SEBI CHERIYAN v. District Collector, Kottayam; Revenue Divisional Officer, Palai; Tahsildar, Menachil

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945 ``` ## **`WP(C) NO. 25980 OF 2014`** ## **`PETITIONER:`** ``` SEBI CHERIYAN ADVOCATE, VILANGUPARA HOUSE, KAROOR POST, PALA. ``` ``` BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY ``` ## **`RESPONDENTS:`** ``` 1THE DISTRICT COLLECTOR KOTTAYAM – 686 001 2THE REVENUE DIVISIONAL OFFICER PALA – 686 575 3THE TAHSILDAR MENACHIL – 686 001 BY ADVS. SPL. GP – SRI.SYED M THANGAL ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 25980 OF 2014 ``` ``` 2 ``` ## **JUDGMENT** 1. Demand notice Ext.P3 dated 19.04.2011 and the order of the Revisional Authority dated 07.03.2014 Ext.P8 dismissing the revision petition are under challenge in this writ petition. 2. The question of law involved in the present case is whether a building consisting of a veranda or garage would be included in the definition of plinth area for the purpose of levying luxury tax crossing the limit of exempted area of 278.7 square meters. 3. Petitioner after obtaining the requisite permissions, approval of the plan, raised the construction of residential building having a plinth area of 262.5 square meters after excluding car porch and one-half of veranda, situated in re-survey No.69/24-1 in Block No.80 of Lalam Village. Was flabbergasted to receive communication demanding payment of luxury tax as the plinth area of the residential building exceeded the limit of 278.7 square ``` WP(C) NO. 25980 OF 2014 ``` ``` 3 ``` meters. The aforementioned demand was duly replied alleging that the veranda and garage would have been included for the purpose of assessing the plinth area. Request was also made for taking measurement. Respondent authorities conducted the measurement, included the area of 50% veranda and garage and found that it was beyond the permissible limit of 278.7 square meters, therefore, justified the demand. 4. The aforementioned order was appealed which was dismissed and then revision petition. 5. Sri.Mathew, learned counsel appearing on behalf of the petitioner in support of the grounds taken in the writ petition raised the following submissions: (1) The plinth area has been defined under Section 6 of the Kerala Building Tax Act, 1975, but on a plain and simple reading of the same, it does not speak about veranda or open areas except for garages with proviso that if the garages are being excluded for ``` WP(C) NO. 25980 OF 2014 ``` ``` 4 ``` other than residential purposes and storage of firewood, would not be included for the purpose of measurement and assessment of plinth area. The said aspect has already been examined by Division Bench of this Court in **Subhashchandrababu** v. **State of Kerala** [2006 (2) KLT 189. ] 2. There is no definition of veranda in the plinth area and by noticing the aforementioned fact, this Court in **Nehrad Naina** v. **District Collector** [2011 (2) KLT 810] taking the aid of the provisions of Kerala Municipality Building Rules 1998 found that for the purpose of measurement of plinth area, 50% of the open or cut out or veranda portion is required to be excluded. 3. The revisional authority by dismissing the revision did not assign any reasons, orders have been passed in a most mechanical and erroneous manner and urged this Court for setting aside the orders with a direction to respondents to measure the property in ``` WP(C) NO. 25980 OF 2014 ``` ``` 5 ``` terms of the judgments referred to above. 6. On the other hand, learned counsel appearing on behalf of respondents supported the impugned order and submitted that the veranda is excluded from the definition of plinth area. Assistance and aid of other Acts can only be taken when the definition of plinth area defined in the principal Act is ambiguous. Once the provisions of principal Act is clear and unambiguous, there is no need of taking assistance of other Rules for the purpose of determining the plinth area and charging of luxury tax. 7. I have heard the learned counsel for the parties and appraised the paper book. 8. It would be axiomatic to refer provisions of Section 5(5) and 6 of Kerala Building Tax Act, 1975. The same reads as under: **“Section 5(5):-** Where there are out-houses, garages or other structures appurtenant to the building for the more convenient enjoyment of the building, the plinth area of such structure shall be added on to the plinth area of the main building and the building tax assessed accordingly. ``` WP(C) NO. 25980 OF 2014 ``` ``` 6 ``` Provided that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for the purpose of storage of firewood or for any nonresidential purpose shall not be added on the plinth area of that building. **Section 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 or 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.” 9. As per the proviso to sub sections 5 and 6 of the Act, garage cannot be included for the purpose of measurement of plinth area if it is being used for non residential purposes or storage of firewood. In the present case, it is not the case of the petitioner the garage was being used for aforementioned purpose. However, taking into consideration the aforementioned provisions, the similar controversy came up for ponderance before this Court in the ``` WP(C) NO. 25980 OF 2014 ``` ``` 7 ``` Division Bench judgment **Subhashchandrababu** _**(supra)**_ and in paragraph 8, it was held that the plinth area of garage of the residential building shall not be added on to the plinth area of the building, so also any other erection of structure appurtenant to a residential building. Paragraph 8 of the judgment reads as under: “8. A conjoint reading of the proviso to S.5(5) and S.6 along with the clarificatory letter dated 2.12.2003 would show that the plinth area of the garage of a residential building shall not be added on to the plinth area of that building, so also any other erection or structure appurtenant to a residential building used for the purpose of storage of - firewood or for any non residential purpose. The finding of the learned single Judge that garage of a residential building is not eligible for exemption under the proviso to sub-s.(5) of S.5 and S.6 cannot be sustained. The reasoning of the learned Judge that garage would be added on to the plinth area only when it is used for other purposes like storage of firewood cannot be sustained. Learned Judge has placed considerable emphasis on the expression "appurtenant" placing reliance on Black's Law Dictionary, which, in our humble view, is totally misplaced. The expression "garage" used in the proviso is unconnected with the second category of cases which refers only to erection or structure used for storage of firewood or any other non residential purpose.” ## 10. Similarly, this Court in **Nehrad Naina** (supra) held ``` WP(C) NO. 25980 OF 2014 ``` ``` 8 ``` that in the absence of any definition of veranda, the definition of the plinth area provided under the Kerala Municipal Building Rules can be adopted for proper decision. In the aforementioned Rules, for the purpose of measurement of plinth area 50% of veranda is to be excluded for the purpose of property tax. Section 2(bf) of Kerala Municipality Building Rules 1999 defining the plinth area reads as under: “(bf) 'plinth area' means area of the building at the plinth level, does not include the area of open porch (not enclosed by wall) uncovered staircase and the like;” 11. State counsel further submitted that the judgment of the Single Bench with regard to the deduction of 50% of the outer area and veranda would not come to the rescue in view of the judgment rendered by the Division Bench of this Court in W.A.No.1177 of 2012 dated 29.6.2012. 12. Paragraph 4 of the judgment **Subhashchandrababu** _**(supra)**_ reads as under: “4. Learned Judge therefore concluded that a car garage is not eligible for exemption under the provisos to Ss. 5 (5) and 6 of the Act if it is used for garage of car and ``` WP(C) NO. 25980 OF 2014 ``` ``` 9 ``` that exception is available only when car garage is used for other purposes like storage of firewood. Non-residential purpose referred to in the provisos to both the Sections according to the learned Judge is a purpose other than for more convenient enjoyment of the building referred to in the charging Section, namely, S.5 (5) of the Act. Learned single Judge therefore concluded so long as garage being an appurtenant structure used for parking of vehicle, plinth area of such garage should be added to the plinth of the main residential building for assessment, and exclusion applies only when the car garage is generally not used for garage of vehicle, but when used for any Area purpose other than anything connected with residence.” 15. I am in agreement with the argument of the petitioner only vis-a-vis the garage portion and do not accept the argument vis-a-vis the outer area and the veranda portion in view of the ratio laid down in W.A.No.1177 of 2012. Accordingly, the impugned orders Exts.P3 and P8 are quashed as far as the garage portion is concerned. Writ petition is allowed to the aforesaid extent. Directions are issued to respondents to remeasure the property in terms of judgments referred to above and find out the exact plinth area within period of three months from the date of the ``` WP(C) NO. 25980 OF 2014 ``` ``` 10 ``` receipt of certified copy of the judgment and if it is found to be less than the permissible limit, there will be no liability to pay luxury tax, otherwise demand can be raised in accordance with law. At this stage, learned counsel for the petitioner submits that substantial amount of luxury tax has already been paid. It is found that petitioner is not liable to paid luxury tax, the same can be refunded. **Sd/-** **AMIT RAWAL JUDGE** nak ``` WP(C) NO. 25980 OF 2014 ``` ``` 11 ``` ## **`APPENDIX OF WP(C) 25980/2014`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1: ``` ``` A TRUE COPY OF THE ORDER OF ASSESSMENT BY THE 3RD RESPONDENT DATD .4.2011. ``` ``` EXHIBIT P2: ``` ``` A TRUE COPY OF THE NOTICE OF DEMAND BY THE 3RD RESPONDENT DATED 4.2011. ``` ``` EXHIBIT P3: ``` ``` A TRUE COPY OF THE PROCEEDING OF THE 3RD RESPONDENT DATED 19.4.2011. ``` ``` EXHIBIT P4: ``` ``` A TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. ``` ``` EXHIBIT P5: ``` ``` A TRUE COPY OF THE RECEIPT FOR PAYMENT OF RS.2,000/- ``` ``` A TRUE COPY OF THE MEMORANDUM OF EXHIBIT P6: REVISION DATED 29.8.2013 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. ``` ``` EXHIBIT P8: ``` ``` A TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, KOTTAYAM DATED 7.3.2014. ```