IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 WP(C).No. 10178 of 2011(V) -------------------------------------- PETITIONER: ------------------- MAHENDRA KUMAR,S/O.PADMANABHAN NAIR, AGED 47 YEARS,VRINDAVANAN,PALLICHAL, NEMOM.P.O,THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA,REPRESENTED BY THE SECRETARY,LAND REVENUE,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001. 2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM – 695 011. 3. THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM – 695 001. 4. THE TAHSILDAR,THIRUVANANTHAPURAM – 695 001. R1 TO R4 BY SR. GOVT. PLEADER SRI. MATHEW GEORGE VADAKKEL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.10178 of 2011 ------------------------------------------- Dated this the 7th day of June, 2011 J U D G M E N T ---------------------- This writ petition is filed challenging assessment of Building Tax and Luxury Tax under Section 5 and 5A of the Kerala Building Tax Act, 1975, finalised through Ext.P1, which was confirmed by the revisional authority under Ext.P3. According to the petitioner, the assessment is made with respect to the three building units used for residential purposes, situated in a residential complex. It is evident that, initially the building in question was assessed including the same in the category of other buildings. The said assessment was set aside and remanded by the appellate authority directing the 4th respondent to finalise the assessment afresh, after conducting proper inspection. By virtue of Ext.P1 order, fresh assessment was issued including the building under residential category and reckoning the plinth area as 300.02 Sq.M. Luxury Tax under Section 5A was also imposed for the year 2003-'04 onwards, finding that the building in question is having plinth area exceeding the statutory limit of 278.70 Sq.M. 2. Ext.P1 assessment was taken up in appeal and further in revision before the 2nd respondent. The revision petition was disposed of through Ext.P3 discarding the contentions and W.P.(C).10178/11 -2- confirming Ext.P1 assessment. The petitioner is challenging Ext.P1 to P3 in this writ petition. 3. Challenge against the assessment is mainly on two aspects. According to the petitioner, the three distinct building units were liable to be assessed separately under Explanation 2 to Section 2(e) of the Act. But the fact remains that the petitioner is the owner of all the 3 building units situated in the very same complex. The legal position in this regard now stands covered through decision of a Full Bench of this court in District Collector Vs. Sreekumari Kunjamma (2011 (1) KLT 248). Since the building is owned by the very same person, it is liable to be assessed as a single unit, in accordance with the dictum laid in the said decision. 4. Further contention of the petitioner is that, the plinth area of 300.02 Sq.M. adopted for the purpose of assessment is not true and correct. It is specifically pointed out that the original assessment was completed by reckoning the plinth area as 271.92 Sq.M. As evidenced from Ext.P1 the revised plinth area was adopted allegedly on the basis of a report of inspection submitted to the 3rd respondent. Contention of the petitioner is that he was not issued with any notice with respect to such inspection and the assessment was finalised without complying with the procedure contemplated under Section 9 of the Act. It is contended that the petitioner was not afforded with any opportunity to dispute W.P.(C).10178/11 -3- correctness of the plinth area adopted for the purpose of assessment. Further contention is that, in spite of specific grounds raised in this regard before the revisional authority, such contentions were not considered and no decision is taken on the merits of such contentions. 5. Considering the facts and circumstances as stated above, I take note of the fact that there is a discrepancy with respect to measurement of plinth area while finalising the assessment at the first stage and subsequently when Ext.P1 order was issued. The provisions of the statute stipulate affording of reasonable opportunity to the petitioner before finalising the assessment. In the case at hand, it is evident that the revised assessment was finalised without affording such opportunity. Further it is evident that the alleged re-inspection conducted and the report submitted to the 3rd respondent was without any notice issued to the petitioner. Therefore, I am of the view that the contention regarding correctness of the plinth area needs re-consideration at the hands of the revisional authority. 6. Therefore, the writ petition is disposed of setting aside Ext.P3 order to the limited extent of non-consideration of the contention regarding correctness of the plinth area and the assessment relating to Luxury Tax under Section 5A. The 2nd respondent is directed to take back Ext.P2 revision petition to his files and to dispose of the same afresh after affording reasonable W.P.(C).10178/11 -4- opportunity to the petitioner to raise contentions regarding the assessment of Luxury Tax under Section 5A on the basis of the dispute pertaining to the correctness of the plinth area. The 2nd respondent is directed to conduct a measurement of the building in question through any expert agency, preferably an Engineer of the Public Works Department of the state government having jurisdiction in the area. Such measurement shall be taken on the basis of the directions issued by this court in Nehrad Naina Vs. District Collector (2011 (2) KLT 810). A fresh decision on the above aspect shall be taken by a revisional authority on the basis of the report of such measurement, after affording an opportunity of hearing to the petitioner. Needless to say that the measurement as directed above shall be taken with proper notice to the petitioner. 7. A fresh decision on the revision petition as directed above shall be taken as early as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. 8. Till such time the revision petition is disposed of afresh as directed above, recovery of Luxury Tax under Section 5A shall be kept in abeyance. C.K.ABDUL REHIM, JUDGE. okb