## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE**
**THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938**
## **WP(C).No. 26686 of 2016 (I)**
**-----------------------------------------**
- **PETITIONER(S) : -------------------------**
**MATHEW, AGED 54 YEARS, S/O. JOHN, VENATTUPARAMBIL, KOZHIPPILLY, VARAPETTY VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN:686 991.**
## **BY ADVS. DR.SEBASTIAN CHAMPAPPILLY DR.ABRAHAM P.MEACHINKARA SRI.GEORGE CLEETUS SRI.P.A.SAINUDEEN**
**RESPONDENT(S) :**
- **----------------------------**
**1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN:695 001.**
**2. THE DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, PIN:682 030.**
**3. THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE RDO, MINI CIVIL STATION, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN:686 669.**
**4. THE TAHSILDHAR, TALUK OFFICE, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN:686 691.**
## **BY SR. GOVERNMENT PLEADER SRI.C.P.PRADEEP**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
Msd.
## **WP(C).No. 26686 of 2016 (I)**
## **-----------------------------------------**
## **APPENDIX**
## **PETITIONER(S)' EXHIBITS :**
**EXHIBIT P1: TRUE COPY OF THE BUILDING PERMIT NO.A3/821/2011 DATED 16.02.2011.**
- **EXHIBIT P2: TRUE COPY OF FINALLY APPROVED PLAN.**
- **EXHIBIT P3: TRUE COPY OF OWNERSHIP CERTIFICATE DATED 13.06.2012.**
- **EXHIBIT P4: TRUE COPY OF THE ORDER OF ASSESSMENT NO. F4/2240/13 DATED 23.07.2013 ISSUED BY THE 4TH RESPONDENT TAHSILDHAR, KOTHAMANGALAM.**
- **EXHIBIT P5: TRUE COPY OF THE NOTICE OF DEMAND NO.F4/2240/13 DATED 23.07.2013 ISSUED BY THE 4TH RESPONDENT THE TAHSILDHAR, KOTHAMANGALAM.**
- **EXHIBIT P6: TRUE COPY OF RECEIPT EVIDENCING PAYMENT OF RS.2700/DATED 13.08.2013.**
- **EXHIBIT P7: TRUE COPY OF RECEIPT ISSUED BY VARAPETTY VILLAGE OFFICE DATED 26.09.2013.**
- **EXHIBIT P8: TRUE COPY OF RECEIPT ISSUED FROM THE VARAPETTY VILLAGE DATED 13.08.2013.**
- **EXHIBIT P9: TRUE COPY OF THE RECEIPT FOR THE BUILDING TAX REMITTED BY THE PETITIONER FOR THE PERIOD 2013-2014 TO VARAPETTY GRAMA PANCHAYAT DATED 04.11.2013.**
- **EXHIBIT P10: TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 07.01.2015.**
- **EXHIBIT P11: TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DATED 22.04.2015.**
- **EXHIBIT P12: TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 16.09.2015.**
- **EXHIBIT P13: TRUE COPY OF THE NOTICE ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT DATED 16.11.2015.**
- **EXHIBIT P14: TRUE COPY OF ORDER NO.B10-68248/16 DATED 19.01.2016.**
- **EXHIBIT P15: TRUE COPY OF THE APPLICATION PREFERRED BY THE PETITIONER ON 02.06.2016 BEFORE THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 4TH RESPONDENT.**
**WP(C).No. 26686 of 2016 (I)**
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**EXHIBIT P16: TRUE COPY OF THE LETTER AND THE SKETCH AND COMPUTATION PROVIDED BY THE 4TH RESPONDENT DATED 22.06.2016.**
**EXHIBTI P17: TRUE COPY OF THE SKETCH.**
**RESPONDENT(S)' EXHIBITS :**
**NIL**
**//TRUE COPY//**
**P.A.TO JUDGE.**
Msd.
## **A.M.SHAFFIQUE, J * * * * * * * * * * * ***
W.P.C.No.26686 of 2016
---------------------------------------Dated this the 11[th] day of August 2016
## **J U D G M E N T**
Petitioner challenges Ext.P14 by which the District Collector in his revisional jurisdiction had confirmed the order passed by the assessing authority under the Kerala Building Tax Act, 1975 (hereinafter referred to as 'the Act'), while petitioner's building has been assessed to building tax as well as luxury tax.
2. The main contention urged by the petitioner is that the District Collector, while passing Ext.P14 order, referred to a circular issued by the Government on 18/05/2013 by which direction was issued to exclude only one car porch. This, according to the petitioner, is absolutely baseless. Petitioner's contention is that the building is having only a total plinth area of 275.72 sq.meters which will not attract luxury tax under Section 5A of the Act whereas the measurement taken by the respondent authorities is absolutely baseless.
3. Ext.P4 is the assessment order by which the assessing authority had computed the plinth area of the building at 293.37 sq.meters and the petitioner had been called upon to remit the
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building tax of Rs.5,400/-. In addition to that, petitioner was asked to pay luxury tax of Rs.2,000/- each for the period 20122013. The matter was taken up in an appeal before the Revenue Divisional Officer. Ext.P10 is the order dated 07/01/2015. The matter was remitted back to the Tahsildar, pursuant to which Ext.P11 order had been passed on 22/04/2015 wherein it was observed that the building was again verified by the Charge Officer and it is reported that the area of the ground floor was computed at 167.07 sq.meters, the first floor at 113.97 sq.meters, one of the car porches is having an area of 31.92 sq.meters and the other car porch is having an area of 12.50 sq.meters. On the basis of this computation, after excluding one car porch, the area is computed at 292.37 sq.meters. The Tahsildar observed that even on two occasions, it was found that the calculation was incorrect. Petitioner again preferred an appeal before the Revenue Divisional Officer which resulted in Ext.P12 order. The Revenue Divisional Officer accepted the findings of the Tahsildar. It was observed that inclusive of two car porches, the total area of the building would come to 325.37 sq.meters and after deducting one of the car porches, which is having an area of 31.92
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sq.meters, the area of the building was computed at 293.37 sq.meters and therefore there was an obligation on the part of the petitioner to pay luxury tax. The matter was again taken for revision before the District Collector who confirmed the order.
4. Two contentions are raised by the petitioner. One is that the measurement is incorrect, and secondly the two car porches ought to have been excluded.
5. I do not think that this Court should go into the factual circumstances involved in the case. Twice the matter had been considered by the competent authorities and measurement of the area had been taken. Petitioner had also produced Ext.P16 which is the measurement taken by the competent authority. One contention urged is that the second car porch ought to have been excluded. The area of the second car porch is 12.50 sq.meters. Even if the said area is excluded from 293.37 sq.meters, the total area of the building would come to 280.87 sq.meters. Under such circumstances, exclusion of the said area will not help the petitioner, from being levied with luxury tax.
6. The other contention raised is that the computation has to be made on the basis of the Kerala Building Tax Rules. I do
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not think that such a view can be taken. The plinth area has to be computed as per Section 6 of the Act, which reads as under:
## _“_ _**6. Determination of plinth area** .- The_
_plinth area of a building for the purposes of this Act, shall be the plinth area of the building as specified in the plan approved by the local authority or such other authorities as may be specified by Government in this behalf and verified by the assessing authority in such manner as may be prescribed._
_Provided that the plinth area of a garage or any other erection of structure appurtenant to a residential building used for storage of firewood or for any non-residential purpose shall not be taken into account for determining the plinth area of that building.”_
7. Learned counsel for the petitioner relies upon the judgment in **Nehrad Naina v. District Collector** _[2011 (2) KHC 810]_ wherein the learned Single Judge of this Court had remitted the matter back to the competent authority to decide on the plinth area. It was observed that the definition provided in respect of the term 'plinth area' in the Kerala Building Rules or in the Kerala Municipality Building Rules can be adopted for appropriate decision in such situation. I do not think that the
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aforesaid case lays down a proposition which can be termed as a precedent. In that particular case, such a view has been taken, taking into account the statutory provisions under the Act. The word “plinth area” is defined under Section 2(k) as under:
_“2(k): 'Plinth area” means the area included in the floor of a building and where a building has more than one floor the aggregate area included in all the floors together: Provided that in the case of a building referred to in the Explanation 2 to clause (e), the plinth area shall be calculated separately.”_
8. Section 6 of the Act relates to the determination of the plinth area. What has to be excluded from the definition of plinth area is garage or any other erection or structure appurtenant to a residential building used for storage of firewood or for any nonresidential purpose.
9. 'Veranda' of a building can also be termed as residential purpose and therefore I do not find any reason to accept the contention of the petitioner that 'veranda' cannot be included in the portion of plinth area under the Act.
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Under such circumstances, none of the contentions urged by the petitioner is sustainable. I do not find any reason to interfere with the impugned order and hence this writ petition is dismissed.
(sd/-)
**(A.M.SHAFFIQUE, JUDGE)**
jsr
