IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 WP(C).No. 31103 of 2005(C) -------------------------- PETITIONER(S): --------------- SATHYANATH. A.M., S/O. PADMANABHAN NAIR, RESIDING AT PRASADAM, THAYANNUR POST & VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.M.THAMBAN RESPONDENT(S): --------------- 1. TAHSILDAR, HOSDURG. 2. REVENUE DIVISIONAL OFFICER, KASARAGOD AT KANHANGAD. 3. DISTRICT COLLECTOR, KASARAGOD. 4. GOVERNMENT OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE SECREATRIAT, THIRUVANANTHAPURAM. BY G.P. SRI. L.G. SURESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 15.12.2003 ISSUED BY THE FIRST RESPONDENT EXT.P2 TRUE COPY OF APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P3 TRUE COPY OF THE ORDER DATED 8.8.2004 ISSUED BY THE 2ND RESPONDENT RETURNING THE APPEAL. EXT.P4 TRUE COPY OF THE DEMAND NOTICE DATED 29.7.2005 ISSUED BY THE FIRST RESPONDENT. RESPONDENTS EXHIBITS: ANNEXURE A REPORT OF THE VILLAGE OFFICER THAYANNUR DATED 8.9.2000 ANNEXURE B TRUE COPY OF THE SKETCH FURNISHED BY THE VILLAGE OFFICER. ANNEXURE C TRUE COPY OF THE RETURN SUBMITTED BY THE PETITIONER. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 31103 OF 2005 -------------------------------------------- Dated this the 19th day of September, 2008 JUDGMENT Petitioner is challenging demand of luxury tax in respect of a residential building. Appeal filed against demand was returned without considering the same on merits on the ground that building tax for the same plinth area of 314 sq. metres was paid without contest. Counsel for the petitioner contended that even though building tax, which is one time liability, was paid without contest, petitioner is entitled to contest liability for luxury tax, which is a recurring liability payable every year. I find force in this contention because tax effect on the building tax assessment for a little over actual plinth area may not be very significant and parties may not contest liability. However, if the plinth area is wrongly assessed for the purpose of building tax, still recurring liability for luxury tax under Section 5A of the Building Tax Act can be contested. Therefore return of appeal on the ground of payment of building tax without contest is incorrect. However, I do not think appeal is required in this matter because the Tahsildar himself can rectify the assessment on plinth area if any mistake is committed in this 2 regard. In the circumstances, W.P.C. is disposed of directing the petitioner to get the plinth area of the building measured by a qualified person, and if the actual plinth area is less than 278.7 sq. metres, then he will be given freedom to file rectification application before the Tahsildar. The Tahsildar on receipt of rectification application along with sketch of the constructed building, conduct a local inspection, measure the plinth area and if mistake is there, he will correct it. If the plinth area is below 278.7 sq. metres, he will recall the demand of luxury tax. However, if the petitioner's claim is found to be wrong on remeasurement then in addition to luxury tax arrears, Tahsildar will recover an amount of Rs. 5,000/- towards penal cost for unnecessarily dragging the matter without any bona fides. I make it clear that open terrace portion even if it is covered with sheets to protect from Sun and rain, should not be treated as constructed portion and such portion should be excluded from the plinth area of the building. (C.N. RAMACHANDRAN NAIR) Judge kk 3