IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 WP(C).No. 24075 of 2006(N) ----------------------------------------------- PETITIONER: ----------------- MOOLEPARAMBIL HASSANAR, S/O. IBRAHIM HAJI, NANNAMMUKKU SOUTH P.O., PONNANI. BY ADV. SRI.ASOK M.CHERIAN RESPONDENTS: ----------------------- 1. THE TAHASILDAR, PONNANI. 2. THE DISTRICT COLLECTOR, MALAPPURAM. 3. STATE OF KERALA, REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY TO GOVERNMENT REVENUE (SPECIAL CELL) DEPARTMENT, THIRUVANANTHAPURAM. 4. NANNAMUKKU GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, NANNAMMUKKU SOUTH P.O., PONNANI. BY ADV. SRI.K.J.SAJI ISAAC FOR R4 DR.ELIZABETH VARKEY FOR R4 GOVERNMENT PLEADER FOR R1-3 (SHRI C.K. GOVINDAN) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C). NO.24075 OF 2006 N PETITIONER'S EXHIBITS: EXT.P1TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY OF NANNAMMUKKU GRAMA PANCHAYAT DATED 15.7.2006. EXT.P2TRUE COPY OF THE PROCEEDINGS OF THE FIRST RESPONDENT DATED 11.9.2003. EXT.P3TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 2.8.2005 ON THE APPEAL FILED BY THE PETITIONER. EXT.P4TRUE COPY OF THE REVIEW PETITION DATED 19.5.2006 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P5TRUE COPY OF THE CIRCULAR ISSUED BY THE GOVERNMENT OF KERALA DATED 21.3.2006. EXT.P6TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 10.8.2006. RESPONDENTS' EXHIBITS: NIL. // TRUE COPY// PS TO JUDGE K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 24075 OF 2006 N -------------------------------------- Dated this the 11th July, 2008 JUDGMENT Petitioner challenges Exts.P2 and P3. By Ext.P1, petitioner has been assessed to tax under Section 5A of the Kerala Building Tax Act. Petitioner preferred a revision before the District Collector. According to petitioner, the construction of the building was completed in full in the year 1992 - 1993 and the plinth area of the same is only 271.06 Sq. Metres. According to the respondents, the measurement is 316.20 Sq. Metres. According to petitioner, he was abroad when Ext.P2 proceedings was issued and his wife and children were available. In Ext.P3, the second respondent District Collector has found that the construction of the building was completed after 1.4.1999 and as per the Judgment of this Court, the car porch is not excluded and the case of the petitioner could not be considered. According to petitioner, as shown in Ext.P1, the construction was over in 1992 - 1993 and the petitioner was WPC. 24075/06 N 2 paying building tax also from 1992 - 1993. Petitioner relies on Ext.P5 Circular dated 21.3.2006, for contending that the plinth of the garage of a residential building is not to be taken for determining the plinth area of the building. Petitioner preferred Ext.P6 representation before the second respondent, in the light of the Judgment of this Court and Ext.P5 Circular. There being no response, petitioner has approached this Court challenging Ext4s.P2 and P3 and for a declaration that no luxury tax can be leviable on the building and to pay back the amount collected towards luxury tax. 2. I heard the learned counsel for the petitioner and also the learned Government Pleader. Learned counsel for the petitioner points out the decision in Subash Chandra Babu v. State of Kerala (2006 (2) KLT 189). In fact, in the said Judgment, it is noted that the case of the Government Pleader was that by Circular dated 2.12.2003, the plinth area of a car porch appurtenant to the residential building alone can be excluded as per the proviso to Section 5(5) of the Kerala WPC. 24075/06 N 3 Building Tax Act. I feel that in the light of the decision of this Court in Subash Chandra Babu v. State of Kerala (2006 (2) KLT 189) Ext.P3 has to be quashed and the matter has to be reconsidered. Accordingly, Ext.P3 is quashed and the second respondent District Collector is directed to reconsider the matter, taking into consideration the decision of this Court in Subash Chandra Babu v. State of Kerala (2006 (2) KLT 189). Fresh orders will be passed after affording an opportunity of hearing to the petitioner, within a period of two months from the date of receipt of a copy of this Judgment. The Writ Petition is disposed of as above. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy// PS to Judge