IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 WP(C).No. 10929 of 2006(A) -------------------------- PETITIONER: ------------ SABU JACOB, AGED 71 YEARS, S/O. JACOB, IRUMBAYIL HOUSE, POTHANICAD, KOTHAMANGALAM. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, ERNAKULAM. 3. TAHSILDAR, KOTHAMANGALAM. 4. JACKSON MATHEW, S/O. JACOB, IRUMBAYIL HOUSE, POTHANICAD, KOTHAMANGALAM. R1 TO R3 BY GOVERNMENT PLEADER SRI. TEKCHAND. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED TO THE PETITIONER FOR THE BUILDING BEARING NO. 4/211A EXT.P2 TRUE COPY OF THE TAX RECEIPT FOR THE BUILDING B EARING NO. 4/211A FOR THE YEAR 2005-06 ISSUED TO THE PETITIONER. EXT.P3 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED IN THE NAME OPF JACKSON MATHEW. EXT.P4 TRUE COPY OF THE TAX RECEIPT FOR THE YEAR 2004-05 ISSUED TO THE FOURTH RESPONDENT. EXT.P5 TRUE COPY OF THE LETTER DATED 30.1.2006 ISSUED BY THE DISTRICT COLLECTOR TO THE PETITIONER. EXT.P6 TRUE COPY OF THE REVISION FILED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 4.1.2006 EXT.P7 TRUE COPY OF THE REQUEST DATED 27.3.2006 SUBMITTED BY THE PETITIONER. EXT.P8 TRUE COPY OF THE REPLY ISSUED TO EXT.P7 REPRESENTATION BY THE TAHSILDAR DATED 29.3.2005 EXT.P9 TRUE COPY OF THE REVENUE RECOVERY NOTICE ISSUED IN PURSUANT TO EXT.P8 BY THE DEPUTY TAHSILDAR (RR) DATED 1.4.2006 EXT.P10 TRUE COPY OF THE RECEIPT DATED 3.5.2006 RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 10929 OF 2006 -------------------------------------------- Dated this the 19th day of June, 2008 JUDGMENT Petitioner is challenging assessment and demand of luxury tax in respect of his residential building. Even though petitioner's residential building is constructed after 1.4.1999, and it has a plinth area of above 314.08 sq. metres, which attracts luxury tax, petitioner's case is that first floor is sold to his brother on 6.8.2003 and therefore he should not be called upon to pay luxury tax as plinth area is reduced. Government Pleader on the other hand pointed out that building has internal staircase and is a single residential unit even after sale of first floor by the petitioner. Counsel for the petitioner has produced photographs of the building which show that staircase is fixed outside the building. It is not known whether there is entry to the first floor only from outside and whether first floor is a self-contained unit with kitchen, living room, bed rooms, etc. If the sale is only an eye-wash to avoid liability then petitioner cannot be granted the benefit. On the other hand, if the sale is a genuine one, then petitioner is entitled to the 2 relief. In the circumstances, W.P. is disposed of directing the Tahsildar to conduct inspection of the building, and verify whether staircase fitted is only from outside or there is internal staircase and whether first floor is a distinct and separate residential building and if so to allow the claim. Petitioner will produce a copy of this judgment for compliance by the Tahsildar. Fresh orders after inspecting the building will be passed by the Tahsildar within three months from the date of production of a copy of this judgment by the petitioner. (C.N. RAMACHANDRAN NAIR) Judge kk 3