IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 14201 of 2007(N) ----------------------------------- PETITIONER: ------------------ SAYEED ABDUL KADIR CHERIYA KOYA THANGAL, S/O.ALI AKBAR ALIAS SHEIK KOYA THANGAL, ANNARAPADIKATTIL PUDIYA MALIYAKKAL HOUSE, P.O.KAVANCHERY, PIN-676 561, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRIC.M.MOHAMMED IQUABAL RESPONDENTS: ----------------------- 1. THE TAHSILDAR, TIRUR TALUK, MALAPPURAM DISTRICT. 2. THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, TIRUR, MALAPPURAM DISTRICT. 3. THE DISTRICT COLLECTOR, MALAPPURAM. BY GOVERNMENT PLEADER SHRI BEJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C). NO.14201 OF 2007 N. PETITIONER'S EXHIBITS: EXT.P1TRUE COPY OF THE EXISTING RESIDENTIAL BUILDING PLAN APPROVED BY THE B-GRADE SUPERVISOR OF MUNICIPAL ADMINISTRATION DATED NIL. EXT.P2TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE FIRST RESPONDENT DATED 19.08.2005. EXT.P3TRUE COPY OF THE DEMAND NOTICE ISSUED BY 1ST RESPONDENT DATED 19.08.2005. EXT.P4TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 03.08.2006. EXT.P5TRUE COPY OF THE ORDER ISSUED BY THE THIRD RESPONDENT DATED 11.04.2007. RESPONDENTS' EXHIBITS: EXT.R1(A) TRUE COPY OF THE REPORT OF THE DEPUTY TAHSILDAR DATED 15.10.2003. // TRUE COPY// PS TO JUDGE K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 14201 OF 2007 N -------------------------------------- Dated this the 28th August, 2008 JUDGMENT Petitioner challenges Exts.P2, P3, P4 and P5. By Ext.P2, the first respondent assessed the building to building tax. Ext.P3 is the notice of demand. Petitioner preferred Appeal before the second respondent, RDO. The main contention raised by the petitioner was that since the total plinth area of the building is below 278 M2, he is not liable to pay luxury tax. The Appeal was rejected by Ext.P4. Thereafter, the petitioner filed a Revision which was rejected by the third respondent District Collector vide Ext.P5, confirming Ext.P4. Petitioner challenges the same. 2. The main contention of the petitioner is that the total plinth area of the building is only 277.47 M2 and it is a matter to be looked into on the basis of Ext.P1 Plan. A Counter Affidavit has been filed on behalf of the respondents stating, inter alia, as follows: WPC.14201/07 N 2 "It is further submitted that the Village Officer, Mangalam Village as per Form I report has stated that the plinth area of the building is 299.72M Sq. Accordingly, the notice under Section 7(3) of the Kerala Building Tax Act was issued to the petitioner on 18.7.2003 and he has filed the return in Form No.II stating the plinth area as 237.81 M.Sq. On the basis of the Form I Report and return, the Deputy Tahsildar of the Taluk Office, who is the charge Officer has re-measured the building and reported that the plinth area mentioned in the Form I report is correct." 3. Learned Government Pleader also filed a Memo producing the Report of the Deputy Tahsildar. It is found by the Authority that the plinth area is more than the limit in Section 5A. It is essentially a factual question. It is not as if there was not any measurement. Going by the pleadings, it is clear that it was once measured by the Village Officer and subsequently re- measured by the Deputy Tahsildar. The plea of the petitioner is that one has to go by Ext.P1 Plan may not be fully justified. What the law provides is that the Officer has to go by the plan as WPC.14201/07 N 3 verified. Here, apparently on the basis of the measurement done by both the Village Officer and the Deputy Tahsildar, the result is inevitable that the construction made by the petitioner is in excess of the limit in Section 5A. If that be the position, the impugned orders are only to be supported. The Writ Petition fails and it is dismissed. Sd/= K. M. JOSEPH, JUDGE kbk.