Dr. Satheeshkumar K.R v. The District Collector, Alappuzha and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 26[TH] DAY OF MAY 2023 / 5TH JYAISHTA, 1945** ## **WP(C) NO. 18265 OF 2015** ## **PETITIONER:** DR.SATHEESHKUMAR.K.R AGED 50 YEARS AMRUTHAKRIPA, ERAMALLOOR PO, EZHUPUNNA VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADVS. SRI.ANIL KUMAR M.SIVARAMAN SMT.M.SHAHINA ## **RESPONDENTS:** 1 THE DISTRICT COLLECTOR COLLECTORATE, ALAPPUZHA 688 001 2 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, ALAPPUZHA 688 001 3 THE TAHSILDAR OFFICE OF THE TAHSILDAR CHERTHALA TLAUK ALAPPUZHA DISTRICT 688001 4 THE EZHUPUNNA GRAMA PANCHAYATH ERAMALLOOR PO, EZHUPUNNA, REPRESENTED BY ITS SECRETRY 688537 BY ADVS. GOVERNMENT PLEADER P.SANTHOSH KUMAR (PANAMPALLI NAGAR)(K/409/1979) GOVERNMENT PLEADER K.P.CHANDRASEKHAR SRI.SAYED MURTHALA THANGAL-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.18265 OF 2015 2 ## **ANU SIVARAMAN, J.** ========================= ## **W.P.(C) No.18265 of 2015** ## ========================= Dated this the 26[th] day of May, 2023 **JUDGMENT** ## This writ petition is filed seeking the following reliefs: _“(i) Issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to the issuance of Ext-P4 and P6 orders and quash the same as it is opposed by law._ _(ii) Issue an order or direction commanding the 2nd and 3rd respondents to reassess the luxury tax by virtue of Ext-P2 & P3 orders and exclude the petitioner from the payment of luxury tax._ _(iii) issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to carry out a fresh physical verification of the building in question to determine the plinth area and pass a fresh assessment order in accordance with law.”_ 2. Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned Counsel appearing for the 4[th] respondent Panchayat. 3. It is submitted by the learned counsel for the petitioner that the petitioner, his wife and son are doctors by profession. He had constructed a building having two floors with a total plinth area of more than 3,000 sq feet. It W.P.(C)No.18265 OF 2015 3 is submitted that the ground floor of the building was exclusively constructed for residential purpose and the 1[st] floor was intended for consultation of patients, medical attention, storing of medicines etc. 4. It is stated that initially for the purpose of the building tax, assessment was made considering the entire building as a residential building. Later the 3[rd] respondent inspected and measured the building and reassessed the same as two separate and distinct buildings by Exts. P2 and P3 assessment orders. By Ext.P2, the ground floor of the building having a plinth area of 194.66 m[2] , was assessed as a residential building and the 1[st] floor having 102.79 m[2] was assessed as “other building”. However, relying on the initial assessment, the 3[rd] respondent has imposed luxury tax under Section 5A of the Kerala Building Tax Act, 1975 and has issued Ext.P4. 5. It is submitted that the petitioner had taken the matter before the 2[nd] respondent and Ext.P6 order was passed confirming Ext.P4. It is submitted that demands have also been raised on the basis of the same which are W.P.(C)No.18265 OF 2015 4 ## under challenge in this writ petition. 6. A counter affidavit has been placed on record by the 3[rd] respondent stating that the petitioner had constructed a residential building with a plinth area of more than 3000 sq.ft. The Village Officer, Ezhupunna assessed this building and submitted a report to the 3[rd] respondent on 30/1/2010. It is stated that the 3[rd] respondent, on inspection, found that the building is used for residential as well as treatment purpose. The petitioner raised an objection and contended that the ground floor of the building is used for residential purpose and 1[st] floor is being used for storage of medicines, medical attention and consultation of patients. The petitioner has also contended that the Panchayat had assigned separate numbers for each floor. It is stated that the 3[rd] respondent had, therefore, assessed the building tax separately. However, the 3[rd] respondent had also assessed the building to tax under Section 5A of the Building Tax Act and imposed luxury tax for the building for the period from 2005-06 to 2010-11. The petitioner had accepted the assessment and W.P.(C)No.18265 OF 2015 5 has paid the building tax as well as luxury tax up to 200910. Thereafter, Ext.P5 was preferred and Ext.P6 order was passed on 10/1/2013. It is stated that the petitioner can avail further statutory remedies by filing revision petition under Section 14 of the Kerala Building Tax Act, 1975. 7. It is further stated that the entry to the 1[st] floor of the building is from the inside of the ground floor and that the electric connection to the entire building is one with consumer No.15773 which is residential. It is also stated that the petitioner can change the nature of the use of the building at any time. The plinth area of the building is 292.05 m[2] and since the building was constructed in the year 2005 and it was initially numbered by the 4[th] respondent as Floor No.VIII/259. The building is a residential building even though a part thereof is used for non residential purpose and the building is liable to be assessed to luxury tax under Section 5A Kerala Building Tax Act, 1975. 8. The 4[th] respondent has placed a statement on record as directed by this Court. It is stated that as per the W.P.(C)No.18265 OF 2015 6 assessment register for 2005-06, the building of the petitioner was assessed as a single residential building and numbered as VII/442/B. As per the assessment register for the year 2010-11, the ground floor was reassessed as residential building and numbered as VII/442/B and the first floor of the building was reassessed for the use of Homeo Clinic and numbered as VII/442/C. As per the assessment register, area of the ground floor is 184.5m[2] excluding verandah and car porch and area of the first floor is 93 m[2] . It is stated that the Building Rules came into effect in the Panchayat in 2011-12. 9. The learned counsel for the petitioner places reliance on the decisions of this Court in **Jameela Vs. The Tahsildar, Kasaragod and Others** [2004(1) ILR KLR 93] to contend that only a building constructed exclusively for residential purpose, will come within the definition of residential building. It is submitted that since there are separate definitions for building and residential building in the Kerala Building Tax Act, 1975 and since the incidence of luxury tax under Section 5A is only in respect of the W.P.(C)No.18265 OF 2015 7 residential building having a plinth area of more than 278.7 m[2] and since the building of the petitioner stands separately assessed as per Exts. P2 and P3 as a residential building and other building respectively, the incidence of luxury tax under Section 5 A is not attracted. 10. Reliance is also placed on the decisions of this Court reported in **Ayshakunji v. Tahsildar** [2012(4) KLT 193] and **Raju V.C v. District Collector, Ernakulam and Others** [2017 (5) KHC 1027]. It is submitted by the learned counsel for the petitioner that in the facts of the instant case and in view of Exts. P2 and P3, the impugned orders are completely unsustainable and are liable to be set aside. 11. The learned Government Pleader would also place reliance on the decision of a Division Bench of this Court in **Ayshakunji v. Tahsildar** [2012(4) KLT 193] as also a Full Bench decision of this Court in **District Collector v Sreekumari Kunjamma** [2011(1)KLT 248(F.B.)]. It is submitted that even where a single residential building consists of two or more separate W.P.(C)No.18265 OF 2015 8 apartments, the building is to be assessed as a single building, unless the building falls within the Explanations (1) or 2 of Section 2(e). It is stated that a separate assessment by the local authority for the purpose of property tax will not make any difference to the situation, since a residential building, even if part of the same is let out or used for other purpose, would not loose the character of residential building for the purpose of Section 5 A. 12. I have considered the contentions advanced on both sides at considerable length. Section 5A specifically provides for luxury tax could be imposed on a residential building having a plinth area of more than 278.7 m[2] . A building is defined under Section 2(e) of the building tax act as: _“a house, out-house, garage or any other structure, or part thereof, whether of masonry, bricks, wood, metal or other material but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass, thatch or a latrine which is not attached to the main structure.”_ W.P.(C)No.18265 OF 2015 9 Two explanations are available to the said definition. Residential building is separately defined under Section 2(l) as: _“a building or any other structure or part thereof built exclusively for residential purpose including out-houses or garages appurtenant to the building for the more beneficial enjoyment of the main building but does not include hotels, boarding places, lodges and the like.”_ 13. In the instant case, the petitioner's building, though initially assessed as a residential building, had been reassessed by Exts. P2 and P3 orders by the Tahsildar. The ground floor, having a plinth area of 194.66 m[2] was assessed as a residential building and the 1[st] floor having a plinth area of 102.79 m[2] was assessed as other building. It was, thereafter, Ext.P4 order has been passed on 29/7/2011, assessing the petitioner to luxury tax in respect of old No.7/259. The petitioner raised a complaint with regard to the assessment and Ext.P6 order was passed by the Revenue Divisional Officer on 10/1/2013 rejecting the same, on the finding that the building was a single building owned by the same persons. Ext.P7 notice was also issued W.P.(C)No.18265 OF 2015 10 on 20/11/2004. 14. On a consideration of the contentions advanced, I notice that luxury tax is chargeable only on residential buildings having a plinth area of 278.7 m[2] or more. Admittedly only the ground floor of the building owned by the petitioner, stands assessed as a residential building as evident by Ext.P2. The 1[st] floor is assessed by the Tahsildar as “other building”. In the above factual situation, I am of the opinion that the specific contention raised by the petitioner that his residential building does not have the plinth area of more than 278.7 m[2] is an acceptable contention. In the light of Exts P2 and P3, I am of the opinion that the imposition of the luxury tax on the petitioner under Section 5A is not permissible. The impugned orders are therefore set aside. ## **Sd/ANU SIVARAMAN JUDGE** SSK/26/05 W.P.(C)No.18265 OF 2015 11 ## **APPENDIX** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 25.5.2011 SUBMITTED BEFORE THE 3RD RESPONDENT EXHIBIT P1 (A) TRUE COPY OF THE RECOMMENDATION LETTER SENT BY THE SECRETARY OF THE PANCHAYATH BEFORE THE 3RD RESPONDENT Exhibit P2 TRUE COPY OF THE RE-ASSESSMENT ORDER ISSUED BY THE 3RD RESPONDENT ON 26.7.2011 (HOUSE NO. WARD 7 442/B) EXHIBIT P3 TRUE COPY OF THE RE-ASSESSMENT ORDER ISSUED BY THE 3RD RESPONDENT ON 26.7.2011 (HOUSE NO. VII/442-C) EXHIBIT P4 TRUE COPY OF THE LUXURY TAX ASSESSMENT ORDER ISSUED BY TAHSILDAR, CHERTHALA DATED 29.7.2011 EXHIBIT P5 TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT DATED 27.8.2011 EXHIBIT P6. TRUE COPY OF THE ORDER OF R.D.O REJECTING THE APPEAL PASSED ON 10.1.2013 EXHIBIT P7 TRUE COPY OF THE NOTICE DIRECTING TO REMIT RS.4000/- THE REVISED LUXURY TAX IMPOSED FOR THE FINANCIAL YEAR 2014-15 SSK //TRUE COPY// PA TO JUDGE