IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 WP(C).No. 5413 of 2007(T) ------------------------ PETITIONER : --------------------- SURABHI MARBLES, ATHANI, NEDUMBASSERY, REPRESENTED BY ITS MANAGING DIRECTOR, SRI. SHAJU AUGUSTIAN, AGED 34 YEARS, PADEYATTIL HOUSE, KALLOOR PALAM ROAD, ANGAMALI. BY ADV. SRI. PAUL K.VARGHESE RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY (TAX), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, COLLECTORATE, KAKKANADU, ERNAKULAM. 3. THE REVENUE DIVISION OFFICER, FORT KOCHI. 4. THE TAHSILDAR, OFFICE OF THE TAHSILDAR, ALWAYE. R1 TO R4 BY GOVERNMENT PLEADER (TAX) SRI. K.P. PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 5413 of 2007(T) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE RECEIPT OF THE BUILDING TAX DATED 24-3-2004 ISSUED BY NEDUMBASSERY GRAMAPANCHAYAT TO THE PETITIONER. EXT.P2 : COPY OF THE ORDER DATED NIL. EXT.P3 : COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER 15-12-2006. EXT.P4 : COPY OF THE RECEIPT ISSUED BY THE NEDUMBASSERY VILLAGE FOR A SUM OF RS. 34,650/- DATED 2-2-2006 FOR THE PURPOSE OF FILING APPEAL BEFORE THE REVENUE DIVISIONAL OFFICER. EXT.P5 : COPY OF THE ORDER NO. G 837/06 K.DIS. DATED 5TH OCTOBER 2006. EXT.P6 : COPY OF THE RECEIPT DATED 27-10-2006 SHOWING REMITTANCE OF A SUM OF RS. 37, 304/-. EXT.P7 : COPY OF THE REVISION DATED 27-10-2006 FILED BEFORE THE SECOND RESPONDENT. EXT.P8 : COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 10-1-2007 IS PRODUCED. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 5413 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of May, 2011 J U D G M E N T The petitioner “M/s. Surabhi Marbles”, is an entity (the legal status of the entity is not stated in the writ petition) engaged in the business of storing and selling marble. The person representing the said entity, his brothers and sisters together own 40 odd cents of land in Nedumbassery village. They have constructed two buildings in that property for the purpose of the business. In between the two buildings a 66 KV electric line passes. Therefore the property falling under the electric line cannot be used for construction of a building. The petitioner is using that space for storing marble slabs. In order to protect the marble slabs from sun and rain the petitioner has constructed portable shelters. The 4th respondent assessed that structure as a building to building tax under the Kerala Building Tax Act by Ext.P2 assessment order. The petitioner challenged the same in W.P.(C)No. 5413 of 2007 -2- appeal before the 3rd respondent on the ground that the said structure will not answer the definition of 'building' under Section 2 (e) of the Kerala Building Tax Act, 1975 and is not therefore exigible to building tax. But the 3rd respondent rejected the same by Ext.P5 order. The petitioner filed a revision before the 2nd respondent which was dismissed by Ext.P8 order. The petitioner challenges Exts.P2, P5 & P8 orders in this writ petition on two grounds. First is that, since the structure in question does not answer the definition of 'building' under Section 2 (e) of the Kerala Building Tax Act the petitioner is not liable to pay any building tax in respect of the same under the Kerala Building Tax Act. The 2nd is that the plinth area calculated is wrong and in excess of the actual area. 2. A counter affidavit has been filed by the respondents supporting the impugned orders. 3. From the pleadings, the 1st question to be considered is whether the structure in question is a building as defined in Section 2 (e) of the Kerala Building Tax Act, W.P.(C)No. 5413 of 2007 -3- 1975. The said definition reads as follows: 2. (e) “building” means a house, out-house, garage, or any other structure, or part thereof, whether of masonry, bricks, wood, metal or other material, but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure”. The petitioner's contention is that the structure in question is a portable shelter which is out of the purview of the building expressly. But from the definition itself it is clear that for excluding a portable shelter from the purview of the definition of 'building', that portable shelter should also be constructed principally of mud, bamboos, leaves, grass or thatch. The petitioner has no case that the portable shelter in question is constructed principally with mud, bamboos, leaves, grass or thatch. On the other hand admittedly the same is made up of other building materials. Therefore such portable shelter is not excluded from the purview of the definition of 'building' in Section 2 (e). As such I do not find any merit in the contention of the petitioner that the structure put up by the petitioner is not a building as contemplated under Section 2 (e) of the Kerala W.P.(C)No. 5413 of 2007 -4- Building Tax Act. 4. The 2nd contention is that the calculation of the plinth area is wrong and excessive. According to the petitioner, although the petitioner has raised that contention specifically in his appeal and revision the same has not been considered either by the appellate or the revisional authority. Ext.P3 is the appeal filed by the petitioner. Ext.P7 is the revision filed by the petitioner. In both, the petitioner has specifically taken a contention that the plinth area has been calculated wrongly. The learned Government Pleader would point out that in Ext.P5 order it has been specifically stated that the appellate authority had directed the 4th respondent to re-measure the building which has been done in the presence of the petitioner and no difference was found. 5. Ext.P5 order reads as follows: The Tahsildar, Alwaye assessed the building situated in Nedumbassery village for a plinth area of 925.4 M2 amounting to Rs.138,600/- treating under the category of other building. Aggrieved by the said order this appeal is filed. Shri. Shaju Augustine, Managing Director of M/s. W.P.(C)No. 5413 of 2007 -5- Surabhi Marbles was called for hearing. Counsel for the appellant appeared for hearing and contended that the assessing authority assessed the building, bearing No.960A & 960B together with the portion of temporary and movable structure as a single unit, the Counsel also raised objection regarding the measurement of plinth area. Hence the assessing authority was given direction to remeasure the building in presence of the appellant and submit his remarks on the above contentions. The Tahsildar, Alwaye as per the report read ref. 2nd cited, has stated that there is no difference in the plinth area after remeasurement. It is also reported that the sheeted portion is a permanent structure and could not be exempted from assessment. In these circumstances, this authority find no reason to interfere with the findings of assessing authority. Therefore the petition is rejected.” In the same the appellate authority has specifically stated that he had given direction to the assessing authority to re- measure the building in the presence of the appellant and submit his remarks on the said contention and that the Thasildar, Alwaye as per the report referred to in the order stated that there is no difference in the plinth area after the re-measurement. In Ext.P7 revision petition although the petitioner states that “the assessing authority nor the Appellate Authority has not conducted any proper enquiry or inspection before passing the respective orders”, he does not specifically state that the statement in Ext.P5 order that W.P.(C)No. 5413 of 2007 -6- the assessing authority was directed to re-measure the building in the presence of the appellant and he has reported that there is no difference in the plinth area after re-measurement is not correct. The petitioner has no case that the re-measurement was not in the presence of the petitioner. The same is a question of fact. I do not think that I will be justified in interfering with a finding on a question of fact in proceedings under Article 226 of the Constitution of India unless it is demonstrably perverse. The petitioner has not produced any material to show that the said finding is demonstrably perverse. In the circumstances, I do not find any merit in the writ petition and accordingly the same is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/