IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 WP(C).No. 35457 of 2004(U) -------------------------- PETITIONER(S): ------------------------ P.SREENIVASAN S/O PADMANABHAN CHETTIAR MUNIYAPPA ILLAM, VAISYAR STREET, ARAKURUSSI, MANNARKKAD, PALGHAT DISTRICT. BY ADVS. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT(S): --------------------------- 1. THE DISTRICT COLLECTOR, PALAGHAT. 2. THE REVENUE DIVISIONAL OFFICER, OTTAPPALAM. 3. THE THASILDAR, MANNARKKAD. 4. THE MANNARKKAD GRAMA PANCHAYATH, MANNARKKAD, PALAKKAD, REPRESENTED BY ITS SECRETARY. BY GOVT.PLEADER SRI. MANOJ P KUNJACHAN ADV. SRI.D.KRISHNA PRASAD FOR R4 SRI.D.NARENDRANATH FOR R4 SRI.M.HARISHARMA FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35457 of 2004(U) APPENDIX: PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE BUILDING PLAN APPROVED BY THE 4TH RESPONDENT ON 27.04.2001. EXT.P2: TRUE COPY OF THE RETURN DATED 03.08.2001 SUBMITTED BY THE PETITIONER. EXT.P3: TRUE COPY OF THE NOTICE DATED 13.09.2001 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. EXT.P4: TRUE COPY OF THE ORDER DATED 29.09.2001 ISSUED BY THE 3RD RESPONDENT. EXT.P5: TRUE COPY OF THE TAX RECEIPT 15.10.2001. EXT.P6: TRUE COPY OF THE ORDER AND DEMAND NOTICE BOTH DATED 30.09.2002 ISSUED BY THE 3RD RESPONDENT. EXT.P7: TRUE COPY OF THE COMPLAINT DATED 25.11.2002 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P8: TRUE COPY OF THE APPEAL DATED 9.12.2002 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, ALONG WITH THE COVERING LETTER DATED 26.11.2002. EXT.P9: TRUE COPY OF THE NOTICE DATED 14.02.2003 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P10: TRUE COPY OF THE ORDER DATED 14.03.2003 PASSED BY THE 2ND RESPONDENT. EXT.P11: TRUE COPY OF THE CERTIFICATE DATED 02.12.2004 ISSUED BY AN ARCHITECT. EXT.P12: TRUE COPY OF THE REVISION DATED 14.4.2004 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P13: TRUE COPY OF THE ARGUMENT NOTES DATED 29.7.2004 SUBMITTED BEFORE THE 1ST RESPONDENT. EXT.P14: TRUE COPY OF THE ORDER DATED 03.08.2004 PASSED BY THE 1ST RESPONDENT. EXT.P15: TRUE COPY OF THE TAX RECEIPT DATED 26.11.2002 EVIDENCING PAYMENT OF LUXURY TAX FOR 2001-02. EXT.P16: TRUE COPY OF THE TAX RECEIPT DATED 30.05.2003 EVIDENCING PAYMENT OF LUXURY TAX FOR 2002-03. EXT.P17: TRUE COPY OF THE TAX RECEIPT DATED 27.03.2004 EVIDENCING PAYMENT OF LUXURY TAX FOR 2003-04. .....contd) WP(C).No. 35457 of 2004(U) EXT.P18: TRUE COPY OF THE TAX RECEIPT DATED 26.08.2004 EVIDENCING PAYMENT OF LUXURY TAX FOR 2004-05. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE. K.VINOD CHANDRAN,J. --------------------------------------- W.P.(C). No. 35457 of 2004 ---------------------------------------- Dated this the 6th day of December, 2011 JUDGMENT The writ petition is filed against the assessment made on the petitioner's building under Section 5 A of the Kerala Building Tax Act on the premise that the petitioner's building is above the prescribed limit of 278.7 sq.meters as prescribed in the Act. When the matter came up for hearing before another learned Single Judge on 28.08.2008, it was directed that the Tahsildar, Mannarcaud will inspect the property and file report after measuring the plinth area of the building in question. Though a report has not been filed in the writ petition, the Govt. Pleader, with notice to the petitioner, produced in Court the report of the Tahsildar dated 07.02.2011 in which it has been clearly stated that the building has been inspected and measured in the presence of the owner and Village Officer and that the plinth area assessable under the Building Tax Act comes to only 258.46 sq. meters and the levy in so far as luxury tax under Section 5 A is W.P.C. No. 35457 of 2004 -2- concerned, it is below the assessable limit. 2. In this circumstance the above writ petition is to be allowed on the basis of the report of the Tahsildar, Mannarcaud dated 07.02.2011. The petitioner has paid amounts under Section 5 A for the years 2001-2002 to 2004-2005. It is directed that the amounts so paid by the petitioner shall be refunded to the petitioner, however, subject to the condition that the building tax assessed under Section 5 is paid by the petitioner. The petitioner shall produce a copy of this judgment before the third respondent within a period of one month from the date of receipt of a copy of this judgment and the Tahsildar, the third respondent shall pass appropriate orders for refund thereon within two months from the date of receipt of copy of the judgment, in tune with the finding made above. K.VINOD CHANDRAN, JUDGE. Kp/-