporated in the statute only by way of amendment having application to the buildings constructed/completed on or after 01.04.1999. WPC NO.7275/2008 2 3. The petitioner contends that imposition of building tax, being a 'one time affair', was not chosen to be challenged by him; particularly when the petitioner was abroad at the relevant time. But when the 3rd respondent passed Ext.P4 assessment order in respect of the luxury tax under Section 5(A), the liability being of a perennial consequence, the petitioner was constrained to challenge the same by filing an appeal before the Revenue Divisional Officer/Appellate Authority, which led to a remand. After considering the matter afresh, the 3rd respondent sustained Ext.P4 order as per Ext.P5 holding that the concerned Grama Panchayat as per letter No. A3 197/2006 dated 07.04.2006, had confirmed that the construction of the building was completed only after 01.04.1999 and further that the tax was imposed by the Panchayat only with effect from the year 2003-04. This being the position, no reliance can be placed on Ext.P2, to hold that the construction of the building was completed prior to the 'appointed date'. 4. True, the building is shown as numbered in Ext.P2, but the area available at the time of numbering is not discernible from Ext.P2. By virtue of the subsequent letter/certificate, since Secretary of Panchayat has asserted that the construction was completed only after 01.04.1999 and that the prescribed tax was imposed by the Panchayat only in the year 2003-04, the contention raised by the petitioner that the building was constructed prior to the 'appointed date' is not correct or sustainable. This being the position, the impugned order passed by the 3rd respondent, imposing the luxury tax under Section 5(A) of the Act is WPC NO.7275/2008 3 perfectly within the four walls of the law and is not assailable under any circumstance. 5. With regard to the other contention of the petitioner that the building is having only a plinth area of 266.03 sq.m., it is relevant to note that the petitioner did never have a case or dispute as to the actual plinth area of the building earlier, particularly since Ext.P3 assessment order passed by the 3rd respondent imposing the building tax reckoning the plinth area as 290.86 sq.m. has not been subjected to challenge. The explanation offered by the petitioner that he could not challenge the same earlier by virtue of his engagement abroad does not appear to be acceptable; for the plain reason that the petitioner, aggrieved of the Ext.P4 order imposing the 'luxury tax' under Section 5(A) has chosen to challenge Ext.P4; while the order passed by the 3rd respondent imposing the 'building tax' is still left unchallenged. As it stands so, the finding on fact that the actual plinth area of the building in question as assessed in Ext.P3, has become final and no more open to challenge. The position in this regard has been specifically taken note of in Ext.P4 and P5 orders as well. In the above circumstances, no interference is called for. The Writ Petition fails and it is dismissed accordingly. P.R.RAMACHANDRA MENON JUDGE dnc