IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WA.No. 2496 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.8367/2006 DATED 29/08/2008 .................... APPELLANT/PETITIONER IN THE WPC: ------------------------------------------------------ T.K. MOHANAN, KURUM KUNALU, VELLARIKUNDU P.O, PARAPPA (VIA), KASARAGOD. BY ADV. MR.A.SUDHI VASUDEVAN RESPONDENTS/RESPONDENTS IN THE WPC: ----------------------------------------------------------------- 1. THE SUB COLLECTOR, KANHANGAD,KASARAGOD. 2. THE TAHSILDAR, HOSDURG. R1 & R2 BY GOVERNMENT PLEADER MR.VINOD CHANDRAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.A NO: 2496 OF 2008 ----------------------------------------------------------------------------------- Dated this the 2nd March, 2009. JUDGMENT RAMACHANDRAN NAIR, J. The question raised pertains to the dispute in plinth area of the residential building of the petitioner for the purpose of payment of luxury tax. Luxury tax is payable for buildings with the plinth area of 278.7 sq.mtrs and above. According to the petitioner plinth area is 173.7 sq. mtrs. Petitioner has not produced even the building tax assessment. When the matter was contested before the learned Single Judge, the learned Single Judge directed the appellate authority to consider the delay condonation petition and if delay is condoned to consider the appeal on merits. We find force in the contention of the learned counsel for the appellant that delay should not defeat the claim because luxury tax is a continuous liability payable every year. Therefore, if mistake is committed in the assessment of plinth area the same calls for correction, no matter the building tax assessment has become final or not. In fact there is no separate assessment for luxury tax and so much so description of plinth area can be contested at any W.A.No: 2496/2008 2 time when luxury tax is demanded for any year. In fact there can be variation in the plinth area on account of additions or deletions which may vary liability for luxury tax. In spite of the interim order directing the assessee to get a report from a qualified engineer about the plinth area of the building, petitioner has not produced such a report in court. We do not think the case should be kept pending any longer. 2. We have heard counsel for the appellant and Govt. Pleader and proceed to dispose of the writ appeal as follows:- i) The appellant will get a measurement report from a qualified Engineer and produce the same before the Tahsildar and if the Tahsildar finds that the plinth area of the building measured is less than 278.7 sq.mtrs the Tahsildar will verify himself the actual plinth area and if he is satisfied he will allow the claim by withdrawing the demand of luxury tax. ii) If the Tahsildar on verification is statisfied that the plinth area is above 278.7 sq. mtrs then he will get the building measured by the Assistant Executive Engineer, PWD and the Assistant Executive Engineer, PWD on request from the Tahsildar will measure the plinth area in the presence of the petitioner and file report to the Tahsildar. W.A.No: 2496/2008 3 Iii) As directed by this Court car porch should be excluded but building should be measured covering the entire plinth area and if the plinth area as per the report of the Assistant Executive Engineer is 278.7 sq. mtrs or above then along with the luxury tax the Tahsildar will recover Rs.5,000/- towards cost from the petitioner for unnecessarily dragging the PWD official from his work based on petitioner's bogus claim. Writ appeal is disposed of by modifying the judgment as above. C.N. RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: