Baiju K S and K R Rajammal v. State of Kerala and Others

**WP(C) NO. 46109 OF 2024** 1 2025:KER:26112 **==> picture [58 x 58] intentionally omitted <==** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 26[TH] DAY OF MARCH 2025 / 5TH CHAITHRA, 1947** **WP(C) NO. 46109 OF 2024** ## **PETITIONERS :** **1 BAIJU K S AGED 67 YEARS, S/O K V SHANMUGHAN, SLOKA, THANNIKKAL, ELAMAKKARA, PIN - 682026** **2 K R RAJAMMAL AGED 93 YEARS, W/O K V SHANMUGHAN, 71/1912 A (OLD H NO 48/2413), THANNIKKAL,ELAMAKKARA, PIN – 682 026** **BY ADVS. P.M.GIRIJAVALLABHAN JOSHNA JOY NOUFAL V. HAMEED** ## **RESPONDENTS :** **1 STATE OF KERALA REP BY IT'S SECRETARY, REVENUE DEPARTMENT THIRUVANANTHAPURAM 1. (GOVERNMENT PLEADER, HIGH COURT OF KERALA), PIN - 695013** - **2 THAHASILDAR KANAYANOOR TALUK OFFICE, PARK AVENUE ROAD, ERANAKULAM, PIN - 682011** **WP(C) NO. 46109 OF 2024** 2 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:26112 - **3 SPECIAL VILLAGE OFRICER EDAPPALLY SOUTH VILLAGE, EDAPPALLY, PIN - 682028** - **4 SECRETARY** **CORPORATION OF KOCHIN, PARK AVENUE ROAD, ERANAKULAM, PIN – 682 028** ## **BY ADV R.HARISHANKAR** **BY SMT.JASMIN M.M., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 46109 OF 2024** 3 **==> picture [58 x 58] intentionally omitted <==** ## 2025:KER:26112 **BECHU KURIAN THOMAS, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=W.P.(C) No.46109 of 2024 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 26[th] day of March, 2025** ## **JUDGMENT** Petitioners challenge Ext.P8 order of assessment dated 25.09.2019 assessing the petitioners building to luxury tax under Section 5A of the Kerala Building Tax Act, 1975 (for short, 'the Act'). 2. According to the first petitioner, his father had constructed a residential house in the year 1981, which was allotted a building number as 50/2713. Subsequent to first petitioner's father's death in 1990, the property devolved upon the petitioners and thereafter the 2[nd] petitioner by a gift deed in 2011 gifted her rights to the first petitioner. Thus first petitioner became the owner of the property. Subsequent to the first petitioner becoming the absolute owner of the property, he obtained a building permit to construct a floor above the existing building. According to the petitioners, the additional construction was an independent residential building with separate access and ought to be regarded as a separate building for the purposes of building tax. Despite the construction being separate and independent, by Ext.P8 assessment **WP(C) NO. 46109 OF 2024** 4 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:26112 order, luxury tax has been imposed upon the petitioner treating the old structure as well as the new structure as one composite building, treating the total plinth area as 475.96 sq.m. and imposed luxury tax. The said assessment order is under challenge in this writ petition. 3. A counter affidavit has been filed by the 4[th] respondent stating that the 2[nd] petitioner had approached the Corporation for a building permit in 2010 and later in 2011, first petitioner submitted an application to change the name of the permit in his name and the building now belongs to the first petitioner with a total plinth area of 474.90 sq.m. 4. I have heard Smt.P.M.Girijavallabhan, the learned counsel for the petitioners, Smt.Jasmin M.M., the learned Government Pleader for respondents 1 to 3 as well as Sri.R.Harishankar, the learned Standing Counsel for the 4[th] respondent. 5. The question that arises for consideration is whether the building having a plinth area of 474.90 sq.m. ought to be assessed as a single structure for the purpose of luxury tax or should it be treated as two separate and independent structures. 6. Concededly, the new construction carried out in 2012 is put up over the old building. The ownership of the property and the building now stands in the name of the first petitioner. Thus, one single structure with separate entrances are provided and the structure stands in the **WP(C) NO. 46109 OF 2024** 5 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:26112 name of a single person. 7. In the decision in **State of Kerala and Others v. A.P.Mammikutty** [(2015) 10 SCC 632], the Supreme Court had observed that “each residential building owned by a single owner would be subjected to luxury tax, if it has the plinth area which exceeds 278.7 Sq.m. It makes no difference whether the residential building consists of one floor or it is two-storeyed or three-storeyed or consists of multiple flats or apartments. The entire plinth area in the residential building owned by a singular owner is required to be aggregated. The intention of the legislature is apparent that if a person is the owner of the plinth area of 278.7 sq.m.or more in one building, even if it consists of separate or distinct apartments, he would be liable to pay the luxury tax under Section 5-A of the Act”. 8. An understanding of the above decision will reveal that as long as the ownership of the building remains in the same person and the structure is also the same, for the purpose of determining luxury tax, the entire plinth area of the singular structure standing in the name of the single owner has to be determined. In the instant case, since concededly petitioner alone is the owner of the entire structure, irrespective of whether there are different entrances to both the floors cannot advance the case of the petitioner. The assessment of luxury tax as per Ext.P8 **WP(C) NO. 46109 OF 2024** 6 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:26112 therefore warrants no interference. Apart from the above, the impugned order is of the year 2019 and the petitioners have approached this Court in 2024. The belated challenge also stares against the petitioners. In view of the above, I find no merit in this writ petition and it is dismissed. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM 7 2025:KER:26112 ## **WP(C) NO. 46109 OF 2024** **==> picture [58 x 58] intentionally omitted <==** ## **APPENDIX OF WP(C) 46109/2024** ## **PETITIONERS' EXHIBITS :** **Exhibit P1** **TRUE COPY OF THE NOTICE DATED 1/5/1982** **Exhibit P2** **TRUE COPY OF THE MEMO ISSUED BY THE REVENUE OFFICER, OFFICE OF THE 4TH RESPONDENT DATED 23/ 1/ 1991** **Exhibit P3** - **TRUE COPY OF THE MEMO DATED 12/6/2012 WHICH MENTIONS ABOUT THE DETAILS ISSUED BY THE REVENUE OFFICER OF THE 4TH RESPONDENT** **Exhibit P4** - **TRUE COPY OF THE PROPERTY TAX @ RS 350/ (HALF YEARLY) PAID RECEIPT DATED 12/6/2012** **Exhibit P5** - **TRUE COPY OF THE BUILDING PERMIT EYP2/25/ 10 THAT SHOWS SURVEY NUMBERS** - **Exhibit P6 TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY THE THIRD RESPONDENT** **Exhibit P7 TRUE COPY OF THE NOTICE ISSUED IN FORM NUMBER 9 BY THE 4TH RESPONDENT DATED 1/8/2019** - **Exhibit P8 TRUE COPY OF THE NOTICE** - **Exhibit P9 TRUE COPY OF THE SAME** **Exhibit P10 TRUE COPY OF THE COUNTER RECEIPT DATED 3/12/19** **Exhibit P11 TRUE COPY OF THE REPLY LETTER RECEIVED FROM THE FIRST RESPONDENT** **Exhibit P12 TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 1ST RESPONDENT DATED 25/9/2019** 8 ## **WP(C) NO. 46109 OF 2024** **==> picture [58 x 58] intentionally omitted <==** 2025:KER:26112 **Exhibit P13 TRUE COPY THE RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 24/3/2022** **Exhibit P14 TRUE COPY OF THE NOTICE ISSUED BY THE THAHASILDAR KANAYANNUR TALUK DATED 20.09.2023 SERVED ON 15/01/2025**