IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 WP(C).No. 11336 of 2010(N) --------------------------------------- PETITIONER: ------------------- K.I.RAJAPPAN, S/O.LATE ITTIYATHI, KUNNUMPURATH HOUSE, PALLOM POST, NATTAKOM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.P.KURUVILLA JACOB. RESPONDENTS: ------------------------ 1. THE REVENUE DIVISIONAL OFFICER, KOTTAYAM. 2. THE TAHSILDAR, TALUK OFFICE, KOTTAYAM. 3. THE VILLAGE OFFICER, NATTAKOM VILLAGE, MARIYAPPALLY POST, KOTTAYAM. R1 TO R3 BY GOVERNMENT PLEADER SRI. BIJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) No. 11336 of 2010-N ---------------------------- Dated this the 11th day of June, 2010. J U D G M E N T The petitioner is aggrieved of the proceedings finalized by the respondents with regard to the measurement and fixation of 'plinth area' under Section 2(K) of the Kerala Building Tax Act and the consequential liability. 2. The sequence of events as narrated in the Writ Petition shows that the assessment was finalized by the second respondent, reckoning the plinth area as 306.07 M2 as observed in Ext.P1. The petitioner had a specific case that the area fixed by the assessing authority is wrong, in so far as the 'Car porch' as well as the 'terrace with tin roof' without side walls and such other portions are not liable to be included in the 'plinth area' for the purpose of reckoning the liability. Accordingly, the petitioner satisfied 1/4th of the assessed amount and preferred an appeal before the first respondent. The stand taken by the second respondent before the first respondent in the course of hearing of the appeal was that, there was no provision to exclude the Car porch area, as well as the W.P(C) No. 11336 of 2010-N 2 terrace with tin roof. The appellate authority observed that, there was obvious mistake in fixing the 'plinth area', and accordingly, the assessment was set aside and the matter was remanded for re- fixing the 'plinth area' after effecting proper measurement in the presence of the petitioner. 3. The case of the petitioner is that, nothing transferred thereafter for quite a long and the second respondent issued further notices demanding 'luxury tax', produced as Exts.P2(a) and R2(b) along with the statement filed by the respondent. Immediately the petitioner rushed to the first respondent by filing a petition stating that the course being followed by the concerned respondent was not correct or proper; more so, when the petitioner was not aware of Ext.P4 order stated as passed by the first respondent. It was after filing Ext.P5 complaint before the first respondent, that the petitioner was served with a copy of Ext.P4 assessment order. The petitioner has preferred Ext.P6 complaint before the second respondent in respect of the steps for realizing the 'luxury tax'. It is contended that, in spite of the specific direction given by the first respondent in Ext.P4 to measure and re-fix the 'plinth area' in the presence of the petitioner, no notice was issued to the petitioner, which forms the subject matter of this Writ Petition. W.P(C) No. 11336 of 2010-N 3 4. The learned Government Pleader with reference to the materials on record, including the contents of the statement filed on behalf of the second respondent submits that, the averments raised by the petitioner is not with regard to the service of notice but that Ext.P4 order passed by the first respondent is not at all correct. It is stated that the notice was issued by the officer, who in turn was served the same to the daughter of the petitioner by name Geethuraj on 1.7.2008 and the inspection was conducted in the presence of the petitioner on 9.7.2008. In the course of the measurement, it was revealed that the Ground Floor was having the plinth area of 196.70M2 and 112.40M2 for the first floor, thus having a total plinth area of 309.96M2. It was accordingly, the matter was finalized as borne by Ext.R2(c) order and as such, no interference is warranted in the Writ Petition. 5. During the course of hearing, the learned Government Pleader placed the relevant file for perusal of this Court, which shows that the notice was actually served to a person of the family of the petitioner, by name Geethuraj. Similarly, Ext.R2(a), (b) and (c) were also noted as served on one 'Beenakumari', who is none other than the wife of the petitioner. This being the position, this Court finds it difficult to accept the version of the petitioner, that the W.P(C) No. 11336 of 2010-N 4 measurement was conducted without proper notice and contrary to the mandate of Ext.P4. However, going by the impugned proceedings, particularly Ext.P4, it does not refer to the actual facts and figures, as to whether the 'Car porch' as well as the 'tin roof terrace' without side walls have been excluded from the 'plinth area' or not. Similarly, the sketch forming part of the original file placed by the learned Government Pleader also does not reveal that the different portions stated as liable to be excluded from the 'plinth area' have been separately measured/calculated, while fixing the plinth area of the 'first floor' as well as the 'ground floor'. That apart, the version put forth by the second respondent/assessing authority has taken note of by the appellate authority in Ext.P4, which shows that the total area of 309.16 M2 originally fixed by the assessing authority is inclusive of the 'Car porch' as well as the tin roof and the only contention of the said assessing authority was that such portion was not liable to be excluded. This shows that the re- measurement has not been effected properly. The total area now given is inclusive of 'Car porch' as well as the 'tin roof terrace'. The law declared by this Court as per the decision reported in Subhashchandrababu V. State of Kerala 2006(2) KLT 189 and Padmanabhan V. State of Kerala (2009(1) KLT 295) clearly says W.P(C) No. 11336 of 2010-N 5 that the 'Car porch' area as well as the 'tin roof area' without side walls cannot constitute the plinth area to be reckoned under Section 2(K) of the Kerala Building Tax Act and the same is liable to be excluded. Whether such course has been pursued in the instant case is not discernible from the proceedings filed or from the original file. 6. In the above circumstances, this Court finds that the matter requires to be reconsidered by the second respondent, after effecting the re-measurement of the building giving the separate figures as to the plinth area. All the impugned proceedings are set aside and the second respondent is directed to re-consider the matter by re-fixing the measurement with proper notice to the petitioner and all concerned, to be sent by registered post and to have to be finalized in accordance with law, as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. The liability of the petitioner to satisfy the tax will be subject to the outcome of the orders to be passed as above. The Writ Petition is disposed of. Sd/- P.R.RAMACHANDRA MENON JUDGE //True Copy//