IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 WP(C).No. 33313 of 2010(L) --------------------------------- PETITIONER(S): ------------------- JOSE ABRAHAM, KALLIVAYALIL HOUSE, KIZHATHADIYOOR, PALA. BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J. VATTAKKUZHY RESPONDENT(S): -------------------- 1. THE DISTRICT COLLECTOR,KOTTAYAM-01. 2. THE REVENUE DIVISION OFFICER, PALA 686 575. 3. THE TAHSILDAR,MEENACHIL-686 589. R1 TO R3 BY GOVT.PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.33313 of 2010-L ---------------------------------------- Dated this the 8th day of November, 2010. J U D G M E N T The dispute pertains to assessment of Luxury Tax under Section 5A of the Kerala Building Tax Act 1975. The residential building constructed by the petitioner was assessed for payment of Building Tax under Section 5, calculating plinth area at 281.677 Sq.M, as evidenced from Ext.P1. Through Ext.P3 proceedings, the 3rd respondent assessed Luxury Tax under Section 5A, recurringly from the year 2007-08 onwards, at the rate of ` 2000/- per year, on the premise that plinth area of the building is above the statutory limit of 278.7 Sq.M. 2. Specific contention of the petitioner is that, as per the building plan approved by the local authority, the plinth area is only 273.46 Sq.M and therefore the petitioner is not liable for payment of Luxury Tax under Section 5A. It is contended that merely because the petitioner remitted the building tax assessed under Section 5A, which is one time W.P(C) No.33313 of 2010-L 2 payment, he should not be precluded from challenging the assessment under Section 5A. The matter was taken up in appeal before the 2nd respondent and in Ext.P5 order it was observed that there is no much difference in the plinth area between the assessment made by the 3rd respondent and the plinth area approved by the local authority. Therefore the contention that there was mistake in measurement of plinth area was rejected. Against Ext.P5 the petitioner filed revision before the 1st respondent as per Ext.P6. But the 1st respondent had rejected the revision petition holding that, the revision petition was not filed within 30 days of receipt of the impugned order of the appellate authority. It is also observed that the petitioner has not submitted any application for condonation of delay. The petitioner is challenging Exts.P3, P5 and P7 orders in this writ petition. 3. I find merit in the contention of the petitioner that the assessment under Section 5A is with respect to a recurring liability and the petitioner is at liberty to challenge such assessment at any point of time, inspite he W.P(C) No.33313 of 2010-L 3 had remitted tax under Section 5, accepting Ext.P1 assessment. 4. The dispute now raised seems to be one regarding correctness of the measurement made. It is true that the petitioner may not be liable for payment of Luxury Tax under Section 5A, if it is found that plinth area of the building in question is below 278.7 Sq.M. The observation made by the appellate authority under Ext.P5 that the difference is only negligible, seems to be not a correct view of resolving the issue. The petitioner had produced approved plan and building permit which shows the correct extent upon which the plan was sanctioned. However, a correct verification in this regard by measuring exact plinth area of the building through any expert agency is essential. 5. The finding of the 1st respondent in rejecting the revision petition without affording an opportunity to petitioner to rectify the defect, is highly unreasonable. If the revision petition was not in order, the 1st respondent ought to have issued a notice to the petitioner requesting W.P(C) No.33313 of 2010-L 4 him to rectify such defects. It is evident that the petitioner was not given an opportunity to file any application seeking condonation of delay. Learned Government Pleader draws my attention to the provisions contained in Section 13 of the Kerala Building Tax Act to contend that there is no specific provision for condonation of delay. However, under the general provisions of law, the authority has got inherent power to condone the delay on the basis of Section 5 of the Limitation Act. 6. Under the above circumstances, I am of the opinion that it is only just and proper in the interest of justice to afford the petitioner an opportunity to submit delay condonation application before the 1st respondent. 7. Hence the writ petition is disposed of quashing Ext.P7. The petitioner is directed to submit delay condonation application before the 1st respondent within a period of two weeks from the date of receipt of a copy of thus judgment. The 1st respondent shall consider and pass orders on such application after affording an opportunity of W.P(C) No.33313 of 2010-L 5 hearing to the petitioner. If the delay is condoned, the 1st respondent shall restore the revision petition (Ext.P6) and dispose of the same on merits. 8. In case the 1st respondent decides to dispose of the revision petition on merits, that authority shall get the building measured through any expert officer of the Public Works Department of the State Government, having jurisdiction over the local area, not below the rank of Assistant Engineer, and get a report on such measurement, in order to arrive at a just and proper decision on the issue. 9. The needful shall be done as early as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. 10. Needless to say that further recovery of Luxury Tax shall be kept pending, till the disposal of the matter by the 1st respondent. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// ab P.A to Judge