IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 OP.No. 37739 of 2001(P) ----------------------- PETITIONER(S): --------------- C.K. SUBRAMANIAN, XXVIII/269, S.A. ROAD, PANAMPILLY NAGAR, COCHIN BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S): --------------- 1. THE TAHSILDAR, KANAYANNUR. 2. THE REVENUE DIVISIONAL OFFICER, ERNAKULAM. 3. THE VILLAGE OFFICER, ERNAKULAM VILLAGE, KANAYANNUR TALUK. BY G.P. SRI. MOHAMMED RAFIQ THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/06/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 ORDER ON CMP 61739/2001 IN OP 37739 OF 2001 DISMISSED 16.6.2009 SD/-C.N.RAMACHANDRAN NAIR, JUDGE. PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF NOTICE ISSUED BY THE SECRETARY, CORPORATION OF KOCHI DATED 27.10.2000 EXT.P2 TRUE COPY OF ASSESSMENT ORDER NO. B2-6693/2001 DATED 6.7.2001 PASSED BY THE FIRST RESPONDENT. EXT.P3 TRUE COPY OF DEMAND NOTICE ISSUED BY THE FIRST RESPONDENT TO PETITIONER DATED 6.7.2001 EXT.P4 TRUE COPY OF AN APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 15.8.2001 EXT.P5 TRUE COPY OF ORDER NO. K.DIS. 3988/01-G. DATED 6.10.2001 ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 37739 OF 2001 -------------------------------------------- Dated this the 16th day of June, 2009 JUDGMENT The first question raised in the O.P. with regard to constitutional validity of Section 5(4) of the Kerala Building Tax Act stands decided against the petitioner vide judgment reported in SIMON V. TAHSILDAR, (2008) 3 K.L.T. 826. Therefore the challenge against constitutional validity of Section 5(4) is rejected. 2. Counsel for the petitioner submitted that assessment under Section 5(4) is not tenable because petitioner constructed independent apartment above the ground floor of the very same building which was constructed in 1984. Government Pleader on the other hand submitted that what the petitioner constructed is only extension of the existing building which is clear from Ext.P1 issued by the Corporation and so much so the assessment of the total plinth area under Section 5(4) is tenable. It is seen that Corporation has granted new number to the first floor of the building. Since petitioner himself admits that ground and first floors are used for residential purposes, there is no difficulty to 2 find out whether first floor consists of independent apartment which will be clear from facilities available like living room, bed rooms, kitchen, etc separately for the first floor with external stair-case. However, if the building has only internal stair case connecting ground and first floors then it is not intended to be used as separate independent apartment and the assessment of the plinth area of the building under Section 5(4) is perfectly justified. Petitioner is directed to produce the plan of the building both ground and first floors before the Tahsildar if he claims that both floors are separate as stated above. If petitioner makes such a claim by furnishing copy of the plan along with a copy of this judgment, Tahsildar will make physical verification and revise the assessment if required. If there is mistake in the plinth area it is open to the petitioner to point out it to the Tahsildar for him to make correction. Recovery of the balance tax will remain stayed for three months from now, within which time Tahsildar will complete fresh proceedings. O.P. is disposed of as above. (C.N. RAMACHANDRAN NAIR) Judge kk 3