IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 WP(C).No. 28995 of 2005(B) -------------------------- PETITIONER: ------------ K.P.JOSE, S/O.PAULO, AGED 54 YEARS, KUNDORPPILLY HOUSE, NADUVATTOM KARA, MALAYATTOOR VILLAGE, ALUVA TALUK, NADUVATTOM POST, KALADY VIA REP.P/A.HOLDER, TITO JOSE,S/O.K.P.JOSE,AGED 25 YRS KUNDORPPILLY (H),NADUVATTOM KARA, MALAYATTOOR VILLAGE,ALUVA TALUK,NADUVATTOM POST,KALADY VIA. BY ADV. SRI.M.M.ALIAS RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM. 3. REVENUE DIVISIONAL OFFICER, FORT KOCHI. 4. TAHASILDAR, TALUK OFFICE, ALUVA. BY G.P. SRI.TEKCHAND FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: PHOTOCOPY OF NUMBER PLATE NO.VIII/285 ISSUED BY MALAYATTOOR NEELISWARAM GRAMA PANCHAYAT. P2: PHOTOCOPY OF ORDER DT.22.2.2003 OF R4. P3: PHOTOCOPY OF ORDER DT.22.3.2003 OF R4. P4: PHOTOCOPY OF ORDER DT.18.3.2004 OF R3. P5: PHOTOCOPY OF ORDER DT.24.8.2005 OF R2. RESPONDENT'S EXHIBITS: R4(a): TRUE COPY OF OBJECTION DT.6.1.2003 FILED BY SON OF PETITIONER. R4(b): TRUE COPY OF CERTIFICATE ISSUED BY SECRETARY, MALAYATTOOR NILEESWARAM GRAMA PANCHAYAT ON 21.6.2006. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.28995 of 2005 .................................................................... Dated this the 22nd day of May, 2008. JUDGMENT The petitioner is disputing plinth area of his residential building assessed by the Tahsildar. While the case of the petitioner is that plinth area is below 278.7 sq. metres and consequently there is no liability for luxury tax, Government Pleader submitted that plinth area of the building on measurement was found to be 293.21 sq. metres. The petitioner's claim for exclusion of car porch area is tenable by virtue of decision of this court. However, the further claim that firewood area is to be excluded is not tenable because in modern buildings without chimney, no one stores or uses firewood as a fuel for cooking. In any case if petitioner bonafide believes that the plinth area of the building excluding the car porch is below 278.7 sq. metres, petitioner can get the plinth area measured by the Assistant Executive Engineer, PWD, but on terms. If the petitioner's claim is found to be wrong on measurement of plinth area by the Assistant Executive Engineer, the petitioner will be liable to pay cost of rupees five thousand which will be recovered along with arrears of building tax and luxury tax by the respondents. The W.P. is therefore disposed of directing 2 the petitioner himself to get the plinth area measured with the assistance of any expert of his choice with reference to the provisions of the Building Tax Act and if he is satisfied that the plinth area is below 278.7 sq. metres, to make an application before the 4th respondent along with copy of this judgment, for getting the plinth area measured by the Assistant Executive Engineer, PWD. The 4th respondent will in that event get the plinth area measured by the Assistant Executive Engineer, PWD, who will measure the plinth area with notice to the petitioner and 4th respondent treating the request by the 4th respondent as a direction by this court and file report before the 4th respondent with copy to the petitioner. If plinth area on inspection is found to be above the limit that attracts luxury tax, then cost as stated above will be recovered besides the arrears of luxury tax. However, if petitioner's case is found to be true on re-measurement, then no cost will be recovered and revised order will be issued based on the report of the Assistant Executive Engineer. C.N.RAMACHANDRAN NAIR Judge pms