T.K. Geethakumari v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 5TH DAY OF JULY 2016/14TH ASHADHA, 1938** ## **WP(C).No. 22561 of 2016 (U)** **----------------------------** ## **PETITIONER(S): -------------** **T.K.GEETHAKUMARI, AGED 62 YEARS, W/O MOHANAN PILLAI, RESIDING AT THEKKUDUKKATHU HOUSE, PERUNGALA P.O, KAYAMKULAM VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.R.RAMADAS SRI.T.SIVADASAN** **RESPONDENT(S):** - **--------------** ## **1. STATE OF KERALA** - **REP BY THE CHIEF SSECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THRIVANATHAPURAM-695001.** **2. THE DISTRICT COLLECTOR, ALAPPUZHA DISTRICT, ALAPPUZHA, PIN-688001.** **3. THE REVENUE DIVISION OFFICER, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689121.** **4. THE TAHSILDAR,** - **KARTHIKAPPALLY TALUK, KARTHIKAPPALLY, ALAPPUZHA DISTRICT,PIN-690516.** **5. THE VILLAGE OFFICER, KAYAMKULAM , PIN-690502.** **6. THE ASSISTANT ENGINEER, PWD (BUILDING DIVISION) HARIPAD, ALAPUZHA DISTRICT-690514.** **BY GOVERNMENT PLEADER SMT.LILLY K.T.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 22561 of 2016 (U)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **-----------------------** - **P1 TRUE COPY OF THE PROCEEDINGS NO.D4.536/2011 DATED 29.6.2011 ISSUED BY THE 4TH RESPONDENT.** - **P2 TRUE COPY OF THE PROCEEDINGS NO.D4.536/2011 DATED 1.7.2011 ISSUED BY THE 4TH RESPONDENT.** - **P3 TRUE COPY OF THE APPEAL DATED JULY, 2011 SUBMITTED BYBEFORE THE 3RD RESPODENT BY THE RESPONDENT.** - **P4 TRUE COPY OF THE BUILDING TAX RECEIPT NO.2412827 DATED 13.7.2011 ISSUED BY THE 5TH RESPONDENT.** - **P5 TRUE COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **P6 TRUE COPY OF THE PROCEEDINGS NO.4282/2011D/BTA DATED 11.6.2014.** - **P7 TRUE COPY OF THE REVISION DATED AUGUST, 2014 PREFERRED BY THE PETTIIONER UNDER SECTION 13(1) OF THE ACT.** - **P8 TRUE COPY OF THE BUILDING TAX RECEIPT NO.2922886 DATED 18.8.2014 ISSUED BY THE 5TH RESPONDENT.** - **P9 TRUE COPY OF THE LETTER NO.HBS/DB2/07/2015 DATED 23.3.2016 ISSUED BY THE 6TH RESPONDENT TO THE 2ND RESPONDENT FORWARDING THEREWITH THE PLA SHOWING THE AREA OF THE PETITIONER'S RESIDENTIAL BUILDING.** - **P10 TRUE COPY OF THE PROCEEDINGS NO.B2-37755/2014 DATED 23.4.2016 ISSUED BY THE 2ND RESPONDENT.** - **P11 TRUE COPY OF THE PROCEEDINGS NO.D4-536/2011 DATED 13.6.2016 ISSUED BY THE 4TH RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL.** ## **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **A.M.SHAFFIQUE, J.** **------------------------------------** W.P.(C).No.22561 of 2016 **-----------------------------------** Dated this the 5[th] day of July, 2016 ## **J U D G M E N T** The petitioner challenges orders passed by the authorities under the Kerala Building Tax Act, 1975 by virtue of which assessment had been made calling upon the petitioner to pay an amount of 21,000/- towards building tax for a building having an₹ area of 385.86 sq.metres as well as luxury tax for a period from 2007-08 to 2017-18, which would come to 16,000/-. ₹ 2. The facts involved in the writ petition would disclose that originally an assessment was made with reference to the building in terms of Ext.P1 by which the plinth area of the building of the petitioner was shown as 368.8 sq.metres. By Ext.P2 dated 01.07.2011, the petitioner was directed to pay luxury tax in terms of Section 5A of the Act. The petitioner preferred an appeal before the Revenue Divisional Officer _inter alia_ contending that computation of the area was erroneous. It was contended that the area of the residential building will not exceed 268.36 sq.metres. The contention urged was that the open veranda on all sides, two courtyards, the garage and other buildings used for non-residential purposes were not excluded from computation. The Revenue Divisional Officer by Ext.P6 order dated 11.06.2014 directed the Taluk Surveyor to conduct a measurement. It was observed that W.P.(C).No.22561 of 2016 2 inclusive of the outhouse, the total area would come to 435.65 sq.metres. Out of which, the car porch was 16.50 sq.metres and the Nadumuttam was 13.52 sq.metres. After excluding the said area, the total area would come to 405.63 sq.metres. The Tahsildar was directed to re-compute the tax on that basis. The petitioner submitted revision Ext.P7 before the District Collector. The District Collector having considered the matter in detail obtained a report from the Assistant Engineer, PWD who filed Ext.P9 report dated 20.03.2016. Based on the said report, the Assistant Engineer observed that the area of the building which is liable to be taxed would come to 385.86 sq.metres. The District Collector, therefore, directed the Thahsildar to fix the building tax in terms with the area as reckoned by the Assistant Engineer, PWD. Pursuant to the order passed by the District Collector, Ext.P11 order had been issued by the Thahsildar. Learned counsel for the petitioner submits that the whole process by which the area had been computed was erroneous. It is stated that the area of the building had been computed differently by three authorities, which itself is enough to set aside the impugned orders. Reference is also made to judgment of this Court in _**Lillykutty v. District Collector and Others [2012 (3) KHC 157 (DB)]**_ wherein this Court had deprecated the measurement taken by three different authorities at different points of time. Further reference is also made to proviso to Section 5(5) W.P.(C).No.22561 of 2016 3 and the proviso to Section 6 to indicate that while computing the plinth area, plinth area of 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 added to the plinth area of that building. 3. It is therefore, contended that the contentions urged by the petitioner has not been considered properly and hence a re-look into the entire facts and circumstances is required. 4. Heard the learned Government Pleader who submits that the authorities have passed the order relying upon sufficient materials and there is no reason why this Court should interfere in the matter. 5. The short question to be considered is whether there is any material to indicate that the materials relied upon by the authorities below are not relevant for the purpose of deciding the building tax. It is not in dispute that plinth area of the residential building is computed in terms of Section 6 which reads as follows : _**“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_ W.P.(C).No.22561 of 2016 4 _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.”_ In the case on hand, the petitioner has not produced the building plan to arrive at a finding. The main contention urged is that the non-residential structures and the garage was not excluded from the levy of building tax. The District Collector had relied upon Ext.P9 which is a report from the Assistant Engineer, Building Section. The petitioner contends that Ext.P9 is invalid insofar it has not excluded various structures. However, the area calculation as shown in Ext.P9 would show that the total area of ground floor and first floor will come to 400 sq.metres. The area of Nadumuttam having an extent of 14.14 sq.metres has been deducted. The net area is shown as 385.86 sq.metres, which includes the sitout also. The total area of poomugham, sit out and outhouse is shown as 11.48 sq.metres, 84.35 sq.metres and 48.19 sq.metres. The Collector has only taken the area as 385.86 sq.metres, whereby, excluding poomugham, sitout and outhouse. It is pointed out by the learned counsel for the petitioner that there is no first floor. The plan indicates first floor as the stair case area. It is, therefore, apparent that the deduction as contemplated under the statute has already been given and it is not added into the total area. Further no material is produced by the petitioner to indicate the actual plinth area of the building. Therefore, when the Collector had relied upon 5 W.P.(C).No.22561 of 2016 sufficient materials to come to a conclusion that the area to be computed is 385.86 sq.metres., in the absence of any other material to suggest that the said finding is erroneous, I don't think that this Court will be justified in interfering with the order passed. 6. Coming to the judgment of the Division Bench in _**Lillykutty**_ (supra) the said judgment is passed on a particular set of facts. The contention urged was that the total measurement of terrace and veranda cannot be taken into consideration to arrive at the measurement of floor area as 50% of terrace and 50% of veranda alone had to be calculated. That was a case in which the details furnished did not indicate whether it was 50% of the terrace or 50% of the veranda or total measurement of veranda. That case was decided where the measurements were not discernible from the documents. If the petitioner had a case that Ext.P9 could not have been relied upon, he should have filed appropriate objections to Ext.P9 or he could have produced the plan showing the actual plinth area. Even before this Court, no such document is produced to indicate that the orders passed by the authorities are erroneous in any manner. Under such circumstances, the judgment in _**Lillikutty's**_ case will not help the petitioner. 7. The petitioner has also a contention that the portion of garage or any other erection or structure applied to the residential building which is used for non residential purposes has been taken 6 W.P.(C).No.22561 of 2016 into consideration. No such material is seen produced to arrive at a different finding from that of Ext.P9. Ext.P9 is prepared by the Assistant Engineer with the assistance of the Thahsildar who is well aware of computation. It is to be noticed that even as per Ext.P1 assessment, the area was fixed only at 368.8 sq.metres. The difference between the said two computations is hardly 20 sq.metres. There is no much difference which would tilt the liability to pay luxury tax. In the said circumstances, I don't find any error in the orders passed by the appellate authority and hence, this writ petition is dismissed. Sd/- ## **A.M.SHAFFIQUE, JUDGE** AV.